Endangered and Threatened Wildlife and Plants; Establishment of a Nonessential Experimental Population of Topeka Shiner in Northern Missouri, 4813-4827 [2013-01153]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 78, Number 15 (Wednesday, January 23, 2013)]
[Proposed Rules]
[Pages 4813-4827]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-01153]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R3-ES-2012-0087: FXES11130900000C3-123-FF09E30000]
RIN 1018-AY45


Endangered and Threatened Wildlife and Plants; Establishment of a 
Nonessential Experimental Population of Topeka Shiner in Northern 
Missouri

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
establish a nonessential experimental population (NEP) of the Topeka 
shiner (Notropis topeka), a federally endangered fish, under the 
authority of section 10(j) of the Endangered Species Act of 1973, as 
amended (Act). This proposed rule provides a plan for reintroducing 
Topeka shiners into portions of the species' historical range in Adair, 
Gentry, Harrison, Putnam, Sullivan, and Worth Counties, Missouri and 
provides for allowable legal incidental taking of the Topeka shiner 
within the defined NEP area. Topeka shiners will not be reintroduced 
into the NEP area until after we issue a final regulation that 
establishes the NEP.

DATES: Written comments: We will accept comments received or postmarked 
on or before March 25, 2013. Please note that if you are using the 
Federal eRulemaking Portal (see ADDRESSES), the deadline for submitting 
an electronic comment is 11:59 p.m. Eastern Standard Time on this date. 
We must receive requests for public hearings, in writing, at the 
address shown in the FOR FURTHER INFORMATION CONTACT section by March 
11, 2013.
    Public Meetings: We will hold a public meeting on February 19, 
2013, from 6:00 p.m. to 8:30 p.m. (Central Standard Time), in 
Eagleville, Missouri, and on February 21, 2013, from 6:00 p.m. to 8:30 
p.m. (Central Standard Time), in Green City, Missouri (see ADDRESSES).

ADDRESSES: Written comments: You may submit comments by one of the 
following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search field, enter FWS-R3-ES-2012-0087, 
which is the docket number for this rulemaking. On the search results 
page, under the Comment Period heading in the menu on the left side of 
your screen, check the box next to ``Open'' to locate this document. 
Please ensure you have found the correct document before submitting 
your comments. If your comments will fit in the provided comment box, 
please use this feature of https://www.regulations.gov, as it is most 
compatible with our comment review procedures. If you attach your 
comments as a separate document, our preferred file format is Microsoft 
Word. If you attach multiple comments (such as form letters), our 
preferred format is a spreadsheet in Microsoft Excel.
    (2) By Hard Copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R3-ES-2012-0087; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203.
    We request that you send comments only by the methods described 
above. We will post all comments on https://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see the Public Comments section below for more information).
    Copies of Documents: The proposed rule is available on https://www.regulations.gov and available from our Web site at https://www.fws.gov/midwest/endangered. In addition, the supporting file for 
this proposed rule will be available for public inspection, by 
appointment, during normal business hours, at the Columbia, Missouri, 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
    Public Meetings: We will hold a public meeting on February 19, 
2013, from 6:00 p.m. to 8:30 p.m. (Central Standard Time), at the 
Eagleville Community Center, 10028 10th St., Eagleville, Missouri 
64442, and on February 21, 2013, from 6:00 p.m. to 8:30 p.m. (Central 
Standard Time), at the Green City City Hall, 4 South Green St., Green 
City, Missouri 63545.

FOR FURTHER INFORMATION CONTACT: Dr. Paul McKenzie, Fish and Wildlife 
Biologist, telephone: 573-234-2132; facsimile: 573-234-2181. Direct all 
questions or requests for additional information to: TOPEKA SHINER 
QUESTIONS, U.S. Fish and Wildlife Service, Ecological Services Field 
Office, 101 Park DeVille Dr., Suite B, Columbia, MO 65203. Persons who 
use a telecommunications device for the deaf (TDD) may call the Federal 
Information Relay Services (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

    We intend any final rule resulting from this proposal to be as 
effective as

[[Page 4814]]

possible. Therefore, we invite tribal and governmental agencies, the 
scientific community, industry, and other interested parties to submit 
comments or recommendations concerning any aspect of this proposed 
rule. Comments should be as specific as possible.
    Prior to issuing a final rule to implement this proposed action, we 
will take into consideration all comments and any additional 
information we receive. Such communications may lead to a final rule 
that differs from this proposal. All comments, including commenters' 
names and addresses, if provided to us, will become part of the 
supporting record.
    You may submit your comments and materials concerning the proposed 
rule by one of the methods listed in the ADDRESSES section. Comments 
must be submitted to https://www.regulations.gov before 11:59 p.m. 
(Eastern Time) on the date specified in the DATES section. We will not 
consider hand-delivered comments that we do not receive, or mailed 
comments that are not postmarked, by the date specified in the DATES 
section.
    We will post your entire comment--including your personal 
identifying information--on https://www.regulations.gov. If you provide 
personal identifying information in your comment, you may request at 
the top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on https://www.regulations.gov, or by 
appointment, during normal business hours at the U.S. Fish and Wildlife 
Service, Columbia, Missouri, Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT).

Public Meetings

    We will hold two public meetings on the dates listed in the DATES 
section at the addresses listed in the ADDRESSES section. Persons 
needing reasonable accommodations in order to attend and participate in 
a public meeting should contact the Columbia, Missouri, Ecological 
Services Field Office, at the address or phone number listed in the FOR 
FURTHER INFORMATION CONTACT section as soon as possible. In order to 
allow sufficient time to process requests, please call no later than 
one week before the meeting. Information regarding this proposal is 
available in alternative formats upon request.

Peer Review

    In accordance with our policy, ``Notice of Interagency Cooperative 
Policy for Peer Review in Endangered Species Act Activities,'' which 
was published on July 1, 1994 (59 FR 34270), we will seek the expert 
opinion of at least three appropriate and independent specialists 
regarding scientific data and interpretations contained in this 
proposed rule. We will send copies of this proposed rule to the peer 
reviewers immediately following publication in the Federal Register. 
The purpose of such review is to ensure that our decisions are based on 
scientifically sound data, assumptions, and analysis. Accordingly, the 
final decision may differ from this proposal.

Background

Statutory and Regulatory Framework

    The Topeka shiner was listed as endangered throughout its range on 
December 15, 1998 (63 FR 69008), and critical habitat was designated in 
Iowa, Minnesota, and Nebraska on July 27, 2004 (69 FR 44736), under the 
Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.). 
The Act provides that species listed as endangered are afforded 
protection primarily through the prohibitions of section 9 and the 
requirements of section 7. Section 9 of the Act, among other things, 
prohibits the take of endangered wildlife. ``Take'' is defined by the 
Act as harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, 
or collect, or attempt to engage in any such conduct. Section 7 of the 
Act outlines the procedures for Federal interagency cooperation to 
conserve federally listed species and protect designated critical 
habitat. It mandates that all Federal agencies use their existing 
authorities to further the purposes of the Act by carrying out programs 
for the conservation of listed species. It also states that Federal 
agencies must, in consultation with the Service, ensure that any action 
they authorize, fund, or carry out is not likely to jeopardize the 
continued existence of a listed species or result in the destruction or 
adverse modification of designated critical habitat. Section 7 of the 
Act does not affect activities undertaken on private land unless they 
are authorized, funded, or carried out by a Federal agency.
    The 1982 amendments to the Act included the addition of section 
10(j), which allows for the designation of reintroduced populations of 
listed species as ``experimental populations.'' Under section 10(j) of 
the Act and our regulations at 50 CFR 17.81, the Service may designate 
as an experimental population, a population of an endangered or 
threatened species that has been or will be released into suitable 
habitat outside the species' current range (but within its probable 
historical range, absent a finding by the Director of the Service in 
the extreme case that the primary habitat of the species has been 
unsuitably and irreversibly altered or destroyed). With the 
experimental population designation, the relevant population is treated 
as threatened for purposes of section 9 of the Act, regardless of the 
species' designation elsewhere in its range. Section 4(d) of the Act 
allows us to adopt whatever regulations are necessary and advisable to 
provide for the conservation of a threatened species so the treatment 
of an NEP as a threatened species allows us broad discretion in 
devising management programs and special regulations for such a 
population. In these situations, the general regulations that extend 
most section 9 prohibitions to threatened species (50 CFR 17.31(a)) do 
not apply to the NEP, and the 10(j) rule contains the prohibitions and 
exemptions necessary and advisable to conserve the NEP.
    Before authorizing the release as an experimental population of any 
population (including eggs, propagules, or individuals) of an 
endangered or threatened species, and before authorizing any necessary 
transportation to conduct the release, the Service must find, by 
regulation, that such release will further the conservation of the 
species. In making such a finding, the Service uses the best scientific 
and commercial data available to consider: (1) Any possible adverse 
effects on extant populations of a species as a result of removal of 
individuals, eggs, or propagules for introduction elsewhere; (2) the 
likelihood that any such experimental population will become 
established and survive in the foreseeable future; (3) the relative 
effects that establishment of an experimental population will have on 
the recovery of the species; and (4) the extent to which the introduced 
population may be affected by existing or anticipated Federal or State 
actions or private activities within or adjacent to the experimental 
population area.
    Furthermore, as set forth in 50 CFR 17.81(c), all regulations 
designating experimental populations under section 10(j) must provide: 
(1) Appropriate means to identify the experimental population, 
including, but not limited to, its actual or proposed location, actual 
or anticipated migration, number of specimens released or to be 
released,

