Programmatic Management for gravel

excavation for the Neosho and Cottonwood

Rivers in Kansas

Kansas Department of Wildlife and Parks

2008

This document was prepared for management of rare and endangered species in
accordance with the Kansas Nongame and Endangered Species Act (K.S.A. 32-957-963,
32-1009-1012, 1033; K.A.R. 115-15-1-4). Information from field surveys and
coordination with state and federal agencies, gravel harvesters, and species experts was
used in the development of this plan. Funding for this project was provided through a
State Wildlife Grant administered by the Kansas Department of Wildlife and Parks.
Technical assistance was provided by the Division of Biology at Kansas State University.
 Table of Contents

Summary 1
Relevant state-listed species 2
Definitions 3
Mathematical information 4
Economic information 5
History 6-11
Methods 11
Results of surveys 11
Discussion 11-13
Existing management conditions 13-14
Future management 14
Quantification of available habitat 14-16
Management recommendations 16-19
Future monitoring recommendations 19
Literature cited 20
Tables 21-25
1. A comparison of Neosho madtom populations and characteristics of mesohabitat
types.
2. Number of days per calendar year that flow exceeded bankfull discharge (18,000
ft3/s), compared with annual gravel harvest reported from all commercial
operations combined and population density of Neosho madtoms.
3. Cumulative list of projects reviewed by KDWP ESS related to gravel harvest
from the Neosho and Cottonwood mainstreams.
4. Summary of data for each river reach as identified in Fig. 1.
5. Comparisons of gravel bar numbers from Eberle and Stark’s 1994 ground-truth
study to 2006 aerials.
Figures 26-58
1. Neosho River basin in Kansas.
2. Walker bar
3. Labette County’s south site
4. Labette County’s site just north of the Highway 160 bridge east of Oswego, KS.
5. Dickinson #1.
6. Dickinson bars #2 & 3.
7. Downstream control site for the Ledford bar.
8. Ledford bar.
9. Upstream control site for the Ledford bar.
10. Chappell bar.
11. Wagner bar.
12. McAtee South bar.
13. McAtee control bar beneath state highway 57 bridge west of St. Paul, KS.
14. Blackburn bar.
15. Adam’s riffle.
16. Spielbusch bar.
 17. Wright/Murray downstream control for site #1.
18. Wright/Murray excavation site #1.
19. Wright/Murray excavation site #2, plus up and downstream control sites.
20. Neosho madtom population trends related mean annual flow (X = 2734 cfs).
21. Reach #1, Kansas-Oklahoma border to the Chetopa dam at Chetopa, KS.
22. Reach #2, Chetopa dam to the dam at Oswego, KS.
23. Reach #3, Oswego dam to the dam near Montana, KS.
24. Reach #4, Montana dam to the dam southeast of South Mound, KS.
25. Reach #5, South Mound dam to the dam directly south of Erie, KS.
26. Erie dam to the Chanute south dam located southeast of Chanute, KS.
27. Reach #7, City of Chanute’s south dam to the dam located in Humbolt, KS.
28. Reach #8, Humbolt dam to the dam on the west edge of Iola.
29. Reach #9, Iola’s dam to the dam on the east edge of Neosho Falls.
30. Reach #10, Neosho Falls dam to the dam on the northeast edge of Burlington.
31. Reach #11, from the backwater pool of John Redmond reservoir to the dam on the
Neosho River located on the north side of Emporia.
32. Reach #12, from Emporia’s most downstream dam on the Neosho River to
Council Grove reservoir.
33. Reach #13, the Cottonwood River from the confluence with the Neosho River
upstream to the Marion-Chase County line.

Attachment 1 – Species sheets

Attachment 2 – Tolluch Rule
Attachment 3 – Biological Opinion
Attachment 4 - Manuscript (Davis and Paukert, 2008, under review)
Attachment 5 – File summaries
Attachment 6 - Annual report request letter
Attachment 7 - Recommended permit conditions
Summary

This report provides an update to programmatic management of gravel harvest

permits on the Neosho and Cottonwood Rivers. In 1998, the Kansas Department of
Wildlife and Parks adopted management guidelines developed by the U.S. Fish and
Wildlife Service (USFWS) through Section 7 consultation with the U.S. Army Corps of
Engineers in 1995. The guidelines set forth by the USFWS’s biological opinion focused
on potential impacts to the Neosho Madtom (Noturus placidus) by restricting the number
and location of gravel harvest operations until adequate field surveys could be conducted
to determine the whether bar scalping operations had an effect on madtom populations.
The ensuing 12 years of monitoring (1996-2007) demonstrated that Neosho madtom
populations showed no correlation to the presence of gravel bar scalping, but population
fluctuations were positively correlated to mean annual discharge and habitat quality. The
effects on gravel harvest on stream morphology, water quality, bank erosion, bedload
movement, habitat quality and quantity, and other state-listed species were not studied.
In light of the information obtained through field surveys, KDWP has determined
that Neosho madtoms can maintain viable reproducing populations under the current
management strategy; however, requests for gravel harvest permits have recently
exceeded the number permitted under the current management guidelines. As such,
KDWP has determined that an increase in the number of gravel harvest operations is a
reasonable alternative with respect to the current scientific information available.
Nevertheless, continued restrictions are necessary in order to prevent excessive
reductions in bedload supply and secondary impacts to aquatic habitat, water quality and
state-listed species. Therefore, this plan offers an increase in the number of available
permits, but calls for prudent limitations to gravel harvest in order to effectively maintain
viable populations of state-listed species in the Neosho and Cottonwood Rivers.
The following recommendations are proposed:
1. Maintain moratorium on state T&E permits for in-stream gravel dredging (see
definition, pg. 3) in the Neosho and Cottonwood Rivers, as well as on all forms of
gravel harvest in the Spring River.
2. Increase the amount of permits from 25 commercial and 10 domestic to 40 total
permits, eliminating the differentiation of domestic versus commercial use
permits
3. Allow gravel harvest on a maximum of 10% of all gravel bars in the Neosho and
Cottonwood Rivers, with 22 sites available above John Redmond dam and 18
below.
4. Adjust restrictions on bar spacing by prohibiting harvest from successive gravel
bars and allowing leverage for permit decisions or special restrictions on
applications downstream from bank stabilization structures.
5. Require a thorough biological assessment prior to harvest activities for state-listed
species. Special restrictions may be enforced on sites that offer unique or
significant habitats or populations of state-listed species.
6. Discontinue annual monitoring of the Neosho madtom from all gravel harvest
sites, but continue to survey selected sites to compliment USFWS annual
population surveys.

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The following state-listed species will be affected by this programmatic management
plan (subject to change). Information on species is found in Attachment 1

E - Neosho Mucket Mussel (Lampsilis rafinesqueana)

E - Rabbitsfoot mussel (Quadrula cylindrica)
T - *Neosho Madtom (Noturus placidus)
T - Butterfly Mussel (Ellipsaria lineolata)
T - Flutedshell Mussel (Lasmigona costata)
T - Ouachita Kidneyshell mussel (Ptychobranchus occidentalis)
SINC – Blue Sucker (Cycleptus elongatus)
SINC – Bluntnose Darter (Etheostoma chlorosoma)
SINC – Creeper Mussel (Strophitus undulatus)
SINC – Deertoe Mussel (Truncilla truncata)
SINC – Fat Mucket Mussel (Lampsilis siliquoidea)
SINC – Fawnsfoot Mussel (Truncilla donaciformis)
SINC – Gravel Chub (Erimystax x-punctatus)
SINC – Highfin Carpsucker (Carpiodes velifer)
SINC – River Darter (Percina shumardi)
SINC – River Redhorse (Moxostoma carinatum)
SINC – Round Pigtoe Mussel (Pleurobema coccineum)
SINC – Spike Mussel (Elliptio dilatata)
SINC – Wabash Pigtoe Mussel (Fusconaia flava)
SINC – Wartyback Mussel (Quadrula nodulata)
SINC – Washboard Mussel (Megalonaias nervosa)
SINC – Yellow Sandshell Mussel (Lampsilis teres)

* also federally listed (T) under the Endangered Species Act

2
Definitions

1. Bedload – the portion of the total sediment load of a river which is transported by
sliding, rolling, and bouncing over the bed (typically < 3” from bed)
2. Bar scalping – the method of removing gravel from a point bar (depositional
point) without disturbing the wetted channel. Gravel is “scalped” off the top of
the bar using a front-end loader or other “bucket” type of heavy equipment.
Removal occurs under low-flow conditions, thus the lower the flow, the more
gravel is exposed and available for removal. Substrate in the wetted channel is
not disturbed.
3. Dredging – removal of gravel from point bars from elevations both above &
below the surface water elevation at the time of harvest. This type of gravel
removal is much more invasive, actually removing substrates inundated and
providing habitat for aquatic life during the time of harvest. The point bar is not
left with a “flat-top”, often it is entirely removed, at times down to bedrock. The
dredged portion of the river is converted to a large pool generally.
4. Ordinary High Water Mark (lower Neosho River) - 11.5 feet above ZERO at the
gauge on the bridge footing where state highway 57 crosses the Neosho River
west of St. Paul, KS (Edgecomb, personal communication)
5. Suspended load- portion of the total load, which is supported by turbulence within
the water column. Generally made up of finer materials that are suspended during
turbulence, but settle out once flows diminish.
6. Taking - To harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or
collect, or to attempt to engage in any such conduct; may include significant
habitat modification or degradation if it kills or injures wildlife by significantly
impairing essential behavioral patterns including breeding, feeding, or sheltering.

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Mathematic information

The weight of gravel extracted from the river is approximately 3,100-3,300 lbs/cubic
yards. This value is based on conversations with gravel harvesters and comparisons
with specific gravity values for sand and gravel (gravel is rarely “clean”, it is often
intermixed with sand and other materials).

1 cubic yard (yd3) = 27 ft3

1 yd3 = 3,200 lbs = 1.6 ton (avg.)
1 yd3 of river gravel = 1 ton of washed gravel (appx)
Single axel ten (10) ton dump truck can haul ~7 yd3 of gravel
Tandem axel can haul 15 ton ~9-10 yd3 of gravel
18-wheeler flatbed can haul 20 ton, ~12-13 yd3 of gravel
100 yd3 (domestic use permit) = ~14 truck loads (10 ton) of gravel
1 yd3 can cover approximately 160 square feet (ft2) with 2 inches of gravel
1 yd3 can cover approximately 13 feet of a 12’ wide road or drive way w/2” of gravel
100 yd3 can cover approximately ¼ mile of 12’ wide roadway with 2” of gravel

Costs (fluctuate with fuel prices, current rate ~$4/gal, diesel)

1 yd3 raw river gravel = $4-5
1 ton raw river gravel = $2-3
1 ton washed = $16 (McAtee)
1 ton screened = $30-35 (Wright)

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Economic information:

Gravel is used for a variety of purposes such as, base material beneath foundations,
and surface material for roads, driveways, shop floors, landscaping, etc. Other harvesters
screen or wash gravel and sell it as decorative rock, with the residual sand and smaller (<
¼”) material used for concrete aggregate. River gravel is widely regarded as a superior
material due to the fact that it does not weather or degrade as quickly as crushed rock
(limestone). Gravel is prices average $2-3 per ton, or $4-5 per cubic yard, while
decorative rock brings around $30-35/ton (washed or screened). Hauling gravel adds a
tremendous expense due to the added cost of fuel. A hauling truck may only get 4-5
miles per gallon of fuel, and hauling costs for purchasers are generally several dollars per
mile at current fuel rates of $3-4 per gallon. The price of fuel is the major expense for
gravel harvesters as well, since heavy equipment is required to build roads, clear timber,
and harvest gravel. The rising costs of fuel prices in the last 4-5 years have reduced the
profitability of harvesting river gravel, although requests for permits have risen. Based
on the reports from commercial gravel harvesters in the Cottonwood and Neosho Rivers
(n=7), the average annual harvest amount harvested from these rivers is ~5,000 yds3/yr.
Approximately 80% of that is used as construction material and 20% is sold as decorative
rock; thus, the average annual monetary value of river gravel is approximately $45,000-
$50,000/yr. This does not include the value obtained by landowners who have domestic
harvest permits for personal use. Hauling fees may provide additional income to
harvesters; however, since most rock is delivered locally this amount is not expected to
be significant.
In recent years (2004-present), there has been increased interest in harvesting gravel
from the Neosho and Cottonwood Rivers, primarily for use as road surface material.
Rising fuel costs have prompted local operations to investigate optional sources for road
surface materials. For example, Beachner Grain, a large feedlot located NE of Parsons,
KS demonstrates the desire for large agricultural or farming operations to maintain their
own internal roads with river gravel without having to purchase material from outside
sources. Cherokee County has been attempting to purchase river gravel recently
apparently because regulations have prohibited or restricted their historic use of mined
chat as road base. Neosho County road and bridge department requested a permit to
harvest gravel for construction and maintenance projects.

5
History

Sand and gravel excavation has been occurring in Kansas for decades, particularly as the
region became more industrialized late 19th and early 20th centuries. Sand and gravel are
used for a variety of purposes, most notably as aggregate material for use in the
production of concrete. Other uses include road base, fill material, snow and ice
treatment, aesthetics, etc. Removing materials from rivers and streams is often preferred
to pit operations, crushing stone, and recycling. Generally the material is higher in
quality to that of crushed stone, it is easier to access than pit operations, and is cheaper to
obtain than alternative sources or recycling.
Removing gravel from streams has been a common practice for local farmers,
ranchers and road maintenance crews for decades in the Neosho and Cottonwood Rivers.
Although regulations governing gravel dredging have been in place for many years,
permitting agencies had little knowledge of such activity and gravel dredgers had little
knowledge of regulations. Not until the early 1990’s did the regulatory agencies become
involved in the harvesting of gravel from the Neosho and Cottonwood River basins.
Today, all operations that remove gravel or sand from a stream or river require state
permit; however, some small, domestic (personal) use operations may be exempted if
they harvest 100 cubic yards or less in a one-year period. Larger operations that harvest
more than this threshold are defined as commercial harvesters. These operators typically
are excavating sand and gravel and selling it to a client, such as a county road
department, aggregate plant, construction contractor, decorative rock supplier, etc.
Commercial harvesters may excavate thousands of cubic yards of material from rivers or
streams; therefore, they have a greater potential to change the dimensions of a waterway,
which in turn can affect how a river flows, impact adjacent landowners, property rights,
infrastructure, water quality, and fish and wildlife habitat. As a result, these operations
are more scrutinized in the process of obtaining state and/or federal permits in order to
protect public and private resources.
The primary statute that governs sand and gravel removal in Kansas is the Stream
Obstructions Act (K.S.A. 82a-301 to 305a), which requires a permit from the Chief
Engineer of the Kansas Department of Agriculture’s Division of Water Resources
(DWR) for projects that “change or diminish the course, current, or cross section of any
stream within this state.” (K.S.A. 82a-301(a)). All operations must apply for a permit
from DWR; however, operations that extract less than 100 cubic yards of material
annually on streams of less than 50 square miles of drainage may be exempted from the
permit requirement if they meet certain criteria (see DWR regulations, K.A.R. 5-46-3). In
addition to the Stream Obstructions Act, if materials are stockpiled in the floodplain of a
river or stream the applicant may need approval from DWR’s Chief Engineer in
accordance with the The Levee Law (K.S.A. 24-126).
Under federal regulation, the U.S. Army Corps of Engineers (COE) requires a
permit for dredging in “navigable” waters under Section 10 of the Rivers and Harbors
Act of 1899 (33 U.S.C. 403), which, in Kansas, includes the mainstream Arkansas,
Kansas, and Missouri Rivers. In addition, from 1993 – 1997 the COE had temporary
regulatory authority over the removal of sand and gravel from rivers and streams in
Kansas through Section 404 of the Clean Water Act (33 U.S.C. 1344). This period of
jurisdiction was brought about by what is commonly known as the Tolluch Rule

6
(Attachment 2); however, in 1997 the U.S. District Court in Washington, D.C overturned
this ruling. Today, the Corps does not require a permit for the excavation of sand and
gravel from rivers other than the Arkansas, Kansas, and Missouri; however, if an operator
stockpiles material, even briefly, below the ordinary high water mark (as determined by
the Corps), a 404 permit is required. For gravel harvesters this means that the Corps does
not require a permit if the excavation activity is performed by “scooping” the material
from the waterway (e.g. with a backhoe or excavator); however, if the material is
“pushed” into a pile (e.g. with a bulldozer) and then loaded, this would result in a
temporary stockpile, and thus require a section 404 permit. Most gravel harvesters that
operate on non-Section 10 waters (such as the Neosho or Cottonwood rivers), load the
material directly onto trucks or stockpile it above the ordinary high water mark, thus
obviating the need to obtain a COE Section 404 permit.
The Kansas Department of Wildlife and Parks (KDWP) has permitting authority
for projects that impact state-listed Threatened (T) or Endangered (E) species under the
purview of the Kansas Nongame and Endangered Species Conservation Act (KNESCA)
(K.S.A. 32-957-963, 32-1009-1012, 1033; K.A.R. 115-15-1-4). A T&E permit from
KDWP may be required if the project is obligated to obtain another state or federal
permit, and/or uses public funds, and/or does not violate federal or state law. The
KDWP’s Environmental Services Section (ESS) reviews such projects and determines
whether state-listed species will be impacted and whether such impacts require a T&E
permit. Since all sand and gravel excavations require a DWR permit, KDWP has the
opportunity to review all these projects and make permit decisions with regard to T&E
species. Generally, these projects are reviewed through interagency public review
process required by the Environmental Coordination Act (K.S.A 82a-325-327). The ESS
reviews COE 404 and Section 10 permits through agency coordination and Public
Notices issued by the COE.
Despite the fact that several species in the Neosho and Cottonwood Rivers have
been listed by KDWP as T&E or SINC (species in need of conservation) since the
inception of the KNESCA in the 1970’s, gravel excavation in these rivers went largely
unregulated until the early 1990’s when the Neosho madtom (Noturus placidus) was
petitioned and determined to be Threatened (T) by the U.S. Fish and Wildlife Service
(USFWS) under the federal Endangered Species Act (ESA). Shortly thereafter, a report
from the public identified a gravel dredging operation on the Neosho River near Emporia,
KS. Investigations found gravel harvesters were operating in the wetted channel, pushing
gravel out of the river, and significantly affecting habitat for the Neosho madtom. The
operator had not obtained state or federal permits to conduct the activity. Other
operations, primarily bar scalping, were discovered on the lower Neosho River between
John Redmond and the Kansas-Oklahoma border. These operations applied for DWR
permits, however, during the period from 1990 – 1993 there was no federal nexus that
required Section 7 consultation (ESA) with the USFWS on the issue of gravel harvesting
and its effects on Neosho madtoms. As such, the only nexus to the federal ESA was
through the KNESCA, which required KDWP to comply with federal law when issuing
state T&E permits. Although the effects of in-channel dredging gravel were obvious, the
effects of bar scalping were not. Therefore, KDWP and the USFWS brought together
species experts to discuss the potential effects of bar scalping on the Neosho madtom.
Experts concluded that the effects are unknown, but could potentially result in harming

7
Neosho madtoms because of the secondary effects of removing habitat that will be
available under periods of temporary inundation. It was assumed that madtoms would
migrate onto gravel bars during high flows and use these areas for various life-history
requirements (e.g. foraging, spawning, recruitment, etc.). Due to the unknown impacts of
gravel excavation on the Neosho madtom, and the requirement to comply with the ESA,
KDWP issued a moratorium from 1991- 1995 on gravel excavation in the madtom’s
range, including the Cottonwood, Neosho, and Spring rivers in Kansas.
Federal regulations changed in 1993 with the lawsuit in North Carolina that
brought into effect the Tolluch Rule. This ruling added incidental fallback under
regulation of Section 404 of the Clean Water Act, and as a result gravel harvest in Kansas
became a federally regulated action and the COE was required to consult with USFWS in
accordance with the ESA. It was through Section 7 (ESA) formal consultation between
the COE and USFWS that a programmatic management plan was developed for gravel
harvest in the Neosho, Cottonwood Rivers (no gravel harvest was proposed, nor permits
available for harvest in the Spring River). The USFWS formulated the opinion that
allowing gravel extraction from the Neosho and Cottonwood rivers was likely to
jeopardize the existence of the Neosho madtom unless limitations were in place. The
basis for the opinion was that the Neosho madtom was already severely threatened due to
significant loss and alteration of critical habitats, and potential threats to water quality
still existed for the species. It was determined that additional impacts from unlimited
gravel excavation may have jeopardized the existence of the species. Over 1/3 of original
stream mileage in the madtoms historic range had been rendered unsuitable due to
construction of multiple reservoirs and low-head dams on the Neosho and Cottonwood
rivers in Kansas and Oklahoma. In addition, hundreds (100’s) of headwater
impoundments in the Neosho and Cottonwood watersheds were proposed by the U.S.
Department of Agriculture’s Natural Resource Conservation Service (NRCS) and state-
funded Watershed Joint Districts for flood-control purposes. If these projects received
funding, there was potential for additional alterations to stream hydrology and
morphology in the Cottonwood and Neosho rivers. In fact, the USFWS had already ruled
that the construction of these impoundments alone would jeopardize the existence of the
Neosho madtom through previous Section 7 consultation with the COE and NRCS. The
added threat of unlimited gravel harvest in the madtom’s remaining range would add to
the potential threats to the species existence.
In the Biological Opinion (1995- Attachment 3) the USFWS addressed four
possible sources of impact to the Neosho madtom from the proposal to permit gravel bar
scalping in the Neosho and Cottonwood Rivers:

1. Destruction of individual madtoms – USFWS and COE agreed that madtoms

were not likely to be directly killed by bar scalping
2. Destruction of unavailable habitat – USFWS and COE agreed that madtoms may
migrate onto gravel bars during high-water events and use temporally inundated
habitat. The USFWS contended that removing the gravel may result in the
destruction of habitat.
3. Siltation of habitat – USFWS and COE agreed that unknown amounts of siltation
could result from repeated excavation of gravel bars, thus adversely affecting the
madtom.

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 4. Reductions in the base-load of gravel – USFWS and COE agreed that gravel is a
finite resource in the basin and that excessive removal could lead to habitat
degradation through increased erosion and water quality degradation; however,
the COE contended that adverse impacts to the madtom are not likely to occur,
provided there was not “excessive” removal of bedload material (gravel). The
USFWS questioned what volume of gravel would constitute “excessive” and
postulated that historical gravel excavation from the rivers may have limited the
supply of this finite resource. Further reductions could result in significant
adverse impacts to the species habitat, thereby jeopardizing the existence of the
Neosho madtom. As such, they recommended strict management of gravel
harvest operations until there was data to demonstrate whether or not the madtom
could maintain viable populations with additional habitat removal.

The USFWS suggested two (2) alternatives for the COE to adopt when
determining whether to permit gravel extraction:

1. Deny all applications for gravel removal in the Neosho and Cottonwood rivers
and require applicants to obtain gravel from smaller streams, pit operations or
upland quarries.
2. Prohibit gravel harvest from the Spring River if future requests were submitted for
this basin, but allow for limited gravel harvest in the Neosho and Cottonwood
rivers
a. Allow 10 gravel bars to be commercially harvested (> 100 cubic yards
annually)
i. No more than 2 commercial harvest sites between any pair of low-
head dams. At the time there were 17 low-head dams (Fig. 1),
with the most upstream dams located at Cottonwood Falls, KS
(Cottonwood River) and near Americus, KS (Neosho River).
ii. The applicant must guarantee monitoring, including site access and
assistance in the labor.
b. Allow 25 gravel bars to have domestic (< 100 cubic yards annually)
permits. No restrictions were proposed on location, and no monitoring
requirements were necessary with these permits.

Justification for determining the number of bars came from consultation with
species experts. At the time, the amount of available habitat was estimated by counting
gravel bars using 1986 aerial photography (Edds, 1993) and then ground truthing those
estimates (Eberle and Stark, 1995). Based on this information, the USFWS estimated
there were approximately 500 gravel bars in the mainstream Neosho and Cottonwood
Rivers, ranging from the low-head dams at Cottonwood Falls and Americus downstream
to the Kansas-Oklahoma border. It was estimated that until data could be collected to
determine potential impacts, 5% of the gravel bars in the madtom’s range could sustain
domestic use permits (n=25), while 2% could sustain commercial use (n=10). In
addition, restricting the number of gravel harvest locations between low-head dams was
an attempt to minimize the possibility that any one particular reach would be depleted of
bedload material.

9
 Monitoring was to include madtom population data comparisons from control
versus treatment sights and pre-post harvest. In addition to the madtom monitoring
requirement, other permit conditions were recommended including water quality
protection measures, prohibiting vehicles and equipment in the wetted channel, removing
gravel via bar scalping method only, not excavating below the water table elevation,
maintaining appropriate contours to gravel bars, etc.
If COE adopted the recommendations in alternative #2 of the Biological Opinion,
the USFWS would allow for incidental take to occur (alternative #1 was not likely to
happen since most applicants could not incur costs associated with developing gravel
pits). Concurrent to the formulation of the Biological Opinion, KDWP lifted their
moratorium on gravel harvest operations, provided the applicant obtained the necessary
COE permit. Alternative #2 was accepted by all parties, and beginning in 1996 gravel
harvesting resumed on the Neosho and Cottonwood Rivers with KDWP largely assuming
the role of collecting the data for the monitoring requirement.
The initial study was to coincide with the term of the COE permits, which were
anticipated to be from 3-5 years. However, in 1997 the U.S. District Court overturned
the decision regarding “incidental fallback” and as result the Tulloch Rule was negated.
The Corps no longer regulated gravel harvest operations under the purview of Section
404 of the Clean Water Act and the recommendations and management guidelines
formulated through Section 7 consultation with the USFWS were negligible. However,
KDWP adopted the management policy detailed in the Biological Opinion to insure
compliance with ESA under the KNESCA. Thus, gravel harvest operations and the
monitoring program continued without interruption. The initial timeframe of 3-5 years
for data analysis lapsed to 12 years due to staff changes, funding constraints, and the
surplus of available gravel harvest permits.
In 2004 KDWP’s ESS began receiving additional requests to harvest gravel from
the lower Neosho River near St. Paul, KS. Applications were denied because of the 2 bar
limit for commercial operations between low-head dams. The reaches from Chetopa to
Oswego, Oswego to Montana, and South Mound to Erie had the maximum limit of
commercial operations allowed under the Biological Opinion. In addition, requests were
made by existing permit holders to relocate commercial operations to gravel bars that had
more robust deposits available for harvest. The Neosho basin had been in 4 years of
consecutive drought and flows capable of moving and depositing fresh gravel supplies
had been rare or entirely absent. There were no provisions in the Biological Opinion that
addressed relocating gravel bar operations when reviewing permit applications. As a
result, the need to analyze the monitoring data to determine potential effects became a
priority for KDWP. The results of these annual surveys from 1996-2007 are presented in
the attached manuscript (Attachment 4).

This report and the attached manuscript have been developed for 3 main purposes:

1. To evaluate the data from the monitoring program that has been occurring from 1996-
2007 in an attempt to ascertain if bar scalping has any impact on Neosho madtom
populations
2. To update the management guidelines that pertaining to gravel excavation in the
Neosho and Cottonwood rivers

10
3. Review and update the monitoring strategy for the Neosho madtom as it pertains to
gravel harvest permits on the Neosho and Cottonwood rivers

Methods

During the course of the study from 1996-2007 we sampled 20 gravel bars and
information on sampling techniques can be found in the manuscript (Attachment 4).
Figures 2-19 show aerial photographs (FSA, 2006) of each site along with information on
location, permittees, period the site was sampled, and mesohabitat classification.

Results of surveys

No significant correlation was found between Neosho madtom populations and bar
scalping activities. Madtom populations fluctuated between sites contingent upon habitat
quality, with sites classified as riffles or runs having significantly higher madtom
populations than sites classified as point bars (Table 1). Annual fluctuations in
populations were strongly (P=0.01) correlated to hydrological fluctuations (Fig. 20).
These two variables, habitat quality and mean annual discharge, dictated population
fluctuations more so than any identifiable effect of bar scalping. For a detailed account
of the survey results see Attachment 4.

