Endangered and Threatened Wildlife and Plants; Determination of Endangered Status for the Sharpnose Shiner and Smalleye Shiner, 45273-45286 [2014-17692]

Download as PDF Vol. 79 Monday, No. 149 August 4, 2014 Part III Department of the Interior mstockstill on DSK4VPTVN1PROD with RULES3 Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Determination of Endangered Status for the Sharpnose Shiner and Smalleye Shiner; Final Rule VerDate Mar<15>2010 18:01 Aug 01, 2014 Jkt 232001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\04AUR3.SGM 04AUR3 45274 Federal Register / Vol. 79, No. 149 / Monday, August 4, 2014 / Rules and Regulations Executive Summary DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS–R2–ES–2013– 0083;4500030113] RIN 1018–AY55 Endangered and Threatened Wildlife and Plants; Determination of Endangered Status for the Sharpnose Shiner and Smalleye Shiner Fish and Wildlife Service, Interior. ACTION: Final rule. AGENCY: We, the U.S. Fish and Wildlife Service, determine endangered species status under the Endangered Species Act of 1973, as amended, for the sharpnose shiner (Notropis oxyrhynchus) and smalleye shiner (N. buccula), two fish species from Texas. The effect of this regulation will be to add these species to the List of Endangered and Threatened Wildlife. We have also determined that critical habitat for the sharpnose shiner and smalleye shiner is prudent and determinable. Elsewhere in today’s Federal Register, we designate critical habitat for the sharpnose shiner and smalleye shiner under the Act. DATES: This rule becomes effective September 3, 2014. ADDRESSES: This final rule is available on the Internet at http:// www.regulations.gov and at http://www. fws.gov/southwest/es/ArlingtonTexas. Comments and materials received, as well as supporting documentation used in the preparation of this rule, are available for public inspection at http:// www.regulations.gov. All of the comments, materials, and documentation that we considered in this rulemaking are available for public inspection, by appointment, during normal business hours at: U.S. Fish and Wildlife Service, Arlington, Texas, Ecological Services Field Office, 2005 NE Green Oaks Blvd., Suite 140, Arlington, TX 76006; by telephone 817– 277–1100; or by facsimile 817–277– 1129. mstockstill on DSK4VPTVN1PROD with RULES3 SUMMARY: FOR FURTHER INFORMATION CONTACT: Debra Bills, Field Supervisor, Arlington, Texas, Ecological Services Field Office, (see ADDRESSES). If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800–877–8339. SUPPLEMENTARY INFORMATION: VerDate Mar<15>2010 18:01 Aug 01, 2014 Jkt 232001 Why we need to publish a rule. Under the Endangered Species Act (Act), a species or subspecies may warrant protection through listing if it is endangered or threatened throughout all or a significant portion of its range. Listing a species as an endangered or threatened species can only be completed by issuing a rule. On August 6, 2013 (78 FR 47582; 78 FR 47612), we proposed to list the sharpnose shiner and smalleye shiner as endangered species and proposed to designate critical habitat under the Act. Elsewhere in today’s Federal Register, we finalize designation of critical habitat for the sharpnose shiner and smalleye shiner under the Act. This rule will finalize the listing of the sharpnose shiner and smalleye shiner as endangered species. The basis for our action. Under the Act, a species may be determined to be an endangered or threatened species based on any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; and (E) other natural or manmade factors affecting its continued existence. We have determined that the sharpnose and smalleye shiners meet the definition of an endangered species primarily because of the present or threatened destruction, modification, or curtailment of its habitat or range resulting mainly from impoundments and alterations of natural stream flow. Peer review and public comment. We sought comments from independent specialists to ensure that our designation is based on scientifically sound data, assumptions, and analyses. We invited these peer reviewers to comment on our listing proposal. We also considered all comments and information received during the public comment period. Previous Federal Actions On June 13, 2002 (67 FR 40657), the sharpnose shiner and smalleye shiner were made candidates for listing under the Act. On May 11, 2004, we received a petition to list the sharpnose shiner and smalleye shiner. We published our petition finding on May 11, 2005 (70 FR 24899). Because the sharpnose shiner and smalleye shiner were previously identified through our candidate assessment process, the species had already received the equivalent of a substantial 90-day finding and a PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 warranted, but precluded, 12-month finding (67 FR 40657, June 13, 2002). Through the annual candidate review process (69 FR 24876, May 4, 2004; 70 FR 24870, May 11, 2005; 71 FR 53756, September 12, 2006; 72 FR 69034, December 6, 2007; 73 FR 75176, December 10, 2008; 74 FR 57804, November 9, 2009; 75 FR 69222, November 10, 2010; 76 FR 66370, October 26, 2011; 77 FR 69994, November 21, 2012), the U.S. Fish and Wildlife Service (Service) continued to solicit information from the public regarding these species. On August 6, 2013 (78 FR 47582; 78 FR 47612), we proposed to list the sharpnose shiner and smalleye shiner under the Act as endangered species and proposed to designate critical habitat. We held a public hearing on September 4, 2013, in Abilene, Texas. On March 4, 2014 (79 FR 12138), we requested comments on the draft economic analysis of critical