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and other criteria appropriate to identify the experimental 
population(s); (2) a finding, based solely on the best scientific and 
commercial data available, and the supporting factual basis, on whether 
the experimental population is, or is not, essential to the continued 
existence of the species in the wild; (3) management restrictions, 
protective measures, or other special management concerns of that 
population, which may include but are not limited to, measures to 
isolate or contain the experimental population designated in the 
regulation from natural populations; and (4) a process for periodic 
review and evaluation of the success or failure of the release and the 
effect of the release on the conservation and recovery of the species.
    Under 50 CFR 17.81(d), the Service must consult with appropriate 
State fish and wildlife agencies, local governmental entities, affected 
Federal agencies, and affected private landowners in developing and 
implementing experimental population rules. To the maximum extent 
practicable, section 10(j) rules represent an agreement between the 
Service, the affected State and Federal agencies, and persons holding 
any interest in land that may be affected by the establishment of an 
experimental population.
    Based on the best scientific and commercial data available, we must 
determine whether the experimental population is essential or 
nonessential to the continued existence of the species. The regulations 
(50 CFR 17.80(b)) state that an experimental population is considered 
essential if its loss would be likely to appreciably reduce the 
likelihood of survival of that species in the wild. All other 
populations are considered nonessential. We have determined that this 
proposed experimental population would not be essential to the 
continued existence of the species in the wild. This determination has 
been made because populations of Topeka shiner in the northern part of 
the species' range in Minnesota and South Dakota are considered secure 
and some have concluded that the fish is resilient to many threats 
identified at the time of listing (Service 2009, pp. 32-33). Therefore, 
the Service proposes to designate a nonessential experimental 
population for the species located in three areas in northern Missouri.
    For the purposes of section 7 of the Act, we treat an NEP as a 
threatened species when the NEP is located within a National Wildlife 
Refuge or unit of the National Park Service, and section 7(a)(1) and 
the Federal agency conservation requirements of section 7(a)(2) of the 
Act apply. Section 7(a)(1) requires all Federal agencies to use their 
authorities to carry out programs for the conservation of listed 
species. Section 7(a)(2) requires that Federal agencies, in 
consultation with the Service, ensure that any action authorized, 
funded, or carried out is not likely to jeopardize the continued 
existence of a listed species or adversely modify its critical habitat. 
When NEPs are located outside a National Wildlife Refuge or National 
Park Service unit, then, for the purposes of section 7, we treat the 
population as proposed for listing and only section 7(a)(1) and section 
7(a)(4) apply. In these instances, NEPs provide additional flexibility 
because Federal agencies are not required to consult with us under 
section 7(a)(2). Section 7(a)(4) requires Federal agencies to confer 
(rather than consult) with the Service on actions that are likely to 
jeopardize the continued existence of a species proposed to be listed. 
The results of a conference are in the form of conservation 
recommendations that are optional as the agencies carry out, fund, or 
authorize activities. Because the NEP is, by definition, not essential 
to the continued existence of the species, the effects of proposed 
actions on the NEP will generally not rise to the level of jeopardizing 
the continued existence of the species. As a result, a formal 
conference will likely never be required for Topeka shiners established 
within the NEP area. Nonetheless, some agencies voluntarily confer with 
the Service on actions that may affect a proposed species. Activities 
that are not carried out, funded, or authorized by Federal agencies are 
not subject to provisions or requirements in section 7.
    Section 10(j)(2)(C)(ii) of the Act states that critical habitat 
shall not be designated for any experimental population that is 
determined to be nonessential. Accordingly, we cannot designate 
critical habitat in areas where we establish an NEP.

Biological Information

    The Topeka shiner is a small, stout minnow. This shiner species 
averages 1.5 to 2.5 inches (in.) (3.81-6.35 centimeters (cm)) in length 
at maturity, with a maximum size around 3 in. (7.62 cm) (Service 1993, 
p. 4; Service 1998, p. 69008; Missouri Department of Conservation (MDC) 
2010, p. 9). The head is short, and the mouth does not extend beyond 
the front of the eye. The eye diameter is equal to or slightly longer 
than the snout. All fins are plain except for the tail fin, which has a 
chevron-shaped black spot at its base. Dorsal and pelvic fins each 
contain 8 rays (Service 1993, p. 4; Service 1998, p. 69008; MDC 2010, 
p. 9). The anal and pectoral fins contain 7 and 13 rays respectively, 
and there are 32 to 37 lateral line scales. Dorsally, the body is olive 
with a distinct dark stripe preceding the dorsal fin. A dusky stripe 
runs along the entire length of the lateral line (Service 1993, p. 4; 
Service 1998, p. 69008; MDC 2010, p. 9). The scales above this line are 
darkly outlined with pigment, appearing cross-hatched. Below the 
lateral line, the body lacks pigment, appearing silvery-white (Pflieger 
1975, pp. 161-162; Pflieger 1997, p. 154; Service 1993, p. 4; Service 
1998, p. 69008). Males in breeding condition have orange-red fins and 
``cheeks,'' and the dark lateral stripe diffuses. A distinct chevron-
like spot exists at the base of the caudal fin (Pflieger 1975, pp. 161-
162; Pflieger 1997, p. 154; Service 1993, p. 4; Service 1998, p. 
69008).
    Topeka shiners spawn in pool habitats over green sunfish (Lepomis 
cyanellus) and orangespotted sunfish (L. humilis) nests from late May 
through July in Missouri and Kansas (Pflieger 1975, p. 162; Pflieger 
1997, p. 154; Kerns 1983, pp. 8-9; Kerns and Bonneau 2002, p. 139; 
Stark et al. 2002, pp. 147-149). Males establish small territories on 
the periphery of these nests. It is unclear to what extent Topeka 
shiners are obligated to spawn over sunfish nests, or whether they can 
successfully utilize other silt-free areas as spawning sites. In a fish 
hatchery pond environment, Topeka shiner production was greatly 
enhanced by the introduction of orangespotted sunfish (Cook 2011, pers. 
comm.). Topeka shiners feed primarily on insects, such as midges 
(chironomids), true flies (dipterans), and mayflies (ephemeropterans), 
but they also are known to feed on zooplankton such as cladocera and 
copepoda (Kerns and Bonneau 2002, p. 138). Studies from Minnesota found 
Topeka shiners to be omnivorous, ingesting a significant amount of 
plant material and detritus along with animal matter (Dahle 2001, pp. 
30-32; Hatch and Besaw 2001, pp. 229-230).
    Topeka shiners are a schooling species found in mixed species 
schools consisting primarily of redfin (Lythrurus umbratilis), sand 
(Notropis stramineus), common (Luxilus cornutus), and red shiners 
(Cyprinella lutrensis), and central stonerollers (Campostoma anomalum) 
(Pflieger 1997, p. 155; Kerns and Bonneau 2002, p. 139). Topeka shiners 
live a maximum of 3 years, although few survive to their third summer 
(Kerns 1983, p. 16; Dahle 2001, pp. 30-31; Kerns and Bonneau 2002, p.