Discussion

In essence, the same question exists today as it did 13 years ago during the
formulation of the Biological Opinion. Adverse impacts to the Neosho madtom and other
state-listed species should not occur, provided the overall aquatic habitat is not degraded
through excessive bedload reductions. It is still not known what amount constitutes
“excessive” or how long it would take for impacts to become manifested. It appears that
under the management strategy provided through the Biological Opinion, the Neosho
madtom is capable of maintaining viable reproducing populations; however, the study did
not assess other species that depend on gravel. Fifteen (15) freshwater mussels and seven
(7) fish species occurring in the Neosho or Cottonwood River are listed as Endangered,
Threatened, or In-Need-of-Conservation by KDWP. Each one of them relies upon gravel
substrate for all or part of their life-history requirements. Thus, understanding bedload
transport and protecting gravel supplies from depletion and is not just pertinent to the
Neosho madtom, but to many other species as well.
The effects of bar scalping on aquatic fauna populations are surely more indirect
and difficult to measure compared to in-channel dredging. Permitting of in-channel
dredging, or dredging “in the wet” has not been permitted within the jurisdiction of
KDWP, nor is it is the preferred method of gravel harvest for most operations. The
challenge of future management is the same as it has been in the past. As a resource
agency legally responsible for the protection of state-listed species, how does KDWP
permit the removal of bedload material by bar scalping without exceeding an amount that
will exacerbate habitat degradation for such species?
In order to determine a “safe-yield” of bedload material that can be removed
without causing negative impacts, theoretically, one would need to know the amount of

11
bedload movement in each respective reach of river. Unfortunately this information is
not available, although proposals have been submitted by the U.S. Geological Survey
(USGS) to research such topics related to bedload movement (Juracek, personal.
communication, 2008). Research on the Neosho River has demonstrated that gravel is a
finite resource limited to supplies within the alluvium (Juracek and Perry, 2004). These
authors suggest that gravel moves out of an approximately one-meter thick basal layer
located near the bottom of the alluvium in the Neosho floodplain, and is deposited on
point bars just downstream of the source material. This erosion and deposition process of
bedload movement typically occurs under infrequent high-flow events; however, what
flow conditions are necessary to move bedload has yet to be accurately determined.
Although gravel removed by permitted harvesters is generally depositional
material already scoured from basal deposits in the alluvium, we found no specific
information on what percentage of bedload in the active channel is relocated under
various flow scenarios. Previous authors have suggested that gravel bars are not just
depositional points for bedload, but may constitute important sources of bedload moving
downstream (Collins and Dunne, 1990; Kondolf, 1997; Langer, 2002). The state of
Missouri cites the effect of “hungry water” as a result from bar scalping in their Pollution
Prevention and Compliance Guide for Sand and Gravel Removal (MDNR, 2007).
Existing depositional material in the active channel likely comprises some percentage of
bedload supply to downstream gravel bars; however, as with many aspects of measuring
bedload movement, the percentage this material constitutes in overall bedload movement
is poorly understood.
Rosgen (1996) suggest that the bankfull flows generally dictates channel
morphology. In 2005, KDWP hired The Watershed Institute (TWI) to assess the
dimension, pattern and profile using Rosgen’s classification system at four (4) locations
on the Neosho River near St. Paul, KS, two (2) commercial gravel harvest sites and two
(2) unharvested sites. Estimates from TWI were that bankfull discharge is around 18,000
ft3/s (Emmert, personal communication, 2008). Using USGS gauge data from near
Parsons, KS, we determined the number of days in each calendar year that surpassed the
estimated bankfull discharge during the course of the study (Table 2); however, we had
no reliable data to determine how much gravel moved during these years. Attempts to
use gravel harvest data for possible bedload movement did not correlate well with
number of days over bankfull discharge. For example, 2006 had the 2nd lowest
percentage of days in which the river was running at bankfull, therefore, we would
assume very little bedload moved during 2006. Nevertheless, more gravel was excavated
that year than any other. Conversations with gravel harvesters indicated that often they
did not harvest all the available gravel in any given year. Furthermore, they may not
have been able to access the river during wet years, demand for gravel may fluctuate
between years dictating the amount harvested, gravel may have been reported as sold in
one year, but actually harvested in a previous year, etc.
In order to develop a suitable management plan for gravel harvest, it is important
to discuss additional variables that limit bedload movement. Flow regimes in the Neosho
and Cottonwood rivers are regulated by three major flood-control impoundments, Marion
Reservoir on the Cottonwood, Council Grove on the upper Neosho, and John Redmond
on the Neosho slightly downstream of it’s confluence with the Cottonwood (Fig. 1). The
impact flood control impoundments have on stream dynamics is considerable,

12
particularly during the bankfull or greater flows. The effect of attenuating large floods
theoretically would also reduce bedload movement, although the precise effect is
unknown. One gravel harvester who has been operating prior to the construction of John
Redmond dam (1964) pointedly noted that gravel movement has been diminished since
the dam began flood control operations (Shepard, personal communication, 2007). The
specific impacts on bedload movement, or the secondary effects to state-listed species are
simply unknown. Nevertheless, it is prudent to assume that replenishment rates to
harvested bars have been reduced due to attenuated bankfull flows.
Bedload transport is also affected by various anthropogenic channel alterations
that alter the natural process of erosion and deposition. Armoring banks with riprap, or
using thalweg relocation structures such as rock weirs, jetties, vanes, etc. prohibits
sediment acquisition from the alluvium (cut banks). In turn, by eliminating bank scour
the river is prevented from obtaining gravel from the basal gravel layer within the
alluvium. Of course, this is the very reason why such structures are constructed, to
reduce erosion. Although, hard bank stabilization structures will tend to dissipate energy
by increasing friction; riprap in particular typically becomes undermined over time,
resulting in collapse of the material, bank failure, and accelerated erosion. Thalweg
relocation structures dissipate energy and relocate the thalweg away from the bank, thus
reducing stream energy and bank erosion, but they also induce localized bed degradation,
forming a deeper thalweg off the end of the structures. Whether or not bendway weirs
are affecting habitat quality or quantity is currently being studied at a project site near St.
Paul, KS; however, results are not yet available (Triplett, personal communication, 2008).
Regardless, the cumulative effect of bank armoring on sediment transport in the Neosho
or Cottonwood basins is unknown. As such, we have attempted put appropriate
consideration into this issue when formulating gravel harvest management for this report.
Due to multiple anthropogenic variables, the dynamics of flowing systems,
variations in basal deposits supply, and the unknown contribution of existing in-channel
depositional material to bedload movement, it is not possible to predict the “excessive”
threshold of gravel removal that would result in impacts to state-listed species.
Furthermore, there is little information on population trends or specific habitat
requirements of species other than the Neosho madtom with respect to bar scalping.

Existing Permits

Since 1998, KDWP has adopted the conditions of the USFWS Biological Opinion
related to gravel harvest in the Cottonwood and Neosho rivers as their management tool.
Gravel harvest permits were limited to 25 domestic (< 100 yds3) and 10 commercial (>
100 yds3), with no more than 2 commercial permits located between any pair of low-head
dams (Fig. 1). Table 3 lists the past and current requests and permits for gravel harvest in
the Neosho and Cottonwood Rivers. Each of these projects underwent an environmental
review by KDWP’s Environmental Services Section (ESS). Project information for each
environmental review, along with a narrative summary for each project can be found in
Attachment 5. Permit requests that were denied were done so either because they were
requested during the moratorium from 1991-1995, or because they did not comply with
the stipulations set forth in the Biological Opinion, typically because they would have
exceeded the limitation of 2 bars between low-head dams. Currently, there are 5

13
domestic harvest permits and 9 commercial permits granted, with 1 commercial permit
pending. Since Chase County initiated a permit application in 2007, no additional
commercial harvest permits are being accepted anywhere in the Cottonwood or Neosho
Rivers, although additional applicants have inquired about obtaining permits.

Future Management Recommendations

The premise of this report focuses on how to handle additional requests for gravel
removal from the Cottonwood and Neosho rivers. The demand for river gravel has risen
over the last few years and there are more requests for gravel harvest permits than what
the Biological Opinion allows for. Since no data is available to determine what amount
of river gravel harvest is “excessive”, we must rely on professional judgment when
making management recommendations that affect state-listed species. If we consider the
data collected on Neosho madtoms as a suitable representative of overall population
viability of other state-listed species that rely upon gravel substrates for part of all of their
life-history requirements, then we assume these additional species have not been
significantly affected by gravel removal under the management stipulations set forth in
the Biological Opinion. Operating under that assumption, we feel confident that relaxing
the current gravel harvest limitations would not result in a significant impact on any state-
listed species’ ability to maintain a viable reproducing population, assuming that such
species are capable of doing so at present. In addition, by increasing the number of
gravel harvest permits, KDWP will be able to accommodate additional requests by the
public, while continuing to provide prudent management of state-listed species.

Quantification of available habitat

We attempted to ascertain the amount of available habitat in the madtom’s range
in order to manage the species effectively, just as was done for the development of the
Biological Opinion in the early 1990’s. Similarly, we determined that counting gravel
bars was a legitimate way to determine the amount of available habitat to state-listed
species that depend upon gravel substrates. We acquired data from previous attempts to
count gravel bars from the Neosho and Cottonwood Rivers (Edds, 1993; Eberle and
Stark, 1995). Dr. Edds used 1986 aerial photographs to estimate the number of gravel
bars and Mark Eberle and Bill Stark did ground-truthing at 22% of Dr. Edd’s predicted
sites. We estimated the number of gravel bars using 2006 aerial images (FSA, 1996).
Gravel bars were fairly easy to identify and distinguish from wave-action due to the high-
quality digital photography and ArcView GIS software. We used 2006 aerials because it
was a very dry year for the Neosho River basin (only 24% of it’s mean annual discharge
was recorded that year from USGS’s gauge east of Parsons, KS); therefore, gravel bars
were much easier to identify. When estimating the number of gravel bars we combined
fragmented bars if they occurred in a single meander wavelength. The number and size
of gravel bars was related to sinuosity and discharge. Gravel bars were smaller and
occurred more frequently in the highly-sinuous Neosho and Cottonwood Rivers above
John Redmond Reservoir, while in the lower Neosho bars were much larger and fewer in
number (Table 4).
Table 5 represents a comparison of our estimates from 2006 aerial photographs
and Eberle and Stark’s ground-truthing estimates from Dr. Edds’ review of 1986 aerials

14
shows. In 1995 Eberle and Stark estimated that only 320 of Edd’s potential 934 gravel
bars (~35%) existed. Our numbers, based on 2006 aerial photography, are very similar to
Eberle and Stark’s estimates, except for in the Lower Neosho where we found a markedly
higher number of bars (n=86 v 57). Eberle and Stark indicate in their study that the
majority of their site-checks were from roads; thus, extensive reaches of the Neosho and
Cottonwood River’s were not surveyed. Our estimates are not limited by this factor. In
addition, we generally did not have the problems related to poor image quality that Dr.
Edds had during his review of 1986 aerials. Wave action was generally discernable from
gravel bars, and bars that occurred in series were counted as a single bar, provided they
occurred within the same meander belt. Because of the high similarity to Eberle and
Stark’s ground truthing, and our ability to view the entire river, we feel our estimates
provide a reasonably accurate count of the number of gravel bars present on the
mainstream Cottonwood and Neosho Rivers.
We summarized gravel bar counts from each reach of river (Table 4) and
provided maps demonstrating their location along with existing permit locations and
other pertinent information (Figs 21-33). In addition, a GIS layer for gravel bars has
been provided to KDWP ESS. The number of gravel bars represented in Table 4 are
slightly different than our numbers used in comparison to Eberle and Stark (1995) and
Edds (1993) due to the fact that we calculated gravel bars for the entire area designated as
“critical habitat” for the Neosho madtom in the Cottonwood and Neosho Rivers (see
species sheet in Appendix 3); whereas, the aforementioned authors calculated their
assessments from a slightly more restricted range ending at Cottonwood Falls
(Cottonwood River) and the Correll dam (Neosho River) (Fig 1). We used the Neosho
madtom’s critical habitat range because it encompasses the range of all state-listed
species that will be affected by gravel harvest management recommendations. Based on
our estimates, the Cottonwood River downstream of the Marion/Chase county line
combined with the Neosho River downstream of Council Grove Dam to the Kansas-
Oklahoma border contains 268 miles of unimpounded river containing 398 gravel bars.
Within the Neosho and Cottonwood Rivers KDWP has granted permission to
harvest gravel from 15 bars, 10 commercial and 5 domestic (1 commercial site is still
pending, but is expected to be permitted). Commercial sites equate to 2.5% of total
gravel bars and domestic sites equal 1.2%, fairly close to the target goal of 2% and 5%
(respectively) identified from “best-guess” estimates during discussions leading up to the
Biological Opinion in 1995. However, gravel harvesting is not spread out evenly
throughout the river basins. Of commercial sights, 9/10 are located below John Redmond
dam, with 7/10 located below Erie in a reach where 86 gravel bars occur; thus, equating
to 8.1% of gravel bars from the Erie dam to the Kansas-Oklahoma border. In addition, 3
of 5 domestic use permits are located in this reach as well. The concentration of permits
downstream from Erie is likely due to larger gravel bars corresponding with greater
hydrology in the lower Neosho River; therefore, these sites are more capable of providing
a commercial quantity of gravel. In addition, gravel harvesters in this area have been in
operation for several decades; thus, established buyers and sellers exist. This particular
reach of the Neosho River is also where the majority of gravel harvest requests have been
denied due to the existing management policy.
There is some concern that there may be unpermitted gravel harvesting activity in
the Neosho and Cottonwood Rivers. We have reviewed aerial photography for indicators

15
such as roads leading down to gravel bars, cleared riparian areas along gravel bars, etc.
We recommend investigating these sights (n=16) to insure accurate permitting is taking
place

Management recommendations
In order to try and minimize the cumulative effects of bedload reduction and bar
scalping on state-listed species we recommend updating the management guidelines to
replace those formulated through the Biological Opinion. These recommendations apply
only to the Cottonwood and Neosho Rivers in Kansas. The moratorium on all forms of
gravel harvest from the Spring River in not affected by this document, nor is the current
management of gravel bar scalping in the South Fork Cottonwood River. Gravel harvest
operations elsewhere in the state should be reviewed by KDWP’s ESS independent of
this document. The following recommendations are provided along with justification.

1. No “in-the-wet” mining anywhere in the mainstream Cottonwood or Neosho

Rivers. Obvious habitat destruction to critical habitats for state-listed species
would occur from removing or disturbing habitat with heavy machinery, drag
lines, dredge vacuums, etc in the wetted channel.
2. No differentiation between “domestic” and “commercial” use permits.
Trying to determine whether a gravel harvester has removed 100 yds3 of material
in any given year is not easily discernable information for biologists to ascertain.
In addition, DWR has not required the reporting of harvest volume from domestic
sites since, 1) there are very few of them actually permitted, and 2) there have
been no concerns to warrant reporting or field checks (Scherer, personal
communication, 2008). Gravel bars may also fluctuate somewhat in size and
shape due to natural dynamics of flow and bedload movement; therefore, a
detailed assessment of bar morphology would have to be done regularly to insure
the 100 cubic yard threshold is not surpassed and without knowing bedload
movement there is no way of determining whether 100 cubic yards is resulting in
a net-loss, gain, or a static system. Furthermore, many gravel bars in the upper
Neosho and Cottonwood basins would not produce even 100 cubic yards in total
material above the base-flow water level, much less support 100 cubic yards
annually.
3. Limit gravel harvest locations to a maximum 22 gravel bars in the upper
Neosho-Cottonwood basin ranging from the backwater pool of John
Redmond Reservoir upstream on the Neosho to the dam at Council Grove
and upstream on the Cottonwood River to the point where it crosses the
Chase-Marion County line (Sec. 1, T21S, R5E). This value represents
approximately 10% of the gravel bars identified on 2006 aerial photographs. This
reach of the river currently does not have a significant interest for gravel harvest
permits, although prior to the KDWP moratorium Lyon County road and bridge
crews were obtaining river gravel from the Neosho River. Currently there are
three permits issued for this reach of the river, two domestic, and one commercial
(pending). Site visits to the two domestic use permits in 2008 documented no
gravel harvest activity in the recent past, and conversations with permit holders
indicates no gravel harvest has occurred since 2004. Site visits and aerial

16
 photographs from this management reach indicate gravel bars from the Neosho
River are generally small, ranging from a few-dozen to less a few-hundred feet in
total length, while bars in the Cottonwood are larger, particularly below
Cottonwood Falls, typically averaging 300-500 feet in total length. Currently,
only the Chase County road and bridge department has requested a commercial
permit (1) to harvest gravel from this reach of river; however, historically they
have obtained a majority of their gravel from the South Fork Cottonwood via bar
scalping. Although Lyon County continues to use river gravel as road material,
they apparently dredge their gravel from the lower reaches of Bluff Creek, a
tributary to Rock Creek in northwest Lyon County (KDWP track #20060468).
Under the proposal there would be 3 permits existing, with room for an additional
19 gravel bars available for harvest.
4. Limit gravel harvest locations to a maximum of 18 gravel bars in the lower
Neosho from John Redmond Dam downstream to the Kansas-Oklahoma
border. This value also represents 10% of the gravel bars identified on 2006
aerial photographs. There is a higher demand for river gravel from the lower
Neosho, likely due to the substantially larger gravel bars located in this reach,
often reaching ¼ to a ½ mile in total length. Subsequently, gravel is more
important economically here as well, with the majority of gravel harvest
operations throughout the basin concentrated from Erie south to Oswego. Up
until Chase County’s application in 2007, all commercial operations were
restricted to the lower Neosho; thus, all of our monitoring data used in the
development of this report represents this reach of river. Under the proposal there
would be 12 permits existing, with room for an additional 6 gravel bars available
for harvest from John Redmond dam to the Kansas-Oklahoma border.
5. Five-year rest period. It is apparent that gravel replenishments rates are
contingent upon sustained bank-full or greater flows that scour gravel from basal
and/or bed supplies and deposit this bedload material onto depositional point bars.
Therefore, commercial operations are dependant upon bank-full flows to replenish
supplies if they intend to harvest from specific gravel bars repeatedly over time.
If dams attenuate flows or drought persists to the point that minimal gravel
deposition occurs for a prolonged period, harvesters may request to move to
gravel bars where robust gravel deposition has accumulated over years. In order
to minimize extensive depletion of point bar supplies from “bar-hopping”, we
recommend that abandoned sites require a minimum of 5-years to replenish gravel
supplies before they are considered “inactive”. Exceptions may be granted
contingent upon previous harvest volumes and differentiation from the natural
morphology of the bar.
6. Linear spacing of gravel harvest operations – In an effort to avoid depleting in-
channel supplies of gravel from concentrated areas, no two gravel harvest permits
should be issued for consecutive bars. Thus, an unharvested bar must separate
each harvested bar. Determination of what constitutes a gravel “bar” will be at
the discretion of KDWP through consultation with appropriate species experts;
however, generally gravel or point bars will occur every meander belt unless basal
or in stream supplies are limited in the upstream reach. Site visits and aerial
photography should be utilized extensively when determining these conditions.

17
7. Linear spacing with respect to bank stabilization structures - Permits may be
denied from requests located on gravel bars immediately downstream of bank
stabilization structures that armor the bank or redirect the thalweg (riprap,
bendway weirs, rock vanes, etc.). Since these projects virtually eliminate the
supply of gravel from basal sources to the next downstream bar, restricting or
prohibiting harvest may be necessary to protect bedload quantities downstream of
these structures. The decision for regulators to allow, prohibit, or restrict harvest
in these situations should be made based on the best scientific and observational
information available. For example, researchers at Pittsburg State University
(Triplett, personal communication, 2008) are currently studying the effects of a
bendway weir project on the Neosho River near St. Paul, KS. This information
may be useful in future permit decisions when the project is complete. In
addition, a weir field (37.848W, -95.468N) has been in place north of Humbolt,
KS since the late 1990’s. Aerial photograph comparisons from 1991 to 2006
indicate the gravel bar immediately across from the weir field has increased in
length by 20% (+160’), while the gravel bar immediately downstream has
decreased in size 20% (-170’). Although the river appears to be in similar low-
flow condition in each image, we were unable to obtain exact dates of when each
aerial image was captured so there is know what of comparing flow rates to
determine what accuracy can be used in this comparison.
8. Data collection requirements and additional consideration of restrictions –
Each proposed permit site should have river cross-sectional data and an initial
biological assessment performed prior to permitting gravel harvest. A survey for
Neosho madtoms should be conducted in accordance with methods described in
the attached manuscript (Attachment 4). Additional fish community in riffle or
run habitats and a quantified mussel survey should be performed as well, along
with a narrative description of habitat features. If the site contains unique habitat
features or outstanding biological significance, permits may be denied or
additional restrictions may be placed on the harvest operation. For example, the
gravel harvest site located in the Neosho Cutoff (Chappell bar, 37.448W, -
95.142N) is located at a point in the river where a very sharp bend occurs (the
meander has a tight radius of curvature and the meander wavelength is very
short). In addition, the upstream portion of the gravel bar is a gravel riffle, a
unique and important habitat for the Neosho madtom and an area where several
other state-listed species have been collected. In order to provide an additional
buffer and prevent potentially negative impacts that could occur from a complete
scalp of the gravel bar, a restriction was placed on the operation to not harvest
gravel below an elevation of 6.0 feet below the ordinary high water mark
(OHWM). The OHWM was established by the COE in the mid-1990’s as 11.5
feet above ZERO at the gauge on the bridge footing where state highway 57
crosses the Neosho River west of St. Paul, KS. Thus, when the river is at base-
flow there is approximately 5.5 feet (vertical, but sloped to match the natural
contour of the bar) buffer between the river and the harvest operation. Other
restrictions may include horizontal buffers, temporal restrictions such as no
harvest during spawning seasons or during extended drought periods, one-time
harvests, etc.).

18
 9. Annual reporting - All sites should have permit conditions requiring an annual
report of the volume of gravel harvested, accompanied with site photographs or
video files that visualize the entire gravel bar. A template form letter and
instructions for site photographs should be mailed to each gravel harvester at the
end of the calendar year (Attachment 6) along with a return envelope. In addition,
KDWP and related experts should be guaranteed access to each site to perform
biological assessments as deemed necessary. A list of permit conditions should
be included to insure pollution prevention and habitat protection strategies are
incorporated into the project’s operation (Attachment 7).

Future Neosho madtom monitoring recommendations

1. Insure all sites comply with initial biological assessment prior to gravel harvest
2. Perform site visits to insure compliance with permit conditions. Survey for state-
listed species when deemed necessary.
3. Compliment USFWS annual monitoring of Neosho madtoms. Coordinate with
USFWS on survey dates and locations. Since USFWS typically surveys in late
August or September, while historically KDWP has monitored earlier in the
summer
4. Continue to perform surveys at the following locations (downstream to upstream):
a. Labette County road and bridge department - 1 set of transects ate the
Highway 160 bridge in the bedrock riffle on the lower end of the bar (Fig.
4)
b. McAtee – 1 set of transects at the upper reach of the Chappell bar (Fig. 10)
c. McAtee - 1 set of transects at the Blackburn bar (Fig. 14) and Adam’s
Riffles (Fig. 15)
d. Spielbusch – 3 sets of transects, upper, middle, and lower reaches (Fig. 16)
e. Murray/Wright – 1 set of transects at Site #1, focus on the gravel riffle
(Fig. 18); 1 set at the downstream control for site #2, focus on the gravel
run, 1 set at the upstream control for site #2 in the gravel riffle (Fig. 19;
this site may be eliminated if acquiring a boat is too much of a hassle).
5. Maintain database for Neosho madtom survey
6. Submit annual report to USFWS.

Literature cited

Collins, B. and T. Dunne. 1990. Fluvial geomorphology and river-gravel mining: a

guide for planners, case studies included. California Department of Conservation,
Division of Mines and Geology, Special Publication 98, 29pp.

Eberle, M. E. and W. J. Stark. 1995. Distribution and abundance of the Neosho Madtom
(Noturus placidus) in Kansas, with an assessment of the amount of suitable habitat.
Natural Science Research Associates, Hays, KS. 10pp.

Edds. D. 1993. Neosho and Cottonwood River gravel bars on aerial photos. Division of
Biol. Sci., Emporia State Univ., September 1993

19
Edgecomb, Kenny. U.S. Army Corps of Engineers. State Regulatory Office, 2710 NE
Shady Creek Access Road, El Dorado, Kansas 67042

Emmert, Brock. 2008. Personal communication March 20. The Watershed Institute.
1200 SW Executive Dr. Topeka, KS 66615.

FSA. 2006. U.S. Department of Agriculture Farm Service Agency National Agriculture
Imagery Program (NAIP) 2006. Distributed through Data Access & Support Center’s
Kansas Geospatial Community Commons website (http://www.kansasgis.org/).

Juracek, K. E. and C. A. Perry. 2005. Gravel sources for the Neosho River in Kansas,
2004. U.S. Geological Survey Sci. Invest. Report 2005-5282, 36p.

Juracek, Kyle. 2008. Personal communication March 18. U.S. Geological Survey
4821 Quail Crest Place, Lawrence, KS 66049-3839.

Kondolf, G.M. 1997. Hungry water: effects of dams and gravel mining on river
channels. Env. Mang. 21(4):533-551.

Langer, W.H. 2002. A General Overview of the Technology of In-Stream Mining of

Sand and Gravel Resources, Associated Potential Environmental Impacts, and Methods
to Control Potential Impacts. U.S. Geological Survey Open-File Report 02-153.

Missouri Department of Natural Resources. 2007. Pollution Prevention and Compliance

Guide for Sand and Gravel Removal. Land Reclamation Program fact sheet PUB001056.
P.O. Box 176, Jefferson City, MO 65102-0176. 1-800-361-4827,
www.dnr.mo.gov/env/lrp/index.html.

Rosgen, 1996. Applied river morphology. Wildland Hydrology, Pagosa Springs, CO

Scherer, Matt. 2008. Personal communication March 24. 109 SW 9th St. Topeka, KS
66612.
Shepard, Chauncey. 2007. Personal communication 2484 Massey Rd., McCune, KS
66753.

Triplett, James, Dr. 2008. Personal communication. Pittsburg State University,

Pittsburg, KS 66762-7552.

20
Tables
Table 1. A comparison of Neosho madtom populations and characteristics of mesohabitat
types.
Gravel riffle Gravel Run Bedrock riffle Point Bar
N. placidus-100m² a
19.21 (1.92) b14.44 (1.89) c9.10 (1.11) d
3.21 (0.24)
a b c d
XD (m) 0.41 (0.01) 0.44 (0.01) 0.32 (0.01) 0.57 (0.05)
XV (m-s) a
0.31 (0.01) b0.26 (0.01) c0.38 (0.01) d
0.07 (0.00)
a b c b
Clean gravel (%) 70 53 48 47
Gravel + fines (%) 25 35 8 39
Gravel + cobble (%) 6 11 40 12
Gravel + bedrock (%) 0 0 4 2
Control* (n = 3794) (%) 14 9 23 54
Treatment* (n = 1817) (%) 14 0 0 86
* n = number of individual kick-seines conducted

21
Table 2. Number of days per calendar year that flow exceeded bankfull discharge
(18,000 ft3/s), compared with annual gravel harvest reported from all commercial
operations combined and population density of Neosho madtoms.

Year Mean annual discharge No. days > Gravel harvested NOMT
(ft3/sec-yr) 18,000 ft3/sec (yds3) -
100 m²
1996 1697 0 9352 0.4
1997 2821 4 2460 9.9
1998 6200 24 1877 15.5
1999 3768 9 9264 25.6
2000 1005 0 1986 6.2
2001 1776 4 500 3.8
2002 1305 7 3541 1.3
2003 1419 0 9047 1.4
2004 3507 6 1520 6.2
2006 653 0 10503 2.2
2007 4279 16 4764 7.5
Total = 54,814

22
Table 3. Cumulative list of projects reviewed by KDWP ESS related to gravel harvest from the Neosho and Cottonwood
mainstreams. Projects denied during the moratorium from 1991-1995 and those denied due to conditions of the Biological opinion are
listed as such. Commercial and domestic columns represent the number of individual gravel bars permitted for harvest to each
applicant. River reach refers to the numerical reach between low-head dams represented in Fig. 1.
Applicant Track Permit County Commercial Domestic River
Reach
McAtee 19950160 95-20 Neosho 1 5
20040147
Spielbusch 19950407 95-37 Neosho 1 5
Wright 19940736 95-16 Woodson 2 10
Shepard 19950123 2003-11 Labette 2 3, 4
Dickinson 19950123 2003-10 Labette 1 3
Labette Co. R&B 19950588 95-36 Cherokee 1 2
Walker 19910179 99-23 Cherokee 1 2
Chase Co. R&B 20070496 Pending Chase 1
Leffler 19930537 99-16 Lyon 1 12
Chappell 19970362 98-05 Neosho 1 5
Schulz 19950124 95-22 Neosho 1 3
Wagner 20050174 Denied commercial harvest -Biological Opinion Neosho 1 5
Fowler 19970436 97-13 Lyon 1 11
Lyon Co. R&B 198001555 Denied-moratorium Lyon 11
Unknown 19910697 Denied-moratorium Neosho 5
Unknown 19910640 Denied-moratorium Labette 4
Unknown 19910641 Denied-moratorium Labette 4
Unknown 19910642 Denied-moratorium Labette 3
McAtee 19920042 Denied-moratorium Basin-wide 1-11
Western Landscape 20040559 Denied-Biological Opinion Neosho 5
[Beachner]
Western Landscape 20070085 Denied-Biological Opinion Neosho 4
[Beachner]
Neosho Co. R&B 20060081 Denied-Biological Opinion Neosho 5
Beachner Grain 20060329 Denied-Biological Opinion Neosho 5
(2 sites)

23
Table 4. Summary of data for each river reach as identified in Fig. 1. (S = sinuosity, estimated from ArcView GIS & 2006 aerials)

Reach Description Length Backwater S Gravel Gravel harvest

(miles) (miles) bars sites
1 KS-OK border to Chetopa 4.8 0 1.3 6 0
2 Chetopa to Oswego 17 6.2 1.6 11 2
3 Oswego to Montana 15 3.9 1.6 14 3
4 Montana to South Mound 10.7 3.8 1.4 9 1
5 South Mound to Erie 25.1 0 2.1 46 4
6 Erie to Chanute South dam 16.8 0.8 1.3 22 0
7 Chanute South to Humbolt 16.8 8.1 1.7 13 0
8 Humbolt to Iola 12.1 3.0 1.4 6 0
9 Iola to Neosho Falls 14.3 2.9 1.5 16 0
10 Neosho Falls to Burlington 34.2 2.7 2.0 40 2
11 John Redmond backwater to Emporia dam (Neosho) 44.4 N/A 2.4 57 1
12 Emporia dam to Council Grove 43.7 9.7 1.9 58 1
13 Neosho-Cottonwood confluence to Marion-Chase Co. border 63.8 9.4 2.6 100 1 (pending)
T=318.7 T=50.5 X=1.8 T=398 T=15

24
Table 5. The number of gravel bars from Eberle and Stark’s 1994 ground-truth study of Dr. Edds (1993) estimates from 1986 aerial
photographs compared to our estimates from 2006 aerials.

Reach Eberle & Stark 2006 aerial Percent similarity

Cottonwood (from Cottonwood Falls to Neosho confluence) 77 83 93%
Upper Neosho (from Correll dam to John Redmond backwater) 79 80 99%
Middle Neosho (from John Redmond dam to upstream of Erie low-head dam) 106 97 109%
Lower Neosho (downstream of Erie low-head dam to Kansas-Oklahoma border) 57 86 66%

25
Figures
Figure 1. The Neosho River basin in Kansas with federal reservoirs, major cities and the
location of 17 low-head dams used for reach partitioning in the USFWS Biological
Opinion.

26
Figure 2. Walker bar sampled from 2001-2007. Gravel excavation only occurred in
2002. Data from 2001 was classified as control data, while data from 2002-2007 was
classified as treatment. The entire reach is classified as point bar, although the head of
the bar has some slight characteristics of a gravel run.

27
Figure 3. Labette County’s south site. This site was never harvested, but was sampled
from 1996-1998 in anticipation of being harvested until the late 1990’s when the river cut
off the proposed gravel site and left it isolated as an oxbow. All data was classified as
control. The upper reach was classified as a bedrock riffle, the excavation reach as point
bar, and the lower reach as gravel run. .

28
Figure 4. Labette County’s site just north of the Highway 160 Bridge east of Oswego,
KS was sampled from 1996-2007. The upper control and excavation reaches were
classified as point bars, while the lower control is a bedrock riffle.

29
Figure 5. Dickinson #1. This site has been permitted for excavation since 2003, however
no excavation has taken place; therefore data was classified entirely as control. The site
has bedrock riffle located in the excavation and the upper portion of the downstream
control reach.

30
Figure 6. Dickinson bars #2 & 3. Dickinson bar #2 was never harvested. It served as the
lower control for Dickinson #3 from 2001-2007, and as the upper control for Dickinson
#1 from 2003-2007. Conversations with Chauncey Shepard indicate the bar used to be
continuous with Dickinson #3. The upstream control for Dickinson #3 was monitored in
2001-2003; however, since then we have omitted the site because there is not enough bar
length to support sampling a set of transects for both an excavation and upper control.

31
Figure 7. Downstream control site for the Ledford bar. This site is a separate bar
immediately downstream from the Ledford bar in 4-31-21 (Chauncey Shepard,
permittee). This site was monitored from 1996-2000. Access permission ceased
following the initial 5 years of the study. The site was classified as a point bar.

32
Figure 8. Ledford bar. This site has been monitored since 1996. From 1996-200
separate bars up and downstream from this site were used as controls. However, site
access was denied from 2001-2007. During that period the site was separated into 3
reaches, up and downstream controls and an excavation reach; however, there was no
actual management differences between the reaches. As such, all data for the report and
manuscript were classified as treatment data. The bar is classified as a point bar.

33
Figure 9. Upstream control for the Ledford bar. This site is a separate bar immediately
upstream from the Ledford bar in 4-31-21 (Chauncey Shepard, permittee). This site was
monitored from 1996-2000. Access permission ceased following the initial 5 years of the
study. The site was classified as a point bar. The bar is adjacent to the Beachner Grain
feedlot.