habitat designation for the shiners, as well as the proposed rule to designate critical habitat. This comment period closed on April 3, 2014 (79 FR 12138). Background Species Information The April 2014 Species Status Assessment Report (SSA Report) (Service 2014, entire), available online at www.regulations.gov under Docket Number FWS–R2–ES–2013–0083, provides a thorough assessment of sharpnose shiner and smalleye shiner biology and natural history, and assesses demographic risks, threats, and limiting factors in the context of determining viability and risk of extinction for the species. The SSA Report has been updated since the August 6, 2013, publication of the proposed rules with data received during the peer review and public comment processes. In the SSA Report, we compile biological data and a description of past, present, and likely future threats (causes and effects) facing the sharpnose shiner and smalleye shiner. Because data in these areas of science are limited, some uncertainties are associated with this assessment. Where we have substantial uncertainty, we have attempted to make our necessary assumptions explicit in the SSA Report. We base our assumptions in these areas on the best available scientific and commercial data. Importantly, the SSA Report does not represent a decision by the Service on whether these taxa should be listed as endangered or threatened species under the Act. The SSA Report does, however, provide the scientific basis that informs E:\FR\FM\04AUR3.SGM 04AUR3 Federal Register / Vol. 79, No. 149 / Monday, August 4, 2014 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES3 our decisions (see Summary of Biological Status and Threats in this final rule), which involve the further application of standards within the Act and its regulations and policies (see Determination) in this final rule). Summary of Biological Status and Threats Our SSA Report documents the results of the comprehensive biological status review for the sharpnose and smalleye shiners and provides a thorough account of the species’ overall viability and, conversely, extinction risk (Service 2014, entire). The SSA Report contains the data on which this final rule is based. The following is a summary of the results and conclusions from the SSA Report. The sharpnose shiner and smalleye shiner are small minnows native to arid prairie streams of Texas originating from the Brazos River. The naturally occurring historical distribution of the sharpnose shiner included the Brazos River, Colorado River, and Wichita River in Texas, while the naturally occurring historical distribution of the smalleye shiner included only the Brazos River. In conducting our status assessment, we first considered what the two shiners need to ensure viability. We generally define viability as the ability of the species to persist over the long term and, conversely, to avoid extinction. We then evaluated whether those needs currently exist and the repercussions to the species when those needs are missing, diminished, or inaccessible. We next considered the factors that are causing the species to lack what they need, including historical, current, and future factors. Finally, considering the information reviewed, we evaluated the current status and future viability of the species in terms of resiliency, redundancy, and representation. Resiliency is the ability of a species to withstand stochastic events and, in the case of the shiners, is best measured by the extent of suitable habitat in terms of stream length. Redundancy is the ability of a species to withstand catastrophic events by spreading the risk and can be measured through the duplication and distribution of resilient populations across the species’ range. Representation is the ability of a species to adapt to changing environmental conditions and can be measured by the breadth of genetic diversity within and among populations and the ecological diversity of populations across the species’ range. In the case of the shiners, we evaluate representation based on the extent of the geographical range and the variability of habitat characteristics within their range VerDate Mar<15>2010 18:01 Aug 01, 2014 Jkt 232001 as indicators of genetic and ecological diversity. Our assessment found that both species of shiners have an overall low viability (or low probability of persistence) in the near term (over about the next 10 years) and a decreasing viability (increasing risk of extinction) in the long-term future (over the next 11 to 50 years). For the shiners to be considered viable, individual fish need specific vital resources for survival and completion of their life cycles. Both species need wide, shallow, flowing waters generally less than 0.5 meters (m) (1.6 feet (ft)) deep with sandy substrates, which are found in mainstem rivers in the arid prairie region of Texas. Both species broadcast-spawn eggs and sperm into open water asynchronously (fish not spawning at the same time) during periods of low flow and synchronously (many fish spawning at the same time) during periods of elevated streamflow from April through September. Their eggs are semi-buoyant and remain suspended 1 or 2 days in flowing water as they develop into larvae. Larval fish remain suspended in the flowing water column an additional 2 to 3 days as they develop into free-swimming juvenile fish. In the absence of sufficient water velocities, suspended eggs and larvae sink into the substrate where a majority likely dies. The reproductive strategy of these species makes them particularly vulnerable to changes in the natural conditions of occupied habitat. To sustain populations of the shiners long