[[Page 4816]]

138). Topeka shiner populations appear to be more tolerant than other 
native fish species to drought conditions in Kansas (Minckley and Cross 
1959, p. 215; Barber 1986, pp. 70-71; Kerns and Bonneau 2002, p. 138). 
The Topeka shiner is tolerant of high water temperatures and low 
dissolved oxygen levels (Koehle 2006, p. 26), which may in part account 
for the Topeka shiner's apparent drought condition tolerance. Topeka 
shiners are typically found in small, low order, prairie streams with 
good water quality and cool temperatures. These streams generally flow 
all year; however, some may become intermittent during late summer and 
fall. Pool water levels and cool temperatures are maintained by 
percolation through the stream bed, spring flow, or groundwater seepage 
when surface water flow ceases in these stream reaches (Minckley and 
Cross 1959, p. 212; Pflieger 1975, p. 162; Service 1993, p. 5; Service 
1998, p. 69008). Topeka shiners generally inhabit streams with clean 
gravel, cobble, or sand bottoms. However, bedrock and clay hardpan 
covered by a thin layer of silt are not uncommon (Minckley and Cross 
1959, p. 212).
    Topeka shiners are found in pools and runs, and only rarely in 
riffles. In the northern portion of its range (Iowa, Minnesota, and 
South Dakota), the Topeka shiner is frequently found in off-channel 
aquatic habitat (Clark 2000, p. 7; Dahle 2001, p. 8; Berg et al. 2004, 
p. 1). These habitats are characterized by lack of flow, moderate 
depth, and substrate composed of a thick silt and detritus layer (Dahle 
2001, p. 9; Hatch 2001, p. 41). However, such off-channel habitat is 
rarely found along prairie headwater streams in Missouri. Occasionally, 
Topeka shiners have been found in larger streams, downstream of known 
populations, presumably as migrants (Pflieger 1975, p. 162; Service 
1993, pp. 5-9; Service 1998, p. 69008). Dahle (2001, p. 39) noted that 
the Topeka shiner is a multiple clutch spawner and reported that 
relative abundance was higher in off-channel habitat than instream 
habitat.
    The Topeka shiner was once widespread and abundant in headwater 
streams throughout the Central Prairie Region of the United States. The 
species' range historically included much of Missouri, Iowa, and 
Kansas, as well as portions of Nebraska, South Dakota, and Minnesota 
(Bailey and Allum 1962, pp. 68-70; Cross 1970, p. 254; Gilbert 1988, p. 
317). In Missouri, Topeka shiners historically occurred in most of the 
prairie and Ozark border portions of north and central Missouri. With 
the exception of a population known from Cedar Creek, a tributary of 
the Des Moines River in Clark County (Mississippi River basin), all 
Topeka shiner populations in Missouri are known from the Missouri River 
basin. The species once occupied portions of the Missouri, Grand, 
Lamine, Chariton, Crooked, Des Moines, Loutre, Middle, Hundred and Two, 
and Little Blue river basins (MDC 2010, p. 10). Since 1940, the species 
has been extirpated from many Missouri River tributaries, including 
Perche Creek, Petite Saline Creek, Tavern Creek, Auxvasse Creek, Middle 
River, Moreau River, Splice Creek, Slate Creek, Crooked River, Fishing 
River, Shoal Creek, Hundred and Two River, and Little Blue River 
watersheds (Bailey and Allum 1962, pp. 69-70; Pflieger 1971, p. 360; 
MDC 2010, p. 10). Topeka shiners were last observed in the following 
Missouri streams: Moniteau Creek headwaters in Cooper and Moniteau 
Counties (2008), Clear Creek (1992) and a tributary of Heath's Creek 
(1995) in Cooper and Pettis Counties, Bonne Femme Creek watershed in 
Boone County (1997), Sugar Creek and tributaries in Daviess and 
Harrison Counties (2008), Dog Branch in Putnam County (1990), and Cedar 
Creek in Clark County (1987) (MDC 2010, p. 10; Novinger 2011, pers. 
comm.). It is presumed Topeka shiners are extirpated from the Bonne 
Femme Creek watershed (MDC 2010, p. 10).
    The Topeka shiner in Missouri exists in highly disjunct populations 
in a small fraction of its historical range. Sampling specifically for 
Topeka shiners during the early 1990s found this species at only 19 
percent (14 of 72) of historical sites, and at only 15 percent (20 of 
136) of the total sites sampled in Missouri (Gelwicks and Bruenderman 
1996, p. 5). Additionally, the remaining populations were found to be 
smaller than they had been recorded historically. For example, over 300 
Topeka shiners were recorded among 7 locations in Bonne Femme Creek 
from 1961 to 1983. However, during comparable surveys within the same 
watershed, in the 1990s, only six Topeka shiners were identified at two 
locations (Wiechman, MDC 2012, pers. comm.). The isolation and small 
size of the remaining populations makes them highly vulnerable to 
extirpation. Currently, remaining viable populations of Topeka shiners 
can be consistently found in only two Missouri stream systems: Moniteau 
Creek headwaters in Cooper and Moniteau Counties, and Sugar Creek 
headwaters in Daviess and Harrison Counties. Several other streams have 
produced samples of a few individuals in the past 25 years, but these 
occurrences are based on a very limited number of fish (MDC 2010, p. 
10).

Effects of Establishing the Proposed Nonessential Experimental 
Population on Recovery of the Species

    Restoring an endangered or threatened species to the point where it 
is recovered is a primary goal of the Service's endangered species 
program. Although a Service recovery plan has not been issued for the 
Topeka shiner, the MDC devised State-specific recovery criteria for the 
species in their 10-year Strategic Plan for the Recovery of the Topeka 
Shiner in Missouri (MDC 2010, p. 8). The recovery goal of this plan is 
to stabilize and enhance Topeka shiner numbers in Missouri by securing 
populations in seven streams. Seven populations would be equivalent to 
one half of the known populations sampled in Missouri since 1960. Two 
main criteria were established to accomplish the goal: (1) Reduce or 
eliminate major threats and restore suitable habitat in Moniteau Creek 
and Sugar Creek watersheds, and (2) introduce (or reintroduce) and 
establish secure populations in five additional streams (MDC 2010, p. 
8). According to fisheries experts with the Missouri Department of 
Conservation and as outlined in MDC's strategic plan, the designation 
of a Topeka shiner NEP in Missouri is necessary to establish new 
populations in the State (MDC 2010, p. 26).
    The MDC (2011a, pp. 1-2; 2011b, pp. 2-3; 2011c, p. 3) established 
six criteria for identifying possible reintroduction sites in Missouri: 
(1) Propagation and release sites are to be under public ownership; (2) 
ownership involves a partner committed to conservation; (3) proposed 
release sites are within relatively close proximity to existing Topeka 
shiner populations; (4) proposed release sites are within the overall 
historical range of the species in Missouri; (5) the overall condition 
of the stream (e.g., land use, environmental parameters, stream bank 
and channel stability, ecological and biological integrity) and 
watershed is suitable; and (6) the perceived likelihood of success of 
the reintroduction is high because there are no physical barriers that 
will prevent the species from inhabiting these sites. We have selected 
high quality streams for proposed reintroduction that will support 
growth, survival, and natural reproduction. Sites selected are also 
deemed to be adequate to facilitate expansion of reintroduced 
populations.

[[Page 4817]]