34
Figure 10. Chappell bar. Gravel excavation occurred in 2005-2007. The upstream
control is a gravel riffle; the excavation and downstream controls were classified as point
bars. The site is also permitted for commercial use to McAtee (95-20, 20040147) AND
to James Chappell (#98-05, 19970362) for domestic use (<100 yds3/yr).

35
Figure 11. Wagner bar. Excavation has not occurred from this bar although it has been
permitted for domestic use. Sampling was done in 2006 & 2007 and all data was used as
control in the report. The entire bar is classified as point bar. The upstream control was
eliminated in 2007 because the bar was too short to conduct 3 sets of transects.

36
Figure 12. McAtee South bar was sampled in 2001-2007. Gravel excavation has not
occurred from this bar although it was been permitted for commercial use from 2001-
2005. In 2005, McAtee requested to transfer harvest operations from this bar and the
Blackburn bar to the Chappell bar (granted). All data from this bar was used as control
data in the report. The entire bar is classified as point bar. The upstream control for this
site is a separate bar located directly under the bridge on Highway 57 west of St. Paul,
KS. It is located immediately upstream of this bar (see Fig 13).

37
Figure 13. McAtee control bar beneath state highway 57 bridge west of St. Paul, KS.
This bar was sampled from 1996-2007 and served as the downstream control for
McAtee’s Blackburn excavation bar, and the upstream control for the McAtee South bar
This bar is classified as a bedrock riffle.

38
Figure 14. Blackburn bar. This bar was sampled from 1996-2007 and was an active
excavation bar until 2003. This bar is classified as a gravel riffle.

39
Figure 15. This site is locally known as Adam’s riffle and it served as the upper control
reach for McAtee’s permit excavation site on the Blackburn bar. This bar is classified as
a bedrock riffle. It was also a sample site in Deacon’s study of the Neosho basin (1961).

40
Figure 16. Spielbusch bar was sampled from 1996-2007. The entire bar is classified as
point bar.

41
Figure 17. Wright/Murray lower control for site #1. This bar was sampled from 1996-
2007 and is the downstream control for Eldon Wright’s lower (downstream) excavation
bar (Site #1). This bar is classified as a point bar. The inset map is a broad view of the
river reach for Wright sites #1 & #2.

42
Figure 18. Wright/Murray excavation site #1 was sampled from 1996-2007. The
excavation portion is a point bar and the upstream control (part of the same bar) was
classified as a gravel riffle. The inset map is a broad view of the river reach for Wright
sites #1 & #2.

43
Figure 19. Wright/Murray excavation site #2, and control sites. This was Eldon
Wright’s upstream excavation site and was sampled from 1996-2007. The excavation
portion is a point bar, the upstream control is a gravel riffle, and the downstream control
is a gravel run. The inset map is a broad view of the river reach for Wright sites #1 & #2.

44
Figure 20. Neosho madtom population trends related mean annual flow (X = 2734 ft3/s). Populations were positively correlated with
mean annual discharge (P=0.01; R=0.62)

70

60

50

40
Madtoms per 100 m²

30

20

10

0
-100% -50% 0% 50% 100% 150%
Percent of mean annual discharge

46
Figure 21. Reach #1, Kansas-Oklahoma border to the Chetopa dam at Chetopa, KS.

58
Figure 22. Reach #2, Chetopa dam to the dam at Oswego, KS.

59
Figure 23. Reach #3, Oswego dam to the dam near Montana, KS.

60
Figure 24. Reach #4, Montana dam to the dam southeast of South Mound, KS. The
South Mound dam no longer supports a backwater pool.

61
Figure 25. Reach #5, South Mound dam to the dam directly south of Erie, KS.

62
Figure 26. Reach #6, Erie dam to the Chanute south dam southeast of Chanute, KS.

63
Figure 27. Reach #7, City of Chanute’s south dam to the dam located in Humbolt, KS.

64
Figure 28. Reach #8, Humbolt dam to the dam on the west edge of Iola.

46
Figure 29. Reach #9, Iola’s dam to the dam on the east edge of Neosho Falls.

47
Figure 30. Reach #10, Neosho Falls dam to the dam on the northeast edge of Burlington.

48
Figure 31. Reach #11, from the backwater pool of John Redmond reservoir to the dam
on the Neosho River located on the north side of Emporia.

49
Figure 32. Reach #12, from Emporia’s most downstream dam on the Neosho River to
Council Grove reservoir.

50
Figure 33. Reach #13, the Cottonwood River from the confluence with the Neosho River upstream to the Marion-Chase County line.

58
 Attachment 1

Species information
 NEOSHO MUCKET MUSSEL
(Lampsilis rafinesqueana)
KANSAS: Endangered

FEDERAL: N/A

SPECIES DESCRIPTION

This freshwater mussel is elongated with a

slightly rounded shell. The shell is relatively
thin, with a size of approximately 4 inches.
There are prominent growth lines. The shell is
light brown and has a dull, waxy luster; it
usually becomes dark brown with age. Green
rays usually cover the surface often chevron
shaped during the first three years of growth.

The species is an obligate riverine species preferring shallow clean flowing water in fine to
medium gravel substrates. Historically found in the Marais des Cygnes, Cottonwood, Spring,
Neosho, Verdigris, Fall and Caney River systems. Currently appears to be extirpated from
the Caney River and much reduced in numbers and distribution in the other river systems.

SPECIES PROTECTION AND CRITICAL HABITATS

Neosho Mucket Mussels are protected by the

Kansas Nongame and Endangered Species
Conservation Act and administrative
regulations applicable thereto. Any time an
eligible project is proposed that will impact the
species’ preferred habitats within its probable
range, the project sponsor must contact the
Environmental Services Section, Kansas
Department of Wildlife and Parks, 512 SE
25th Ave., Pratt, Kansas 67124-8174.
Department personnel can then advise the project sponsor on permit requirements.

DESIGNATED CRITICAL HABITATS

As defined by Kansas Administrative Regulations, critical habitats include those areas

documented as currently supporting self-sustaining population(s) of any threatened or
endangered species of wildlife as well as those areas determined by the Kansas Department
of Wildlife and Parks to be essential for the conservation of any threatened or endangered
species of wildlife.

Currently, the following areas are designated critical for Neosho Mucket:

(1) The main stem of the Neosho River from K-57 in Coffey County (Sec. 33-T22S-R16E) to
the Kansas/Oklahoma border in Cherokee County (Sec. 18-T35S-R22E).
Attachment 1 - Species information 1
 (2) The main stem of the Cottonwood River from Elmdale in Chase County (Sec. 26-
T19SR7E) to the confluence with the Neosho River in Lyon County (Sec. 23-T19S-R12E).

(3) The main stem of Spring River in Cherokee County from the Missouri border (Sec. 1-
T33S-R25E) to U.S.66 (Sec. 17-T34S-R25E).

(4) Shoal Creek in Cherokee County from the Missouri border (Sec. 36-T34S-R25E) to
Lowell (Sec. 29-T34S-R25E).

(5) Fall River from K-96 in Greenwood County (Sec. 12-T28S-R12E) to the confluence of the
Verdigris River in Wilson County (Sec. 33-T30S-R16E).

(6) Verdigris River from K-39 in Wilson County (Sec. 10-T28S-R15E) to the
Kansas/Oklahoma border (Sec. 18-T35S-R17E).

Attachment 1 - Species information 2

 RABBITSFOOT MUSSEL
(Quadrula cylindrica)
KANSAS: Endangered

FEDERAL: N/A

SPECIES DESCRIPTION

This freshwater mussel is an elongated,

rectangular shaped shell, moderately inflated
with thick to moderately thick shell. The
posterior ridge has longer, distinctive knobs.
The exterior of the shell is olive, sometimes
yellow-brown and is usually covered with dark
green or black triangles. The nacre (inside of
shell) is white. The shell can reach a
maximum length of 4 inches.

A riverine mussel requiring clear streams with gravel substrate and moderate, stable
currents. Historically occurred in the Neosho, Spring and Verdigris Rivers. Currently several
known populations occur in the Neosho and Spring Rivers.

SPECIES PROTECTION AND CRITICAL HABITATS

Rabbitsfoot Mussels are protected by the

Kansas Nongame and Endangered Species
Conservation Act and administrative
regulations applicable thereto. Any time an
eligible project is proposed that will impact the
species? preferred habitats within its probable
range, the project sponsor must contact the
Environmental Services Section, Kansas
Department of Wildlife and Parks, 512 SE
25th Ave., Pratt, Kansas 67124-8174.
Department personnel can then advise the project sponsor on permit requirements.

DESIGNATED CRITICAL HABITATS

As defined by Kansas Administrative Regulations, critical habitats include those areas

documented as currently supporting self-sustaining population(s) of any threatened or
endangered species of wildlife as well as those areas determined by the Kansas Department
of Wildlife and Parks to be essential for the conservation of any threatened or endangered
species of wildlife.

Attachment 1 - Species information 3

 Currently, the following areas are designated critical for Rabbitsfoot Mussels:
(1) The main stem of the Neosho River from John Redmond dam in Sec. 10-T21S-R15E,
Coffey County, to the Kansas/Oklahoma border in Sec. 18-T35S-R22E, Cherokee County.

(2) The main stem of the Spring River in Cherokee County from the Missouri border (Sec. 1-
T33S-R25E) to U.S. 66 (Sec. 17-T34S-R25E).

(3) The main stem of the Verdigris River from the K-47 bridge in Sec. 8-T29S-R16E, Wilson
County, to the Kansas/Oklahoma border in Sec. 18-T35S-R17E, Montgomery County.

Attachment 1 - Species information 4

 NEOSHO MADTOM (Noturus
placidus)
KANSAS: Threatened

FEDERAL: Threatened

SPECIES DESCRIPTION

This is a small (3 in.) mottled dark-and light-

brown catfish with dark bars on the tail and
dusky streaks on the dorsal and anal fins.
Neosho Madtoms are found only in riffles and
along sloping gravel bars in relatively clear
moderately-large rivers. Deep deposits of
loose, 8-16 mm dia., rounded limestone
gravel in moderate to swift currents seems to
be preferred.

In Kansas, Neosho Madtoms are known only from the Cottonwood, Neosho, and Spring
Rivers. They occasionally be locally abundant but exhibit fluctuating densities at any specific
locality.

SPECIES PROTECTION AND CRITICAL HABITATS

Neosho Madtoms are protected by the

Kansas Nongame and Endangered Species
Conservation Act, the Federal Endangered
Species Act, and state and federal regulations
applicable to those acts. Any time an eligible
project is proposed that will impact the
species’ preferred habitats within its probable
range, the project sponsor must contact the
Environmental Services Section, Kansas
Department of Wildlife and Parks, 512 SE
25th Ave., Pratt, Kansas 67124-8174. Department personnel can then advise the project
sponsor on permit requirements. Sponsors of projects impacting Neosho Madtom habitats
must also contact the Endangered Species Office, U.S. Fish and Wildlife Service, 315
Houston Street, Suite E, Manhattan, Kansas 66502.

DESIGNATED CRITICAL HABITATS

As defined by Kansas Administrative Regulations, critical habitats include those areas

documented as currently supporting self-sustaining population(s) of any threatened or
endangered species of wildlife as well as those areas determined by the Kansas Department
of Wildlife and Parks to be essential for the conservation of any threatened or endangered
species of wildlife.

Currently, the following areas are designated critical for Neosho Madtoms:

Attachment 1 - Species information 5

 (1) The main stem Cottonwood River from the point it enters Chase County at Sec. 1, T21S,
R5E to its confluence with the Neosho River at Sec. 23, T19S, R12E, Lyon County.

(2) The main stem Neosho River from its point of discharge from Council Grove Reservoir in
Sec. 10, T16S, R8E, Morris County to the point it leaves Lyon County in Sec. 15, T20S,
R13E.

(3) The main stem Neosho River from its point of discharge from John Redmond Reservoir at
Sec. 10, T21S, R15E. Coffey County to the Kansas-Oklahoma border at Sec. 18, T35S,
R22E, Cherokee County.

(4) The main stem Spring River from the Kansas-Missouri border to a point where it crosses
the west boundary of Sec. 36, T33S, R25E, Cherokee County.

(5) The main stem of the South Fork of the Cottonwood River in Chase County where it
enters Sec. 14, T20S, R8E, until its confluence with the Cottonwood River (Sec. 25, T19S,
R8E). The U.S. Fish and Wildlife Service also has authority to designate areas of critical
habitat for federally listed endangered species, but has not done so for Neosho Madtoms in
Kansas.

Attachment 1 - Species information 6

 BUTTERFLY MUSSEL (Ellipsaria
lineolata)
KANSAS: Threatened

FEDERAL: N/A

SPECIES DESCRIPTION

This freshwater mussel is triangular in shape

with a moderately thick shell that is
compressed. External shell color is yellow to
tan and covered with dark rays composed of
dots, dashes and chevrons. Maximum length
is approximately 5 inches.

This species is an obligate riverine mussel

preferring clean water with good current over gravel substrate. Its historic range included the
Neosho, Spring, Fall and Verdigris Rivers. Scattered individuals have recently been
documented in the Verdigris and Neosho Rivers, but distribution and numbers have been
significantly reduced.

SPECIES PROTECTION AND CRITICAL HABITATS

Butterfly Mussels are protected by the Kansas

Nongame and Endangered Species
Conservation Act and administrative
regulations applicable thereto. Any time an
eligible project is proposed that will impact the
species’ preferred habitats within its probable
range, the project sponsor must contact the
Environmental Services Section, Kansas
Department of Wildlife and Parks, 512 SE
25th Ave., Pratt, Kansas 67124-8174.
Department personnel can then advise the project sponsor on permit requirements.
DESIGNATED CRITICAL HABITATS

As defined by Kansas Administrative Regulations, critical habitats include those areas

documented as currently supporting self-sustaining population(s) of any threatened or
endangered species of wildlife as well as those areas determined by the Kansas Department
of Wildlife and Parks to be essential for the conservation of any threatened or endangered
species of wildlife. Currently, the following areas are designated critical for Butterfly Mussels

(1) The main stem of the Neosho River from US-54 in Allen County (Sec. 34-T24S-R18E) to the
Kansas/Oklahoma border in Cherokee County (Sec. 18-T35S-R22E).

(2) The main stem of the Verdigris River from K-47 in Wilson County (Sec. 17-T29S-R16E) to the t

Kansas/Oklahoma border in Montgomery County (Sec. 18-T35S-R17E)

 .

Attachment 1 - Species information 8

 FLUTEDSHELL MUSSEL
(Lasmigona costata)
KANSAS: Threatened

FEDERAL: N/A

SPECIES DESCRIPTION

This freshwater mussel is moderate to thin

shelled, elongate to quadrate in shape with a
size of approximately 6 inches. The interior
color is white to iridescent and external color
ranges from tan to black with indistinct broad
green rays. The shell is covered by small
ridges. The species is an obligate riverine
species preferring clear water riffles with
moderate current on substrate of medium to
small sized gravel. Historically occurred in the Fall, Elk, Verdigris, Cottonwood, Spring and
Marais des Cygnes Rivers. It still occurs in the same watersheds, but at greatly reduced
numbers and distribution.

SPECIES PROTECTION AND CRITICAL HABITATS

Flutedshell Mussels are protected by the

Kansas Nongame and Endangered Species
Conservation Act and administrative
regulations applicable thereto. Any time an
eligible project is proposed that will impact the
species’ preferred habitats within its probable
range, the project sponsor must contact the
Environmental Services Section, Kansas
Department of Wildlife and Parks, 512 SE
25th Ave., Pratt, Kansas 67124-8174.
Department personnel can then advise the project sponsor on permit requirements.

DESIGNATED CRITICAL HABITATS

As defined by Kansas Administrative Regulations, critical habitats include those areas

documented as currently supporting self-sustaining population(s) of any threatened or
endangered species of wildlife as well as those areas determined by the Kansas Department
of Wildlife and Parks to be essential for the conservation of any threatened or endangered
species of wildlife.

Currently, the following areas are designated critical for Flutedshell Mussels: (1) The main stem

of the Spring River in Cherokee County (Sec. 1-T33S-R25E) to U.S.66 (Sec.17-T34S-R25E).

(2) Shoal Creek in Cherokee County from the Missouri border (Sec. 36-T34S-R25E) to K-2
 (Sec. 35-T34S-R25E).

(3) The main stem of the Neosho River from K-57 in Coffey County (Sec. 33-T22S-R16E) to
K-59 in Neosho County (Sec. 6-T29-R20E).

(4) The main stem of Pottawatomie Creek from where it enters Franklin County (Sec. 16-
T19S-R21E) into Miami County to the confluence with the Marais des Cygnes River (Sec. 12-
T18S-R22E).

Attachment 1 - Species information 10

 OUACHITA KIDNEYSHELL
MUSSEL (Ptychobranchus
occidentalis)
KANSAS: Threatened

FEDERAL: N/A

SPECIES DESCRIPTION

This freshwater mussel has an elongated,

compressed shell which is thick to moderately
thick. The exterior color ranges from yellow to
tan to brown with fine, wave rays over most of
the shell. The inside of the shell is white.
Maximum length is approximately 6 inches.

It is an obligate riverine mussel preferring

gravel substrate with clean flowing water. Historically occurred in the main stems and major
tributaries of the Verdigris, Neosho and Spring Rivers. It still occurs in many of these areas,
but at much reduced numbers.

SPECIES PROTECTION AND CRITICAL HABITATS

Ouachita Kidneyshell Mussels are protected

by the Kansas Nongame and Endangered
Species Conservation Act and administrative
regulations applicable thereto. Any time an
eligible project is proposed that will impact the
species’ preferred habitats within its probable
range, the project sponsor must contact the
Environmental Services Section, Kansas
Department of Wildlife and Parks, 512 SE
25th Ave., Pratt, Kansas 67124-8174.
Department personnel can then advise the project sponsor on permit requirements.

DESIGNATED CRITICAL HABITATS

As defined by Kansas Administrative Regulations, critical habitats include those areas

documented as currently supporting self-sustaining population(s) of any threatened or
endangered species of wildlife as well as those areas determined by the Kansas Department
of Wildlife and Parks to be essential for the conservation of any threatened or endangered
species of wildlife.

Currently, the following areas are designated critical for Ouachita Kidneyshell Mussels:

Attachment 1 - Species information 11

 (1) The main stem of the Cottonwood River from the Marion/Chase County line
(Sec. 1-T21S-R5E) to the confluence of the Neosho River in Lyon County (Sec. 23-T19S-R12E).

(2) The main stem of the Caney River from the Elk/Chautauqua boundary (Sec. 6-T32SR9E)
to the Kansas/Oklahoma border (Sec. 16-T35S-R10E).

(3) The main stem of the Spring River from the Missouri border in Cherokee County (Sec. 1-
T33S-R25E) to U. S. 66 (Sec. 17-T34S-R25E).

(4) The main stem of Shoal Creek from the Missouri border in Cherokee County (Sec. 36-
T34S-R25E) to K-26 (Sec. 35-T34S-R25E).

(5) The main stem of the Verdigris River from K-57 in Greenwood County (Sec. 16-
T22SR12E) to the Kansas/Oklahoma border (Sec. 18-T35S-R17E).

(6) The main stem of the Neosho River from Council Grove Reservoir in Morris County(Sec.
10-T16S-R8E) to the Kansas/Oklahoma border (Sec. 18-T35S-R22E) in Cherokee County.

Attachment 1 - Species information 12

 BLUE SUCKER

Cycleptus elongatus (LeSueur)

Status: In Need of Conservation in Kansas

The Blue Sucker concentrates in “chutes” or rapids where the water is deep and the bottom is rocky,
wholly free of silt in the Neosho River. This species probably spawns in spring, scattering
its eggs on rocky bottoms in the current often migrating upstream. In summer, the young
are found along gravel bars in slightly shallower water and less swift currents than adults.
They feed off of insects and probably microorganisms including algae attached to stones on
the bottom.

Blue Suckers occur in the Missouri, Kansas, and Neosho Rivers, where they occupy swift currents
in the main channels. Many have also been found in the stilling basin where water is
discharged into the river from John Redmond Reservoir in Coffey County.

Current probable range for the Blue Sucker in Kansas

(see back page for map symbols)

Attachment 1 - Species information 13

 TRANSLATION OF MAP OCCURRENCE SYMBOLS

= Within probable range - no verified occurrence on record.

= Within probable range - known to occur but date of

occurrence not verified.

= Within probable range - known to occur historically - no

verified record within the last 30 years.

= Within probable range - known to occur currently

- occurrence has been verified within the last 30 years.

Solid occurrence symbols indicate critical habitat has been designated.

KANSAS DEPARTMENT OF WILDLIFE AND PARKS

Effective January 2002
Subject to future revisions

Attachment 1 - Species information 14

 Bluntnose Darter (Etheostoma
chlorosoma)

SPECIES DESCRIPTION

The Bluntnose Darter inhabits small, slowly flowing creeks with bottoms of mud or clay in the
eastern part of the Arkansas River system. The creeks may be intermittent during severe
drought. This species is also found in oxbows and overflow pools, particularly if they remain
clear and have aquatic vegetation.

This fish probably spawns in April or May in Kansas. Little is known of its reproductive habits
in the state. They feed off larval insects, especially midges, and microcrustaceans.

Bluntnose Darters occur in only a few places in the Spring and Neosho River basins, always
in small numbers.

Attachment 1 - Species information 15

 Creeper Mussel (Strophitus
undulatus)

SPECIES DESCRIPTION

The Creeper Mussel is an obligate riverine species found in perennial streams where it
prefers gravel substrates. Fish hosts include largemouth bass, creek cub, and green sunfish.
It can also mature without going through a parasitic stage.

Current probable range would include portions of the Caney, Cottonwood, Elk, Fall, Little
Osage, Marais des Cygnes, Marmaton, Neosho, Spring, Verdigris, and Walnut rivers and
Grouse and Pottawatomie creeks.

Organic and inorganic pollutants, impoundments, gravel dredging, and channelization are
major threats for this mussel.

Attachment 1 - Species information 16

 Deertoe Mussel (Truncilla truncata)

SPECIES DESCRIPTION

The Deertoe Mussel is an obligate riverine species requiring swift clean currents and gravel
substrates. This mussel is currently known in portions of the Fall, Little Osage, Marais des
Cygnes, Neosho, and Verdigris rivers and Pottawatomie Creek. Fish hosts include
freshwater drum and sauger.

Organic and inorganic contamination, siltation, and gravel dredging are major threats to the
Deertoe Mussel.

Attachment 1 - Species information 17

 Fat Mucket Mussel (Lampsilis
siliquoidea)

The current probable range of this mussel would include Grouse Creek and Walnut River in
the Arkansas River basin; the Marais des Cygnes, Little Osage River, Marmaton River, Paint
Creek, and Pottawatomie Creek in the Marais des Cygnes basin; and Caney River, Verdigris
River, Spring River, and Neosho main stem within the Neosho basin.

Alteration of stream flows by impoundment, siltation, and water contamination by nutrients

and chemicals are major threats to the Fat Mucket Mussel.

Attachment 1 - Species information 18

 Fawnsfoot Mussel (Truncilla
donaciformis)

Impoundments, organic and inorganic contaminants, and siltation are major threats to the
Fawnsfoot Mussel.

Attachment 1 - Species information 19

 Gravel Chub (Erimystax x-
punctatus)

SPECIES DESCRIPTION

The Gravel Chub resides in deep riffles over gravel bottoms in the Neosho and Spring
Rivers. Their food source is unknown. They spawn in April at water temperatures around 60
degrees Fahrenheit, generally at a depth of 2-3 feet. Spawning sites are on gravel bars in
swift current.

Platt, et al. (1974) recommended control of pollution over long stretches of clear gravel
bottoms.

Attachment 1 - Species information 20

 Highfin Carpsucker (Carpiodes
velifer)

SPECIES DESCRIPTION

The Highfin Carpsucker likes clean streams with clear water and rocky bottoms.
Reproduction is unknown in Kansas. This fish feeds on microorganisms that settle on stream
bottoms, including algae.

Only one Highfin Carpsucker has been known to be caught in the past 20 years and occurred
in the Neosho River, Labette County. Much earlier, Highfin Carpsuckers were reported from
the Kansas, Blue, Wakarusa, and Marais des Cygnes rivers. They are extremely rare in
Kansas and are declining in several other parts of its range.

Attachment 1 - Species information 21

 River Darter (Percina shumardi)

SPECIES DESCRIPTION

The River Darter inhabits shallow, rocky areas with moderate current in large rivers. They
spawn in April at a water depth of two feet or less on rock in currents near shore. The darter
feeds on insects.

The River Darter is known in Kansas from the Neosho River in Labette and the Spring River
in Cherokee County. This fish barely enters Kansas. The only records are from the broad,
shallow channels from the Neosho and Spring Rivers below the low dams at Chetopa and
Baxter Springs.

Attachment 1 - Species information 22

 River Redhorse (Moxostoma
carinatum)

SPECIES DESCRIPTION

The River Redhorse inhabits pools and deep, flowing waters which are clear and unpolluted.
They usually spawn in May on gravel shoals. Shallow nests are prepared, and the eggs are
covered with gravel after being released and fertilized. This fish feeds mainly on mollusks
(small clams) and several kinds of larval insects that cling on or burrow into the bottom.

The River Redhorse has been taken recently in the Spring, Neosho, and Verdigris rivers.
Formerly, it also inhabited the Kansas and Osage rivers. Only a few River Redhorses have
been seen in the past twenty-five years. Early records indicate that this species was fairly
common in the larger rivers of the eastern third of the state. It has declined throughout its
range in the Mississippi valley.

Attachment 1 - Species information 23

 Round Pigtoe Mussel (Pleurobema
coccineum)

SPECIES DESCRIPTION

The Round Pigtoe Mussel is an obligate riverine species preferring larger perennial rivers
where it occurs in gravel substrates with swift currents. Stable populations occur in the
Spring River and declining populations are in the Fall, Little Osage, Marais des Cygnes,
Neosho, and Verdigris rivers. Fish hosts are not confirmed, but bluegill is a probable host.

Organic and inorganic pollutants, gravel dredging, channelization, and impoundments are
major threats to the Round Pigtoe Mussel.

Attachment 1 - Species information 24

 Spike Mussel (Elliptio dilatata)

SPECIES DESCRIPTION

The Spike Mussel is an obligate riverine species found in a wide range of substrates but
avoids areas of shifting sand. Fish hosts include gizzard shad, flathead catfish, and the
crappies.

Channelization and pollution are major threats to this mussel.

Attachment 1 - Species information 25

 Wabash Pigtoe Mussel (Fusconaia
flava)

SPECIES DESCRIPTION

The Wabash Pigtoe Mussel is an obligate riverine species that prefers gravel substrates and
moderate currents. Fish hosts include crappies and bluegill.

Pollution, impoundments, and commercial harvest are major threats to this mussel. They
apparently cannot tolerate discharges from municipal wastewater treatment facilities.

Attachment 1 - Species information 26

 Wartyback Mussel (Quadrula
nodulata)

SPECIES DESCRIPTION

The Wartyback Mussel is an obligate riverine species occurring in clean streams with gravel
substrates and moderate currents. Populations are widespread through the streams where
found but generally are not abundant at any location. Fish hosts include white crappie,
channel and flathead catfish, bluegill, largemouth bass, and black crappie.

Gravel dredging, pollution, impoundments, and commercial harvest are major threats to this
mussel.

Attachment 1 - Species information 27

 Washboard Mussel (Megalonaias
nervosa)

SPECIES DESCRIPTION

The Washboard Mussel is an obligate large river species preferring deep water with slow
current over a substrate of mud or mudgravel. Fish hosts include crappie, channel catfish
and flathead catfish, black bullhead, and drum. It is most likely to still occur in the lower Fall,
Marias des Cygnes, Neosho, and Verdigris rivers.

Pollution by organic and inorganic contaminants, impoundments, channelization, and illegal

commercial harvest are major threats to this mussel.

Attachment 1 - Species information 28

 Yellow Sandshell Mussel
(Lampsilis teres)

Current probable range would include portions of the Caney River, Chikaskia River,
Cottonwood River, Elk River, Fall River, Grouse Creek, Little Osage River, Marais des
Cygnes River, Neosho River, Paint Creek (Marais des Cygnes basin), Pottawatomie Creek,
Spring River, Verdigris River, and Walnut River.

Polution, inpoundments, and channelization are major threats to this mussel.

Attachment 1 - Species information 29

 Attachment 2

United States District Court [District of Columbia]

Opinion on the Tulloch Rule
 District Court Opinion on the Tulloch Rule

D.C. District Court Opinion on the Tulloch Rule

AMERICAN MINING CONGRESS, et al., Plaintiffs,

v.
UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants,
and
National Wildlife Federation, et al.,
Defendant-intervenors.
No. CIV. A. 93-1754 SSH.
United States District Court,
District of Columbia.
Jan. 23, 1997.

SUMMARY

The court invalidates and sets aside the Tulloch rule, which defined "discharge" of dredged material in
404 of the Federal Water Pollution Control Act (FWPCA) to include the backspill that comes off of a
bucket or shovel during wetlands excavation activities and falls back into the same place from which it
was removed. The court first holds that Congress did not intend to cover such "incidental fallback"
under 404. Section 404 refers to "discharges" but does not refer to the regulation of excavation or
dredging materials. The fact that Congress has specifically referred to excavation activities in 10 of the
Rivers and Harbors Appropriation Act of 1899 is evidence that Congress did not intend to regulate these
activities under 404. In addition, the legislative history of the FWPCA indicates that Congress
understood discharge to mean open-water disposal of material removed during the digging or deepening
of navigable waterways. This understanding of discharge excludes the small-volume incidental
discharge that accompanies excavation and landclearing activities. Moreover, until the issuance of the
Tulloch rule, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers took the
position that 404 applied to disposal, not removal, activities. The court holds that Congress, through its
lack of amendment, ratified 18 years of agency and judicial interpretation that excluded incidental
fallback from 404. Further, there have been several proposals in recent years to expand the scope of
regulated activities under 404 and Congress has not passed any of them. The court next holds that the
FWPCA's broad purpose "to restore and maintain the chemical, physical, and biological integrity of the
Nation's waters" also does not support the rule. Courts look to a statute's general purpose in interpreting
a provision only when Congress' intent is not clear. And even if the court were to look at the Act's broad
purpose, such objectives do not translate into a congressional delegation of unrestricted authority to the
agencies. The court then holds that even if the term "discharge" were broad enough to cover incidental
fallback, it would still hold that the Tulloch rule departs from Congress' intent to regulate only materials
that are discharged at a "specified disposal site." Section 404's repetition of the idea of "specified
disposal sites," as well as its structure, indicate that the site must have been affirmatively selected as a
disposal site by the agencies. It also conveys Congress' understanding that "discharges" would result in

ATTACHMENT 2 - Tolluch Rule - pg. 1

 District Court Opinion on the Tulloch Rule

the relocation of material from one site to another. The Tulloch rule makes the term "specified disposal
site" superfluous; under the rule, all excavation sites are considered "specified disposal sites." The court
therefore holds that the Tulloch rule exceeds the scope of the agencies' statutory authority and is invalid.