term, population dynamics modeling suggests estimated mean spawning season river flows of 2.61 cubic meters per second (m3s¥1) (92 cubic feet per second (cfs)) and 6.43 m3s¥1 (227 cfs) are required for the sharpnose and smalleye shiners, respectively. It is also estimated that populations of shiners require approximately 275 kilometers (km) (171 miles (mi)) of unobstructed, flowing water during the breeding season to support a successfully reproductive population. This length of stream allows the eggs and larvae to remain suspended in the water column and survive until they mature sufficiently to swim on their own. Across their range, these species also need unobstructed river lengths to allow for upstream and downstream movements to survive seasons with poor environmental conditions in certain river reaches. Unobstructed river reaches allow some fish to survive and recolonize degraded reaches when conditions improve. In addition, these fish only naturally live for 1 or 2 years, making the populations particularly vulnerable when the necessary streamflow conditions for PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 45275 reproduction are lacking for more than one season. The current conditions of both species indicate that they do not have the necessary resources for persistence in the immediate future. Both species have experienced range reduction, with both fish having lost at least half of their historical range. Both species are now restricted to one population in the upper Brazos River basin. As a result, sharpnose and smalleye shiners currently lack redundancy, which is reducing the viability of these species as a whole. In addition, streamflows within their current extant range are insufficient during some years to support successful reproduction, such as occurred in 2011. These fish have been resilient to past stressors that occur over short durations, and their populations appear capable of recovering naturally even when an entire year’s reproductive effort is lost. However, without human intervention, given their short lifespan and restricted range, stressors that persist for two or more reproductive seasons (such as a severe drought) severely limit these species’ current viability, placing them at a high risk of extinction now. The two primary factors affecting the current and future conditions of these shiners are river fragmentation by impoundments and alterations of the natural streamflow regime (by impoundments, drought, groundwater withdrawal, and saltcedar encroachment) within their range. Other secondary factors, such as water quality degradation and commercial harvesting for fish bait, likely also impact these species but to a lesser degree. These multiple factors are not acting independently, but are acting together as different sources (or causes), which can result in cumulative effects to lower the overall viability of the species. Fish barriers such as impoundments are currently restricting the upstream and downstream movement of migrating fish and prevent survival of the semibuoyant eggs and larvae of sharpnose and smalleye shiners. This is because the eggs and larvae cannot remain suspended in the water column under non-flowing conditions in reservoirs or if streamflows cease. Of the area once occupied by one or both species in the Brazos, Colorado, and Wichita Rivers, only two contiguous river segments remain with unobstructed lengths (without dams) greater than 275 km (171 mi): The upper Brazos River (where the fish are extant) and the lower Brazos River (where the fish are either extirpated or functionally extirpated). The effects of river habitat fragmentation have occurred and E:\FR\FM\04AUR3.SGM 04AUR3 mstockstill on DSK4VPTVN1PROD with RULES3 45276 Federal Register / Vol. 79, No. 149 / Monday, August 4, 2014 / Rules and Regulations continue to occur throughout the range of both species and are expected to increase if proposed new reservoirs are constructed. River habitat fragmentation is affecting both species at the individual, population, and species levels, and puts the species at a high risk of extinction currently and increasingly so into the long-term future. The historical ranges of both species have been severely fragmented, primarily by large reservoir impoundments, resulting in the isolation of one population of each species in the upper Brazos River basin. The construction of Possum Kingdom Reservoir in 1941, for example, eliminated the ability of these species to migrate downstream to wetter areas when the upper Brazos River experiences drought. There are also a number of existing in-channel structures (primarily pipeline crossings and lowwater crossings) within the occupied range of these species, some of which are known to restrict fish passage during periods of low flow. Species extirpation has already occurred in areas where river segments have been fragmented and reduced to less than 275 km (171 mi) in length. In addition, future fragmentation of the remaining occupied habitat of the upper Brazos River by new impoundments would decrease the contiguous, unfragmented river habitat required by these species for successful reproduction and impact the sole remaining population of each of these species. Texas does not have adequate water supplies to meet current or projected water demand in the upper Brazos River region, and additional reservoir construction is considered imminent. Possible new impoundments include the 2012 State Water Plan’s proposed Post Reservoir in Garza County, the Double Mountain Fork Reservoir (East and West) in Stonewall County, and the South Bend Reservoir in Young County. Because extirpation of these species