Location of the Proposed Nonessential Experimental Population

    Based on criteria outlined above for reintroduction sites, Little 
Creek headwaters in Harrison County; East Fork Big Muddy Creek in 
Gentry, Harrison, and Worth Counties; and tributaries of Spring Creek 
in Adair, Putnam, and Sullivan Counties have been identified for 
initial release efforts (MDC 2010, pp. 27-31). Although no historical 
records exist of Topeka shiner in the selected reintroduction sites, it 
is likely that the species once inhabited these waters. Our conclusion 
is based on the following: (1) The species was historically known from 
adjacent watersheds--Little Creek and Big Muddy Creek are located 
approximately 16-19 air miles (mi.) (25.75-30.58 air kilometers (km)) 
from extant sites in Harrison County, Missouri (Wiechman 2012, pers. 
comm.), and the Spring Creek watershed in Adair, Putnam, and Sullivan 
Counties is located approximately 11 air mi. (17.7 air km) (Novinger 
2012, pers. comm.) from a historical location in Putnam County, 
Missouri; (2) habitat is identical or similar to currently occupied 
sites in Harrison County, Missouri; and (3) the proposed reintroduction 
sites have suitable habitat necessary for the successful establishment 
of the species (MDC 2011a, pp. 1-2).
    The reintroduction areas would include both pond (similar to off-
channel habitats used by the species elsewhere within its range) and 
stream habitats. Initial donor populations of Topeka shiner would 
originate from extant sites in Sugar Creek, Harrison County, and be 
propagated at MDC's Lost Valley Hatchery in Warsaw, Missouri. Future 
captive-breeding of the Topeka shiner would occur in pond habitats, and 
the progeny would be used to stock the NEP streams rather than 
continual use of the Lost Valley Hatchery (Novinger 2012, pers. comm.). 
The subsequent use of pond fish for ongoing reintroduction efforts 
would be dependent upon the success of propagation efforts at The 
Nature Conservancy's Dunn Ranch, MDC's Pawnee Prairie Natural Area 
(NA), and MDC's Union Ridge Conservation Area (CA) (see below) 
(Novinger 2012, pers. comm.).
Little Creek
    Little Creek is a tributary to West Fork Big Creek in the greater 
Grand River drainage. The proposed NEP portion of the watershed is 
located in the headwaters of Little Creek and is estimated at 7,600 
acres (ac) (3075 hectares (ha)). The area extends from the backwaters 
of Harrison County Lake, upstream to the headwaters of Little Creek, 
and includes all tributaries in this reach from the reservoir to 
headwaters. Specific reintroduction sites would be located in select 
ponds (greater than 8 feet (2.44 m) deep) and in headwater stream 
reaches on Dunn Ranch, which is owned and operated by The Nature 
Conservancy (TNC). Dunn Ranch comprises the upper half of the 
watershed, and it has several characteristics that promote a successful 
reintroduction program (e.g., land management within the watershed is 
excellent) (MDC 2011a, p. 2). Harrison County Lake (280 ac) (113.1 ha) 
is identified as the downstream extent of the proposed NEP because it 
supports a popular sport fishery with abundant predator fishes 
(largemouth bass, crappie, channel catfish), which greatly limit the 
potential for downstream migration of cyprinid species (MDC 2011a, p. 
2). Little Creek is approximately 16 air miles (mi.) (25.75 air 
kilometers (km)) from extant sites in Harrison County, Missouri 
(Wiechman 2012, pers. comm.). A physical barrier in Harrison County 
Lake downstream of the proposed reintroduction site would prevent the 
mixing of wild and reintroduced populations of Topeka shiners (MDC 
2011a, p. 7).
Big Muddy Creek
    Big Muddy Creek is a tributary to the East Fork Grand River 
drainage and its watershed covers 44,339 ac. Land use is predominately 
grassland (60 percent), containing minor components of cropland (16 
percent) and deciduous forest (15 percent). Cropland is concentrated in 
the bottomland along the mainstem of Big Muddy Creek. Grassed uplands 
are mostly used for cattle grazing and hay production. Headwaters of 
Big Muddy Creek (upper 33 percent of watershed) lie within the Grand 
River Grasslands Conservation Opportunity Area (GRGCOA). Two notable 
properties within the GRGCOA portion of Big Muddy Creek include MDC's 
Pawnee Prairie Natural Area (NA) (476 ac) (192 ha) and TNC's Pawnee 
Prairie (500 ac) (202 ha), which are cooperatively managed for native 
prairie and associated wildlife (MDC 2011b, pp. 1-2).
    The 10-year-old GRGCOA covers approximately 70,000 ac (28,327 ha) 
in northern Missouri and southern Iowa, with approximately 14,800 ac 
(5,989 ha) (21 percent) located within the Big Muddy Creek basin. In 
northern Missouri, GRGCOA is believed to have the greatest potential to 
restore a functioning tallgrass prairie ecosystem on a landscape scale. 
The MDC, TNC, the Iowa Department of Natural Resources, the Natural 
Resources Conservation Service, the Service, and interested private 
landowners are working cooperatively to restore prairie, promote soil 
conservation practices, and enhance habitat for prairie chickens in 
this area. Prescribed burning is commonly used to help meet these 
objectives. Experimental patch-burn grazing on Pawnee Prairie NA is 
also being evaluated by MDC and Iowa State University (MDC 2011b, p. 
2).
    The eastern side of MDC's Emmet and Leah Seat Memorial (Seat) 
Conservation Area (CA) (2,030 ac) (821 ha) is located within the Little 
Muddy Creek basin, a lower sub-basin to Big Muddy Creek. Little Muddy 
Creek basin is located outside the GRGCOA. Seat CA is a mixture of old 
field, grasslands, cropland, and woodland habitats. The area features 
public hunting (deer, turkey, quail, small game), primitive camping, an 
archery range, 16 fishable ponds (totaling 13 ac), and a permanent 
stream. The area is managed primarily for upland game hunting (MDC 
2011b, p. 2).
    The Big Muddy Creek watershed, from its confluence with East Fork 
Grand River upstream through all headwaters, is included in the 
proposed NEP area for the following reasons: (1) There are no known 
fish barriers; (2) there are no reservoirs (except small farm ponds) 
with abundant predator fishes; and (3) stream size remains relatively 
small with habitat conditions comparable to those found in reaches of 
Sugar Creek where Topeka shiners occur. Big Muddy Creek is 
approximately 19 air miles (mi.) (30.58 air kilometers (km)) from 
extant sites in Harrison County, Missouri (Wiechman 2012, pers. comm.). 
East Fork Grand River is believed to effectively limit the potential 
for downstream migration of cyprinids given its higher densities of 
predator fishes (predominantly channel catfish) and minimal cover for 
small fish (MDC 2011b, p. 2). A physical barrier in the East Fork of 
the Grand River downstream of the proposed reintroduction site would 
prevent mixing of wild and reintroduced populations of Topeka shiners 
(MDC 2011b, p. 9).
Spring Creek
    Spring Creek is a tributary to the Chariton River, and its 
watershed covers 60,869 ac (24,632 ha). Land use is essentially limited 
to deciduous woodlands (41 percent) and grassland (39 percent), with 
only 10 percent cropland. Cropland is concentrated in the bottomland 
along the mainstem of Spring Creek and in the upper

[[Page 4818]]

watershed in the Unionville Plains. Grassed uplands are mostly used for 
cattle grazing and hay production. The Union Ridge Conservation 
Opportunity Area (URCOA) and the Spring Creek Priority Watershed (SCPW) 
encompass roughly 75 percent of the Spring Creek watershed. MDC 
ownership within the watershed includes Morris Prairie CA (167 ac) (67 
ha), Dark Hollow NA (315 ac) (127 ha), Union Ridge CA (8,110 ac) (3,282 
ha), and Shoemaker CA (259 ac) (104 ha). Morris Prairie NA (47 ac) (19 
ha) and Spring Creek Ranch NA (1,769 ac) (716 ha) are located within 
the boundaries of Morris Prairie CA and Union Ridge CA, respectively. 
These properties are managed for native prairie-savanna-woodland and 
associated wildlife (MDC 2011c, p. 1).
    The Spring Creek watershed, from its confluence with the Chariton 
River upstream through all headwaters is included in the proposed NEP 
area for the following reasons: (1) There are no known fish barriers; 
(2) there are no reservoirs (except small farm ponds) with abundant 
predator fishes; and (3) stream size remains relatively small, with 
habitat conditions comparable to those found in reaches of Sugar Creek 
where Topeka shiners occur. The Spring Creek watershed in Adair, 
Putnam, and Sullivan Counties is located approximately 47 air mi. 
(75.64 air km) (Wiechman 2012, pers. comm.) from extant sites in 
Harrison County, and the Spring Creek locations are not in any 
watershed where there are extant records of Topeka shiner (MDC 2011c, 
pp. 8-11). The Chariton River is believed to effectively limit the 
potential for downstream migration of Topeka shiners given its higher 
densities of predator fishes (predominantly channel catfish) and 
minimal cover for small fish (MDC 2011c, p. 2).
    Initial reintroduction sites for Topeka shiners would be in at 
least six ponds and all suitable stream reaches on MDC's Union Ridge 
CA. Subsequent monitoring of Topeka shiners would be restricted to the 
middle-Spring Creek sub-basin of the Spring Creek watershed. Within 
Spring Creek, this sub-basin is believed to offer the greatest 
potential to establish a self-sustaining population of Topeka shiners, 
and the smaller size of the middle-Spring Creek sub-basin also allows 
for regional Fisheries staff to reasonably complete monitoring efforts 
and evaluate success (MDC 2011c, p. 2).

Likelihood of Population Establishment and Survival

    A subset of the ponds on Dunn Ranch, Pawnee Prairie, and Union 
Ridge CA determined to be suitable for the propagation of Topeka 
shiners would be treated with rotenone to remove potential predators 
prior to stocking (MDC 2011a, p. 2; MDC 20011b, p. 2; MDC 2011c, p. 3). 
Spawning gravel would also be added to littoral areas (0-1 meter deep). 
The success of reproduction in these ponds would be compared to ponds 
with bare soil bottom types that did not receive spawning gravel. 
Reducing predators and increasing spawning success should increase the 
likelihood of population establishment and survival.