OPINION

This matter is before the court on plaintiffs' motion for summary judgment, defendant-intervenors'
motion for summary judgment, defendants' cross-motion for summary judgment, the parties' replies
thereto, and plaintiffs' and defendants' submissions of supplemental authority. The court also has
considered the amicus curiae briefs filed by the National Association of Flood and Stormwater
Management Agencies, the Fairness to Landowners Committee and the Pacific Legal Foundation, the
Washington Legal Foundation, and a coalition of the Nationwide Public Projects Coalition, the
Metropolitan Water Providers and Participants of Greater Denver, the City of Colorado Springs,
Colorado, and the New England Water Works Association.[Note 1] Upon consideration of the entire
record, the court grants summary judgment to plaintiffs and denies summary judgment to defendants and
defendant-intervenors. Although "[f]indings of fact and conclusions of law are unnecessary on decisions
of motions under Rule 12 or 56," Fed. R. Civ. P. 52(a), the court, having analyzed the parties'
submissions so carefully, nonetheless sets forth its analysis.

Background

Congress passed 404 of the Clean Water Act ("CWA" or "the Act"), 33 U.S.C. 1344, in 1972,
authorizing the United States Army Corps of Engineers (the "Corps") to issue permits "for the discharge
of dredged or fill material into the navigable waters at specified disposal sites." 33 U.S.C. 1344(a).
Pursuant to this authority, the Corps and the United States Environmental Protection Agency (the
"EPA") (collectively, "the agencies") adopted regulations and issued guidance documents that have
regulated the disposal of dredged materials in waters.[Note 2] Until the rule at issue here became
effective, however, the agencies did not regulate under 404 excavation activities that involved the
removal of material from waters, such as landclearing, ditching, and channelization, even if those
activities might have adversely impacted wetlands or waters. Under the instant rule, the agencies now
regulate removal activities because they consider the "incidental fallback" that accompanies dredging to
be a "discharge" under 404. The rule, referred to as the Tulloch rule, is an outgrowth of a settlement
agreement in North Carolina Wildlife Federation v. Tulloch, Civil No. C90-713-CIV-5-BO (E.D.N.C.).
In that case, a North Carolina developer used sophisticated techniques, such as welding shut openings in
equipment to prevent more than incidental fallback, and using dump trucks to transport soil removed by
backhoes, to develop 700 acres of wetlands without a 404 permit. Environmental groups sued the Corps,
the EPA, and two landowners, alleging that those landclearing and excavation activities destroyed and
degraded wetlands and therefore should be subject to regulation under 404. The agencies settled the case
by agreeing, in relevant part, to revise:

The term "discharge of dredged material" [to] include[ ], without limitation, any addition or redeposit of
dredged materials, including excavated materials, into waters of the United States which is incidental to

Attachment 2 - Tolluch Rule - pg. 2

 District Court Opinion on the Tulloch Rule

any activity (except normal dredging operations as defined below), including mechanized landclearing,
ditching, channelization, or other excavation, which has or would have the effect of destroying or
degrading any area of waters of the United States. The term does not include de minimis soil movement
incidental to any activity which does not have or would not have the effect of destroying or degrading
any area of waters of the United States. Moreover, the term does not include de minimis incidental soil
movement occurring during normal dredging operations, defined as dredging to maintain, deepen, or
extend navigation channels in the navigable waters of the United States, as defined in 33 C.F.R. Part
329, with proper authorization from the Congress/and or the Corps. Br. in Support of Their Mot. for
Sum. J. Ex. A, Settlement Agreement at (underlining omitted).

Pursuant to this agreement, the agencies proposed the rule and, after a 60-day comment period, adopted
a final rule that mirrors the language in the settlement agreement.[Note 3] Under this new rule, the
agencies have redefined the term "discharge of dredged material" to include small-volume incidental
fallback. 33 C.F.R. 323.2(d)(1)(iii) (Corps regulations) and 40 C.F.R. 232.2(1)(iii) (EPA regulations).
Incidental fallback is the incidental soil movement from excavation, such as the soil that is disturbed
when dirt is shoveled, or the back-spill that comes off a bucket and falls back into the same place from
which it was removed.[Note 4] Because incidental fallback is almost always associated with excavation
and landclearing, and because this soil movement is considered a discharge, a 404 permit is now
required for mechanized landclearing, ditching, channelization, or other excavation. The Tulloch rule
altered the agencies' previous policy to focus on the environmental effect of the activity resulting in the
discharge, rather than on the size of the discharge. It creates a rebuttable presumption that shifts the
burden to the regulated party to show, prior to commencing the project, that the federal government does
not have jurisdiction over the activity. 33 C.F.R. 323.2(d)(3)(i) and 40 C.F.R. 232.2(3)(i). In order to
show that the activity does not fall under 404, the party must show that the activity associated with the
discharge has de minimis environmental effects. Id. Plaintiffs challenge the Tulloch rule on four
grounds, contending that the rule (1) is inconsistent with the language and intent of the CWA; (2) is
arbitrary, capricious, and otherwise not in accordance with law, in violation of the Administrative
Procedure Act, 5 U.S.C. 551 et seq., because it exempts navigational dredging, which is generally done
by the Corps, and exempts landclearing from a grandfather clause; (3) violates plaintiffs' due process
rights under the Fifth Amendment to the Constitution because it (a) is vague, and (b) shifts to regulated
parties the burden of showing that their activities are not covered; and (4) was promulgated in violation
of the procedural requirements of the APA. Defendants and intervenor-defendants counter these
arguments in their motions for summary judgment and contend that the rule merely closes a nearly 20-
year-old "loophole" in the Act. Because the court grants summary judgment to plaintiffs on the ground
that the Tulloch rule is inconsistent with the language and intent of the Act, the court does not address
the remainder of the parties' claims. Summary judgment may be granted only if there is no genuine issue
of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Because the issues raised by the present motions
concern only questions of law, this matter is appropriate for resolution on summary judgment. The
parties frame the case differently. Plaintiffs contend that Congress never intended for incidental fallback
to be within the ambit of 404. They contend that the Act was crafted to regulate the disposal of dredged
soil in waters, but that the Tulloch rule extends federal regulation to the act of removing material from
waters. They view the concept of "incidental fallback" as creating a jurisdictional hook by which the

Attachment 2 - Tolluch Rule - pg. 3

 District Court Opinion on the Tulloch Rule

agencies can regulate excavation and landclearing activities that are otherwise not within the scope of
the 404 permit program. The agencies contend that they are empowered to regulate incidental fallback
and that the court must defer to their expertise. They contend that such fallback has always been
regulated but has been excepted from the permit requirement pursuant to a narrow exception for de
minimis discharges. They contend that the Tulloch rule merely closes a loophole in the Act, thus
effectuating the goals of the Act, and argue that the agencies have appropriately applied their de minimis
authority.[Note 5]

Standard of Review

In evaluating the parties' arguments, the court follows the rules laid down in Chevron, U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 [14 ELR 20507] (1984). First, the court
looks to "whether Congress has directly spoken to the precise question at issue. If the intent of Congress
is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress." Only if the statute is ambiguous does a court defer to an
agency's interpretation of the statute.[Note 6] Id. at 843. In discerning whether Congress has addressed a
particular issue, a court must "employ[ ] traditional tools of statutory construction." Id. at 843 n.9. As
our court of appeals has stated:

In determining whether Congress has so spoken [to the

precise question at issue], we must look to "the particular
statutory language at issue, as well as the language and
design of the statute as a whole," and we must employ the
traditional tools of statutory construction, including, where
appropriate, legislative history.

Chemical Mfrs. Ass'n v. United States Envtl. Protection Agency, 919 F.2d 158, 162 [21 ELR 20365] (D.
C. Cir. 1990) (citations omitted). Upon consideration of the entire record, the court holds that the
agencies unlawfully exceeded their statutory authority in promulgating the Tulloch rule. Accordingly,
the rule is invalidated and set aside (as to both agencies).

Analysis

As mentioned above, 404(a) of the Act provides, in relevant part, that the Corps "may issue permits,
after notice and opportunity for public hearings for the discharge of dredged or fill material into the
navigable waters at specified disposal sites." 33 U.S.C. 1344(a). The Act defines a "discharge" as "any
addition of any pollutant to navigable waters from any point source." 33 U.S.C. 1362(12). "Pollutants"
include "dredged spoil."[Note 7] 33 U.S.C. 1362(6). The "discharge of any pollutant by any person" is
unlawful except in compliance with, inter alia, 404 of the Act. 33 U.S.C. 1311(a) ("301(a)") and 1344.
The Tulloch rule defines the term "discharge of dredged material" to include incidental fallback. 33 C.F.
R. 323.2(d)(1)(iii) and 40 C.F.R. 232.2(1)(iii). The agencies contend that the authority to regulate
incidental fallback is included in their 301(a) authority to regulate all discharges of pollutants. Plaintiffs

Attachment 2 - Tolluch Rule - pg. 4

 District Court Opinion on the Tulloch Rule

contend that the term "addition of a pollutant" does not include incidental fallback. Thus, the issue in
this case is whether the incidental fallback that accompanies landclearing and excavation activities is (1)
the discharge of dredged material, i.e., the addition of a pollutant, (2) at specified disposal sites.

1. Incidental Fallback Is Not the "Addition of a Pollutant"

Plaintiffs contend that by defining a "discharge" to mean an "addition," Congress intended to regulate
only the introduction or placement of dredged material into water, and not the incidental fallback that
accompanies the removal of material from waters. Defendants contend that they can regulate incidental
fallback under 301 but, prior to the Tulloch rule, simply chose not to exercise that authority under the de
minimis doctrine. The court concludes that neither 301 nor 404 covers incidental fallback. The agencies
argue that the term "addition of pollutants" is ambiguous and therefore that the court should defer to the
agencies' interpretation of that term to include incidental fallback. The agencies cite to a line of cases
holding that "additions" can include "redeposits" of dredged material from the same general area.[Note
8] See Def.'s Mem. of P. & A. in Support of Its Mot. for Sum. J. at 27-30. None of these cases, however,
addresses the issue here, i.e., whether incidental fallback from excavation activities constitutes a
discharge.[Note 9] Defendants contend that these cases are still relevant because those courts deferred to
the agencies' interpretation of "addition of a pollutant." In Avoyelles Sportsmen's League, Inc. v. Marsh,
715 F.2d 897 [13 ELR 20942] (5th Cir. 1983), the court found that reading "addition" to include
"redeposit" was consistent with the purposes and legislative history of the Act. 715 F.2d at 923. Thus,
any deference by that court was predicated on the court's holding that that reading was consistent with
Congress' intent. In contrast, because this court holds that Congress did not consider incidental fallback
as the addition of a pollutant, deference would not be appropriate.

The court bases on several grounds its holding that Congress did not intend to cover incidental fallback
under 404. First, 404 refers to "discharges" but does not refer to the regulation of excavation or dredging
activities; the fact that Congress has specifically referred to excavation activities elsewhere is evidence
that Congress did not intend to regulate these activities under 404. In 10 of the Rivers and Harbors
Appropriation Act of 1899, Congress made it unlawful "to excavate or fill" any point or harbor without
Corps authorization.[Note 10] 33 U.S.C. 403. "Where a statute with respect to one subject contains a
given provision, the omission of such a provision from a similar statute is significant to show a different
intention existed." Richerson v. Jones, 551 F.2d 918, 928 (3d Cir. 1977) (citation omitted); see also
Moore v. Sun Bank of North Florida, 923 F.2d 1423, 1428 (11th Cir. 1991), reh'g granted and opinion
vacated, 953 F.2d 1274 (11th Cir. 1992), opinion reinstated, 963 F.2d 1448 (11th Cir. 1992). Had
Congress intended to regulate excavation activities under 404, it would have done so expressly. Second,
although Congress did not specifically mention incidental fallback in 1972 or 1977, there are statements
that indicate that Congress thought that "discharge" had a very definite meaning. Specifically, Congress
understood "discharge of dredged material" to mean open water disposal of material removed during the
digging or deepening of navigable waterways. See, e.g., S. Rep. No. 1236, 92d Cong., 2d Sess. 141-42
(1972) (Report of the Conference Committee), reprinted in A Legislative History of the Clean Water Act
of 1972 (hereinafter "1972 Leg. Hist.") at 324-25; Senate Consideration of the Report of the Conference
Committee, 92d Cong., reprinted in 1972 Leg. Hist. at 177-78; H.R. Rep. No. 911, 92d Cong., 2d Sess.
129-30, reprinted in 1972 Leg. Hist. at 816-17; Senate Debate on S. 2770, reprinted in 1972 Leg. Hist. at
1386-90 (colloquy between Senators Ellender, Muskie, and Stennis) (Senator Stennis observed that

Attachment 2 - Tolluch Rule - pg. 5

 District Court Opinion on the Tulloch Rule

"dredge material . . . has a very definite meaning"). The 1977 Senate Report confirmed that "Congress
intended that section 404 in the 1972 act would in its initial implementation end the open water disposal
of dredge spoil." S. Rep. No. 370, 95th Cong., 1st Sess. 68 (1977), reprinted in A Legislative History of
the Clean Water Act of 1977 (hereinafter "1977 Leg. Hist.") at 701. This understanding of "discharge"
excludes the small-volume incidental discharge that accompanies excavation and landclearing activities.
Senator Muskie explained that "the bill tries to free from the threat of regulation those kinds of
manmade activities which are sufficiently de minimis as to merit general attention at the State and local
level and little or no attention at the national level." Senate Report on S. 1952, 95th Cong., reprinted in
1977 Leg. Hist. at 645. Senator Domenici stated that "we never intended under section 404 that the
Corps of Engineers be involved in the daily lives of our farmers, realtors, people involved in forestry,
anyone that is moving a little bit of earth anywhere in this country that might have an impact on
navigable streams." Senate Debate, id. at 924. In common dredging practices, excavation is followed by
the disposal of dredged material at another location. Thus, Congress understood the "discharge of
dredged material" to involve the moving of material from one place to another. During the 1972 debates,
Senator Ellender stated: "The disposal of dredged material does not involve the introduction of new
pollutants; it merely moves the material from one location to another."[Note 11] Senate Debate on S.
2770, 92d Cong., reprinted in 1972 Leg. Hist. at 1386. Incidental fallback associated with excavation or
landclearing does not add material or move it from one location to another; some material simply falls
back in the same general location from which most of it was removed. Congress' use of the term
"specified disposal sites" underscores this reading as it conveys Congress' understanding that discharges
would result in the relocation of material from one site to another.[Note 12] See Babbitt v. Sweet Home
Chapter of Communities for a Great Or., 115 S. Ct. 2407, 2415 [25 ELR 21194] (1995) ("a word
`gathers meaning from the words around it'") (citation omitted). Third, Congress, through its lack of
amendment, ratified 18 years of agency and judicial interpretation that excluded incidental fallback from
404. Until the issuance of the Tulloch rule, the agencies took the position that 404 applied to disposal,
not removal, activities.[Note 13] The agencies' prior regulations defining "discharge of dredged
material" stated that this term "does not include de minimis, incidental soil movement occurring during
normal dredging operations." 33 C.F.R. 323.2(d) (1992); 40 C.F.R. 232.2(e) (1992). The Federal
Register notice for the Corps' 1986 regulations stated:

Section 404 clearly directs the Corps to regulate the

discharge of dredged material, not the dredging itself.
Dredging operations cannot be performed without some
fallback. However, if we were to define this fallback as a
"discharge of dredged material," we would, in effect, be
adding the regulation of dredging to section 404 which we
do not believe was the intent of Congress.

51 Fed. Reg. 41210 (1986) (emphasis in original); see also Pls.' Mot. for Sum. J. Ex. B, A.R., Group 5,
No. 1 (RGL 81-4 at 2) (Section 404 "does not authorize the Corps to regulate dredging in [waters of the
United States]. De minimis discharge occurring during normal dredging operations, such as the
drippings from a dragline bucket, is not considered to be a Section 404 discharge."). In determining
whether an activity is subject to regulation under 404, the Corps looked to the intent behind the activity:

Attachment 2 - Tolluch Rule - pg. 6

 District Court Opinion on the Tulloch Rule

The purpose of dredging is to remove material from the

water, not to discharge material into the water . . . . If the
intent is to remove material from the water and the results
support this intent, then the activity involved must be
considered as a "normal dredging operation" that is not
subject to section 404. 51 Fed. Reg. at 41210.

Similarly, the case law suggests that the Act does not authorize the agencies to regulate incidental
fallback. In Salt Pond Assocs. v. United States Army Corps of Eng'rs,[Note 14] 815 F. Supp. 766 [23
ELR 21026] (D. Del. 1993), the court held that landclearing and excavation activities were outside the
reach of 404.[Note 15] Id. at 778 ("the reach of the CWA extends only to the discharge of pollutants into
navigable waters and not the excavation or dredging activities that occur in section 404 wetlands")
(emphasis in original). The court held that "such an expansive reading of this regulation is manifestly
inconsistent with the jurisdictional limits of the CWA's grant of authority for Government regulation of
fill activities (and not excavation activities)." Id. at 782.

In United States v. Lambert, 18 Env't Rep. Cas. (BNA) 1294 (M.D. Fla. 1981), aff'd, 695 F.2d 536 [13
ELR 20436] (11th Cir. 1983), the court stated that back-spill from excavation "does not . . . constitute
the discharge of a pollutant [under the Act], when the dredged spoil simply falls back into the area from
which it has just been taken. Such an event cannot reasonably be considered to be the addition of a
pollutant."[Note 16] Id. at 1296. The only case to consider incidental fallback to be a regulated discharge
is Reid v. Marsh, 20 Env't Rep. Cas. (BNA) 1337, 1342 [14 ELR 20231] (N.D. Ohio 1984).[Note 17]
That case, however, limited the Corps' jurisdiction to the "discharge" itself; the Corps was not authorized
to regulate the entire dredging activity.[Note 18] Id. at 1342.

Although the Act has been amended several times since it was enacted, Congress has not modified the
long-standing administrative interpretation. "Congress is presumed to be aware of an administrative or
judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without
change." Public Citizen v. FAA, 988 F.2d 186, 194 (D.C. Cir. 1993) (citation omitted). Fourth, there
have been several proposals in recent years to expand the scope of regulated activities under 404, and
Congress has not passed any of them.[Note 19] This indicates (1) that the question of whether fallback
should be regulated under 404 "is a significant policy question presently under profound consideration
throughout the relevant Governmental agencies and the legislative branch," Salt Pond, 815 F. Supp. at
779 n.38; see also Senate Debate on Conference Report (statement of Sen. Baker), reprinted in 1977
Leg. Hist. at 523 ("most of the important provisions in [the Act] are hard fought compromises"), and (2)
that Congress believes that 404 does not currently authorize the agencies to regulate excavation and
other activities, even when accompanied by incidental fallback.[Note 20] "That there is comprehensive
debate surrounding the issue in the legislature indicates to the Court that the Government clearly does
not possess the expanded jurisdiction it has asserted here." Salt Pond, 815 F. Supp. at 779 n.38
(emphasis in original); see also Keene Corp. v. United States, 508 U.S. 200, 217-18 and 217-18 n.14
(1993) (rejecting litigant's argument that, if accepted, would have achieved the result that Congress had
declined to enact). Defendants contend that the 404(f) exemptions cover activities that are analogous to

Attachment 2 - Tolluch Rule - pg. 7

 District Court Opinion on the Tulloch Rule

the excavation and landclearing activities performed by plaintiffs, and thus demonstrate that Congress
believed that excavation and landclearing activities are subject to the permit requirement, but simply did
not provide a 404(f) exemption for plaintiffs.[Note 21] Section 404(f), however, does not expand the
scope of regulated activities.[Note 22] Consequently, the absence of an exemption for plaintiffs is
unremarkable. See Minnehaha Creek Watershed District v. Hoffman[n], 597 F.2d 617, 626 [9 ELR
20334] (8th Cir. 1979) ("[i]t is obvious that an exemption . . . would be necessary only if such work is
generally subject to 404 permitting requirements"). Section 404(f) exempts the otherwise regulated
discharges, such as sidecasting, that result from normal farming, silviculture, and ranching activities.
Neither the language and structure of the Act nor the legislative history provides any basis for
concluding that Congress intended to depart from its 1972 intent.[Note 23]

To suggest, as the [agencies] effectively do[ ], that Chevron

step two is implicated any time a statute does not expressly
negate the existence of a claimed administrative power . . . ,
is both flatly unfaithful to the principles of administrative
law . . . and refuted by precedent. . . . Were courts to
presume a delegation of power absent an express
withholding of such power, agencies would enjoy virtually
limitless hegemony, a result plainly out of keeping with
Chevron and quite likely with the Constitution as well.

Oil Chemical & Atomic Workers, Int'l Union AFL-CIO v. NLRB, 46 F.3d 82, 90 (D.C. Cir. 1995)
(citation omitted); see also Ethyl Corp. v. United States Envtl. Protection Agency, 51 F.3d 1053, 1060
[25 ELR 20817] (D.C. Cir. 1995).

The agencies also point out that the broad purpose of the Act is to "restore and maintain the chemical,
physical and biological integrity of the Nation's waters." 33 U.S.C. 1251(a); see also United States v.
Riverside Bayview Homes, 474 U.S. 121, 133 [16 ELR 20086] (1985) (finding a "breadth of
congressional concern for protection of water quality and aquatic ecosystems" that justified the Corps'
broad reading of "waters of the United States" to include adjacent wetlands). They contend that the court
should strive to effectuate this broad directive by validating their exercise of jurisdiction over incidental
fallback. [Note 24] There are two problems with this argument. First, courts look to the general purpose
of a statute in interpreting a provision only when Congress' intent is not clear. Ethyl Corp., 541 F.3d at
1060 n.9. Moreover, even if the court were to look at the broad purposes of the Act, such objectives do
not translate into a congressional delegation of unrestricted authority to the agencies.[Note 25] The
Supreme Court has stated that:

[N]o legislation pursues its purposes at all costs. Deciding

what competing values will or will not be sacrificed to the
achievement of a particular objective is the very essence of
legislative choice and it frustrates rather than effectuates
legislative intent simplistically to assume that whatever
furthers the statute's primary objective must be the law.

Attachment 2 - Tolluch Rule - pg. 8

 District Court Opinion on the Tulloch Rule

Rodriguez v. United States, 480 U.S. 522, 525-26 (1987) (per curiam) (emphasis in original); see also
Board of Governors of the Fed. Reserve Sys. v. Dimension Fin. Corp., 474 U.S. 361, 374 (1986).
Second, the agencies may not disregard the specific environmental protection scheme Congress has
created, see Ethyl Corp., 541 F.3d at 1060 n.9; specifically, 10 of the Rivers and Harbors Act covers the
act of dredging, while 404 covers the disposal of the dredged material.[Note 26]

2. Excavation Sites Are Not "Specified Disposal Sites"

Even if the term "addition of a pollutant" were broad enough to cover incidental fallback, the court
would still hold that the Tulloch rule departs from Congress' intent that the material must be discharged
at a "specified disposal site." The repetition of the idea of "specified disposal sites," as well as the
structure of 404, indicates that the site must have been affirmatively selected as a disposal site by the
agencies. It also conveys Congress' understanding that "discharges" would result in the relocation of
material from one site to another. Section 404 authorizes the Corps to issue permits for the discharge of
dredged material "at specified disposal sites." 33 U.S.C. 1344(a). Section 404(b) requires "disposal sites"
to be "specified" under permits issued by the Corps. Id. 1344(b). Similarly, under 404(c), the EPA may
"prohibit the specification . . . of any defined area as a disposal site" or "deny or restrict use of [any]
defined area . . . as a disposal site." Id. 1344(c).

The Tulloch rule makes the term "specified disposal site" superfluous; under the rule, all excavation sites
are considered "specified disposal sites." This strained reading results in excavation activities involving
two disposal sites: the site of excavation, and the place where the dredged material is disposed of. Under
the plain meaning rule, "[i]n the absence of a `clearly expressed legislative intention to the contrary,' the
language of a statute itself `must ordinarily be regarded as conclusive.'" United States v. James, 478 U.S.
597, 606 (1986) (citation omitted); see also United States v. Nordic Village, Inc., 503 U.S. 30, 35-36
(1992) (statutes must "be construed in such fashion that every word has some operative effect").

Conclusion

Defendants promulgated the Tulloch rule to close a long-standing alleged loophole in the Act. They
contend that "a total exclusion of landclearing and excavation activities involving incidental discharges
would mean that waters of the United States could be destroyed or degraded without . . . any federal
environmental review." Defs.' Mot. for Sum. J. at 24. The appropriate remedy for what the agencies now
perceive to be an imperfect statute, however, is congressional action; defendants' authority is limited to
adopting regulations that effect the will of Congress as expressed in the statute. Board of Governors, 474
U.S. at 374; Friends of Sakonnet v. Dutra, 738 F. Supp. 623, 633 [21 ELR 20055] (D.R.I. 1990) (it is
Congress' responsibility "to correct any defects that may be present in the law"). The court finds that the
Tulloch rule exceeds the scope of the agencies' statutory authority and, accordingly, declares it invalid
and sets it aside. An appropriate Judgment accompanies this Opinion.

Judgment

Attachment 2 - Tolluch Rule - pg. 9

 District Court Opinion on the Tulloch Rule

For the reasons stated in the accompanying Opinion, it hereby is ORDERED, that plaintiffs' motion for
summary judgment is granted. It hereby further is ORDERED, that defendants' motion for summary
judgment is denied. It hereby further is ORDERED, that defendant-intervenors' motion for summary
judgment is denied. Consistent therewith, it hereby further is ORDERED, that the so-called Tulloch rule
is declared invalid and set aside, and henceforth is not to be applied or enforced by the Corps of
Engineers or the Environmental Protection Agency. SO ORDERED.

FOOTNOTES

NOTE 1. The court also has studied the transcript of the hearing on the motions for summary judgment
that was conducted before the Honorable John H. Pratt on March 16, 1995. Before he could decide the
case, Judge Pratt became ill, and died in August 1995. Thereafter, the case was reassigned back to the
undersigned (along with a high percentage of Judge Pratt's other cases). That necessitated the
undersigned's starting from the beginning of what Judge Pratt had aptly characterized as "literally
pounds and pounds of papers." Motions tr. at 56. Fitting this case and its voluminous pleadings into the
undersigned's already crowded schedule inevitably resulted in regrettable delay.

NOTE 2. Although the Corps has primary responsibility for issuing permits, it administers the 404
program jointly with the EPA. Both agencies are empowered to issue binding regulations and guidance
documents. See, e.g., 33 U.S.C. 1344(b)(1).

NOTE 3. The Tulloch rule does not regulate mere removal activities; a discharge to waters of the United
States is "an absolute prerequisite" to the assertion of 404 jurisdiction. 58 Fed. Reg. 45011. As the Corps
itself has stated, however, "[d]redging operations cannot be performed without some fallback." 51 Fed.
Reg. 41210. While the agencies declined to make a finding in the final rule that landclearing and
excavation activities in waters always result in a "discharge," they warned project proponents that they
proceeded at the risk of violating the rule because, in the agencies' view, small-volume incidental
fallback "unavoidable [sic] accompan[ies] . . . excavation operations." 58 Fed. Reg. 45013.
Consequently, the effect of the rule is essentially to bring all dredging and landclearing activities within
the ambit of 404. The court observes that the Tulloch rule effectively exempts the Corps' own
navigational dredging from the 404 permit requirement. The rule exempts "incidental movement of
dredged material occurring during normal dredging operations," which the rule defines as "dredging for
navigation in navigable waters of the United States . . . with proper authorization from the Congress or
the Corps." 33 C.F.R. 323.2(d)(3)(ii) and 40 C.F.R. 232.2(3)(ii) (underlining omitted). While this
exception theoretically applies to any party, most dredging projects for navigation purposes are
conducted by or at the behest of the Corps.

NOTE 4. Incidental fallback does not include soil movements away from the original site. "Sidecasting,"
which involves placing removed soil alongside a ditch, and sloppy disposal practices involving
significant discharges into waters, have always been subject to 404. 58 Fed. Reg. at 45013.

Attachment 2 - Tolluch Rule - pg. 10

 District Court Opinion on the Tulloch Rule

NOTE 5. Under the de minimis doctrine, the agencies have the authority to provide exceptions from
regulation when the burdens of regulation yield, at most, a trivial value. Alabama Power Co. v. Costle,
636 F.2d 323, 360-61 [10 ELR 20001] (D.C. Cir. 1979). The doctrine, however, does not empower the
agencies to exceed the scope of their authority when regulation would be beneficial. Id. at 360 (doctrine
"is not an ability to depart from the statute, but rather a tool to be used in implementing the legislative
design"). Because the court holds that the Act does not authorize the agencies to regulate incidental
fallback, their discussion of the de minimis doctrine is irrelevant.

NOTE 6. A court does not defer to the agency in determining whether a statute is ambiguous. See Cajun
Elec. Power Coop. v. FERC, 924 F.2d 1132, 1136 (D.C. Cir. 1991).

NOTE 7. The court observes that, while the definition of "pollutant" includes "dredged spoil," 404 refers
to "the discharge of dredged or fill material."

NOTE 8. Some of the cases that defendants cite involve redeposit of dredged materials on immediately
adjacent areas, while others involve redeposit in the same general area.

NOTE 9. The cases all involve substantial redeposits. For example, in Avoyelles Sportsmen's League,
Inc. v. Marsh, 715 F.2d 897 [13 ELR 20942] (5th Cir. 1983), the court observed that "the activities in
this case did not involve a `de minimis' disturbance; hence we have no reason to determine whether de
minimis disturbances are exempted from the Act." 715 F.2d at 923 n.41. Significantly, that court also
noted that, "[a]fter persistent questioning at oral argument, the federal defendants explained further that,
in their view, if the vegetation was cut down without significant disturbance of the soil and then
removed to dry land, no permit would be required." Id. at n.40.

NOTE 10. Section 404 of the CWA is properly understood as just one part of Congress' approach to
environmental protection. As the General Counsel of the Army explained in a pre-Tulloch law review
article, 404 "addresses only `the addition' of dredged material [and] does not cover slop over from
dredging operations." This is because there are "two separate statutory frameworks. Section 10 of the
1899 Act covers the act of dredging, while Section 404 covers the disposal of the dredged material."
Ablard and O'Neill, Wetland Protection and Section 404 of the Federal Water Pollution Control Act
Amendments of 1972: A Corps of Engineers Renaissance, 1 Vt. L. Rev. 51, 93 (1976).

NOTE 11. The agencies contend that the 1972 legislative history is "rendered virtually meaningless" by
the 1977 Act. Defs.' Mem. of P. & A. in Support of Cross-Motion for Sum. J. at 20 n.16 (quoting
Avoyelles, 715 F.2d at 916). This court finds otherwise. The 1977 amendments added several provisions
to 404, but left unaltered the language of 404(a), which established the program to regulate discharges of
dredge or fill material, as well as 404(b), 404(c), 301, and 502. Congress' amendment of related
provisions of a statute does not constitute evidence of the intent of Congress with respect to provisions
that are not amended; the court must look to the Congress that passed the provision in question in order
to assess its intent. See Sweet Home Chapter of Communities for a Great Or. v. Babbitt, 17 F.3d 1463
[24 ELR 20680] (D.C. Cir. 1994), reh'g denied, 30 F.3d 190 [24 ELR 21470] (D.C. Cir. 1994), rev'd on

Attachment 2 - Tolluch Rule - pg. 11

 District Court Opinion on the Tulloch Rule

other grounds, 115 S. Ct. 2407 [25 ELR 21194] (1995).