is expected to eventually occur in occupied river fragments reduced to less than 275 km (171 miles) in length, any new structures further fragmenting stream habitats increases the likelihood of extinction for both species. The natural flow regime is considered one of the most important factors to which native riverine species, like the shiners, become adapted, and alterations to it can have severe impacts on fishes. A majority of sharpnose and smalleye shiner reproductive output occurs through synchronized spawning during periods of elevated pulse flows associated with storms, although VerDate Mar<15>2010 18:01 Aug 01, 2014 Jkt 232001 successful reproduction is also possible during periods of low to moderate flow. When streamflows are insufficient, the fish cannot successfully spawn and reproduce. There are several environmental changes that are a source of declining streamflows within the range of the shiners. Downstream of reservoirs, streamflows are lowered and stabilized, which has reduced or, in some areas, eliminated successful reproduction in these species. In addition, groundwater withdrawal and depletion will reduce or eliminate the remaining springs and seeps of the upper Brazos River basin, which will lower river flow. Drought is another obvious source of impact that negatively affects streamflow and has severe impacts on sharpnose and smalleye shiner reproduction. Severe droughts in this region are expected to become more common as a result of ongoing climate change. Finally, saltcedar encroachment is another source of environmental change that not only is affecting streamflows but also restricts channel width and increases channel depth. These stream channel changes reduce the amount of wide channels and shallow waters preferred by sharpnose and smalleye shiners. Reduced streamflow leading to river pooling also affects the survival of adult and juvenile fishes because water quality parameters such as salinity, dissolved oxygen, and temperature may approach or exceed those tolerated by these species and food availability becomes limited. Flow reduction and an altered flow regime have occurred and continue to occur throughout the range of these species and are expected to impact both species at the individual, population, and species levels. Within the reduced range of these species in the upper Brazos River basin, there are currently at least 13 impoundments or other structures (e.g., pipelines and low water crossings) affecting (to varying degrees) the amount of stream flow within the occupied range of these species. Upstream reservoirs serve as water supplies for various consumptive water uses and reduce downstream flows available for the fishes. Because the current impoundments restrict stream flow below the minimum levels required for both species, we expect these impoundments to impact both species at the individual, population, and species levels. Additional future impoundments, reservoir augmentations, and water diversions are under consideration for construction within the upper Brazos River basin, which would further reduce flows and fragment remaining habitat. PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 The construction of at least some of these structures to meet future water demand in the region is likely to occur within the next 50 years. These future impoundments, reservoir augmentations, and water diversions will further increase the likelihood of extinction for both species. Besides impoundments and diversions of water from reservoirs, there are other sources causing reduced stream flows in the upper Brazos River basin. One such source is the projected warmer temperatures and drier conditions in the upper Brazos River basin in the future. This trend is already becoming apparent and exacerbates the risk of the species’ extinction from loss of river flow. River flow reductions and river drying are also expected to increase as groundwater withdrawals negatively impact already reduced spring flows. Saltcedar encroachment also intensifies evaporative water loss along occupied river segments. There are several existing efforts addressing threats to natural flow regimes, including the Texas Environmental Flows Program, saltcedar control programs, and groundwater conservation districts. However, these programs and conservation efforts have not alleviated ongoing and future threats negatively affecting water flow in the upper Brazos River basin. The effects of reduced stream flows on the shiners were dramatically demonstrated during the summer spawning season of 2011. During 2011, Texas experienced the worst 1-year drought on record, and the upper Brazos River went dry. Some individual fish presumably found refuge from the drying river in Possum Kingdom Lake downstream. However, the non-flowing conditions in the river made reproduction impossible, and any shiners in the lake would have faced increased predation pressure from large, lake-adapted, piscivorous fish. Fearing possible extinction of these species, State fishery and Texas Tech University biologists captured sharpnose and smalleye shiners from isolated pools in 2011, prior to their complete drying, and maintained a small population in captivity until they were released back into the lower Brazos River the following year. During the 2011 drought, no sharpnose shiner or smalleye shiner reproduction was documented. Given their short lifespan (they rarely survive through two reproductive seasons, and most typically survive long enough to reproduce only once); a similar drought in 2012 would have likely led to extinction of both species. However, 2012 fish survey results of the upper E:\FR\FM\04AUR3.SGM 