Addressing Causes of Extirpation

    There are apparently numerous reasons for the decline of the Topeka 
shiner throughout its range. Reductions and disappearance of many 
Topeka shiner populations appear to be related to a combination of 
physical degradation of habitat and species interactions (MDC 2010, p. 
11). Physical degradation of habitat is primarily related to patterns 
of land use including destruction, modification and fragmentation of 
habitat resulting from siltation, reduced water quality, tributary 
impoundment, and reduction of water levels (MDC 2010, p. 11). These 
habitat alterations may have been caused by intensive agriculture, 
urbanization, and highway construction (Minckley and Cross 1959, p. 
216; Cross and Moss 1987, p. 165; Pflieger 1997, p. 199; Tabor 1992, 
pp. 38-39; MDC 2010, p. 11). Bayless et al. (2003, p. 47) found that 
generally good water quality and habitat prevailed in the Moniteau 
Creek watershed, where the largest remaining populations of the Topeka 
shiner persist. No overall pattern relating Topeka shiner distribution 
and water quality was detectable; however, the Topeka shiner has never 
been observed in sub-basins of the watershed characterized by 
chronically extreme levels of urbanization, nutrient additions, and 
turbidity. Construction of watershed impoundments that limit sediment-
flushing flows and provide a source of piscivorous predators, low-water 
crossings that obstruct animal and particle passage, and reduction of 
groundwater levels resulting from irrigation may have also contributed 
to the Topeka shiner's decline (Layher 1993, pp. 15-17; Tabor 1992, p. 
39; Pflieger 1997, p. 155; Schrank et al. 2001, p. 419; Mammoliti 2002, 
p. 2; MDC 2010, p. 11). Species interactions, such as predation and 
competition with other fishes, have likely played a role in the decline 
of the Topeka shiner in portions of its range. Stocking piscivores such 
as largemouth bass (Micropterus salmoides), crappie (Pomoxis spp.), and 
bluegill (Lepomis macrochirus) in ponds constructed in watersheds 
containing the Topeka shiner has probably accelerated the decline of 
the Topeka shiner through predation (MDC 2010, p. 11). Additionally, 
Pflieger (1997, p. 155) suggested that the introduced blackstripe 
topminnow (Fundulus notatus) and western mosquitofish (Gambusia 
affinis) likely compete with the Topeka shiner for food.
    The Topeka shiner in Missouri has declined in the presence of 
largemouth bass, bluegill, and blackstripe topminnow, and this decline 
coincided with the decline of other fishes considered generally 
tolerant of poor physical and chemical conditions but intolerant of 
species interactions (Winston 2002, p. 249). Schrank et al. (2001, p. 
413) noted that sites where the Topeka shiner had been extirpated in 
Kansas had a greater number of small impoundments in the watershed, 
longer pools, higher catch per effort of largemouth bass, and higher 
species diversity by trophic guild and richness compared to sites where 
the Topeka shiner was extant. Dahle and Hatch (2002, p. 3) determined 
the threat of predation of Topeka shiners by piscivorous fish 
(including largemouth bass) in southwest Minnesota streams was low due 
to the rarity of such predators.
    Other unidentified factors may be responsible for the loss of the 
Topeka shiner from some streams and for localized undocumented fish 
kills. Further study is needed to determine the relative significance 
of habitat degradation versus species interactions as causes for the 
decline of the Topeka shiner. Koehle (2006, p. 26) found Topeka shiners 
to be tolerant of high water temperatures and low dissolved oxygen 
levels. Additional experimental studies would be particularly useful to 
elucidate the physiological tolerances and behavior of the Topeka 
shiner in addition to comparisons of the hydrology, water chemistry, 
physical habitat, land use practices, and fish communities in areas 
where the species persists and where it has been extirpated (MDC 2010, 
p. 11).
    All proposed reintroduction sites are on public land, and are 
properly managed to prevent potential causes of extirpation (Pflieger 
1997, pp. 154-155). In addition to implementing management techniques 
that will sustain headwater prairie stream habitat, efforts have been 
undertaken to eliminate potential predation by nonnative piscivorous 
fish (MDC 2010, pp. 26-31). Ponds on Dunn Ranch, Pawnee Prairie NA, and 
Union Ridge CA determined to be suitable for the

[[Page 4819]]

propagation of Topeka shiners were treated with rotenone during the 
summer of 2011, to remove potential piscivorous predators prior to 
stocking (MDC 2011a, p. 2; MDC 20011b, p. 2; MDC 2011c, p. 3). Ponds 
would be regularly monitored to assess success of removal operations. 
Additional treatments would be provided if needed to ensure ponds are 
free of fish predators before any stocking takes place. Such actions 
should improve the probability of success of reintroduction efforts. 
Ponds on proposed reintroduction areas used in propagation efforts 
would likely duplicate off-channel habitats occupied by Topeka shiners 
elsewhere within the species' range (MDC 2010, p. 26). The use of such 
ponds in propagation efforts would serve as refugia for Topeka shiners 
during extreme drought and may provide excellent sources of intra-basin 
transfers to promote population expansion (MDC 2011a, p. 2).

Release Procedures

    Initial donor populations of Topeka shiner would originate from 
extant sites in Sugar Creek, Harrison County, and from fish propagated 
at MDC's Lost Valley Hatchery in Warsaw, Missouri. Proposed NEP 
reintroductions would include pond and stream habitats within the 
Little Creek, Big Muddy Creek, and Spring Creek watersheds. Captive-
reared fish would be stocked into stream and pond habitats by MDC 
fisheries personnel. Cooperators include MDC, TNC, and the Service. 
Topeka shiners that are subsequently and successfully reared in ponds 
on Dunn Ranch, Pawnee Prairie NA, and the Union Ridge CA would be 
placed into proposed stream habitats following established stocking 
protocols described in the reintroduction plans (MDC 2011a, 2011b, and 
2011c). We do not anticipate that the removal of fish would have a 
deleterious effect on the genetics of the species, because only a 
sample of Topeka shiners in Sugar Creek would be collected.

Parameters To Assess the Success of the Reintroduction

Sampling Sites
    Information on fish species composition and simple stream habitat 
conditions would be collected at sites throughout the proposed NEP 
portion of the Little Creek, Big Muddy Creek, and Spring Creek 
watersheds prior to initial stockings. Twenty-five sites with 3 pools 
per site that are at least 200 meters (m) in length would be selected 
using a Generalized Random Tessellation Stratified (GRTS) design 
(https://www.epa.gov/nheerl/arm/designing/design_intro.htm).
Fish Sampling
    Each pool would be sampled once with a 15-foot (ft) (4.57-m) x 6-ft 
(1.83-m), one-eighth-inch (0.32-centimeters (cm)) mesh drag seine to 
collect fish. To be more effective in narrow pools (width less than 6 
m), the net may be shortened to facilitate sampling. Two nets hauled 
side-by-side would be used for wide pools between 10 and 20 m in width. 
All species present in a catch would be identified and categorized by 
apparent relative abundance: ``low'' is defined by low approximate 
number (fewer than 10 fish) and low approximate percent of total catch 
(less than 5 percent); ``medium'' (10-50 fish, less than 25 percent); 
or ``high'' (greater than 50 fish, greater than 25 percent). Presence 
of juvenile Topeka shiners (less than 40 millimeters (mm) total length) 
would be noted as an indication of spawning at each site.
    Habitat--Habitat variables to be measured in the field in each pool 
include: Global Positioning System (GPS) coordinates at the downstream 
edge of the pool using Universal Transverse Mercator North American 
Datum of 1983 (UTM NAD83); water temperature and conductivity (measured 
with a handheld meter, indicates ion concentration and relative degree 
of water replenishment); pool length and representative pool width 
(measured with rangefinder or meter stick), and maximum depth (via 
meter stick or similar); visual assessments of the relative amount of 
silt or organic debris covering the stream bottom (1 = almost none, 2 = 
thin layer, 3 = thick layer) and overall substrate type/coarseness (1 = 
clay or bedrock, 2 = small rock less than 128 mm diameter/cobble, 3 = 
large rock greater than 128 mm); degree of pool isolation (1 = 
intermittent or isolated, 2 = continuous or interconnected by flowing 
water habitat); and overall level of seining difficulty (1 = not 
difficult, 2 = difficult). Visual assessments and level of difficulty 
would be based on consensus of the sampling crew. An adaptive 
monitoring approach would be used to assess the NEP population numbers 
and habitat variables; adjustments would be made, if necessary, after 
assessing the monitoring techniques.
Initial Stocking
    Ponds--Topeka shiners would be stocked at a rate of 500 fish per 
acre in designated ponds at proposed reintroduction sites on public 
properties. All fish would come from either Sugar Creek (Harrison 
County) or those propagated at MDC's Lost Valley Hatchery. 
Additionally, orangespotted sunfish would be stocked in each pond at a 
rate of 25 to 50 fish per acre. The source of the sunfish would 
preferably be from Sugar Creek broodstock propagated at MDC's Lost 
Valley Hatchery or another local basin within the greater Grand River 
watershed. Green sunfish (also from local basins) may be substituted to 
meet desired stocking rates for sunfish if adequate numbers of 
orangespotted sunfish cannot be reasonably collected.
    Stream Reaches--Topeka shiners would also be stocked in suitable 
stream reaches within the NEP area on public properties at a minimum 
rate of 5,000 fish per mile. Based on monitoring data, a need for 
stocking sunfish would be determined for selected stream reaches on 
public properties. Sources of Topeka shiners and sunfish would be the 
same as described above for the ponds.
Supplemental Stocking
    Supplemental stockings of Topeka shiners or sunfish would be 
conducted for ponds or selected stream reaches on public properties 
within the greater NEP portion of Little, Big Muddy, and Spring creeks, 
if necessary. Criteria for such stockings would be determined by MDC 
fisheries personnel as needed and necessary to meet reintroduction 
goals outlined in MDC's 10-year Action Plan for the Topeka Shiner (MDC 
2010, pp. 29-35). Supplemental stocking rates in ponds and streams 
would occur at the same rates described for initial stockings above.