NOTE 12. See discussion, infra, at part 2.

NOTE 13. Agencies are, of course, permitted to revise their interpretations. Rust v. Sullivan, 500 U.S.
173, 184-88 (1991); see also United States v. Riverside Bayview Homes, 474 U.S. 121 (1985). The
agencies contend that their reinterpretation is warranted in light of their increased experience. However,
courts do not defer to agency reinterpretations that exceed the scope of the agency's authority; as with
the Chevron doctrine generally, courts defer to agency interpretations only when the statute is
ambiguous. See Rust, 500 U.S. at 184-88. An additional reason for rejecting the agencies' request for
heightened deference is the inconsistency of positions they have taken. "An agency interpretation of a
relevant provision which conflicts with the agency's earlier interpretation is `entitled to considerably less
deference' than a consistently held agency view." Immigration and Naturalization Service v. Cardoza-
Fonseca, 480 U.S. 421, 448 n.30 (1987). The agencies contend that their increased experience with the
harmful environmental effects of excavation and landclearing activities provides a "reasoned analysis for
the change," see Texas Rural Legal Aid v. Legal Servs. Corp., 940 F.2d 685, 690 (D.C. Cir. 1991), but it
is not apparent to the court how this experience would alter the agencies' interpretation of congressional
intent.

NOTE 14. Although Salt Pond was decided before the Tulloch rule had been finalized, it is still good
authority for the proposition that the agencies lack authority to regulate excavation activities, as it relied
on both statutory and regulatory grounds. See 815 F. Supp. at 778, 782.

NOTE 15. In a subsequent opinion, the court found that the landowner's activities were regulated
because they "extended well beyond excavation resulting in only de minimis, incidental fallback." The
court, however, reaffirmed its earlier holding that excavation is not subject to 404. See Salt Pond
Assocs. v. United States Army Corps of Eng'rs, 1993 WL 738478 at 9 [24 ELR 21186] (D. Del. Sept.
22, 1993).

NOTE 16. Although Lambert was decided prior to the Tulloch rule, it remains good authority as its
analysis was based on statutory grounds.

NOTE 17. The court notes that the agencies expressly rejected that interpretation in the 1986
regulations.

NOTE 18. Under the Tulloch rule, a party who wishes to avoid the 404 permit requirement has the
burden of demonstrating that the landclearing or excavation activity does not have "the effect of
destroying or degrading an area of waters of the United States." 33 C.F.R. 323.2(d)(3)(i), 40 C.F.R.
232.2. The regulation thus focuses on the environmental effects of the activity resulting in the discharge,
rather than on the discharge itself. See, e.g., 58 Fed. Reg. 45019. Thus, incidental fallback that may have
little or no effect on waters becomes a means through which the agencies may invoke 404 jurisdiction
over otherwise unregulated activities. Plaintiffs contend that the Act was never intended to provide

Attachment 2 - Tolluch Rule - pg. 12

 District Court Opinion on the Tulloch Rule

comprehensive protection from all adverse impacts to wetlands and other waters, and thus that the
Tulloch rule's focus on the effects of activities is inconsistent with the Act. Cf. Save Our Community v.
United States Envtl. Protection Agency, 971 F.2d 1155, 1162-67 [22 ELR 21532] (5th Cir. 1992)
(holding that 404 does not regulate wetlands in the absence of a regulated discharge, regardless of the
harm to the wetlands); Minnehaha Creek Watershed Dist. v. Hoffman[n],597 F.2d 617, 626-27 [9 ELR
20334] (8th Cir. 1979) (holding that a significant alteration in water quality is not a prerequisite to the
regulation of a discharge of dredged or fill material). These cases indicate that environmental impacts
play no role in determining the scope of regulation. Statements made during the debates confirm that
Congress intended for the agencies to regulate discharges, but not the dredging per se. See, e.g., Senate
Debate on S. 2770, 92d Cong., reprinted in 1972 Leg. Hist. at 1388 (statement of Sen. Muskie). In a
related context, our court of appeals has rejected a similar unjustified regulatory overreaching. In
Natural Resources Defense Council, Inc. v. United States Envtl. Protection Agency, 849 F.2d 156 (D.C.
Cir. 1988), the court held that EPA cannot "transmogrify its obligation to regulate discharges into a
mandate to regulate the plants or facilities themselves. To do so would unjustifiably expand the agency's
authority beyond its proper perimeters." Id. at 170; see also Natural Resources Defense Council, Inc. v.
United States Envtl. Protection Agency, 822 F.2d 104, 129 (D.C. Cir. 1987) (CWA does not confer
permitting authority over the construction of facilities); New Hanover Township v. United States Army
Corps of Eng'rs, 796 F. Supp. 180, 186 (E.D. Pa. 1992) (Corps' jurisdiction limited to effects of filling of
wetlands, not impacts of construction of a landfill of which filling activity was a small part), vacated on
other grounds, 992 F.2d 470 [23 ELR 20836] (3d Cir. 1993). As mentioned above, even in Reid, 20
Env't Rep. Cas. at 1337, where the court held that 404 permits the agencies to regulate incidental
fallback, the court stated that the authority to regulate discharges does not permit the Corps to regulate
associated dredging activity. That court held that:

404 . . . does not give the Corps authority to regulate the actual deepening and widening of the channel (i.
e., the dredging per se) . . . . [S]uch activities may be governed only by 10 of the Rivers and Harbors
Appropriations Act. Rather, 404 gives the Corps power to regulate the dredging work only to the extent
that it constitutes a "discharge of dredged material." Therefore, in processing an application for the
channelization project the Corps should evaluate only the effect of discharge resulting from the dredging
activities and not the ultimate effect of proposed channel modification.

Id. at 1342. The agencies, nonetheless, contend that this effects-based test for determining the scope of
regulation is consistent with the Act. For support, they refer the court to the 404(f)(2) "recapture"
provision, which directs the agencies to consider effects in limiting the extent to which otherwise
regulated discharges are removed from jurisdiction, and 404(e), which directs the Corps to consider the
effects of the activity when issuing general permits for regulated activities. In neither case, however, are
effects used to regulate activities that do not themselves constitute discharges; neither does either
provision indicate that Congress in 1977 intended to expand the meaning of "discharge of dredged
material."

NOTE 19. For example, H.R. 1330, the Hayes Bill, would regulate "drainage, channelization, and
excavation." S. 1304, the Baucus-Chafee Bill, would regulate "any addition of dredged or fill material
into navigable waters incidental to any activity that . . . has or would have the effect of destroying or

Attachment 2 - Tolluch Rule - pg. 13

 District Court Opinion on the Tulloch Rule

degrading any area of navigable waters." Other bills are broader in scope: the Edwards Bill, H.R. 350,
would expand the scope of regulated activities to include any "other alteration of navigable waters"; the
Studds Bill, H.R. 3465, would require a permit for "any significant disruption of wetlands."

NOTE 20. The court observes that a White House press release announcing the Tulloch rule stated:
"Congress should amend the Clean Water Act to make it consistent with the agencies' rulemaking." Pls.'
Mot. for Sum. J. Ex. I, White House Office on Environmental Policy, "Protecting America's Wetlands:
A Fair, Flexible, and Effective Approach" at 23 (Aug. 24, 1993). The executive branch, however, is
supposed to administer laws enacted by Congress, not, in effect, to legislate and then seek ratification of
its action by Congress.

NOTE 21. In the 1977 amendments to the Act, Congress responded to "the perceived problem of
overregulation by the Corps" by exempting certain discharges associated with farming and forestry
activities from the 404 permit requirement, subject to "recapture" if certain adverse environmental
effects resulted. Riverside Bayview Homes, 474 U.S. at 135-36 (1985); 33 U.S.C. 1344(f)(1) and (f)(2).

NOTE 22. Even while adding 404(f), Congress maintained its belief that the small-volume incidental
fallback that accompanies excavation is not sufficient to trigger 404. Senator Muskie observed during
the 1977 Senate debates that "drainage could be performed without discharging dredged or fill material
in water" and thus would not be regulated. 123 Cong. Rec. pt. 21 at 26767 (Aug. 4, 1977). Defendants
contend that this statement addressed the issue of drainage in uplands; however, the court finds that the
statement, which responded to a question about farmers' draining a "low-lying area," did not concern
uplands. See id. Moreover, Senator Muskie plainly contemplated this drainage occurring in covered
areas, as he stated that such drainage could be performed without discharge "or would occur" in areas
that are not within the ambit of 404. Id. (emphasis added).

NOTE 23. The Senate Report noted that "[l]ittle contained in the study of the Commission could be
construed as justifying major change in the direction established in 1972." Senate Report on S. 1952,
95th Cong., reprinted in 1977 Leg. Hist. at 635.

NOTE 24. Defendants cite Minnehaha, 597 F.2d at 625, for the proposition that "pollutant" is defined
broadly in keeping with "far-reaching objectives of the Act." In that case, however, the materials the
court found to be "pollutants" were explicitly listed as such in 33 U.S.C. 1362(6), and the court simply
held that the addition of these enumerated pollutants was subject to 404 regardless of whether they
created a significant alteration in water quality. Id. at 625-26.

NOTE 25. The broad objectives of the Act are to be achieved "consistent with the provisions of this
Act." 33 U.S.C. 1251(a). The legislative history suggests that Congress did not intend to leave much
discretion to the agencies. In Senate debate on the conference report, Senator Randolph stated:

Congress has become very specific on the steps it wants taken with regard to
environmental protection. We have written into law precise standards and definite

Attachment 2 - Tolluch Rule - pg. 14

 District Court Opinion on the Tulloch Rule

guidelines on how the environment should be protected. We have done more than just
provide broad directives for administrators to follow.

Senate debate on S. 2770, 92d Cong., reprinted in 1972 Leg. Hist. at 1272. Senator Pastore stated: "It is
necessary to define such materials [as pollutants] so that litigable issues are avoided over the question of
whether the addition of a particular material is subject to control requirements." Id. at 1265 (quoting the
Committee Report at p.76).

NOTE 26. This reading of Congress' understanding is confirmed by the language of another statutory
provision. In 1976, Congress instructed the Corps to utilize management practices "to extend the
capacity and useful life of dredged material disposal areas such that the need for new dredged material
disposal areas is kept to a minimum." 33 U.S.C. 419a.

Warning. This file was prepared by OCR and may contain errors. This document is presented to
illustrate the arguments used in this decision, not for use as legal reference.

Top of Page I Previous Page I Front Page

Environmental Technical Services Co., 834 Castle Ridge Rd., Austin, TX 78746-5152
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Attachment 2 - Tolluch Rule - pg. 15

 Attachment 3

1995 USFWS Biological Opinion Related to Section 7

Consultation with the U.S. Army Corps of Engineers for
proposed permit issuance for gravel harvest on the Neosho and
Cottonwood Rivers, KS & OK. Impacts related to the
Neosho Madtom (Noturus placidus)
 D s , o e o , rtlO
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United StatesDepartment of the Interior
FISH AND WILDLIFE SERVICE
Moun tain-Prairie Region

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MAILINGADDRESS:
PostOfIice Box
STREETLOCATION:
25486 134Union Blvd.
Denver FederalCenter Lakewood,Colorado 80228
M a i l St o p 6 0 1 2 0 Denver,Colorado 80225
JUL21 1995
C o l o n e l R i ch a rdH . Go ri n g
U . S. A r myC o rp so f E n g i n e e rs
7 0 0 F e d e ra lB u i l d i n g
601 East l?th Street
K a n s a sCi {y, Mi sso u ri 6 4 1 0 6- 2896
D e a r C o l o n e l Go ri n g :

T h i s b i o l o g !ca l -o p j n i o nj .s_ pr ovidedin r esponseto your Apr il 19, 1995,

r e q u e s t to th e F i sh a n d l ,ri l d life Ser vice' s' KansasField Office f6r for r iral
s e c t i o n 7 co n su l ta ti o n re g a rdingthe KansasCity Distr ict Cor psof Engineer s ,
proposedissuanceof section 404 permits for grivel excavaiioh-tromtie Neosho
and Cottonwood Rivers in KansasahOottahomaind its efiecii-on the Neosho
m a d t o m -(N o tg fupsl l ci d u ,s). Kansascounties included in ahi; p"opot.a ac ti on
a r e A' l l en , ch a se , ch e ro ke e ,_coffey, cr awfor d, Labetie, r von, fiar ion, Mor r i s ,
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c o n s u l t a ti o n a n d n o t.i n vo l ve any.spqcjfic- applicantor per mit ipplication. -
Yo u p r o v_ i d e idn fo rma ti o na s requir bd_by_50 bFn + oi.r + i.i; ;;;.;iins the
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city D i s tri c t c al l ed.aJ ani ra r ll,
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possibility of conducting a programmatic consultationrather than
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 2
C o l o n e l R i ch a rdH - Go ri n g
T h e Ap r i l 19 b i o 'l o g i ca l a sse ssment concludedthat ther e should be no adver s e
iil.;i i r o r tl i s';i ff*-;n .i tf'." i[. g"ay bat or the var ious musselspeci es
po::ibility for
a s s e s s e d . T h e u tl l i i t.n t w a s l e ss conciusiver egar dingtl9 potential
adverseimpacts i;-ah; Neoshot.aiot, wlin conceins-relardilb^ttrewithin the
c u m u l a t i v ee ffe cts o f l o n g -t." r i"- *ioespr eao gr avel r Em oval- fr om
r a n g e o f t h e sP e ci e s.
miqht be
Also, the Service is very concernedregarding f9" muchhabitat whichiould result
impacted by thit"p"ogrir, ;; ;;ii-;t
ip e c ie s . A d d it io n a llY r . t h ep o t e n t ia l
i n d ire ct tak e of i ndi v i dual sof t h e "iin-rp6cttic'metnoai
effecrs of thit';ril;; in combination
;;;i be considbred with impactsfrom.
in consultations
previous within
other projectsongoingor alreadi-ioniioereo
th e b a sin .
OPINION
BIOLOGICAL
City.District that the proposed action is
TheServiceconcurswith the Kansas It is the opinion
not likely to adverselyaffect tfre-giayf.t-gl its habitat. jeopardizethe continued
of the Servicethat the propot.i"i.iioi, it tikely-to
inaOtom.None of the six freshwatermussels are
existenceof tne"Neostro werenot considered in
currently listei iii-piopoieOsp.ciei; tnerefore, they
of thi s bi ol ogi c a lo p in io n '
i n e fo r m irl ati on
DESCRIPTION
PROJECT
TheFederalaction considered in this opinioni: tls permittingauthority of
the Kansas city'oiririit underi.ition 404of the clehnHaterAct, to.-allow
eiiraction from the Neosho andCottonwood Rivers, in Kansas
;;;il;;-;";u;i of river gravel
andOklahoma.rne-propos.oactiviiv-'"outo itlugJveexcavation .!ow
water markof
from between the"iili;;;t-higtr wiie;.mair anothe ordinary
bd to
ii,. r,r.rino-inocoitonnooiniieri. Thepurposeof the activity would private use'
aggreghte-fqt.commercial and/or
;;;ri;;-;o.A"iV andconstructionni[."i wouldbe requiltg: andno material
Noclosing or div.ision of riu.t
wouldbe excavaiiAU.iow the water surface elevation at the time of
excavati on.
Theaction areaconsidered in this opinionis the mainstemNeosho and
Cottonwood niverll
' i;-Ali.n, cf,ite, bherokee,Coffey, Crawford,Labette, Lyon'
l4;;iil; Moryit, flioilio, and'Uoodson Counties, Kansas,as.welI . as 0ttawa
;;ilit; oitanoi..--ihii pioject arearepresentsnearly the entire known
occupiedrangeof tt',eNebsho maOiom, eliluding only.theSpringRiver, whichis
permitting..tion.:it ttrts tite. rnis.opinionassesses the
;;ij;;;rt.I"ior
ootential i,npailt"rltriiing irom an as yet.undetermined amountof ongoing
gi.u.f removilactivity throughout the basin'

OFTHESPECIES
STATUS
madtom's former-Iange due to habitat
The loss of up to one-third of the Neosho the species'
alterations in d[tito*. wascited-.i I primaryfactor in listing
andNeosho Riversin
-fromthL
This fish nowoiiuii almost.xiiusiv.ly'in cottonwood
Kansas. Thereir. oniv i-r"" reiords the Neosho River in northern
0klahoma.Therealso are u.w i.* iecords from the SpringRiver in Kansasand
C o ' l o n e lR ic h a rd H . Go rin g
M i s s o u r i , a n d n o n efro m o kl a h o ma. tr lhileover all.populationnum ber sof this
f t o "i - f i v e d sp e ci .r ." " u n q u a ntifiedand fluctuatb annually' .tlt!s limprited
q e o q r a p h icd i i tri u u ti o n i n 'a l i n ear inter connectedr iver ine habitat ovides
; ; ; f i o p p o i tu n i ty fo r w i d e sp re adadver seeffects and populationlosses'
biology and life histor y ar e alr eady.know n.
S e v e r a l f a cto rs o f N e o sh oma d tom
Fo"-.ii*pi., tf,e-fi!n aie knownto be i-octurnal and insectivorous. They
ffi.il-p;iririiv iniitiv" inO trtUAen in bottomsubstrateduring the dav and-
;il oul .[ nigftt tr-ir"ig. ior aquaticinvertebrates. Thevast maioritysize of
iii-n.ottro mad[om collectionsare'fromareaswith gravel substrates in a
;ils;-;i t/i to i-I/z inir'ei i1 oiameter(t'loss1e8i; tdenke 9! al . 1ee2).. Most
iofi".iioni alto-ui!-*.de in shallowwatei, generally.less than 3 feet deep.
Gravelriffles wiih cumentsof I to 4 feet per secondare preferredby
a d uts.
l
Themostimportantvoid in the know'l.edge of Neosho madtom life histgry !9
informationon the details of reproducfion. How, when, anq underwhatflow
conditionstp."ning occursremaihundocumented. Reproductign qI9:uT99-19
itlargest-T.looos'
take placedirringt'tayandJunehigh.flow^-events,. possibly_the
etiuil iemat.r tvpiiitiv are localedin May,with.young-of-the-year fish
eviaentin Ruguiii iuggitiing reproduction-may.pe coiniident with the peak.
r,vuiogi.phi;i th; Ne6ihoRiier basin. Some bther fish species are known to
ffi-a;p.;aent on'lp"ing iiooar to trigger reproduction. Large numbers of
Voung:oi-the-year' madloms observedtn-ttre Neosho and Cottonwood Rivers
?oll6wingunuiuittVtrighspringandearly summer flows may support this
iiturption. HowevLr, [nis'relationshiPlt?s yet to be demonstrated
ioniilriu.ty. Fiowsof the magnitude believednecessary for_reproduction
adeqirate riu.r sampting-and assessments i.mpossible. 1p mav neverbe
".nO.i
ooliible td determjne for'cerI,ainwhat madtoms do and where they go.during .
ih;;;-;;rt-fuii-anA out-of-bankflows or the mechanics of reproduction which
mayoccurat thesetimes.
THEOPINION
BASISFOR
B as el i ne
En vi ro n m ental
Theenvironmental baselineis an analysis of the collective effects of past
'leading_ to the current status of the
inO ongoingttu*in anOnaiurat factors
ipeciei or-tts triUiiat andecosystem, the efFects of_the proposedaction and
the cumulative.ii.cir in ttre altion area. This analysis describesthe status
oi tt. speciesind-factois affecting llte.environment of_the speciesin the
i i .a duri ngthe c o n iu lt a t io n .
p " o p o t.O'ac ti on T h eb a s e lin ein c lu d e sS t a te '
ioiii, inO privaie-iciioni"alreadyaffecting the species. Unrelated Federal
actionsthat have-.o*pj.i.Otot*ui o" inforilal con'sultations also are.part.of
the environmental basbline,as are Federalandother actionswjthin the action
areathat maybenefit listed species.
TheServicehas completed four previousformal_section 7 consultationsin this
niiir, invoruing-ih[ionrtruitibn of a tota] of 529tributary watershed dams.
if,. iour consul[ationsare listed below,indicating the Agencyinvolved, the
basin, andthe number of structuresincluded in each:
 C o l o n e l R i ch a rdH . Go ri n g
4
1 9 9 1 , S o i l C o n se rva ti o n Ser vice, CottonwoodRiver Basin, 4g dams
1 9 93 ' co rp s o I E n g l n e e rs,cottonwoodRiver Basin, lr 3 dims
1 9 93 , co rp s o { upperNeoshoRiver gaiin,- ioi- oam
1 9 94 , co rp s o f lEnnggi ni neeeers,
rs,LbwerNeoshoRiver Basin, 2oi oam s
I n 1 9 9 1 , a " n o j e o p a rd y"b i o l o gical opinion was issued to the soil
C o n s e r v a ti o nS e rvi ce (n o wth e Natur al'Resour ces Conser vation- ser vice)
r e g a r d i n gl .L . 5 6 6 ^fu n d i n g f water sheddamsin the cotionwood- Riu.r ' Ba s i n.
A n i n t e g r a l q a r! o f th i s o p i n i on was an agr eement to conductdetailed
m o n i t o r i ngo f th e i mp a ctso f o ngoingconslr uction on a tinJwnpoputationof
Neoshomadtomsat the mouthof the 5outh Fork Cottonwood River. Since
t i m e , t h i s mo n i to ri n ge ffo rt h as beeninvalidated bt ah; p;iliiting or that
a d d i t i o n al d a msb y th e K a n sa scity Distr ict,. pr ecluiing- the' iuir iii io
determinehowhabitat maychangeind howmaitbmsmayrespondto this iype of
d e v eo l p m e n t.
I n 1 9 9 3a n d 1 9 9 4 ,.th re ese . p a rate.' jeopar dy"biological opinions wer e issued
t h e . Ka n sa sC i tv D i stri ct fb r section 404 - per m iitiig or wittr iii.o o.r r in theto
C o t t o n w o o d ,-u p p N e re o sh o a
, n d l ower NeoshbBasins.- The Recor dsoi Oeciiion- U v
t h e Ka n s asci tv D i stri .t g i sa gr eedwith the iinaingr i; L' il;; Jpinions, an d
permits have been and continue to be issued. Atttr6ughminv-or-tf,"
529 dams
a r e . a w a i ti n g _ co n stru cti o nth, e se str uctur es must oe inciuala- in the
e n v i r o n me n tabl a se l i n e fo r th i s cur r ent consultation becausetheir completi on
i s a n t j c i pa te d p e n d i n gre ce i p t of adequatefunding ina- ipi"opr iate per mit s .
T h e T u l s a D i stri ct C o rp so f. E ngineer s_oper ates John Redm ond
Reser voir , a
9 ' 0 0 0 - a c r ei mp o u n d meonnt th e NeoshoRiver in cofiey a;ilft, im ioun ds
water upstreamnearll to Hartford. This reservoir ifr.ilii'6ly"separates "[i.n
NeoshoBasin range of the Neoshomadtominto two segments. gne segment the
includes the lower NeoshoRiver from John Redmond Dim Oownstreiminto
0 k l a h o m a . T h e o th e r se g me nitncludes the uppei Neoshoniver iiom its
h e a d w a t ers d o w n .toH a rtfo rd , a s well as the' boitonwoodRiver fr om its
headwaters
to its confruence
with the Heosho-juitu.ion'iil;ri;.
TheTulsaDistrict operatestwo other Federalreservoirsin the basin: Marion
Res.ervoir,a 6,000-acreimpoundment at the upperend of tfre CoitonwoodRiver
j.n Marioncounty; andcouni:il GroveReservoii^f
a 2,800-a.". irpoundment on the
Neosho River aboveCouncilGrovein Momiscouniy.' Thesemain'itemreservoirs
exert a direct control over the flow regimein tfieir il;p.;;i;e rivers, with
combined effect belowthe confluence. Ttreefiects are mlchih. ,amea, a
experienced with watersheddams,only on a larger scale. g.iiute flood
control,is a-primaryfunctionoi theie r.teruoirt, peakiniir.a* flows are
reducedor eliminatedfollowing.plggipitation eventi, andtheie is a proiongeo
periodof.higher flows as ttre ioittiohal storeawater is released
weeks,rather than a few days. over several

TheUolf CreekNuclear0peratingCorporation ownsandoperateshlolf Creek

!?k., a 5,090-acremanmaile.impoundmehton a diiect tribirtary to the Neosho
.liy9t-in coffey county. Theiake is usedas a iour.. oi ioiting water for the
hlolf creekGenerat'i.ng^station,
a nucleareleciricity-g;;.;;iing"riiiiitv.
Theconfluenceof }'|olf Creekwith the Neosho River occursapproximately
l0 river miles downstream from JohnRedmond ReservoirDam. Direct transfers
C o lo n e l R ' i ch a rdH . Go rin g
of water from John Redmond Reservoirto l,lolf Creek Lake, and subsequent
d i s c h a r g e so f w a te r fro m l 'l o l f C r eekLake, ar e subject to the cooling needsof
t h e f a c i l i ty.
exist within the basin: M ar ionCounty
Se v e r a ls ma l l e r p u b 'l i c i mp o u n dm ents
Lake (153 acres) and Cottonwood Park Ponds(15 acres) in the Cottonwood Basin;
a n d L i k e Co u n c'i jGro ve(4 3 4 a cres) , LakeKahola( 203 acr es) ,01pe City Lak e
( 9 0 a c r e s ) , Io l a C i ty L a ke (1 9 acr es) , Gr i{ ley Lake ( 30_acr es) ,Bar tlett C i ty
f a k e ( 1 3 acre s), A l ta mo n tC i ty LakeNo. I ( 17 acr es) , Altam ontCity LakeN o. 2
( 2 7 a i r e s ) , T h a ye rC i ty L a ke (3 0 acr es) , LakePar sons( 825_acr es) ,Yates
i e n t e r R e l e rvo i r (1 1 0 a cre s), a nd NeoshoFalls City Lake ( 4 acr es) , all withi n
t h e N e o s h oB a si n .
T h e Ka n s asD e p a rtme not f tl i l d l i fe and Par ksadminister sfour public aquati c
a r e a s i n t h.e b a si n : C h a seC o u ntyState Fishing Lake ( 109 acr es) , NeoshoS tate
F i s h i n g L ake (9 2 a cre s), N e o shol,later fowlManagement Ar ea ( 1,390 acr es) ' a!9
t h e C h e r oke e C o u n tyS tri p P i ts ( 3,000 acr es cumulatively) . Additionally' t he
St a t e o f Ka n sa s(1 9 7 8 )re p o rte dthat the entir e NeoshoRiver Basin contain ed
1 3 , 8 3 8p r i v a te a g ri cu l tu ra l p o nds,totaling 20,902acr es. This inventor y h as
n o t b e e hu p d a te d ,a n d th e re i s no pr ecise data on such sm all im poundmenin ts
t h e C o t t o n w o oB d a si n . H o w e verthe
, numbermaybe expectedto be significant'
b a s e do n t h e 1 9 7 8d a ta .
T w os m a l l l o w -h e a dd a mse xi st on the main stemCottonwood River , one each i n
C h a s ea n d L yo n C o u n ti e s. T h re eadditional low- headdamsexist on the main
s t e m u p p e r N e o sh oR i ve r, a l l i n LyonCounty. At least 12 sm all low- headdam s
exist on the main stem lower NeoshoRiver from John Redmond Damto the
O k l a h o mbao rd e r. T h e see xi st pr im ar ily to pr ovide pools for water intake
s y s t e m sf o r mu n i ci p a l i ti e s o r other uses; high flows ar e not impounded.
H-owever, they mayserve as barriers to upstreammovement by Neosho madtomsand
o t h e r o r g a n i sms,p o ssi b 'l yi so l a ting populations fr om one another .

H i s t o r i c a l l y, re mo va lo f ri ve r gr avel for comm er c' ial

useswas an ongoing
a c t i v i t y ' i n th e N e o sh oa n d C o ttonwoodBasins, and this activity has the
p o t e n t ' i a l fo r re mo vi n gu sa b l emadtom habitat as well as har mingindividual
f i s h d i r e ctl y. R e sp o n d i nto g these concer ns,the KansasDepar tm ent of
t l i l d l i f e an d P a rksi n 1 9 9 1e n a cteda mor ator iumon issu' ingState per mits fo r
t h i s a c t i v i ty i n N e o sh o ma d to m habitat. The State r escindedits mor ator iu mi n
1 9 9 5 , c o n ti n g e n tu p o np e rmi t a pplicants acquir ing necessar ysection 404
p e r m i t s a n d re ce i vi n g S e rvi ce a ppr oval.