04AUR3 mstockstill on DSK4VPTVN1PROD with RULES3 Federal Register / Vol. 79, No. 149 / Monday, August 4, 2014 / Rules and Regulations Brazos River basin indicated drought conditions were not as intense as those in 2011, and successful recruitment of sharpnose and smalleye shiners occurred. As remaining habitat of the shiners becomes more fragmented and drought conditions intensify, the single remaining population of sharpnose shiners and smalleye shiners will become more geographically restricted, further reducing the viability of the species into the future. Under these conditions, the severity of secondary threats, such as water quality degradation from pollution and golden algal blooms, and legally permitted commercial bait fish harvesting, will have a larger impact on the species and a single pollutant discharge, golden algal bloom, or commercial harvesting or other local event will increase the risk of extinction of both species. The shiners currently have limited viability and increased vulnerability to extinction largely because of their stringent life-history requirement of long, wide, flowing rivers to complete their reproductive cycle. With a short lifespan allowing only one or two breeding seasons and the need for unobstructed river reaches greater than 275 km (171 mi) in length containing average flows greater than 2.61 m3s¥1 (92 cfs) and 6.43 m3s¥1 (227 cfs) (for the sharpnose and smalleye shiners, respectively) during the summer, both species are at a high risk of extirpation when rivers are fragmented by fish barriers and flows are reduced from human use and drought-enhanced water shortages. These adverse conditions have already resulted in substantial range reduction and isolation of the one remaining population of both fish into the upper Brazos River basin. The extant population of each shiner species is of adequate size, is located in a contiguous stretch of river long enough to support reproduction, and is generally considered resilient to local or shortterm environmental changes. However, with only one location, the species lack any redundancy. Further, these species lack representation, meaning they lack the ability to adapt to changing environmental conditions in a timeframe that would avoid extinction. Given the short lifespan and restricted range of these species, without human intervention, lack of adequate flows (due to drought and other stressors) persisting for two or more consecutive reproductive seasons would likely lead to the species’ extinction. With human water use and ongoing regional drought, the probability of this happening in the near term (about the next 10 years) is high, putting the species at a high risk VerDate Mar<15>2010 18:01 Aug 01, 2014 Jkt 232001 of extinction. Over the longer term (the next 11 to 50 years), these conditions will only continue to deteriorate as human water use continues, construction of new dams within the extant range is possible, and ongoing climate change exacerbates the likelihood of drought. In conclusion, both species currently experience low viability (low probability of persistence), and their viability is expected to continue to decline into the future. Summary of Comments and Recommendations In the proposed rule published on August 6, 2013 (78 FR 47582), we requested that all interested parties submit written comments on the proposal by October 7, 2013. We also contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. Newspaper notices inviting general public comment were published in the Lubbock Avalanche, Abilene Reporter News, Waco Tribune Herald, and Baylor County Banner. We received requests for a public hearing and held one on September 4, 2013, in Abilene, TX. During the comment period for the proposed rule, we received 268 comment letters, including 3 peer review comment letters, addressing the proposed listing of sharpnose shiner and smalleye shiner. During the September 4, 2013, public hearing, nine individuals or organizations made comments on the proposed rule. Comments addressing the proposed critical habitat designation were fully addressed in a separate rulemaking action, and published elsewhere in the Federal Register today. All substantive information provided during the comment periods has either been incorporated directly into this final determination, the SSA Report, or addressed below. Comment From Peer Reviewers In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinion from four knowledgeable individuals with scientific expertise that included familiarity with sharpnose and smalleye shiners or their habitats, biological needs, threats, general fish biology, or aquatic ecology. We received responses from three of the peer reviewers. We reviewed all comments received from the peer reviewers for substantive issues and new information regarding the listing of sharpnose shiners and smalleye shiners. The peer reviewers PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 45277 generally concurred with our methods and our assessment of the current status of these species. They provided additional information, clarifications, and suggestions to improve the SSA Report. Peer reviewer comments were all specific to the SSA Report and are incorporated into the SSA Report or responded to in Appendix B of the SSA Report. Comments From Federal Agencies (1) Comment: The U.S. Department of Agriculture’s Natural Resources Conservation Service works with landowners on a voluntary basis to apply conservation measures, some of which may benefit sharpnose and smalleye shiners, and the Natural Resources Conservation Service welcomes the opportunity to consult with the Service to determine the effects