Effects on Extant Populations

    Individual Topeka shiners used to establish an experimental 
population would be supplied by MDC's Lost Valley Hatchery in Warsaw, 
MO, propagated under the Federal Fish and Wildlife Permit 
TE71730A. The donor population for the Lost Valley Hatchery is 
from sites in Sugar Creek, Harrison County, Missouri. Sugar Creek's 
Topeka shiner population is closest to the proposed reintroduction 
sites. Typical gear used for small cyprinids would be used to collect 
Topeka shiners, and they would be held at Lost Valley Hatchery until 
they could be stocked into pond and stream habitats at proposed 
reintroduction sites.
    The 10-year Strategic Plan for the Recovery of the Topeka Shiner in 
Missouri (MDC 2010, pp. 29-35) and reintroduction plans for Topeka 
shiner in the Little Creek, Big Muddy Creek, and Spring Creek 
watersheds (MDC 2011a, pp. 1-9; MDC 2011b, pp. 1-11; MDC 2011c, pp. 1-
11) contain

[[Page 4820]]

additional information on the release procedures and monitoring 
protocols (see FOR FURTHER INFORMATION CONTACT for copies of this 
document or go to https://www.regulations.gov).
Status of Proposed Population
    We would ensure, through our section 10 permitting authority and 
the section 7 consultation process, that the use of Topeka shiner from 
the donor population within the Sugar Creek Basin for releases into 
Little Creek, Big Muddy Creek, and Spring Creek is not likely to 
jeopardize the continued existence of the species in the wild.
    The proposed special rule that accompanies this section 10(j) 
proposed rule is designed to broadly exempt, from the section 9 take 
prohibitions, any take of Topeka shiners that is incidental to 
otherwise lawful activities. We propose to provide this exemption 
because we believe that such incidental take of members of the NEP 
associated with otherwise lawful activities is necessary and advisable 
for the conservation of the species.
    This designation is justified because no adverse effects to extant 
wild or captive Topeka shiner populations would result from release of 
progeny from the Sugar Creek population. There is no possibility of any 
transfer of disease or mixing of wild and reintroduced populations due 
to the distances involved between the donor population and proposed 
reintroductions, the watersheds involved, and the physical barriers 
associated with the Little Creek and Big Muddy Creek watersheds. The 
majority of the reintroductions would occur on managed public land, and 
exemptions from prohibition for activities on private land are not 
likely to result in the loss of the proposed NEP. Successful 
propagation of Topeka shiners in ponds at Dunn Ranch, Pawnee Prairie 
NA, and Union Ridge CA would provide a continual reservoir of Topeka 
shiners for supplemental stocking as needed. We expect that the 
reintroduction effort into Little, Big Muddy, and Spring creeks would 
result in the successful establishment of a self-sustaining population 
of Topeka shiners, which would contribute to the recovery of the 
species.

Extent to Which the Reintroduced Population May Be Affected by Land 
Management Within the Proposed NEP Watersheds

    We conclude that the effects of Federal, State, or private actions 
and activities would not pose a substantial threat to Topeka shiner 
establishment and persistence in the Little Creek, Big Muddy Creek, and 
Spring Creek watersheds, because most activities currently occurring in 
the proposed NEP area are compatible with Topeka shiner recovery, and 
there is no information to suggest that future activities would be 
incompatible with Topeka shiner recovery. Most of the area containing 
suitable release sites with high potential for Topeka shiner 
establishment is managed by MDC or TNC through the following 
mechanisms:
    (1) There are existing best management practices (BMPs) for Topeka 
shiners that are followed by MDC and TNC; these practices include 
recommendations to maintain the water quality and headwater stream 
habitat (MDC 2000, p. 1).
    (2) Reintroduction plans have been developed for all proposed NEP 
sites (MDC 2011a, pp. 1-9; MDC 2011b, pp. 1-11; MDC 2011c, pp. 1-9).
    (3) All proposed reintroduction sites are managed to maintain 
Topeka shiner habitat (MDC 2011a, pp. 1-9; MDC 2011b, pp. 1-11; MDC 
2011c, pp. 1-9).
    Management issues related to the proposed Topeka shiner NEP that 
have been considered include:
    (a) Incidental take: The regulations implementing the Act define 
``incidental take'' as take that is incidental to, and not the purpose 
of, carrying out an otherwise lawful activity (50 CFR 17.3), such as 
agricultural activities and other rural development, and other 
activities that are in accordance with Federal, Tribal, State, and 
local laws and regulations. Experimental population special rules 
contain specific prohibitions and exceptions regarding the taking of 
individual animals. If this 10(j) rule is finalized, incidental take of 
Topeka shiners within the NEP area would not be prohibited, provided 
that the take is unintentional and is in accordance with the special 
rule that is a part of this 10(j) rule. However, if there is evidence 
of intentional take of an individual Topeka shiner within the NEP that 
is not authorized by the special rule, we would refer the matter to the 
appropriate law enforcement entities for investigation.
    (b) Special handling: In accordance with 50 CFR 17.21(c)(3), any 
employee or agent of the Service, any other Federal land management 
agency, or State personnel, designated for such purposes, may in the 
course of their official duties, handle individual Topeka shiners to 
aid sick or injured individual Topeka shiners, or to salvage dead 
individual Topeka shiners. Other persons would need to acquire permits 
from the Service for these activities.
    (c) Coordination with landowners and land managers: The Service and 
our cooperators have identified issues and concerns associated with the 
proposed Topeka shiner nonessential experimental population 
establishment. The proposed NEP establishment was discussed with 
potentially affected State agencies, Tribal entities, local 
governments, businesses, and landowners within the proposed 
reestablishment area. Affected State agencies, landowners, and land 
managers have either indicated support for, or no opposition to, the 
proposed NEP establishment, provided an NEP is designated and a special 
rule is promulgated to exempt incidental take from the prohibitions 
under section 9.
    (d) Public awareness and cooperation: We will inform the general 
public of the importance of this reintroduction project in the overall 
recovery of the Topeka shiner in Missouri. We will host public meetings 
after the publication of this proposed rule and inform the public of 
the purpose of the reintroduction, while emphasizing that the proposed 
NEP would not impact activities on private property (see Public 
Meetings). Additionally, MDC fisheries and private land biologists and 
the Service will highlight the same issues while working with private 
landowners on various landowner incentive programs or when providing 
technical assistance within the proposed NEP watersheds. The 
designation of the NEP within Little Creek, Big Muddy Creek, and Spring 
Creek would provide greater flexibility in the management of the 
reintroduced Topeka shiner individuals.
    (e) Potential impacts to other federally listed species: No other 
federally listed species are present within streams where the NEP is 
proposed; therefore, Topeka shiner reintroductions would not impact any 
other federally listed species.
    (f) Monitoring and evaluation: Monitoring of changes in the 
distribution of Topeka shiners would be undertaken using occupancy 
modeling or a similar approach following procedural guidelines 
described in MacKenzie et al. (2006, pp. 183-224). Monitoring would be 
undertaken annually by personnel of the MDC, and results would be 
communicated to the public during future public meetings and through 
the use of outreach documents. If monitoring of released individuals 
indicates that reintroductions have been successful, additional release 
areas may be identified in a proposed rule in the Federal Register at a 
future date, following guidelines outlined in MDC's 10-year Strategic 
Plan for Recovery of

[[Page 4821]]

the Topeka Shiner in Missouri (MDC 2010, p. 8). We project that it will 
be necessary to establish Topeka shiners in seven reintroduced 
populations to achieve recovery of the species in Missouri (MDC 2010, 
p. 26). However, this proposed rule covers only three of the seven 
reintroductions because the potential establishment of the remaining 
four populations will be contingent upon the success of initial 
propagation and release efforts. Reintroduction into the remaining 
sites would also follow the same protocols and guidelines conducted 
under this 10(j) rule, including the opportunity for the public to 
comment on such reintroductions in a possible future proposed rule.