D i s c h a r g eo f p o l l u ta n ts i n to th e Neoshoand Cottonwood River s r esulting fr o m

l ' i v e s t o i k fe e d l o ts, cro p fi e l d s, m unicipalwastewatertr eatm entsystem s,and
a c c i d e n t al sp i l l s fro m va ri o u s sour cesis an ongoingpotential thr eat to the
N e o s h om a d to m.

l l h i l e t h e d e g re eo f co n tro l o n flow, water quality' and movement or

a v a i l a b i l i ty-o f g ra ve 'lsu b stra te in the Neoshoand CottonwoodRiver s exer t ed
b y t h e s e va ri o u s fa cto rs h a s n ot yet beendeter mined,they all likely imp19t
N e o s h om ad to m h a b i ta t, i n so mecasessignificantly. Quantifyingthe basel i ne
c o n d i t i o n s th a t cu me n tl y e xi st within the Cottonwood Basin was one of the
g o a l s o f t h e mo n i to ri n gstu d y i nitiated as a r esult of the 1991consultation
 C o l o n e l Ri ch a rdH . Go ri n g
6
b e t w e e nth e S e rvi ce a n d th e N atur al Resour ces Conser vationSer vice.
i n d i c a t ed a b o ve ,tl 'l t stu d y.hasnowbeendeier m ineoinvalio,- uai.o onAs
w a t e r s h edd a mp e rmi ts.i ssu e dby the Kansascitt Distr ict. At ihe pr esent
t i m e , t h ere i s n o .me ch a n i sm .in place to assesi"thepotenilui' - r o" impactson
t h e . s p e ci e sfro m.tri b u ta ry d a mlonstr uction and oper ation. A studi' ionOui teO
b y . t h e Emp o ri aS ta te U n i vl rsi ty il allgm ptingio issess itr e poientiat to
m i t i g a t e h a b i ta t l o sse s a sso cilted.with_lr av6textr action. Finii r .iuii, ,ay
p r o v e b e n e fi ci a l . i n th i s.re g a rd but stiti Oo not add' r er i' it.' question
p o p u l a t io n i mp a ctsa sso ci a te dwith the gr ave' lr em ovalitsela.- - - of

T h e Se r v i ce h a s a l re a d y d e te rminedthat tr ibutar y water sheddamconstr uc ti on,

e ro p o se dth roughoutthe Neoiho- niver g;;i;,- i; iit.iv- io - " '
o f t h e . r y a g n i tu d p
j e o p a r d i .zeth e su rvi va l a n d rec6ver yof the Neosho
m aOlom' .Belausethis
"jeopardy standard" has allgady bee-nexceeoeo-witrrin-ihe"'ran6.-or the species,
a n y a d d i ti o n a l i mp a ctso n th e lpecies or lts hibitat addsto this situatio n.
E f f e c t s of th e A cti o n

Thecumentproposed Federalactionwouldresult in the removalof an

unspecifiedamount of substratewhichhas beenconilu;ir;ly-iientified as
h a b i ta t uti l i z ed by the N eos hm
o a d t o m . d u r in g - le " tpaeinr io is . - - i6 . u io f o l i ca t
informationpreparedby the Kansas,.city oislriit identified the followingfour
possiblesourcesof impactto the Neos-ho madtom fromthis-iciiuitv.
- - I t q K a n s a s . g itDis
y t r ic t p r o p o s e s that,
Deeccaauussee
b al l a cti vi ti e s to b e conductedunder its per mit pr ocbss' will tilie
p l qqcLes irnr r th
Pr e rrulrrlowrng_porrlo
Lrre n o n fl o w i n g _ p o rtion
no
oft tthe water
h e wa t e rbddt,
o d y , tthe dir
he d ireect
c t kkiilinq off
ill in g o
individualmadtoms resulting fromgravelextiaiiion is not not 1t[eiv-
likely. As As lon g as
1?Pl9!!lafe permitcomplianie
is eiforced,the-iervjceconcurs
niirr irtit
determi
nation.
De stlyg !!onpf qrn?Y ai l ,abl e it a t - - T h e
hab b io lo g ic a lin f o r m a t io nd is c u s s e th
d e
possibility that "dry" gravel retnoved duringiow-flowevents-ioutO poiiiUiv-n.
utilized by the.species-during higherrlowi"andthat r.mouii oi-ilr.t.
substrateswouldthen result in a-reductioni'n-overallhabitat availableto
the madtom.Theassessment stated: "It li not-known to-wtrii degreethis
habitat is utilized duringlrigherflow event;:- ihar.ror., ii ii not known
whatimpactthis factor wou'ld-have on the *aUiom." TheServiceconcurswith
this.assessment, .rn part. The fact that madlomi ..e typically found
relatively near the water/gravelinterfaceiuggeststh;[ ih;i titety movein
r e sp o n seto c hangi ng w aterl ev e ' ls ,in a n a t t e t f t t o m a in t a ins im ila i. t r a U i ta i
conditions. TheServicebelievesthat r.mova'i-of gr;vei'-oui;iig"'tow will
re su l t'i n a remov alof habi tatwh ic hwo u ldo iO t n a r ilyb e u t iliie d Uvflow tn.
sp e ci e so n c ew aterl ev el s againr is e o n t h e b ir .
Si l ta tio n gf-habi tal --Tl . bi o'l o g ic a in
l f o r m a t io nd is c u s s etdh e p o s s ib ilit y
that repeatedgrave'lextractioni from the iime-6arbetwe.ns.veiii-ri;;;-itug.
changes could result in a releaseof additionit sediment irom iie Oar,
increasingl-iltation of downstream habitats. As the ass.srmeni stated,
excessivesiltation of interstitial. spacesof occupi.ogriu"i"b.r, ,.y
adverselyimpactNeosho madtoms.The'Servi..ioncu"sthat it is not known to
whatdegreethis.factor of.the proposed action-may impa.ftf,. ipecies, but
that undercertain circumstancei -r
il maybe lit.iv-to bccur.
Co lo n e l Richard H. Goring

R e d u c t ' i o nisn th e b a se l o a d o f qr avel- - Thebiological infor mation stated that

a f i n i t e amo u n ot f g ra ve l i s containedwithin the basin and that excessive
r e m o v a lo f th e b a se l o a d ca n l ead to habitat degr adationthr ough incr ease d
e r o s i o n a nd d e cre a se si n w a te r quality. The assessm ent concludedthat adver s e
impacts on the species are not expectedto occur, provided overall aquatic
h a b i t a t i s n o t d e g ra d e dth ro u ghexcessivebaseload r eductions. However i,t
remainsundetermined what "excessive"reductions are. Current research
estimates that approximately500 gravel bars exist in the Neoshoand
CottonwoodRivers, with an undetermined numberof these actually providing
a d e q u a t em a d to m h a b i ta t (D a vi dEdds,Em por iaState Univer sity, per s. com m .;
M a r k E b e rl e , F o rt H a ysS ta te U niver sity, per s. com m .) . Past r emoval
a c t i v i t i e s ma ya l re a d y h a vere moved any excessgr avel in the basin, with the
m a d t o mdse p e n d e not n a l l th a t remains. Because this is an unknown,it m us t be
a s s u m etdh a t i t i s p o ssi b l e th at fur ther r eductionscould r esult in
s i g n i f i c a n t a d ve rsei mp a ctsto the populationsof m adtomrsemainingin the
r i v e r , u n l e ss g ra ve l re mo va li s extr emelylim ited and r igor ously contr olle d.
C u m e n t l y , th e re a re n o d a ta to concludethat the speciescan m aintain viabl e
r e p r o d u c i n gp o p u l a ti o n sw i th a dditional habitat r emovalwhich is not natur al l y
r e p l e n i s he db y stre a mfl o w .
C u m ualt i v e E ffe cts

C u m u l a t i vee ffe cts i n cl u d e th e effects of futur e State, local, or pr ivate

a c t i o n s t h a t a re re a so n a b l yce r tain to occur in the ar ea consider edin thi s
b i o l o g i c a l o p i n 'i o n . F u tu re F e der alactions that ar e unr elatedto the pr opos ed
a c t i o n a r e n o t co n si d e re di n th is section becausethey r equir e separ ate
c o n s u ' l t a ti o np u rsu a n tto se cti on 7 of the Act.

T h e r e i s a l a ck o f d e fi n i ti ve i nfor mationon futur e State, local, or pr iva te

a c t i o n s w h i ch ma yo ccu r. In te r est has beengener atedr ecently in the
d e v e l o p me not f co mme rci apl o u 'ltr y oper ations,par ticular ly in the lower Ne os ho
R i v e r B a si n . T h e seo p e ra ti o n swouldhaveto m eetwater quality standar ds
e s t a b l ' i s h e db y th e S ta te s o f K ansasand 0klahom a,so it is unknown to what
e x t e n t t h ey ma yi mp a ctN e o sh o madtom popu' lationsor habitat.

Summary

As d i s c u sse di n th e b i o l o g i ca l infor mation, the habitat r equir ementsof th e

N e o s h om a d to m fo r sp e ci fi c co mbinations of gr avel bar substr ate and flow
c h a r a c t e ri sti cs re su l t i n a l i kelihood that the pr oposedgr avel extr action
p e r m i t t i n g p ro g ra mw i l l a d ve rselyim pactthe species. It is unknown at th i s
t i m e h o wmu cho f th i s re q u i re d habitat is to be im pacteddur ing the pr opo s ed
a c t i v i t y , n o r e ve n fo r ce rta i n howm uchof this habitat the speciescan affor d
t o I o s e b efo re th e l i mi te d re maininghabitat degr adessignificantly.
T h e r e f o r e , b a se do n th e e n vi ro nmental baseline, effects of the action, and
p o s s i b l e cu mu 'l a ti vee ffe cts, i t is the Ser vice' s biological opinion that the
p r o p o s e da cti o n i s l i ke l y to j e opar dizethe continuedexistenceof the Ne os ho
madtom.
 \

C o l o n e l R i ch a rdH . Go ri n g g

REASONABLE
ANDPRUDENT
ALTERNATIVES
R e g u l a t i on s(5 0 C F R4 O2 .OZi m ) plementing section 7 define r easonableand
p r u d e n t a l te rn a tj ve s a s a l te rn ative actions, identified dur ing for mal
c o n s u l t a ti o n , th a t (1 ) ca n b e implemented in a mannerconsistent with the
i n t e n d e dpu rp o seo f th e a cti o n, ( 2) can be implemented consistent with the
lcopg o f th e a cti o n a g e n cy's l egal author ity and jur isdiction, ( 3) would, the
Se r v i c e be ]i e ve s, a vo i d th e l i kelihood of jeopar dizingthe continir edexis tenc e
o f l i s t e d sp e ci e s, a n d (4 ) a re econom icallyand technically feasible.
T h e Se r v i ce b e l i e ve s th a t i mp l ementation of either of the following r easo nabl e
a n d .p r u d e n t a l te rn a ti ve s, i n cl uding the specific per mit conditions- associ ated
w i t h A l t e rn a ti ve 2 , w i l l a vo i d the likelihood of jeopar dizing the Neosho
madtom.
Al t e r n a t i v e I
T h e _ Ka nsaCsi ty D i stri ct sh o u lddeny gr avel extr action per mits and dir ect al l
a p p l i c a n ts to se e k a l te rn a te sour cesof gr avel outside Lhe m ain stem Neos ho
a n d C o t t on w o oR d i ve rs. S o u rcesinclude sm aller tr ibutar y str eams,off- channel
a l l u v i a l d e p o si ts o f g ra ve l , a nd uplandlimestonequar r ibs.
T h e S e r v i ce b e l i e ve s th i s a l te rnative satisfies the fir st thr ee cr iter ia
d e s c r i b e da b o ve ,b a se do n th e following: ( l) it m eetsthe intendedpur pos eof
t h e p r o j e ct, w h i ch i s to o b ta i n gr avelt ( 2) the KansasCity Distr ict' hai t he
l e g a l a u th o ri ty t9 d e n y p e rmi ts which m ight jeopar dizefedLr ally listed
s p e c i . e s ;a n d .(3 ) b e ca u sen o N eoshom adtom habitat would be im patted, it w oul d
a v o i d i g o p a rd yto th e sp e ci e s. The four th cr iter ion, economitand i,echni c al
f e a s i b i l i t y, ca n p ro b a l l y b e m et by using tr ibutar y gr avel as a sour ce.
Ex p o s i n g, off-ch a n n e l a l l u vi a l Er avel or pur chasingquamy gr avel would be m or e
c o s t l y t h an e xtra cti n g i n stre a mgr avel. Ther efor e,the KansasCity Distr i c t
m u s t m a kea d e te rmi n a ti o no f the economicfeasibility of this alter native,
v e r s u s a l l o w i n g th e co n ti n u e drem ovaland degr adationof habitat for a
t h r e a t e n e dsp e ci e s, w h e no th e r sour cesar e available.

Alternative ?

T h e Ka n s asC i ty_ D i stri ct sh o u l d im plementa ver y lim ited, tightly contr oll ed
permit programfor gravel extraction from the Neoshoand CottonwbodRivers in
Kansasand 0klahoma. The District should not permit any gravel removalfrom
t h e Sp r i l g R j ve r, d u e to th e e xtr emely' limited' distr ibution and population
s i z e o f Ne o sh oma d to m i n th a t river . Gr avel r emovalcould be diviileA into tw o
c a t e g o r i e so f-a cti vi ty: (a ) l ar ge- scale or "comm er cial" gr avel har vest an d
( b ) s m a l l-sca l eo r " p e rso n a lu se" gr ave' lhar vest. The cr iter ion used to
d i f f e r e n t ia te b e tw e e nth e se u ses is volume;per sonaluse har vest must be
r e s t r i c t e d to n o mo reth a n 1 0 0 cubic yar ds of gr ave' lannually fr om a singl e
p e r m i t . On eo th e r cri te ri o n i mposedon per sonaluse har vest is that the- total
n u m b eo r f .su ch _ p e rmi tsb e l i mi ted to 25. This r epr esents5 per cent of the
total numberof gravel bars estimated in the rivers. In ordbr to provide some
i n i t i a l r eg u l a l o ry re l i e f fo r residents of the basin, it is being issumedthat
removalof such a small volumeof gravel annually from 5 percent-of the total
a v a i l a b l e h a b i ta t ma yre su l t i n no significant adver seim iacts to the spe c i es .
C o l o n e l R ich a rdH . Go ri n g
C o n t . i n u ed p o p u l a ti o nmo n i to ri n gwi' 11hopefully pr ovide someinsight to.this .
'i f s p e rce n t i s f6 und to r bsult in a significant.adver seim pa c t'
; ; ; u *t i i ; n :
i h . f h n t a s C i ty Oi i tri ct sh o u l dr einitiate section 7 consultation.

F o r l a r g e r -sca 1 e ,co mme rci agl ravel har vest, the following cr iter ia should be
a p p l i e d - t o d e te rmi n ee l i g i b i l i ty . for per m it consider ation:
l. N o m o reth a n a cu mu l a ti vetotal of 10 gr avel bar s shall be per mitted for
u s . a t i n d i vi d u a l h a rve st s ites within the Neoshoand Cottonwood River s .
T h e f i rst 1 0 b a rs to b e p e r m ittedshall r emainthe on' ly har vest sites
t h r o u g h o u tth e d u ra ti o n b f tne section 404 per m itting pr ogr am ,not to
e x c e e da p e ri o d o f 5 Y e a rs.

Z. No more than two gravel bars in any given reach of river maybe impacted
U i g r ave t re mo va l 'd u ri n gth e life of- any per m it issued. A r iver r each i s
Olfinea as a segmentof-river lying betweenany two low-water dams
i d e n t ifi e d i n t6 e N e o sh oMadtom Recover y ( U.S. Fish and lr |ildlife
Plan
x ). The one exceptiontio this is wher ethr ee s m al l
Se r v i ce 1 9 9 1 ,n p p e n Oi n
d a m so ccu r w i ttri h g .S mi i e s of one another , at Chanute,in NeoshoCounty '
K a n s as. In th i s i n sta n ce , the boundar yof the r iver r eachesboth ups tr eam
a n d d ow n stre i msh a l l b e d 6 ftned by the- middleof these thr ee dam s,loc ated
i n s e cti o n 1 I, T .2 7 S ., R .18 E., NeoshoCounty.
3. G r a v el re mo va li s to b e p e rmittedonly if m onitor ing_ofim pactsis
g u a r i nte e dp ri o r to p e rmi t ' issuance. A m onitor ingplan.mustbe devel oped
of the Ser vice and r ecognizedspeciesexpe r ts
i l i t n in p u t i n d co n cu rre n ce
a n d m u st b e fu n d e db y th e KansasCity Distr ict and/or the app' licant( s) .

T h e j u s t i f i ca ti o n fo r p e rmi tti ng no m or ethan 10 total gr avel bar s for har v es t

i i t i a t t hi s re p re se n ti 2 p e rcentof the total numberof bar s believed to
o c c u r i n th e N e b sh oa n d C o tto nwood River s. Comm er cial har vest, becauseit has
i h e - p o t e n ti a l fo r co mp l e te l yd epleting the.gr ave' l stor ed on an individual bar ,
c o u l d h a vemo resi g n i fi ca n t-a n d' long- ter mhabitat im pactsthan.per sonal- u s e
h a r v e s t , wh i ch w i ti U e a b l e to take- nomor ethan 100 cubic_yar dsper bar
harvested. If the as yet undetermined effect of commercialharvest activit'y
on t'leoshomadtomsis significant, anything greater than ! percent_may ' less !9
i O u . i i e a n d p o ssi b l y i ri e ve rsi bl6. bn the other har - t{ ,affecting than
i - p . "i . n i o f'th e h a b i ta t ma yn ot be sufficient to allow for detection of
i m i a c t s i f th e y a re o ccu mi n g . This level of activity !r a9 been iudged as
reiionable by ieveral speciei experts as a first attempt to prov'ide meaningful
d a t a o n p ote n ti a l i mP a cts.

T h e r e a s onfo r p e rmi tti n g h a rvest on only two bar s per r iver r each' is an
a t t e m p t t o sp re i d th e i mfa cts over a gr elter ar ea air dminimizethe Pg:s!b i l i ty
o f s i b n i f i ca h tl y d e p l e ti h g th e populationsin one str etch of the habitat.
T h e g u a r an te eo f mo n i to ri n go f the effects of this activity_is cr ucial, and
w i t h 6 u t i t th e S e rvi cew o u l dn o Ionger suppor tAlter native 2. Both pr ehar v es
inJ postfrarvestmonitoring must be ionductid anUmust include not only the bar
n.ini haivesteObut also lhe control bars and downstream of that bar. Details
a n d f a r a me te rsma yb e o u tl i n e d m or especifica]ly by the Kansas City Distr ic t,
t h e S e r v i ce , a n d re co g n i ze dsp eciesexper ts.
C o l o n e lR i ch a rdH . Go ri n g 10
I n a d d i t i o n to th e cri te ri a d escr ibedabove,the following conditions sho ul d
a p p l y t o a l l g ra ve l h a rve st p er m' its,r egar dlessof volum e- tobe extr acted:
1 . T h e a p p l i ca n t sh a l l , fo r the dur ation of the per m it, allow accessto the
p e r m i tte d p ro p e rty b y h o l der s of valid Feder alNeoshom adtom collecting
p e r m i ts, fo r th e p u rp o se sof ver ifying per m it com plianceor conducting
s p e ci fi e d i mp a ctmo n i to ri ngstudies.

2. T h e ap p l i ca n t sh a l l n o t p l ace any dike or other impedim ent to flow withi n

t h e r i ve r ch a n n e ld u ri n g any phaseof the gr avel r emovaloper ation.
S i m i l a rl y, n o ch a n n e l i zi n gor ditching is to be allowed in the r iver
c h a nn e l . N o ve h i cl e s o r e quipmentar e to be allowed into the water for
a n y r e a so n .
3. T h e a p p l i ca n t sh a l l o n l y rem ovegr avel exposedabovethe water line at the
time of harvest. The depth of gravel removalshall not extend below the
e l e v ati o n a t w h 'i chw a te r b eginsto seep into the excavatedar ea.
4. B e c a u sel e a vi n g h o l e s i n the str eam bed
encour ages
er osion upstr eam ,th e
q p p l ica n t sh a l l re co n to u rthe excavationar ea to include a gr adual slope
d o w nto th e e xi sti n g w a te r level following har vest.

5. G r a ve lw a sh i n g ,i f a n y, shall be conductedout of channel. Settling

b a s j ns a re re q u i re d . A n y dischar gefr om settling basins must m eetKans as
Departmentof Health and Environment water qua'lity standards.
6. T h e i n te n ti o n a l o r a cci d e ntaldischar geof fuels, lubr icants, or other
c h e mi ca l si n to a n y p o rti o n of the r iver shall not be per mitted.
7. T h e ap p l i ca n t sh a l l su b mi tto the KansasCity Distr ict an annualr epo r t of
precise amounts-ofgrave'l removedfrom the permit area, and the Corpswill
p r o v i d e th i s i n fo rma ti o nto other involved State and Feder al agencib s .

T h e Se r v i ce b e l i e ve s th a t re a sonableand pr udentAlter native 2, with full

i m p l e m e n ta ti oonf th e se co n d i tions, would avoid the likelihood of jeopar dyto
t h e N e o sh oma d to m a sso ci a te dwith r em ovalof its pr im ar y r equir ed habitat.
T h i s r e a so n a b l ea n d p ru d e n ta l ter native is believed to confor mto thr ee o f the
f g u r c r i t eri a p re se n te di n 5 0 CFR402, basedon the following: ( l) it meets
t h e i n t e n d e dp u rp o seo f th e p roject, which is to obtain gr avel, ilthough
p g s s i l l v l n mo rel i mi te d q u a n tities than applicants maydemand;( 2) the Kans as
! i t y D i s tri ct h a s th e l e g a l a uthor ity to r estr ict activities, including
l i m i t i n g th e n u mb e or f p e rmi ts, whichmight jeopar dizefeder ally listed
s p e c i e s ; a n d (3 ) b V i mp a cti n ga sm all per centageof the total available
h a b i t a t a n d b y cl o se l y scru ti n izing the im pactswhich mayr esult fr om this
l e v e l o f a cti vi ty, th e a cti o n s hould avoid jeopar dyto the speciesdur ing the
3 - t o S- ye a r l i fe o f th e p e rm it.

Al t e r n a t ive 2 a l so i s ce rta i n l y technically feasible, as it allows the

a c t i v i t y to p ro ce e da s th e a p plicantshave r equested. The Kansascity
District must determinewhetherthe requirementof the monitoring study meets
t h e "e c o no mi cfe a si b i l i ty" p o r tion of this cr iter ion. Becausethis applies
o n l y t o co mme rci ahl a rve st a n d not per sonaluse low- volum ehar vest, it is the
C o l o n e l R i ch a rdH . Go ri n g 11

o p i n i o n o f th e S e rvi ce th a t i t does satisfy this cr iter ion. If the Kans as

C i t y D i s t r i ct d e te rmi n e so th e rwiseand m onitor ingis not r equir ed,
Al t e r n a t i ve 2 w i l l n o l o n g e r b e consider edr easonableand pr udent.
B e c a u s et h i s b i o 'l o g i ca l o p i n i o n has found jeopar dyto the Neoshom adtom ,
t h e K a n sa sC i ty D i stri ct i s re qu' ir edto notify the Ser vice of its final
d e c i s i o n o n th e i mp l e me n ta ti on of the r easonableand pr udentalter natives
( 5 0 c F R4 0 2 .l s(b ) ) .

TAKESTATEMENT
INCIDENTAL
S e c t i o n s4 (d ) a n d 9 o f th e A ct, as am ended, pr ohibit taking ( har ass, har m,
p u r s u e , h u n t, sh o o t, w o u n d ,ki l l, tr ap, captur e or collect, or attempt to
e n g a g ei n a n y su ch co n d u ct)o f listed speciesof fish or wildlife without a
s p e c i a l e xe mp ti o n . H a rmi s fu rther defined to include significant habitat
m o d i f i c a ti o n o r d e g ra d a ti o nth at r esults in death or injur y to listed spe c i es
b y s i g n i f i ca n t'l y i mp a i ri n g b e havior alpatter ns such as br eeding, feeding, or
s h e l t e r i n g . H a ra ssi s d e fi n e d as actions that cr eate the likelihood of inj ur y
t o l i s t e d sp e ci e sto su ch a n e xtent as to significantly disr upt nor mal
b e h a v i o rpa tte rn s w h i ch i n cl u d e, but ar e not limited to, br eeding, feeding, or
s h e l t e n i n g . In ci d e n ta l ta ke i s any take of listed anim al speciesthat r es ul ts
f r o m , b u t i s n o t th e p u rp o seo f, car r ying out an other wiselawful activity
conductedby the Federal Agencyor the applicant. Underthe terms of
s e c t i o n 7 (b )(a ) a n d se cti o n 7 (o) ( 2) , taking that is incidental to and not
i n t e n d e da s p a rt o f th e A g e n c yaction is not consider eda pr ohibited takin g
p r o v i d e dth a t su ch ta ki n g i s i n compliance with the ter m s and conditions o f
t h i s i n c i de n ta l ta ke sta te me nt.

l . l i t h f u l l i mp l e me n ta ti o on f re asonableand pr udentAlter native l, the Serv i c e

d o e s n o t a n ti ci p a te a n y i n ci d e ntal take of Neoshom adtomassociated
s with thi s
F e d e r a la cti o n .

T h e S e r v i ce a n ti ci p a te s th a t a numberof Neosho m adtomcould

s be taken as a
r e s u l t o f i mp l e me n ta ti oonf re asonableand pr udentAlter native 2, as this
a l t e r n a t i v e d o e s a l l o w re mo valof identified m adtomhabitat. The str ict
c o n d i t i o ni n g o f th i s a l te rn a ti ve is designed,in par t, to m inimizethis tak e;
h o w e v e r ,it i s p o ssi b l e th a t most or all of the Neoshom adtomrsesiding at the
s p e c i f i c g ra ve l b a r h a rve st si te could be taken. This incidental take cou1d,
t h e r e f o r e , re su l t i n th e p re i mpactpopulationdensity of Neoshom adtomat s any
m o n i t o r j n gsi te (co n si sti n g o f a har vestedgr avel bar and the contr ol bars
upstreamand downstream from the harvest site) being reducedby 33 percent.
T h e S e r v i ce b e l i e ve s th e fo l l o wing r easonableand pr udentm easur eis neces s ar y
a n d a p p i o p ri a te to mi n i mi zeta ke of Neoshom adtom :

M o ni to ri n go f a l l p e rmi ttedgr avel har vest sites m ust be conducted

t o en su reco mp l i a n ce w i th per mit conditions, as well as to deter min e
t h e l e ve l o f i n ci d e n ta l take occur r ing as a r esult of per mitted
a c t i vi ti e s.

I n o r d e r to b e e xe mp tfro m th e pr ohibitions of section 9 of the Act, the

K a n s a sC ity D i stri ct mu st co mplywith the following ter ms and conditions,
w h i c h i m pl e me nth t e re a so n a b leand pr udentm easur edescr ibedabove. Thes e
t e r m s a n d co n d i ti o n s a re n o n d iscr etionar y.
 -

C o l o n e lRi ch a rdH . Go ri n g 12

l. A preimpactsurvey for Neoshomadtoms must be conductedat each gravel bar

permitted for harvest, as well as at appropniatecontrol bars upstreamand
d o w nstre a m o f th e h a rve st site. This sur veym ust be sufficient to
m adtomon
e s t i ma ted e n si ty o f N e o sho s the thr ee bar s.

2. At s omep o i n t fo l l o w i n g the initial har vest of gr avel fr om a per mitte d

bar, but not to exceed1 year from preimpactsurvey, a postimpactsurvey
m u s t b e co n d u cte do n e a chper mittedbar as well as its two associate d
c o n tro l b a rs. T h i s su rveyshouldr eplicate as near ly as possible the
m e t h o d su ti l i ze d i n th e p reim pactsur vey, and again should estimate the
density of Neoshomadtoms on the three bars.

3. Po s ti mp a ctsu rve ys, a s d e scr ibedin No. 2 above,m ust be conducted

a n n u a l l y fo r th e e n ti re d ur ation of any active section 404 per mit. Annual
s u r v e ysw 'i 1 'la l l o w p o p u l ationtr end m onitor ing, which will identify if the
l e v e l o f i n ci d e n ta l ta ke has beenor is being exceeded.
4. T h e su rve ysi d e n ti fi e d i n No. 1, No.2, and No.3 above,m ust be con duc ted
at each site permitted for commercialgravel harvest under this program,a
p o s si b l e to ta l o f 1 0 h a rvest sites, eachwith 2 associatedcontr ol si tes ,
for a maximum total of 30 grave'l bars to be surveyedannua11y.

5. An a n n u a lre p o rt o f a l l sur vey findings, including deter m inationsof

p o p u l a ti o nfl u ctu a ti o n s, must be pr ovidedto the Ser vice and other
i n v o l ve d re so u rcea n d re g ulator y agencies.

T h e r e a s o n a b l ea n d p ru d e n tmeasur e,with its im plementing ter ms and

c o n d i t i o n s, i s d e si g n e dto mi nim izeincidental take that m ight other wise
r e s u l t f r o m th e p ro p o se da cti on. W ith im plementation of this measur e,the
Se r v i c e be l i e ve s th a t th e a n ti cipated take of 33 per cent of the estimated
p o p u l a t i o nd e n si ty a t a n y h a rv est location will be r educed. If, dur ing the
c o u r s eo f th e a cti o n , th i s mi nim izedlevel of incidental take is exceeded for
2 c o n s e cu ti veye a rs, su ch ta ke r epr esentsnewinfor mation r equir ing r eview of
t h e r e a s o n a b l ea n d p ru d e n tme asur epr ovided. The KansasCity Distr ict mus t
i m m e d i ate l yp ro vi d e a n e xp l a nationof the causesof the taking and r eview w i th
t h e Se r vi ce th e n e e dfo r p o ssible m odification of the r easonableand pr ud ent
measure.
CONSERVATION
RECOMI4ENDATIONS

S e c t i o n 7(a )(l ) o f th e A ct d i rects Feder alAgenciesto utilize their

a u t h o r i t ie s to fu rth e r th e p u r posesof the Act by car r ying out conser vati on
prog!"ams for the benefit of endangered and threatened species. Conservation
r e c o m m e n d a ti oanres d i scre ti o nar y agencyactivities to m inimizeor avoid
a d v e r s eeffe cts o f a p ro p o se daction on' listed speciesor cr itical habitat, to
h e l p i m pl e me nre t co ve ryp 1 a n s,or to developinfor mation. The following
r e c o m m e n d a ti oanres p ro vi d e dfor your consider ation.

1 . T h e T u l sa D i stri ct h a s e xpr essedinter est in investigating a possible

C o n se rva ti o nP l a n fo r a l l or par t of the NeoshoRiver Basin. A
C o n se rva ti o nP l a n mi g h t i n tegr ate conser vationand m anagement
of all
n a t u ra l re so u rce sw i th i n the basin, with par ticular em phasison listed and
C olo n e l Rjchard H. Goring 13
p r o p o se dth re a te n e da n d e ndanger ed species. In addition to the Neos ho
m a d t o m,su ch a p l a n mi g h t include a numberof other specieslisted by both
t h e Fe d e ra la n d S ta te g o ver nm ents.Ideally, a p' lanwould assessthe
p o t e n ti a l fo r a va ri e ty o f developm ental, comm er cial,and r ecr eationa l
p r o i ects to p ro ce e dw i th i n the guidelines of pr oviding pr otection for
s p e c ie so f co n ce rn . S o mepr ojects discussedto date include com m erc i al
g r a v el re mo va l ,ma i n ste m r eser voir oper ations,m unicipalwater uses,
f e e d l o t a n d o th e r a g ri cu l tur al oper ations, and tr ibutar y damconstr uc ti on.
H o p e fu l l y, su ch a p l a n w o uldbe tied closely to the NeoshoRiver por tion
o f t h e K a n sa sWa te rP Ia n . I r ecom m end the KansasCity Distr ict becom e
i n v o l ve d i n th i s p l a n n i n gpr ocesswith r espect to its section 404 per m i t
a u t h o ri ty w 'i th i n th e b a si n.
2 . As d j scu sse dp re vi o u sl y, n oneof the six speciesof m usselsconsider e di n
t h e b i o l o g i ca l a sse ssme nt ar e feder ally listed species. However ,
f r e s h w a te rmu sse l sa re b e l ieved to be declining in status in m anypar ts of
t h e co u n try, p o ssi b ty i n d i cative of water quality or other habitat
degradations. The Service and other resource agencieshave been and
c o n t in u e to b e co n ce rn e d w ith this taxonom icgr oup and ar e inter ested i n
d e t e rmi n i n gth e sta tu s o f natur ally occur r ingm usselpopulations,
i n c l u d i n g d o cu me n ti nagd ver seim pacts. Ther efor e, I r ecomm end
that th e
Ka n sa sC i ty D i stri ct co n d uctsur veysof the m usselfauna pr esent at ea c h
site permitted for gravel removalunder this program.
M u s se lsu rve yssh o u l d i d e ntify to the extent possible the total speci es
d j v e r si ty a t e a ch si te , n o t just the six candidatespecies, as weil as
s o m ejn d i ca t'i o no f a b u n d ance of each species. Thesesur veyswould
probably only require a few hours to completeand should be done before
t h e i n i ti a l g ra ve l h a rve st and again after the per m ' ittedactivity is
c o m p l e te ,w h i ch i n so mep e r m its m ight be sever al year s later . Annua l
m o n ' i to ri n gco u l d b e co n d u c tedif deter m ineddes' ir ableand feasible but
should not be necessaryto documentfaunal changesat the extraction
s ' it e s .