of their actions on the habitat of these two species. Our Response: The Service appreciates the work of the Natural Resources Conservation Service and looks forward to working with them as conservation partners regarding sharpnose and smalleye shiner habitat. Comments From the State (2) Comment: The term ‘‘groundwater withdrawal’’ is too broad and should be replaced with ‘‘depletion of shallow, groundwater flows in the Brazos River alluvium’’ because there is no verifiable data linking the use of the area’s aquifers to reduced flow in the Brazos River. More data are needed on the role of groundwater in this region and its effect on the shiners. Our Response: The Service considers the use of the term ‘‘groundwater withdrawal’’ to adequately capture the evidence provided in the SSA Report and covers both depletion of shallow groundwater flows of the alluvium as well as the removal of groundwater from deeper within the aquifers. We agree more data would be helpful in understanding the interaction between groundwater and surface water flows in the upper Brazos River basin; however, we used the best scientific and commercial data available to determine the effects of groundwater withdrawal on surface water flows and we will continue to investigate the effects of groundwater withdrawal on these species as additional data become available. (3) Comment: The Service lists several threats to sharpnose and smalleye shiners but does not specifically acknowledge that farming and ranching activities are not threats. It should be explicitly stated that farming and ranching activities have been shown to E:\FR\FM\04AUR3.SGM 04AUR3 mstockstill on DSK4VPTVN1PROD with RULES3 45278 Federal Register / Vol. 79, No. 149 / Monday, August 4, 2014 / Rules and Regulations have no detrimental impact on these species. Our Response: In the SSA Report, we identified sources of current threats and threats likely to occur now or in the immediate future based on the best scientific and commercial data available. These threats do not include ranching or farming. Our intent is only to identify activities that likely pose a threat to these species now or in the immediate future. At this time, the best scientific and commercial data available does not indicate that cattle grazing or current farming practices impact these species. However, beyond the immediate future, it is conceivable that large-scale farming or ranching activities could substantially reduce surface water flows in the upper Brazos River basin by extensive groundwater withdrawal or removal of surface water flows. (4) Comment: Listing the sharpnose and smalleye shiner could affect economic growth in the Brazos River basin or could limit the development of needed water supplies and require management changes of existing water supplies in important economic centers. Our Response: For listing actions, the Act requires that we make determinations ‘‘solely on the basis of the best available scientific and commercial data available’’ (16 U.S.C. 1533(b)(1)(A)). Therefore, we do not consider any potential information concerning economic or other possible impacts when making listing determinations. We will work with entities to conserve the shiners and develop workable solutions. (5) Comment: More scientific data are needed regarding the status of the shiners and their habitat in the upper Brazos River basin. The species are surviving downstream of the upper segment of the Brazos River; drought is the most obvious factor impacting these minnows, and it does not make good sense to recreate an artificial environment for species unable to adapt to it. A decision of this magnitude that could affect vital water supplies and the economic future of communities should not be based on uncertainty. Our Response: Imperiled species often lack an abundance of scientific data; however, the biological and habitat requirements of the sharpnose and smalleye shiners have been well studied for many years. Further, section 4 of the Act requires the Service to base its decision to list species as either threatened or endangered based solely on the best scientific and commercially available data. We interpret the ‘‘best available’’ standard to mean we are required to use the best scientific and VerDate Mar<15>2010 18:01 Aug 01, 2014 Jkt 232001 commercial data available to us even though it may be limited or uncertain. The sharpnose and smalleye shiner are currently limited to the upper Brazos River basin and are extirpated or functionally extirpated from the lower Brazos River area. The sole remaining populations of these species occur in the upper Brazos River basin. While the Service agrees drought is an important factor affecting the viability of these fish, drought is exacerbated by the impoundment of their natural habitat, which further reduces water flows and impedes fish migration to more suitable habitat during dry conditions. We are unclear as to what artificial environment the commenter is referring. However, we are not recreating an artificial environment. We are attempting to conserve a healthy, natural aquatic ecosystem in the upper Brazos River basin is important protect habitat for sharpnose and smalleye shiners and other aquatic wildlife. We sought comments from independent peer reviewers to ensure that our determination is based on scientifically sound data, assumptions, and analysis. We solicited information from the general public, nongovernmental conservation organizations, State and Federal agencies that are familiar with the species and their habitats, academic institutions, and groups and individuals that might have information that would contribute to an update