Reintroduction Effectiveness Monitoring

    Evaluations of our reintroduction goal and objectives will require 
monitoring for at least 10 years following initial stockings. Initial 
success of the reintroduction efforts would be evaluated through annual 
sampling of ponds and selected stream reaches on public properties 
during the first 3 years following initial stockings. Pond sampling 
would include fall seining with at least five, one-fourth arc pulls 
around the shore. Catch rates (fish per pull) would be recorded for 
shiners and sunfish, and a subsample of up to 100 Topeka shiners would 
be used to evaluate natural reproduction. Topeka shiners that are less 
than 40 mm (1.6 inches) in length would be considered juveniles. Minnow 
traps may also be used as a comparison to seining data. Stream sampling 
would follow the methods described earlier for ``Baseline Data'' 
sampling. After the first 3 years, ponds stocked with Topeka shiners 
would be monitored biennially for 10 years. Stream monitoring would be 
continued annually for 10 years to measure changes in the distribution 
of Topeka shiners, other fishes in the watershed, and trends in stream 
habitat conditions. Program Presence (Hines 2006) software to estimate 
patch occupancy and related parameters would be used to evaluate 
changes in occupancy and determine Topeka shiner use of Little Creek, 
Big Muddy, and Spring Creek watersheds.

Donor Population Monitoring

    The MDC would continue to monitor the donor population of Topeka 
shiners in Sugar Creek. Monitoring of the donor population would follow 
guidelines established in the 10-Year Strategic Plan for the Recovery 
of Topeka Shiner in Missouri (MDC 2010, pp. 55-60); however, occupancy 
modeling would follow the protocols and principles in MacKenzie et al. 
(2006, pp. 183-224) to assess the status of the species. If monitoring 
detects a significant decline in donor populations, appropriate 
management action would be taken.

Monitoring Impacts to Other Listed Species

    No other federally listed species occur within ponds or streams 
proposed for reintroductions; therefore, this monitoring would not be 
necessary.

Findings

    Our regulations at 50 CFR 17.81(b) specify four elements that 
should be considered and support this finding: (1) Any possible adverse 
effects on extant populations of a species as a result of removal of 
individuals, eggs, or propagules for introduction elsewhere; (2) the 
likelihood that any such experimental population will become 
established and survive in the foreseeable future; (3) the relative 
effects that establishment of an experimental population will have on 
the recovery of the species; and (4) the extent to which the introduced 
population may be affected by existing or anticipated Federal or State 
actions or private activities within or adjacent to the experimental 
population area. The above analysis (see Background) addresses these 
required components.
    Based on the above information, and using the best scientific and 
commercial data available (in accordance with 50 CFR 17.81), we find 
that releasing Topeka shiner into Little Creek, Big Muddy Creek, and 
Spring Creek would further the conservation of the species but that 
this population is not essential to the continued existence of the 
species in the wild.

Peer Review

    In accordance with our policy on peer review, published on July 1, 
1994 (59 FR 34270), we will provide copies of this proposed rule to 
three or more appropriate and independent specialists in order to 
solicit comments on the scientific data and assumptions relating to the 
supportive biological and ecological information for this proposed NEP 
designation. The purpose of such review is to ensure that the proposed 
NEP designation is based on the best scientific information available. 
We will invite these peer reviewers to comment during the public 
comment period and will consider their comments and information on this 
proposed rule during preparation of a final determination.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) will review all significant rules. The Office 
of Information and Regulatory Affairs has determined that this rule is 
not significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this rule in a manner consistent 
with these requirements.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C. 
601 et seq.), whenever a Federal agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare, and make 
available for public comment, a regulatory flexibility analysis that 
describes the effect of the rule on small entities (small businesses, 
small organizations, and small government jurisdictions). However, no 
regulatory flexibility analysis is required if the head of an agency 
certifies that the rule will not have a significant economic impact on 
a substantial number of small entities. SBREFA amended the Regulatory 
Flexibility Act to require Federal agencies to provide a statement of 
the factual basis for certifying that a rule will not have a 
significant economic impact on a substantial number of small entities. 
We are certifying that, if adopted as proposed, this rule will not have 
a significant economic effect on a substantial number of small 
entities. The following discussion explains our rationale.
    The area that would be affected if this proposed rule is adopted 
includes the release areas in northern Missouri and adjacent areas into 
which Topeka

[[Page 4822]]

shiners may disperse, which over time could include significant 
portions of the NEP. Because of the regulatory flexibility for Federal 
agency actions provided by the NEP designation and because of the 
exemption for incidental take in the proposed special rule, we do not 
expect this rule to have significant effects on any activities within 
Federal, State, or private lands within the NEP. In regard to section 
7(a)(2), the population is treated as proposed for listing and Federal 
action agencies are not required to consult on their activities. 
Section 7(a)(4) requires Federal agencies to confer (rather than 
consult) with the Service on actions that are likely to jeopardize the 
continued existence of a proposed species. Results of a conference are 
advisory in nature and do not restrict agencies from carrying out, 
funding, or authorizing activities. In addition, section 7(a)(1) 
requires Federal agencies to use their authorities to carry out 
programs to further the conservation of listed species, which would 
apply on any lands within the NEP area. As a result, and in accordance 
with these regulations, some modifications to proposed Federal actions 
within the NEP area may occur to benefit the Topeka shiner, but we do 
not expect projects would be halted or substantially modified as a 
result of these regulations.
    If adopted, this proposal would broadly authorize incidental take 
of the Topeka shiner within the NEP area, when such take is incidental 
to an otherwise lawful activity, such as agricultural activities, 
animal husbandry, grazing, ranching, road and utility maintenance and 
construction, other rural development, camping, hiking, fishing, 
hunting, vehicle use of roads and highways, and other activities in the 
NEP area that are in accordance with Federal, Tribal, State, and local 
laws and regulations. Intentional take for purposes other than 
authorized data collection or recovery purposes would not be permitted. 
Intentional take for research or recovery purposes would require a 
section 10(a)(1)(A) recovery permit under the Act.
    The principal activities on private property near the proposed NEP 
area are agriculture, rural development, and recreation. We conclude 
the presence of the Topeka shiner would not affect the use of lands for 
these purposes because there would be no new or additional economic or 
regulatory restrictions imposed upon States, non-Federal entities, or 
members of the public due to the presence of the Topeka shiner, and 
Federal agencies would only have to comply with sections 7(a)(1) and 
7(a)(4) of the Act in these areas. Therefore, if adopted as proposed, 
this rulemaking is not expected to have any significant adverse impacts 
to activities on private lands within the NEP area.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    (1) If adopted, this proposal will not ``significantly or 
uniquely'' affect small governments. We have determined and certify 
under the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq., that 
this proposed rulemaking will not impose a cost of $100 million or more 
in any given year on local or State governments or private entities. A 
Small Government Agency Plan is not required. As explained above, small 
governments would not be affected because the proposed NEP designation 
will not place additional requirements on any city, county, or other 
local municipalities.
    (2) This rule will not produce a Federal mandate of $100 million or 
greater in any year (i.e., it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act). This proposed NEP 
designation for the Topeka shiner would not impose any additional 
management or protection requirements on the States or other entities.

Takings (E.O. 12630)

    In accordance with Executive Order 12630, the proposed rule does 
not have significant takings implications. This rule would allow for 
the take of reintroduced Topeka shiners when such take is incidental to 
an otherwise legal activity, such as agricultural activities and other 
rural development, camping, hiking, hunting, vehicle use of roads and 
highways, and other activities that are in accordance with Federal, 
State, Tribal, and local laws and regulations. Therefore, we do not 
believe that establishment of this NEP would conflict with existing or 
proposed human activities or hinder public use of the Little Creek, Big 
Muddy Creek, and Spring Creek or its tributaries.
    A takings implication assessment is not required because this rule: 
(1) Would not effectively compel a property owner to suffer a physical 
invasion of property and (2) would not deny all economically beneficial 
or productive use of the land or aquatic resources. This rule would 
substantially advance a legitimate government interest (conservation 
and recovery of a listed species) and would not present a barrier to 
all reasonable and expected beneficial use of private property.