3 . R ' i p a ri a nfo re st'i s a ve ry valuable habitat type in Kansasand 0klahoma,

a n d m u cho f i t h a s b e e na l ter ed in the last 50- 100year s. Both
t e m e s tri a l a n d a q u a ti c sp eciesof fish and wildlife r ely on r ipar ian
v e g e ta ti o n fo r fe e d i n g , b reeding,shade,and water quality benefits, a nd
a s t r ave l co rrj d o rs. Ma n yspeciesof neotr opica' migr l ator y bir ds ar e
e s p e ci a l l y d e p e n d e not n ri p ar ian for est, and it also pr ovides impor ta nt
w i n t e r h a b i ta t fo r th e e n danger ed bald eagle ( Haliaeetusleucocebhalus ) .
T h e r e fo re , I re co mme nthda t the KansasCity Distr ict condition any gr av el
r e m o va lp e rm'i tto re q u i re that any tr ees within 100 feet of the Neoih oor
c o t t o nw o o dR i ve rs w h i ch a re r emoved or destr oyedas a r esult of this
a c t i v i ty b e re p l a ce db y p l anting newtr ees of the samespeciesin
a p p r o xi ma te l yth e sa mel o cations. Tr ee stemdensity and r ow spacing
s h o u ld co n fo rmto a p p ro ve dfor estr y guidelines, as well as to any
c o n d iti o n s i mp o se db y th e KansasDepar tm ent of I' tildlife and Par ksor the
O k l a h o ma D e p a rtme not f l l i l d life Conser vation. Sufficient car e should be
g i v e n n e wtre e s to e n su reat least 80 per cent sur vival thr oughthe
d u r a t io n o f th e p e rm'i t.
/

C olo n e l Rjchard H. Goring 14

4. As n o te d i n th i s o p i n i o n , cer tain aspectsof the' l' ife histor y and bio l ogy
o f t h e N e o sh oma d to m re mainunknown, and this lack of knowledge hind er s -
the efforts of both resourceand regulatory agencies. I recommend the
K a n sa sC i ty D i stri ct w o rk to secur efunds which maybe usedto conduc t
s t u d i q ! to g a th e r a d d i ti o nal life histor y infor m ation, par ticular ly
r e g a rd i n gth e a re a o f re p roductionr equir ementsfor the- species. lf
a d e qu a te l yfu n d e d , stu d i e s could be conductedby the agentiesthemse l v es
o r c o n tra cte do u t to kn o wledgeable speciesexper ts.
5. I r e co mme nthde K a n sa sC i ty Distr ict, in coor dinationw' ith the Ser vi c e and
o t h er re so u rcea n d re g u l ator y agencies,developa br ochur eon the Neos ho
m a d to m.T h i s b ro ch u reco uld ' identify the speciesand pr ovide infor m ati on
a b o u t i ts b i o l o g y a n d kn ownhabitat r equir em entsand aiso descr ibe the
s l g l lfi ca n ce o f th e ma d tom and why it is im por tantto pr eser veit as a
v i a b 1 e co mp o n e notf th e N eoshoRiver Basin biodiver sity. This br ochur e
s h o ul d th e n b e p ro vi d e dto all successfulgr avel har veit per mit
f g c i p!e n ts, a s w e l l a s o ther _inter estedpar ties and r esouice user s al ong
t h e r i ve r. P ro vi d i n gfa ctual infor mationand attemptingto r ever se s om e
o f t he cu me n t n e g a ti vep er ceptionsr egar dingthis lpecies would be a n
i m p o rta n tste p i n i ts co n tinuedr ecover yand eventuaidelisting.
I n o r d e r fo r th e S e rvi ce to b e kept infor medof actions m inimizingor avo i di ng
a d v e r s eeffe cts o r b e n e fi tti n g listed speciesor their habitats, I r eques t
n o t i f j c a t i o n o f th e i mp l e me ntation
of any conser vationr ecomm endationi .
CONCLUS
ION
T h i s c o n cl u d e sth e .b i q 'l o g i ca l opinion on the im pactsof the pr oposedacti on.
T h e S e r v i ce d e te rmi n e dth a t the im pactsof the ir oposedpr ogiam' activitie s ar e
l i k e l y t o j e o p a rd i zeth e co n tinuedexistenceof' thb Neoshotadtom. Howe v er ,
r e a s o n a bl gl n q p ru d e n ta l te rn atives which offset jeopar dyto the Neoshom adi om
a r e i d e n ti fi e d a s a re su l t o f this consultation.

T h i s o p i ni o n i s b a se do n th e best scientific and com m er cial data available as

d e s c r i b e dh e re i n . If th e a mountor extent of incidental take is exceeded,i f
n e wi n f o rma ti o n b e co measva i l able, if newspeciesar e listed, or should th er e
9 9 l n Y. c ha n g e to s th e p ro g ra mwhich_alter _theoper ationof the pr ogr amfr o m
t h a t w h i ch i s d e scri b e di n th i s biological opinion and which m ayaFfect any
e n d a n g ereodr th re a te n e dsp e ciesin a m anneror to an extent noi conside r ei i n
t l i : _ b i o l o g i ca l o p i n i o n (se e 5 0 CFR402.16) , for m al section 7 consultation
s h a l l b e re j n i ti a te d . A ]so , section 7 consultationm ust be r einitiated if
t h e r e i s fa i l u re to fu l l y ca m y out the r easonableand pr udent alter nativ e
u p o nw h ' ichth i s o p in i o n j s b a sed.
T h a n ky o u fo r yo u r co o p e ra ti onin the for m ulationof this opinion and you r
i n t e r e s t i n co n se rvi n gl i ste d s pecies.

ahcttng RegionalDir ector

 C o l o n e l R i ch a rdH . Go ri n g

REFERENCES

Moss'R'E' lntl:^..!jf-e-history
Non-Game informationfor^the Neosho madtom.Kansas
Improvement piogrim,coniriii.'No..se.
20 pp.
State of Kansas' 1978' Assessment..of-the
aquaticenvironment
ffl3ll P{,['l;l'n3fi3'[1ilfiil,ii,Flil n".ooperat
ronmeni'i in Kansas.A
i onwith
ill"Envi
u's' Fish andt'rird'r.ife_service.
rggl. Neosho
madtom
u's' Fishandnnirdrii.'iiiui..,oenu.r,-dJtoraao
recoverypran.
. 42 pp.-
I' l e n k e ,T . 1 ., M.E . G.l ,l .E r nsting, and l,l.J.
^ E b e rlN6';il',io[o,i
e, lgg!. l.linter
!!ar k.
ft:l];:fl:l'rilrlll t'iddft"piacious)
. Sout-hwestern
 Attachment 4

Data manuscript

Davis and Paukert, 2008

Initial draft submitted to The Journal of Freshwater Ecology

April 2008

1
Impact of Gravel Bar Scalping on Neosho Madtom Populations from the Lower
Neosho River, Kansas

Nathan Davis
Kansas Department of Wildlife and Parks
Environmental Services Section
512 SE 25th Ave
Pratt, Kansas
620-672-5911
nated@wp.state.ks.us

Craig Paukert
US Geological Survey, Kansas Cooperative Fish and Wildlife Research Unit
Division of Biology, Kansas State University
205 Leasure Hall
Manhattan, Kansas 66506
785-532-6522
cpaukert@ksu.edu

2
 ABSTRACT

We sampled depositional point bars that were scalped for gravel harvesting

and control sites (no gravel harvest) in the Neosho River, Kansas to determine if

scalping activity effects the abundance of the federally threatened Neosho madtom

Noturus placidus and other obligate benthic fishes. A total of 1,817 kick seines at

scalped bars and 3,794 kick seines at control sites were conducted from 1996-

2007. Mean relative abundance of Neosho madtoms (number per 100 m2 kick

seined) did not differ between gravel scalped bars (mean=5.96) and control bars

(7.61). Neosho madtom relative abundance was significantly higher in riffles and

runs compared to deeper, low velocity point bars (P<0.001). Species diversity and

richness of obligate benthic fishes tended to be similar between gravel scalped and

control bars; however, other obligate benthic fishes (channel catfish Ictalurus

punctatus, freckled madtom Noturus nocturnus, stonecat Noturus flavus,

orangethroat darter Etheostoma spectabile and suckermouth minnow Phenocobius

mirabilis) were more likely to be present when Neosho madtoms were present

P<0.001). When combining additional data from other long term monitoring from

1991 to 2007of Neosho madtom relative abundance the Neosho River, we found

higher mean annual flows were positively related to higher relative abundance of

Neosho madtoms (r=0.61, P=0.01). Scalping of gravel bars appeared to have less

of an impact to Neosho madtoms and other benthic obligate fishes than annual

flows. However, other geomorphic metrics such as bedload transport were not

3
measured in this study and, if affected by gravel scalping, may ultimately affect

the fishes in the Neosho River.

4
 INTRODUCTION

The Neosho madtom (Noturus placidus) is a small catfish (< 75 mm)

occurring primarily in the mainstem of the Neosho and Cottonwood Rivers in

Kansas, and to a lesser extent in the South Fork Cottonwood (KS), Spring River

(KS, MO, OK), and the Neosho River in Oklahoma (Cross and Collins 1995,

Luttrell et al. 1996, Wilkerson et al. 1996, Wilkerson and Fuselier 1997). The fish

is a nocturnal benthic insectivore typically inhabiting riffles, and to a lesser extent

depositional point bars, with moderate currents and unconsolidated gravel (Moss,

1983; Cross and Collins, 1995). Neosho madtom typically only survives one year,

spawning from May through July and dying shortly thereafter, with only a small

percentage surviving to spawn a second summer (Fuselier and Edds 1994, Bulger

and Edds 2001). The Neosho madtom’s historical range has been reduced by one-

third due to the construction of multiple impoundments in Kansas and Oklahoma;

therefore, it was petitioned and listed as Threatened (T) under the Endangered

Species Act (ESA) in 1990 due to its vulnerability to becoming Endangered (E)

(USFWS, 1990). The species has been on the state of Kansas’s T&E list since the

passage of the Kansas Nongame and Endangered Species Conservation Act of

1975.

The majority of the Neosho madtom’s habitat loss is currently irreversible

due to inundation and hypolimnetic releases from federal reservoirs; therefore, the

attention of state and federal resource agencies has focused on more solvable

problems to protect and improve Neosho madtom habitat. The Neosho Madtom

5
Recovery Plan identifies several threats to the species’ status including mainstem

impoundments, hypolimnetic releases from reservoirs, increases in permanent pool

elevations at existing reservoirs, hydraulic alterations due to extensive headwater

impoundment, pollution from feedlots and nonpoint sources, heavy metal

contamination, prolonged droughts, and instream gravel removal (USFWS 1991),

which has negative effects to Neosho madtom populations (Deacon 1961, Cross

and Braasch 1969, Tiemann et al. 2002, Wildhaber et al. 2000a, b).

The instream removal of gravel from the Neosho madtom’s range has been

a concern for regulatory agencies since the species was listed under the Federal

ESA. Gravel is typically used for construction, surface material for roads and

driveways, concrete aggregate, or landscaping. Prior to the time of listing in 1990,

gravel removal in the madtom’s range was occurring both by dredging the river

channel and bar scalping, primarily in the Neosho River. We refer to dredging as

the removal of gravel below the water surface, either within the wetted channel or

by excavating gravel bars below the subsurface water elevation. Bar scalping is

the removal of gravel above the water elevation from depositional (point) bars. At

the time, there was observational information on destruction of Neosho madtom

habitat resulting from historic dredging activity (Moss 1981, Fuselier and Edds

1995), and other research had documented the negative consequences of gravel

dredging on fish communities (Forshage and Carter 1973, Kanehl and Lyons

1992); however, there was no information available on the effects of bar scalping

or the extent of gravel harvesting in warm water rivers. In response, Kansas

6
Department of Wildlife and Parks (KDWP) implemented a moratorium on state

T&E permits from 1991-1995 for all forms of gravel harvesting activity within the

Neosho madtom’s range in Kansas. In 1995, the USFWS issued a biological

opinion that allowed for limited gravel harvest by bar scalping only, provided a

monitoring study was undertaken to evaluate the impacts of the activity. This

monitoring began in 1996 by KDWP with the objective to compare Neosho

madtom populations and habitat availability at sites where bar scalping was

occurring compared to control sites. The objectives of this study were to identify

if gravel scalping reduced relative abundance of Neosho madtom, reduced species

richness and diversity of other obligate benthic species, and to determine other

factors (e.g., flow) that may impact Neosho madtom population abundance.

MATERIALS AND METHODS

Study area: The Neosho River drains approximately 31,000 km2 of North

American prairie beginning in the Flint Hills in Kansas and flowing

southeastwardly across the Central Irregular Plains and Ozark Highlands to its

confluence with the Arkansas River in northeast Oklahoma (Fig. 1; USEPA 2007).

The area is predominantly rural with most cities lying along the Neosho River or

its major tributaries. Land use is dominated by livestock grazing or row crop

agriculture and rivers are generally bordered by riparian timber. Discharge is

typically greatest during spring and early summer months when the basin receives

approximately 75% of its annual precipitation (mean=92 cm/yr; Marcher et al.

7
1984). Approximately one-third of the Neosho River has been impounded, and

federal reservoirs have altered hydrologic patterns to attenuate floods and provide

hydroelectric power (USFWS 1991). In Kansas, flood control reservoirs include

Marion Reservoir on the Cottonwood River (a major tributary to the Neosho), and

Council Grove and John Redmond on the Neosho upstream of the study, while in

Oklahoma Grand Lake o’ the Cherokees (Pensacola), Lake Hudson, Fort Gibson

all occur on the Neosho and include hydroelectric production. Our study sites

occur within the portion of the Neosho River below John Redmond dam to the

Kansas-Oklahoma border (Fig. 1). The river is fairly similar throughout the study

reach, being characterized by a valley slope of approximately 0.23 m-km, moderate

to high sinuosity ranging from 1.41 to 1.83, and an entrenched channel with bank

heights ranging from 4 to 10 m (Carswell and Hart 1985, Dutnell 1998). The river

lies on Pennsylvanian bedrock (300 ma.) with a valley alluvium approximately 10

m in thickness consisting primarily of silt and clay with a basal layer of sand and

gravel averaging 1 m in thickness (Williams 1944, Juracek and Perry 2004).

Bedload material is primarily chert gravel derived from the basal layer during

erosion of the alluvium, thus forming the principal substrate material at

depositional point bars and riffles throughout the Neosho River (Juracek and Perry

2004).

Site selection: Twenty separate gravel bars were sampled from 1996 to 2007

varying annually from 12 to 18 depending on the number of gravel harvest T&E

8
permits issued. Gravel removal at treatment (gravel scalped) sites averaged 557

m3 per year (range 62-1,206 m3) while control sites had no gravel removal for a

minimum 5 years prior to sampling. We selected two control sites for each

treatment site, each located immediately up and downstream from the respective

treatment site. Separate gravel bars were preferentially selected as control sites

(59%); however due to accessibility and landowner consent, 41% of control sites

were actually located on the same bar which the gravel harvest was occurring. In

these cases, control sites were buffered 30 to 60 m from the harvest activity to

minimize effect on adjacent benthic fauna.

All sites were depositional bars; however, there were notable differences in

habitat characteristics between sites. We classified sites into four mesohabitat

types; point bars, gravel riffles, gravel runs, and bedrock riffles. Sixty-five percent

of our sites were point bars where the river did not have a significant change in

slope and moderate flows. These depositional areas occurred opposite of outside

bends and did not contain any riffle or run habitats. Point bar morphology

reflected the river’s meander, with flatter, elongated bars occurring opposite of

gradual bends in the river, while at sharp bends in the river gravel bars were piled

high and shorter in length. All point bars sloped from the riparian zone riverward,

terminating on bedrock at approximately mid-channel. Riffles and runs occurred

in association with depositional bars where the river underwent a change in bed

elevation. Gravel riffles comprised 14% of our sites and were characterized as

having moderate to swift currents, shallow depths, and gravel as the predominant

9
substrate, whereas gravel runs (6%) occurred up or downstream of gravel riffles,

but were slightly deeper. Bedrock riffles (15%) were associated with depositional

areas near limestone outcroppings and contained large substrate material (cobbles

and boulders) intermixed with pockets of chert gravel; flows were swift and depths

shallow at these sites.

Gravel bar sampling: We sampled sites annually for eleven years from 1996 –

2007, with the exception of 2005 due to high water. Site length averaged 76 m

(range 26-192 m) and was divided into five equally-spaced transects to encompass

potential suitable habitat for Neosho madtoms. Beginning downstream, transects

were set perpendicular to the wetted channel and included up to five sample points

along each transect spaced a minimum of 2 m apart. The number of sample points

per transect depended on the presence of suitable gravel substrate and depths <1.2

m. All sample points were selected for the presence of chert gravel; however,

substrate was not always homogeneous, often intermixed and at times dominated

by fines (silt/sand), cobble, or bedrock. Each sample point (4.5 m2) was kick-

seined by 2-3 persons thoroughly disturbing the substrate 2 m upstream of a seine

(2.4 m, 3 mm mesh; Wildhaber et al. 2000a, b). All samples (n=5,611) were

collected when the river was at base-flow (mean=49 m/s, range 37-667) during

daytime in July (18%), August (66%), September (15%) and October (1%),

following expected recruitment of Age 0 (Fuselier and Edds 1994, Bulger and

Edds, 2001). Enumeration of benthic insectivores and total length of Neosho

10
madtoms were recorded prior to release. Care was taken to insure fish were

released a suitable distance from unsampled points to avoid duplicate collections.

In addition, habitat metrics were recorded at each sample point including

substrate, water depth, and current velocity. Velocity was recorded at 60% depth

with a Gurley Pygmy Current Meter or a Marsh-McBirney Flo-Mate 2000.

Hydrologic data: Daily mean flow data was obtained from the USGS gauge

station east of Parsons in Labette County, KS (37°20'24", 95°06'35). Mean annual

discharge and daily discharge information was obtained for the period of record

(1922-present). Since the madtom generally lives only one year, and the majority

of madtoms collected are age 0 fish post-spawn, we assumed that fluctuations in

mean annual discharge may determine success of madtom spawning and

recruitment. When analyzing for hydrological relationships we obtained additional

data from USFWS (V. Tabor, USFWS, Manhattan, KS, personal communication)

and from Eberle and Stark (1995) for sampling that occurred in the Lower Neosho

River from 1990 to 2007. Sampling methods for these additional data were

similar to our study, and combining the data sets extends the temporal scale when

assessing the relationship between water flow and Neosho madtom populations.

Data analysis: Nesoho madtom catch per unit effort (cpue) was calculated as the

number of fish collected per 100 m2 kick seined, which is a common metric used

for Neosho madtom studies (Wildhaber et al. 2000a, b, Bulger and Edds 2001).

11
We used analysis of covariance (ANCOVA) to determine if mean cpue of Neosho

madtoms differed by control and excavated sites using year as covariate. We also

used ANCOVA (with year as the covariate) to determine if mean Neosho madtom

cpue differed by mesohabitat types, and to determine differences in mean depth,

velocity, and substrate composition. Logistic regression with odds ratios (Stokes

et al. 2000) was used to determine if the presence of a Neosho madtom was

associated with the presence of other obligate benthic fishes. Shannon Diversity

Index and species richness for obligate benthic fishes were calculated for each site

and an ANCOVA (with year as the covariate) was used to determine of mean

species richness or diversity differed between control and dredged sites. Finally,

correlation analyses was used to relate Neosho madtom cpue to mean annual flows

and coefficient of variation of mean annual flows.

RESULTS

Mean Neosho madtom cpue was highly variable, ranging from 0.4/100 m2

in 1996 to 25.4/100 m2 in 1999 (Fig. 2). Mean Neosho madtom density did not

differ between gravel bars that had been scalped (mean=5.96/100 m2) compared to

control sites (mean=7.62/100 m2) using year as a covariate (P=0.17). In addition,

differences were not consistent with treatment groups as higher cpue occurred

adjacent to bar scalping activities in 1998, while it tended to be higher on control

sites most other years (Fig 2).

12
 Mean Neosho madtom relative abundance highest in gravel riffles and

lowest in point bars, (P<0.001; Table 1). Point bars were significantly deeper than

other mesohabitats (P<0.001), had slower velocities (P<0.001), and contained

gravel that was more likely to be embedded with fines (P<0.001). Control sites

had more habitat heterogeneity than did treatment sites with only 54% of sample

points occurring in point bar habitats, while at treatment sites 86% of sample

points were from point bars, and no samples occurred in either gravel runs or

bedrock riffles (Table 1). Total Neosho madtom lengths ranged from 14 to 79 mm

(n=1,789), averaging 34 mm. Adult fish collected post-spawn (> 50 mm as

described by Bulger and Edds, 2001) comprised only 5% of the total catch; thus,

the majority of madtoms collected were young-of-year fish.

The proportional abundance of the benthic fish community for all sites

combined consisted of Ictalurus punctatus (59%), Percina phoxocephala (23%),

Phenocobius mirabilis (6%), and Etheostoma spectabile (5%) with less common

species occurring (by order of relative abundance), Noturus flavus, Percina

caprodes, Erimystax x-punctatus, Percina shumardi, Plyodictis olivaris, Noturus

nocturnus). Logistic regression revealed that when Neosho madtom were present

at a site, Ictalurus punctatus, Phenocobius mirabilis, Etheostoma spectabile,

Noturus flavus and Noturus nocturnus were 1.6 to 10.8 times more likely to be

collected at that site (P<0.001; Table 2).

Species diversity and richness of benthic obligate fishes tended to be

similar between scalped and control sites. Mean species diversity ranged from

13
ranged from 0.65 (SE=0.04) at scalped sites in 2002 to 0.81 (SE=0.03) at scalped

sites in 2003. Overall, mean benthic species diversity did not differ between

control sites (mean=0.72) and scalped sites (mean=0.74; P=0.08). Mean benthic

species richness ranged from ranged from 2.41 (SE=0.05) at scalped sites in 2003

to 2.70 (SE=0.10) at scalped sites in 1997. Overall, mean benthic species diversity

did differ between control sites and scalped sites (P=0.02), but this difference was

likely not biologically meaningful. Mean benthic species diversity was 2.38 at

control sites and 2.46 at scalped sites. There was no evidence that gravel scalping

reduced benthic species diversity or richness compared to control sites.

Neosho madtom cpue typically increased with mean annual flows (r=0.61,

P=0.01). The highest cpue of Neosho madtoms typically occurred when mean

annual flow was at least 50% higher than the mean flow for the Parsons gauge

station (Fig. 3). Coefficient of variation of mean annual flow tended to be lower at

higher Neosho madtom relative abundance, but this relationship was not

significant (r=-0.38, P=0.15).

DISCUSSION

The results of our study suggest that scalping a gravel bar has minimal

direct affects on the abundance of Neosho madtoms adjacent to these mining

activities. We hypothesized that gravel scalping may reduce Neosho madtom

abundance because these fish would move onto the scalped bars during high flows

as these fish prefer shallow habitats near the water-shore interface (Moss 1983,

14
Fuselier and Edds 1994). One of the concerns was that periodically inundated

portions of gravel bars might be critical to certain life history requirements for the

madtom, such as spawning or recruitment, and that alterations to the this habitat,

either by removal of gravel or compaction by heavy equipment, may be

detrimental to madtom populations. In addition, benthic species diversity and

richness were not lower in gravel scalped sites compared to control sites. Finally,

other benthic species were more likely to be collected when Neosho madtom were

collected, which is similar to Wildhaber et al. (1999) and suggest that other

benthic fishes will likely respond to management action that would improved

Neosho madtom populations. Although many studies have documented the

negative impacts to aquatic fauna from in-channel dredging (Kanehl and Lyons

1992, Brown et al. 1998, Meador and Layher 1998), there is little research

assessing the impacts of bar scalping on fish communities. Pauley et al. (1989)

found reduced bar size and a loss of side-channel macrohabitats from bar scalping

in the Puyallup River in Washington. Our results of Neosho madtom abundance,

and benthic species richness and diversity suggest that properly managed bar

scalping operations may not directly influence the number or diversity of obligate

benthic fishes.

Habitat preference and fish community composition was similar to previous

studies (Moss 1983, Eberle 1996, Wildhaber et al. 1999, Bulger and Edds 2001).

Although madtoms occurred at significantly higher densities in riffles and runs,

nearly 30% of all madtoms collected during our monitoring were from deeper,

15
slower habitat associated with point bars, at times in robust densities (max

44/100m2). Previous studies have found Neosho madtoms nearly exclusively in

riffles (Bulger and Edds 2001, Fuselier and Edds 1994); however, Eberle and

Stark (1995) made note of madtoms occurring on point bars not part of a riffle.

Our data compliments their observations; demonstrating that the Neosho madtom

is not a riffle obligate, but regularly occurs in nearly all habitats that have suitable

substrate and depths within the Neosho River. In addition, the presence of a thin

layer of silt and sand (fines) overlain on gravel did not seem to preclude madtoms

from occurring. Forty-one percent of sample points where madtoms were

collected contained gravel overlain by fines, while 47% were identified as clean

gravel, which supports observations by Moss (1981) that Neosho madtoms appear

to be silt tolerant, provided gravel is present. As with other authors (Fuselier and

Edds 1994, Bulger and Edds 2001), our length frequency histogram data indicates

a predominantly annual turnover of the Neosho madtom population. Adult fish

collected post-spawn (>50 mm as described by Bulger and Edds 2001) comprised

only 5% of the total catch; thus, the majority of madtoms collected were young-of-

year fish.

We found increased Neosho madtom abundance associated with higher

mean annual flow, which is similar to Wildhaber et al. (2000a) who found positive

correlations with Neosho madtom cpue and higher minimum flow, particularly in

the winter and spring months. In our study Neosho madtom densities were high

during much of the 1990’s when abundant rainfall in the basin produced above-

16
average flows, but subsequently dwindled during the drought years of the first-half

of the current decade. Although recent years have produced above average flows

in 2004, 2005, and 2007, mean madtom cpue during these years (4.8/100m2) did

not respond to the level of those documented in consecutively wet years from

1997 to 1999 (mean=17.0/100m2). Deacon (1961) made note that riffle dwelling

species, including the Neosho madtom, were slow to recover following the

prolonged drought of the mid-1950’s, and this may be occurring in our study.

Mean annual discharge in the Neosho River was substantially below normal from

2000 to 2003, and again in 2006, when madtom cpue averaged 3.4/100m2;

therefore, our data may be reflecting a slow, but gradual increase in the madtom

population following the drought of this decade. In addition, from 1996 to 1999,

57% of our sample points were from point bars compared to 67% from 2000 to

2007. A greater proportion of our samples from this lower quality habitat may

diminish the perception of madtom recovery following this period of drought.

Mean annual flows appeared to be more influential to Neosho madtom

abundance than gravel bar scalping. These results concur with (Wildhaber et al.

2000a) that alteration of water flows by reservoirs may be a primary factors in

Neosho madtom declines. Regulation of flows by reservoirs upstream of Neosho

madtoms (e.g., John Redmond Dam) to mimic a more natural hydrograph would

likely benefit these fish as well as other native benthic fishes. Although few

differences in fish abundance and community composition occurred during this

study, other geomorphic factors not measured may be strongly affected by gravel

17
bar scalping. Gravel removal, regardless of the method, results in a deficiency of

bedload material in the river, thus creating a scenario where a river will work to

equilibrate this deficiency by eroding the sources of bedload (bed and banks) at an

increased rate (Kondolf 1997, Juracek and Perry, 2004). Excessive removal of

bedload material will increase erosion rates and can result in damage to

infrastructure, agricultural fields, and aquatic habitats (Kondolf 1997, Langer

2002) and may eventually impact the Neosho madtom or other native species. The

majority of bedload material in the Neosho River comes from erosion of basal

deposits in the alluvium (Juracek and Perry 2004); thus, bedload movement could

be measured from erosion sources and depositional points along various reaches of

the river in order to establish a “safe yield” of gravel removal without causing a

significant deficiency. Therefore, future research on the geomorphic processes

related to gravel scalping (and how these process may effect fishes) is needed.

Proper management of gravel harvest operations in the Neosho madtom’s range

should continue to maintain suitable habitat conditions in order for the species to

remain viable.

ACKNOWLEGEMENTS

We would like to thank those who assisted in data collection particularly

current and former KDWP employees Mark Shaw and Chris Mammoliti, and

members of the stream monitoring program; Kenny Edgecomb of the US Army

Corps of Engineers; and gravel harvesters Richard McAtee, Chauncey Shepard,

18
Bill Spielbusch, Eldon Wright, and the Labette County road and bridge

department. The Kansas Cooperative Fish and Wildlife Research Unit is jointly

sponsored by the Kansas Department of Wildlife and Parks, Kansas State

University, the U.S. Geological Survey, and the Wildlife Management Institute.

LITERATURE CITED

Brown, A. V., M. M. Lyttle, and K. B. Brown. 1998. Impacts of gravel mining on

gravel bed streams. Transactions of the American Fisheries Society
127:979-994.
Bulger, A. G., and D.R. Edds. 2001. Population structure and habitat use in
Neosho Madtom (Noturus placidus). Southwestern Naturalist 46(1):8-15.
Carswell, W.J. and R.J. Hart. 1985. Transit losses and travel-times for reservoir
releases during drought conditions along the Neosho River from Council
Grove Lake to Iola, east-central Kansas: U.S. Geological Survey Water-
Resources Investigations Report 85-4003, 40p.
Cross, F. B. and J. T. Collins. 1995. Fish in Kansas, second edition. University
of Kansas Museum of Natural History Public Education Series Number 14,
Lawrence, Kansas.
Cross, F. B. and M. Braasch. 1969. Qualitative changes in the fish-fauna of the
Upper Neosho River system. Transactions of the Kansas Academy of
Sciences 71(3): 350-360.
Deacon, J. E. 1961. Fish populations following drought in the Neosho and Marais
des Cygnes Rivers of Kansas. University of Kansas, Museum of Natural
History Publication 13(9):359-427.
Dutnell, R. C. 1998. Reconnaissance and Preliminary Stream Classification of
the Major Tributaries of the Grand Lake O’ the Cherokees. A report
submitted to the U.S. Environmental Protection Agency, Region 6, Dallas,
Texas by the Oklahoma Conservation Commission, Oklahoma City, OK,
41 p.
Eberle, M. E. and W. J. Stark. 1995. Distribution and abundance of the Neosho
Madtom (Noturus placidus) in Kansas, with an assessment of the amount of
suitable habitat. Natural Science Research Associates, Hays, KS, 10 p.
Eberle, M. E. 1996. Summary of collection data for the Neosho Madtom
(Noturus placidus Taylor), second revision. Natural Science Research
Associates, Hays, KS, 49 p.