of our knowledge of the species, as well as the activities and natural processes that might be contributing to the decline of either species. While some uncertainty will always exist, the existing body of literature on sharpnose shiners, smalleye shiners, and similar broadcastspawning minnows is the best available information. See the SSA Report for more detailed information about these species. (6) Comment: A scientifically based approach including input from affected stakeholders is under way to develop the necessary flows to balance the needs of all users in the Brazos River basin. The listing of these shiners could undermine this effort. Our Response: The Service is aware of the Texas Environmental Flows Program, a scientifically-based approach currently being developed per Senate Bill 3 of the 2007 Texas Legislature. The Service considered this information in section ‘‘6.B. Minimize Impacts from Impoundments’’ of the SSA Report. The Service has concluded that the listing of these species does not undermine the Texas Environmental Flows Program. The Service looks forward to working with the State to promote ecologically PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 sustainable water use and to provide information regarding impacts to fish and wildlife resources from environmental flow recommendations when available and applicable. (7) Comment: The Service should discuss on-the-ground work for saltcedar (Tamarix spp.) control with the appropriate agencies. Our Response: The Service has been engaged with several organizations involved in saltcedar control projects including the U.S. Department of Agriculture’s Natural Resources Conservation Service, The Brazos River Authority, and our internal Partners for Fish and Wildlife program. We look forward to continuing to work with these and additional conservation partners in controlling saltcedar in the upper Brazos River basin. Despite ongoing saltcedar control efforts, these invasive plants continue to thrive in parts of the upper Brazos River basin. Public Comments (8) Comment: A number of public comments opposed the listing of the sharpnose shiner and smalleye shiner as federally endangered or threatened species but provided no substantive scientific or commercial evidence suggesting that listing is not warranted. Our Response: While we appreciate the opinion of all interested parties, the Service must base its decision of whether to list the sharpnose shiner and smalleye shiner solely on the basis of the best scientific and commercial data available. (9) Comment: Several comments opposed the involvement of the Federal Government in Texas’ affairs or claimed the Texas Parks and Wildlife Department could handle protection of the sharpnose shiner and smalleye shiner. Our Response: While the Texas Parks and Wildlife Department is a valued partner in conserving imperiled species, they do not currently list the sharpnose or smalleye shiners as endangered species, nor does Texas’ endangered species law protect the habitat on which these species rely. Consequently, the threats to these species are not completely ameliorated by current Texas actions or laws. The Service looks forward to working with our State partners in the protection and conservation of these species. (10) Comment: Efforts to contain the naturally occurring salt springs along the Salt Fork of the Brazos River would enhance water quality during low flow conditions and would help mitigate the threat from golden algae blooms. E:\FR\FM\04AUR3.SGM 04AUR3 mstockstill on DSK4VPTVN1PROD with RULES3 Federal Register / Vol. 79, No. 149 / Monday, August 4, 2014 / Rules and Regulations Our Response: This is an issue that would be considered during the recovery process. (11) Comment: Listing the sharpnose and smalleye shiners as endangered is inappropriate because there is neither a shortage of their habitat nor populations. Our Response: The sharpnose shiner was known historically and naturally to inhabit approximately 3,417 km (2,123 mi) of river segments in the Brazos, Red, and Colorado River basins, but now the only sustainable population is restricted to approximately 1,009 km (627 mi) of the upper Brazos River basin, a greater than 70 percent reduction. The smalleye shiner was known historically and naturally to inhabit approximately 2,067 km (1,284 mi) of river segments in the Brazos River basin, but now the only sustainable population is restricted to approximately 1,009 km (627 mi) of the upper Brazos River basin, a greater than 51 percent reduction. These are the sole remaining populations of these species. A more detailed description of the species’ current and historical ranges is in section ‘‘2.D. Species Rangewide Needs’’ of the SSA Report. The two primary factors affecting the current and future conditions of these shiners are river fragmentation by impoundments and alterations of the natural streamflow regime (by impoundments, drought, groundwater withdrawal, and saltcedar encroachment) within their range. Other secondary factors, such as water quality degradation and commercial harvesting for fish bait, likely also impact these species but to a lesser degree. These multiple factors are not acting independently, but are acting together as different sources (or causes), which can result in cumulative effects to lower the overall viability of the species. (12) Comment: Sharpnose and smalleye shiners are sold as bait along the Brazos River in Texas, but there are laws in place that severely limit commercial harvesting of bait fish now and in the future. However, sharpnose and smalleye shiners are sold as bait along the Brazos River. Our Response: Texas law requires