Federalism (E.O. 13132)

    In accordance with Executive Order 13132, we have considered 
whether this proposed rule has significant Federalism effects and have 
determined that a federalism impact summary statement is not required. 
This rule would not have substantial direct effects on the States, on 
the relationship between the Federal Government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government. In keeping with Department of the Interior policy, we 
requested information from and coordinated development of this proposed 
rule with the affected resource agencies in Missouri. Achieving the 
recovery goals for this species in Missouri would contribute to its 
eventual delisting and its return to State management. No intrusion on 
State policy or administration is expected; roles or responsibilities 
of Federal or State governments would not change; and fiscal capacity 
would not be substantially directly affected. The special rule would 
operate to maintain the existing relationship between the State and the 
Federal Government and is being undertaken in coordination with the 
State of Missouri. Therefore, this rule does not have significant 
Federalism effects or implications to warrant the preparation of a 
federalism impact summary statement under the provisions of Executive 
Order 13132.

Civil Justice Reform (E.O. 12988)

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this rule would not unduly burden the 
judicial system and would meet the requirements of sections (3)(a) and 
(3)(b)(2) of the Order.

Paperwork Reduction Act

    Office of Management and Budget (OMB) regulations at 5 CFR 1320, 
which implement provisions of the Paperwork Reduction Act (44 U.S.C. 
3501 et seq.), require that Federal agencies obtain approval from OMB 
before collecting information from the public. This proposed rule does 
not contain any new information collections that require approval. OMB 
has approved our collection of information associated with reporting 
the taking of experimental populations (50 CFR 17.84) and assigned 
control number 1018-0095, which expires on May 31, 2014. We may not 
collect or sponsor, and you are not required to respond to, a 
collection of information unless it

[[Page 4823]]

displays a currently valid OMB control number.

National Environmental Policy Act

    The reintroduction of native species into suitable habitat within 
their historical or established range is categorically excluded from 
NEPA documentation requirements consistent with 40 CFR 1508.4, 43 CFR 
46.205, 43 CFR 46.210, and 516 DM 8.5 B(6).

Government-to-Government Relationship With Tribes

    In accordance with the presidential memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175 (65 FR 67249), and 
the Department of Interior Manual Chapter 512 DM 2, we have considered 
possible effects on federally recognized Indian tribes and have 
determined that there are no tribal lands within the areas proposed for 
reintroductions. Therefore, no tribal lands would be affected by this 
rule.

Energy Supply, Distribution or Use (E.O. 13211)

    Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. This rule is not 
expected to significantly affect energy supplies, distribution, and 
use. Because this action is not a significant energy action, no 
Statement of Energy Effects is required.

Clarity of This Rule (E.O. 12866)

    We are required by E.O. 12866, E.O. 12988, and by the Presidential 
Memorandum of June 1, 1998, to write all rules in plain language. This 
means that each rule we publish must:
    (1) Be logically organized;
    (2) Use the active voice to address readers directly;
    (3) Use clear language rather than jargon;
    (4) Be divided into short sections and sentences; and
    (5) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comment should be as specific as 
possible. For example, you should tell us the numbers of the sections 
and paragraphs that are unclearly written, which sections or sentences 
are too long, or the sections where you feel lists and tables would be 
useful.

References Cited

    A complete list of all references cited in this proposed rule is 
available at https://www.regulations.gov at Docket No. FWS-R3-ES-2012-
0087 or upon request from the Columbia, Missouri, Ecological Services 
Field Office (see FOR FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this proposed rule are staff members of the 
Service's Columbia, Missouri, Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter 
I, title 50 of the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

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

0
2. Amend Sec.  17.11(h) by revising the entry for ``Shiner, Topeka'' 
under ``FISHES'' in the List of Endangered and Threatened Wildlife to 
read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                       Species                                              Vertebrate population
------------------------------------------------------   Historic range      where  endangered or       Status         When       Critical     Special
           Common name              Scientific name                               threatened                          listed      habitat       rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
             Fishes
Shiner, Topeka..................  Notropis             U.S.A. (IA, KS,     Entire, except where     E                      654     17.95(e)           NA
                                   topeka=tristis.      MN, MO, NE, SD).    listed as an
                                                                            experimental
                                                                            population..
Shiner, Topeka..................  Notropis             U.S.A. (IA, KS,     U.S.A. (MO--specified    XN             ...........           NA     17.84(n)
                                   topeka=tristis.      MN, MO, NE, SD).    portions of Little
                                                                            Creek, Big Muddy
                                                                            Creek, and Spring
                                                                            Creek watersheds in
                                                                            Adair, Gentry,
                                                                            Harrison, Putnam,
                                                                            Sullivan, and Worth
                                                                            Counties; see
                                                                            17.84(n)(1)(i)).
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

0
3. Amend Sec.  17.84 by adding paragraph (n) to read as follows:


Sec.  17.84  Special rules--vertebrates.

* * * * *
    (n) Topeka shiner (Notropis topeka).
    (1) Where is the Topeka shiner designated as a nonessential 
experimental population (NEP)?
    (i) The NEP area for the Topeka shiner is within the species' 
historical range and includes those waters within the Missouri counties 
of Adair, Gentry, Harrison, Putnam, Sullivan, and Worth identified in 
paragraph (n)(5) of this section.
    (ii) The Topeka shiner is not known to currently exist in Adair, 
Gentry, Putnam, Sullivan, and Worth Counties in Missouri, or in those 
portions of Harrison County, Missouri, where the NEP is proposed. Based 
on its habitat requirements and potential predation by other fish 
predators, we do not expect this species to become established outside 
this NEP area, although there is a remote chance it may.
    (iii) We will not change the NEP designations to ``essential 
experimental,'' ``threatened,'' or ``endangered'' within the NEP area 
without a public rulemaking. Additionally, we will not designate 
critical habitat for this NEP, as provided by 16 U.S.C. 
1539(j)(2)(C)(ii).
    (2) What activities are not allowed in the NEP area?
    (i) Except as expressly allowed in paragraph (n)(3) of this 
section, all the prohibitions of Sec.  17.21 apply to the Topeka shiner 
NEP.
    (ii) Any manner of take not described under paragraph (n)(3) of 
this section is prohibited in the NEP area.

[[Page 4824]]

    (iii) You may not possess, sell, deliver, carry, transport, ship, 
import, or export by any means, Topeka shiners, or parts thereof, that 
are taken or possessed in violation of paragraph (n)(3) of this section 
or in violation of the applicable State fish and wildlife laws or 
regulations or the Act.
    (iv) You may not attempt to commit, solicit another to commit, or 
cause to be committed any offense defined in paragraph (n)(2)(iii) of 
this section.
    (3) What take is allowed in the NEP area? Take of this species that 
is incidental to an otherwise legal activity, such as agriculture, 
forestry and wildlife management, land development, recreation, and 
other activities, is allowed provided that the activity is not in 
violation of any applicable State fish and wildlife laws or 
regulations.
    (4) How will the effectiveness of these reintroductions be 
monitored? We will monitor reintroduction efforts to assess changes in 
distribution within each watershed by sampling ponds and streams where 
releases occur for 10 years after reintroduction. Streams will be 
sampled annually, and ponds will be sampled annually for the first 3 
years and biennially thereafter.
    (5) Note: Map of the NEP areas [Big Muddy Creek (Gentry, Harrison, 
and Worth Counties), Little Creek (Harrison County), and Spring Creek 
(Adair, Putnam, and Sullivan Counties)] for the Topeka shiner, follows:
BILLING CODE 4310-55-P
[GRAPHIC] [TIFF OMITTED] TP23JA13.009


[[Page 4825]]


    (6) Note: Map of the NEP area for the Topeka shiner in Little Creek 
watershed, Harrison County, follows:
[GRAPHIC] [TIFF OMITTED] TP23JA13.010


[[Page 4826]]


    (7) Note: Map of the NEP area for the Topeka shiner in Big Muddy 
Creek watershed, Gentry, Harrison, and Worth Counties, follows:
[GRAPHIC] [TIFF OMITTED] TP23JA13.011


[[Page 4827]]


    (8) Note: Map of the NEP area for the Topeka shiner in Spring Creek 
watershed, Adair, Putnam, and Sullivan Counties, follows:
[GRAPHIC] [TIFF OMITTED] TP23JA13.012

* * * * *

    Dated: January 2, 2013.
Michael Bean,
Acting Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-01153 Filed 1-22-13; 8:45 am]
BILLING CODE 4310-55-C