19
Forshage, A. and N. E. Carter. 1973. Effect of gravel dredging on the Brazos
River. Southeastern Association of Fish and game Commissioners 24: 695-
708.
Fuselier, L. and D. Edds. 1994. Seasonal variation in habitat use by the Neosho
Madtom (Telostei: Ictaluridae: Noturus placidus). Southwestern Naturalist
39(3):217-223.
Fuselier, L. and D. Edds. 1995. An artificial riffle as restored habitat for the
threatened Neosho Madtom. North American Journal of Fisheries
Management 15:499-503.
Juracek, K. E. and C. A. Perry. 2005. Gravel sources for the Neosho River in
Kansas, 2004. U.S. Geological Survey Scientific Investigation Resport
Report 2005-5282, 36 p.
Kanehl, P. and J. Lyons. 1992. Impacts of in-stream sand and gravel mining on
stream habitat and fish communities, including a survey on the Big Rib
River, Marathon County, Wisconsin. Wisconsin Department of Natural
Resources Research Report 155, Madison, WI. 32 p.
Kondolf, G. M. 1997. Hungry water: effects of dams and gravel mining on river
channels. Environmental Management 21(4):533-551.
Langer, W. H. 2002. A general overview of the technology of in-stream mining
of sand and gravel resources, associated potential environmental impacts,
and methods to control potential impacts. U.S. Geological Survey Open-
File Report 02-153.
Luttrell, G. R., R. D Larson, W. J. Stark, N. A. Ashbaugh, A. A. Echelle, and A.V.
Zale. 1992. Status and distribution of the Neosho Madtom (Noturus
placidus) in Oklahoma. Proceedings of the Oklahoma Academy of
Sciences 72:5-6.
Marcher, M. V., J. F. Kenny, and others. 1984. Hydrology of area 40, western
region, interior coal province Kansas, Oklahoma, and Missouri. U.S.
Geological Survey Water Resource Investigations Open-file Report 83-266.
Meador, M. R. and A. O. Layher. 1998. Instream sand and gravel mining.
Fisheries 23:6-13.
Moss R. 1981. Life history information for the Neosho Madtom (Noturus
placidus). Kansas Fish and Game Commission, Pratt, KS, 33 p.
Moss, R. E. 1983. Microhabitat selection in Neosho River fishes. PhD
dissertation, University of Kansas, Lawrence, KS
Pauley, G. B., G. L. Thomas, D. A. Marino, and D. C. Weigand. 1989. Evaluation
of the effects of gravel bar scalping on juvenile salmonids in the Puyallup
River drainage. Final Report to the Washington Department of Fisheries,
Service Contract No. 1620. Cooperative Fishery Research Unit, University
of Washington, Seattle, 150 p.
Stokes, M. E., C. S. Davis, and G. G. Koch. 2000. Categorical data analysis using
the SAS system, second edition. SAS Institute, Cary, North Carolina.

20
Tiemann, J. S., D. P. Gillette, M. L. Wildhaber, and D. R. Edds. 2004. Effects of
lowhead dams on riffle-dwelling fishes and macroinvertebrates in a
Midwestern river. Transactions of the American Fisheries Society 133:
705-717.
U.S. Army Corps of Engineers (USACOE). 1965. Floodplain information,
Neosho and Cottonwood Rivers, Kansas. US Army Corps of Engineers,
Tulsa District Corps of Engineers, Tulsa, OK, 25 p.
U.S. Environmental protection Agency (USEPA). 2007. Level III ecoregions of
the continental United States (revision of Omernik 1987). U.S.
Environmental Protection Agency, National Health and Environmental
Effects Research Laboratory , Western Ecology Division, Corvallis OR.
U.S. Fish and Wildlife Service (USFWS). 1990. Endangered and threatened
wildlife and plants; Neosho madtom determined to be threatened. Federal
Register 55(99): 21,148-21,153.
U.S. Fish and Wildlife Service (USFWS). 1991. Neosho Madtom recovery plan.
U.S. Fish and Wildlife Service, Denver, CO, 42 p.
Wilkerson, C., D. Edds, J. Dorlac, M. L. Wildhaber, C .J. Schmitt, and A. Allert.
1996. Neosho Madtom distribution and abundance in the Spring River.
Southwestern Naturalist 41:78-81
Wilkerson, C. and L. Fuselier. 1997. Neosho madtoms (Noturus placidus) in the
South Fork of the Cottonwood River: Implications for management of the
species. Kansas Academy of Sciences 100(3-4): 162-165.
Wildhaber, M. L., V. M. Tabor, J. E. Whitaker, A. L. Allert, D. W. Mulhern, P. J.
Lamberson, and K. L. Powell. 2000a. Ictalurid populations in relation to
the presence of a main-stem reservoir in a Midwestern warmwater stream
with emphasis on the Threatened Neosho Madtom. Transactions of the
American Fisheries Society 129:1264-1280.
Wildhaber, M. L., A. L. Allert, C. J. Schmitt, V. M. Tabor, D. W. Mulhern, K. L.
Powell, and S. P. Sowa. 2000b. Natural and anthropogenic influences on
the distribution of the threatened Neosho Madtom in a Midwestern
warmwater stream. Transactions of the American Fisheries Society
129:243-261.
Wildhaber, M. L., A. L. Allert and C. J. Schmitt. 1999. Potential effects of
interspecific competition on Neosho madtom (Noturus placidus)
populations. Journal of Freshwater Ecology 14:19-30.
Williams, C. C. 1944. Ground-water conditions in the Neosho River Valley in the
vicinity of Parsons, Kansas: Kansas Geological Survey Bulletin 52, part 2,
March 15, 1944. 80 p.

21
Table 1. A comparison of Neosho madtom N. placidus cpue and mean depth,

velocity, and percentage of substrate in each category among mesohabitat

types. N indicates the number of individual kick-seines conducted, and

values in parentheses are one standard error. Values with the same letter

indicate to significant difference for those mesohabitat types.

Gravel riffle Gravel Run Bedrock riffle Point Bar

N. placidus/100m2 a
19.21 (1.92) b
14.44 c
9.10 (1.11) d
3.21 (0.24)

(1.89)
a b c d
Mean depth (m) 0.41 (0.01) 0.44 (0.01) 0.32 (0.01) 0.57 (0.05)
a b c d
Mean velocity (m/s) 0.31 (0.01) 0.26 (0.01) 0.38 (0.01) 0.07 (0.00)

Clean gravel (%) 70 53 48 47

Gravel + fines (%) 25 35 8 39

Gravel + cobble (%) 6 11 40 12

Gravel + bedrock 0 0 4 2

(%)

Control (n = 3794) (%) 14 9 23 54

Treatment (n = 1817) 14 0 0 86

(%)

22
Table 2. Logistic regression results demonstrating the odds of the presence of

various benthic fishes when Neosho madtoms were present in the Neosho

River, 1997-2007.

Odds of presence

when Neosho

Species madtom are P value

present

Channel catfish Ictalurus punctatus 1.63 <0.001

Flathead catfish Plyodictis olivaris 0.39 0.06

Freckled madtom Noturus nocturnus 10.81 <0.001

Suckermouth minnow Phenocobius 1.83 <0.001

mirabilis

Slenderhead darter Percina phoxocephala 1.11 0.25

Orangethroat darter Etheostoma 3.96 <0.001

spectabile

River darter Percina shumardi 0.50 0.14

Logperch Percina caprodes 0.82 0.43

Gravel chub Erimystax x-punctatus 1.13 0.60

Stonecat Noturus flavus 4.82 <0.001

23
 FIGURE CAPTIONS

Figure 1. Map of the lower Neosho River in Kansas depicting general location of

study sites. Inset map shows regional position of the study area including

major reservoirs

Figure 2. Mean relative abundance (number/100 m2) of Neosho madtoms at

excavated and control sites in the Neosho River, Kansas 1996-2007.

Errors bars represent one standard error. No sampling occurred in 2005.

Figure 3. Relationship between annual madtom cpue (number/100m2) and mean

annual discharge and mean annual coefficient of variation of mean annual

discharge in the Neosho River, 1991-2007. Mean flow for Parsons gauge

station = 77.4 m3/s.

24
25
 35
Control; mean=5.96
30 Excavated; mean=7.62
Neosho madtom CPUE

25

20

15

10

0
96 97 98 99 00 01 02 03 04 06 07
19 19 19 19 20 20 20 20 20 20 20

Year

26
 60 r=0.61
P=0.01
50

40

30

20

10
Neosho madtom CPUE

0
-100 -50 0 50 100
Percentage of mean annual flow

60 r=-0.35
P=0.18
50

40

30

20

10

0
100 150 200 250 300 350
Coefficient of variation of mean annual flow

27
Attachment 5

File Summaries
Track: 19930537 Permit: #99-16 Type: Domestic use Status: Active
County: Lyon Legal: 4-18-10
Permittee: Wayne Leffler, Leffler Farms
PH: 620-443-5140 Address: 2431 Road C, Americus, KS 66835

Original DWR application came in 1993 to harvest 2000 yd3 of gravel. Testimonial
information from file indicates the site has had long-term gravel harvest dating back to
early 1940’s. Application in early 1990’s denied due to moratorium. Site was sampled
on 10-14-93 by KDWP & USFWS & NOMT were documented. KDWP T&E
application was submitted in 1999 for domestic use (100 cyd/yr).& approved for
domestic use harvest. No contact w/permittee from 1999-2008. Spoke w/Wayne Leffler
on 3-3-08 (ph). The site is still being actively excavated & Ed Lee still does the work.
Also spoke of possible interest in removal of the low-head dam on Leffler & neighbor’s
(Matile) property. Leffler’s still support this action, but Emporia has got a new city
manager & council members & they would have to approve the project.
Visited site 3-13-2008. Flow was up, exposed bar was

Track: 19970362 Permit: #98-05 Type: Domestic use Status: Active

County: Neosho Legal: 07&08-30s-21e
Permittee: James Chappell
PH: 620-431-9150 (work); 620-431-4634 (home)
Address: 202 S Country Club Rd, Chanute, KS 66720

In 1991 James Chappell expressed interest in digging a hole in the gravel bar to sink a
pump for flooding wooded wetlands for duck hunting. KDWP told him to hold off until
they check w/USFWS. In 1997 he applied for a DWR application to excavate gravel for
personal use. The same year there was a COE Public Notice for gravel excavation < 100
yd3. In 1998, KDWP issued permit for personal use (<100 yd3), contingent upon
receiving a 404 permit that contained the “special conditions” of the BO. In 2000, a letter
from USFWS was sent to Chappell (& all harvesters) explaining the change in 404
regulations & how it pertains to ESA. A meeting was scheduled in Dec. 2000, but was
cancelled due to bad weather. In 2001 KDWP amended their permits for gravel
harvesting to reflect changes in COE regulations (essentially omitting federal oversight or
permits). In 2002, Chappell applies for DWR permit to excavate for personal use AND
commercial use. Nothing in the file indicates this permit was issued. In 2004 – 2005,
Richard McAtee applied and was granted a commercial harvest permit from this site (at a
point 5.5’ above ZERO at St. Paul gauge. See McAtee file 95-20, 19950160 &
20040147). As of 2007, the site is permitted to two separate individuals, James Chappell
for domestic use (98-05) and Richard McAtee for commercial use (95-20). Spoke to
Chappell on 3-3-08 about permit. He is pro-gravel removal & believes it will help
prevent flooding in the river. He expressed interest in having a commercial harvest
permit in his name in case he ended the contract w/Richard McAtee to harvest gravel. I
explained that it would be pointless to have 2 commercial harvest permits at the same
location, but that if he decided he did not want to contract w/Richard anymore, he could
apply for a gravel removal permit at that time.

Attachment 5 – File summaries pg. 1

Track: 19950160 & 20040147 Permit: #95-20 Type: Commercial use Status: Active
County: Neosho Legal: Sec 07&08-30s-21e (Chappell bar); INACTIVE sites from
Sec 16-29s-20e AND Sec 22-28s-20e (Blackburn & South bars)
Permittee: Richard McAtee
PH: 620-449-2755 (home)
Address: Route 1, Saint Paul, KS 66771

At the time of the moratorium McAtee applied for a blanket permit to harvest gravel (see
19920042-denied due to moratorium). In 1995, McAtee applied for permit to harvest
from several sites – KDWP permit issued for Sec. 22-29s-20e (downstream of HWY 57
bridge) and Sec 16-29-20 (THERE IS A MISPRINT IN THE FILE CITING THIS AS
SECTION 4, it appears Bob Wood misread the topo map). By 1996 the COE & DWR
permits were issued for Blackburn bar, along with conditions for the monitoring study.
In 1998 a letter from COE informed McAtee that “incidental fallback” will not be
regulated & describes that if the gravel is “lifted” into a truck no permit needed, but if
“pushed” a permit would still be needed. In 2000, McAtee applied to harvest the bar
south of HWY 57 bridge (previously denied by the COE denied in 1995 due to limits on
the number of bars in a given reach between low-head dams conditioned from the
USFWS Biological Opinion). By 2000, the COE was not regulating gravel harvest &
KDWP approved the permit (eventhough it was already permitted through the misprinted
permit from 1995). Although McAtee had a permit for the bar south of HWY 57, he
never removed gravel because the access road & levee were in too bad of shape to get
equipment onto the bar. The site was last harvested in1991 when the moratorium went
into effect.
Since 1998, McAtee continued to maintain his COE permit, despite not
necessarily needing one. In 2004 (20050147) McAtee applied to remove gravel at
“Chappell bar” above the OHWM. This activity did not require a permit from KDWP,
DWR permit issued. Kenny Edgecomb & Nate Davis visited the site in 2004 & staked
out the OHWM. In 2005, McAtee proposed to abandon gravel removal from the
upstream bars (19950160-Blackburn & South HWY57 bars) west of St. Paul in exchange
for a permit to harvest the Chappell bar below OHWM. We permitted the activity, but
limited harvest to 5.5’ above gauge ZERO elevation at St. Paul bridge (same as 6’ below
OHWM). McAtee offered to implement this on his own as a means of avoiding impacts
to the river. CoE & KDWP concurred & permits were issued. We continued to monitor
the previous gravel harvest sites (Blackburn & South HWY 57) through 2007.

Track: 19950407 Permit: #95-37 Type: Commercial use Status: Active

County: Neosho Legal: NW/4 15- 29s-20e
Permittee: Bill Spielbusch
PH: 620-449-2068 (home)
Address: 12055 Udall Rd, Saint Paul, KS 66771

In 1995, permit applications were sent to to COE, DWR, & KDWP. File includes COE
PN, responses from agencies, KDWP permit, & 1996 modification to conditions, COE

Attachment 5 – File summaries pg. 2

permit termination notice (1998), KDWP permit modification 2001 to update respective
of COE change in regulation.

Track: 19940736 Permit: #95-16 Type: Commercial use Status: Active

County: Woodson Legal: NE/4 23 & NW/4 24- 23s-16e
Permittee: Eldon Wright
PH: 620-964-2457 (home); 620-437-6010 (cell)
Address: 1306 N A St., LeRoy, KS 66857

Mr. Wright applied for DWR & COE permits in fall 1994, he was the first gravel
harvester to do so since the COE began regulating “incidental fallback” in 1993. At the
time, KDWP’s moratorium was still in effect, but Mr. Wright’s permit was the permit
that began the development of the USFWS’s programmatic Biological Opinion for gravel
harvesting in NOMT rivers. The file contains various correspondence from state
legislators, scientific researchers, NOMT recovery team meetings, etc. KDWP issued
permit in March 1995 under condition that it was invalid until COE permit received
through formal consultation. USFWS issued BO in mid-1995. COE statement of
findings and permit (draft). DWR permit granted also. COE permit termination notice
(1998), KDWP permit modification 2001 to update respective of COE change in
regulation. In 2006, the landowner leaser (Murray Family Trust) terminated their
contract w/Mr. Wright. Access permission was granted by the Murray Family to
continue to sample NOMT. Bill & Linda Murray accompanied KDWP during sampling
in 2007 & were positive to KDWP’s efforts. In late 2007 James Larson & Nate Davis
accompanied Mr. Wright on a field visit to look at 3 possible gravel harvest bars in the
area where he is proposing to move his operation to. Two sites looked like point bars,
while a third site was at the mouth of a newly formed oxbow. No decisions made during
that field trip.

Track: 19950123 Permit: #2003-11 Type: Commercial use Status: Active

County: Labette Legal: 4-31s-21e (Ledford Site)
Permittee: Chauncey Shepard
PH: 620-632-4941 (home); 620-724-2694 (cell)
Address: 2484 Massey Rd., McCune, KS 66753

Track: 19950123 Permit: #2003-11 Type: Commercial use Status: Active

County: Labette Legal: 27-32s-21e (Dickinson #3 Site)
Permittee: Chauncey Shepard
PH: 620-632-4941 (home); 620-724-2694 (cell)
Address: 2484 Massey Rd., McCune, KS 66753

Track: 19950123 Permit: #2003-10 Type: Commercial use Status: Active

County: Labette Legal: 34-32s-21e (Dickinson #1 Site)
Permittee: Matt & Tori Dickinson
PH: 620-795-2967 (home)
Address: 16027 Wallace Rd., Oswego, KS 67356

Attachment 5 – File summaries pg. 3

Shepard won special claims suit against the KDWP in 1993 ($38K – see Shepard’s
special claims file). In 1995 Shepard applied for DWR & COE permits for two harvest
locations, one in the SW/4 4-31-21 (Ledford bar) AND two in the NE/4 5-31-21 (YMCA
bar); however, during that time the YMCA bar changed landowners & Shepard did not
have his lease renewed. In an attempt to circumvent a COE permit, Shepard disputed the
COEs determination of OHWM w/a significant amount of evidence. Eventually, COE &
DWR permits approved in 1996. KDWP amended the permit in 2001 to address change
in COE regulations AND approves two gravel bars downstream – Dickinson bars #1 & 3
(Sec. 27 & 34, 32-21). The DWR permits for these bars issued in 2001 & 2002,
respectively. Dickinson & Shepard decide to split permits for the gravel bars in Sec. 27
& 34. Matt Dickinson assumes permit responsibilities for the bar in Sec. 34, while
Shepard maintains responsibility for the bar in Sec. 27. Shepard also retains the permit
for the Ledford bar in Sec. 4-29-21, but the old YMCA bar is removed (should have been
removed back in 1995). Because of the confusion, permit 95-21 is dismissed & two new
permits are issued, 2003-10 to Matt Dickinson & 2003-11 to Shepard. Matt Dickinson
dies in 2005, Tori Dickinson is now the permitee. Mr. Shepard has indicated several
times since 2004 that he isn’t harvesting much gravel & is more or less retired.
*Tracking system needs to be updated to reflect the current locations of the permitted
sites & to appropriately name the Dickinson bars describing as to whom the Permittee is.
The Dickinson project should be issued a Track # and be separated from Shepard’s file,
particularly if Shepard discontinues the gravel harvest business & someone else picks it
up.

Track: 19950588 Permit: #95-36 Type: Commercial use Status: Active

County: Cherokee Legal: 13-33s-21e (HWY 160 site)
Permittee: Labette County Highway Dept. Sandy Krider (road supervisor)
PH: (620) 784-5391
Address: 901 S Huston, P O Box 301, Altamont, KS 67330

LBCO submitted applications to COE, DWR & KDWP in 1995 for bar in SW 13-33-21
(HWY 160 site). KDWP issues permit in Oct 95, DWR 96. Second gravel bar sought for
permit in SW 25-33-21 in 1996 & approved by all agencies. Permits amended &
dismissed to meet w/COE changes in regulations. In a letter from USFWS to DWR in
1999 regarding the application by William Walker to harvest gravel they make note that
verbal communication was made w/LB CO (Ronnie George) about the “south” bar.
Since the Neosho River had cut off access to the bar & indicated they would not be
pursuing this or any other site, the limitation of no more than two (2) gravel bars would
not be exceeded. In 2007 LBCO indicated they wish to pursue gravel harvest on
William Walker (deceased) bar (permit 99-23). Notified LBCO that we would need to
stake it out for “upstream” and “downstream” monitoring sites. Need to formally amend
LBCO permit to eliminate “south” bar AND either terminate Walker permit & switch to
LBCO or amend Walker permit to reflect a current living permittee.

Track: 19910179 Permit: #99-23 Type: Commercial use Status: Active

County: Cherokee Legal: 11-34s-21e
Permittee: William & Maurice Walker

Attachment 5 – File summaries pg. 4

PH: 620-795-4595
Address: 2515 7000 Rd., Oswego, KS 67356
KDWP Contact: Fred Johnson, Fred W Johnson Law Offices; PH: 620.795.2754;
fjohnson@labettecounty.com; 425 Commercial St., Oswego, KS 67356

Walker originally applied for DWR permit in 1991, which was recorded under KDWP
track 19910093 and subsequently changed to 19910179 when DWR dismissed the
Walker’s application. In 1999, Walkers resubmitted applications and were permitted for
activity because of the elimination of Labette County’s “south” bar (see USFWS
response documenting communication w/Ronnie George of LBCO describing the
situation_track 19950588). The KDWP permit was issued to William Walker (now
deceased). Correspondence going through attorney (Fred Johnson) even though Maurice
Walker is still living. LBCO road & bridge wants to lease this gravel bar from the
Walker’s; however, if they do so we notified them that they would need to stake out the
bar & identifiy where the “upstream and downstream controls” start.

Track: 19950124 Permit: #95-22 Type: Domestic use Status: Active

County: Labette Legal: 4-32s-21e
Permittee: Bruce Shulz
PH: see file
Address:

Initial applications in 1995, KDWP permit issued March 1995. Chauncey Shepard
actually worked the bar in the past & there was a lot of public support through the COE’s
public notice to allow for gravel harvest. The COE permit was only for 100 yd3 &
includes reporting forms for gravel harvest. The COE regulations then changed & the
permit became void. In 2001, KDWP continues to allow for gravel harvest, but modifies
it to limit excavation to 100 yd3. Ray cook passed away since 2001. In 2006, a report
from the public indicated gravel removal was occurring in the river. KDWP contacted
the new tenet farmer (Bruce Schultz) and made a site visit in 2001. The gravel bar had
signs of excavation, but it was limited. There was a stockpile located on the property
road that had been there for quite a while. Mr. Schulz informed us that the stockpile was
Chauncey Shepard’s & that he had worked the gravel bar he moved in. (Chancey was the
one who turned in Schulz). We instructed Mr. Schulz not to harvest any gravel from the
gravel bar, but he could use the stockpile. We kicked for NOMT, but did not find any.
The habitat at the time consisted of a large amount of gravel-cobble mix, w/poor velocity.
Mr. Schulz applied for a change of name on the permit from Cook to Schulz. We
amended the permit to allow for domestic use quantities; however, no DWR permit had
been reviewed at the time & still has not been updated in the file since 3-3-08. Mr.
Schulz was not very keen on state laws governing work in rivers or streams & it is
doubtful that he has applied for a DWR permit. Mr. Schulz was separated from his wife
at the time & it was unclear if he would be living on the property in the future. A search
on the internet did not reveal any Schulz” on Wallace Rd. We should try contacting him
again to check up on the site & see what, if any, harvest has occurred.

Attachment 5 – File summaries pg. 5

Track: 20050174 Permit: N/A Type: Domestic use Status: Active
County: Neosho Legal: 24-29s-20e Permittee: Jim Wagner
PH: 620-449-2609 Address: Route 1 Box 95, Saint Paul, KS 66771

Mr. Wagner contact the COE initially & Kenny Edgecomb & Nate Davis made a site
visit (4-21-05). We kicked the site & captured 1 NOMT. No commercial permits were
available for this reach of river; however, we informed Jim that he could take upto 100
yd3 annually. He wanted to sell the gravel to NOCO road & bridge. We precluded the
need for a KDWP permit at the time under the premises we would be allowed access to
the site to survey for NOMT. No permit from COE was needed and Wagner still has not
applied for a DWR permit. I assume he will need cross-sectional information & was
wanting to use the data from the survey The Watershed Institute did as part of the
monitoring study; however, we haven’t heard anything from him for awhile & he did not
show up for surveying in 2007.

Track: 19970436 Permit: #97-13 Type: Domestic use Status: Active

County: Lyon Legal: 15-19s-12e Permittee: Harry Fowler, Jr.
PH: 620-342-4201 Address: 1739 Road 170, Emporia, KS 66801

*tried calling 3-5,6,7-08 – no answer. 11-2-2007 Notes: Non-Commercial harvester.

Project needs a site visit (last one on 2-11-99). Applicant stated he would harvest >100
cyd – project needs a site visit. Don’t know if project is within a reach that has an open
commercial permit available. No indication that a DWR or CoE permit was ever
obtained.

Non-permit file summaries

On 11-5&6 I went through the GIS project tracking layer & through the online project
tracking database to extract project locations that have been reviewed for gravel harvest
in the past, in both the Cottonwood & Neosho River basins. This is necessary in order to
decipher if KDWP has an accurate accounting of active gravel harvest locations in order
to insure compliance w/the Biological Opinion’s recommendations for limitations on # &
location of gravel harvest operations.

Chase
Track: 20070496 Permit: Type: Commercial Status: Active
County: Chase Legal: 13-19s-9e Permittee: Chase Co. Road & Bridge
PH: Address: Cottonwood Falls

This project is located on the Cottonwood River just west of the Lyon/Chase county line.
The project was submitted for application in Aug. 2007, initially approved without permit
requirements; however, currently the County has been informed of the need to perform
monitoring at the site in accordance with the Biological Opinion. If the site is pursued
for harvest it will need a permit. Need to check with James Larson to determine exact
location & insure this will no be a cross-river scalp operation.

Attachment 5 – File summaries pg. 6

Lyon
Track: 19801555 Permit: N/A Type: Commercial use Status: Application denied
County: Lyon Legal: 8-19s-12e Applicant: Lyon County road & bridge

198001555 (check for typo on track#): The site is located on the Neosho River in Lyon
county (8-19-12). This project site was the origninal point identified by the public as
violating ESA due to gravel harvest in NOMT habitat. Law enforcement officers shut
down this operation in the fall of 1990. Ed Lee operated the site for Lyon Co. road &
bridge. Lyon Co applied for state T&E and DWR permits during the moratorium, but
they were denied. No site documentation has occurred since 1994. No point was entered
in tracking system. I entered a point in laptop’s Local Tracking layer – it needs to be
merged w/the master layer. We should try to update the track # to fit an 8-digit number if
possible.

Neosho
Track: 19910697 Permit: N/A Type: Commercial use Status: Application denied
County: Neosho Legal: SE 7-30-21 Applicant:
A DWR application was submitted in 1991, no record of KDWP response nor whether
the permit was issued. The files purged in 1997. The location is the same as James
Chappell (domestic use) and Richard McAtee (commercial use) on the cutoff. Probably
an old DWR app during the moratorium handled over the phone. Entered point

Track: 19920042 Permit: N/A Type: Commercial use Status: Application denied
County: Multiple Legal: N/A Applicant: Richard McAtee
McAtee applied for a permit to harvest gravel throughout the lower Neosho basin. The
application was denied due to moratorium. No point necessary.

Track: 20040559 Permit: N/A Type: Commercial use Status: Application denied
County: Neosho Legal: SE/4 5-30-21 Applicant: Western Landscapes [Beachner]

Project was a historical harvest site from prior to the moratorium. It is located in the
Neosho River cutoff just upstream of McAtee/Chappell bar on the North side of 60th Rd.
bridge. The application was denied primarily because the site was a short, elongated bar
that would yield little gravel w/o dredging and there was a large stockpile existing in the
floodplain from prior to the moratorium. Since the Neosho River has navigated around
the Parsons dam I’m not sure how we should define available permits. If the dam is out
do we continue to allow for 2 permits between dams? Entered point.

Track: 20070085 Permit: N/A Type: Commercial use Status: Application denied
County: Neosho Legal: SW/4 33-30-21 Applicant: Western Landscapes
[Beachner]

Request to remove gravel from Neosho River for road maintenance at the feedlot
operation. Project lays w/in the same reach of river that 20050559 lies in, therefore, the
maximum allotment of permits has been issued in accordance with the Biological
Opinion. The request was denied pending the results of the NOMT study.

Attachment 5 – File summaries pg. 7

Track: 20060081 Permit: N/A Type: Commercial use Status: Application denied
County: Neosho Legal: 25-29-20 Applicant: Neosho County Road & Bridge

This project was a request to remove gravel near a road replacement and bank
stabilization project south of St. Paul. The county wanted to haul gravel for an access
road to install bendway weirs along the river channel. The application was denied
because of a maximum allotment of permits for the area in accordance with the
Biological Opinion. Entered point.

Track: 20060329 Permit: N/A Type: Commercial use Status: Application denied
County: Neosho Legal: NW/4 9-29-20 & SE/4 8-30s21e Applicant: Beachner grain

Applicant proposed 2 possible locations for gravel harvest. NMD visited the northern
site (~2 river miles upstream of Speilbusch’s site), a large gravel dune located at a sharp
horseshoe bend in the river. The other site was not visited, but was located immediately
downstream of McAtee’s Chappell bar. The application for commercial gravel use was
denied because of a maximum allotment of permits for the area in accordance with the
Biological Opinion.; however, we informed the applicant that harvest above OHWM
(11.5' at gauge on St. Paul bridge) would not be a concern & 100 cubic yards annually
would not require a permit from DWR, but we would likely OK such an amount from
this site as the bar could easily support it and possibly some more. They were to stake
out the OHWM for inspection during 2006, but never contacted us as of 2008.

Labettee
19910640 & 19910641: Only Shepard’s YMCA bar could be located in Sec 5-31s-21e.
No points were entered.
19910642. This project may have been Ray Cook’s site since it is in the same section.
No point was entered.

Attachment 5 – File summaries pg. 8

 Attachment 6

Example of information request letter

Attachment 6 – Example of information request letter, pg. 1

March 17, 2008

XXXX
XXXX
XXXX
XXXX

Dear XXXX,

In accordance with KDWP permit #XX-XX please submit the total volume of gravel in
cubic yards harvested from each individual gravel bar. In addition, please provide site
photographs from each bar. Please submit the information in the enclosed envelope
within 30 days.

Thank you,

Attachment 6 – Example of information request letter, pg. 1

 Attachment 7

Recommend Special Conditions for

State T&E Gravel Harvest Permits

Attachment 7 -Recommend Special Conditions for State T&E Gravel Harvest Permits
Permit Special Conditions

The applicant shall:

1. provide access to the permitted property to employees of the Kansas

Department of Wildlife and Parks and their appointed species experts, for the
purpose of verifying permit compliance or conducting monitoring studies for
species listed by the State of Kansas as Threatened (T), Endangered (E) or in
need of conservation (SINC).

2. provide an annual report of the total volume of gravel in cubic yards removed
from the permitted property. This report shall be submitted to KDWP
Environmental Services Section, 512 SE 25th Ave, Pratt, KS 67124.

3. only remove gravel above the water line at the time of harvest. The depth of
gravel removal shall not extend below the elevation at which water begins to
seep into the excavated area.

4. not place any dike or other impediment to flow within the river channel during
any phase of the gravel removal operation. Similarly, no channelization or
ditching is to be allowed in the river channel. No vehicles or equipment are to
be allowed into the water for any reason.

5. recontour the excavated area to include a gradual slope down to the existing
water level following harvest

6. not perform gravel washing or screening near the river channel to prevent
discharge of sediment laden runoff to the river.

7. shall locate and protect all temporary storage facilities for petroleum products,
other fuels, and chemicals to prevent accidental spills from entering the river
or its tributaries within the project area. All such spills that occur within 500
yards of protected streams shall be cleaned up within 24 hours of the spill
occurrence to prevent subsequent pollution due to runoff.

8. inform all contractors of the conditions listed herein and assuring compliance
therewith throughout the harvest period

KDWP reserves the right to modify, suspend, or revoke this permit at any time should
the permittee fail to comply with any of the conditions of this permit or if information
indicates the permitted action has resulted in unpredicted impacts to state-listed
species.

Attachment 7 -Recommend Special Conditions for State T&E Gravel Harvest Permits pg. 1