commercial bait harvesters to obtain a State permit before taking nongame fish, such as the shiners, from public fresh waters of the State (Texas Administrative Code Title 31, Part 2, Chapter 57). We are aware of at least one existing State permit that provides for commercial bait harvesting in the upper Brazos River basin, where both sharpnose and smalleye shiners are known to occur. At this time, the permits issued under Texas State law do not require identification of fish collected for commercial bait at the VerDate Mar<15>2010 18:01 Aug 01, 2014 Jkt 232001 species level, do not put limits on the number of fish collected, and do not prohibit the collection of sharpnose and smalleye shiners. Consequently, commercial bait harvesting remains a threat despite the Texas permitting system. Furthermore, upon effectiveness of this rule, the ‘‘take’’ (as defined by Federal law) of either species will be considered a violation of the Act, regardless of the effect of the permits issued by the State of Texas. (13) Comment: River fragmentation by impoundments and alterations of natural stream flow is adequately regulated by current Texas State law including Senate Bill 155, which states that no person may construct or maintain a structure on land owned by the State of Texas without a permit. The Brazos River bed is owned by the State of Texas. Our Response: We recognize that Texas State law may regulate aspects of the construction of impoundments in the Brazos River. However, as discussed in the Final Listing Status Determination (below), this law does not remove the threats to the species caused by existing impoundments. Further, this law does not remove the possibility of future impoundments causing further loss of unfragmented habitat. (14) Comment: The Service should not base part of the listing rule on the unproven science surrounding climate change uncertainty in applying climate change models at the local scale. Our Response: The Service considered numerous scientific data sources as cited in our SSA Report pertaining to climate change. The best available scientific information shows unequivocally that the Earth’s climate is currently in a period of unusually rapid change, the impacts of that change are already occurring (National Fish, Wildlife, and Plants 2012, p. 9), and the region is likely to experience warmer weather, which will further strain water resources through increased water use, evaporation, and evapotranspiration. Projections of climate change globally and for broad regions through the 21st century are based on the results of modeling efforts using state-of-the-art Atmosphere-Ocean General Circulation Models and various greenhouse gas emissions scenarios (Meehl et al. 2007, p. 753; Randall et al. 2007, pp. 596– 599). However, the Service recognizes that the current climate change models are not always downscaled to a local level. Despite improvements in climate change science, climate change models still have difficulties with certain predictive capabilities. These difficulties are more pronounced at PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 45279 smaller spatial scales and longer time scales. Model accuracy is limited by important small-scale processes that cannot be represented explicitly in models and so must be included in approximate form as they interact with larger-scale features. This is partly due to limitations in computing power, but also results from limitations in scientific understanding or in the availability of detailed observations of some physical processes. Consequently, models continue to display a range of outcomes in response to specified initial conditions and forcing scenarios. Despite such uncertainties, models predict climate warming under greenhouse gas increases (Meehl et al. 2007, p. 762; Prinn et al. 2011, p. 527), which is likely to worsen future drought conditions in the upper Brazos River. Drought conditions negatively impact sharpnose shiners and smalleye shiners by reducing the availability and flow rate of river water required to survive and reproduce. The frequency of spawning seasons not meeting the estimated minimum mean summer discharge requirements to support sharpnose and smalleye shiner growth appears to be increasing (Service 2014, p. 42). With increasing drought, there is a projected decrease in surface runoff up to 10 percent by the mid-21st century (Mace and Wade 2008, p. 656; Karl et al. 2009, p. 45). As the intensity and frequency of spawning season droughts increase and river flows decrease, shiner survival and reproduction will be reduced. The SSA Report and listing rules have been revised to more clearly recognize the uncertainty in applying climate change models to the local scale of the upper Brazos River basin. (15) Comment: The Service received multiple requests for additional public hearings. Requests contended that the Service provided inadequate notification, that having a hearing for the proposed listing rule and proposed critical habitat rule at the same time did not follow the requirements outlined in the Act, and that the meeting was not located close to proposed critical habitat. Our Response: Section 4(b)(5) of the Act states that the Service shall promptly hold one public hearing on the proposed regulation if any person files a request for such a hearing within 45 days after the date of the publication of the general notices. The Service did receive a request for a public hearing, and the Service held a public hearing on September 4, 2013, in Abilene, Texas. The notification of the public hearing was clearly stated in both the proposed rule to list the sharpnose shiner and smalleye shiner as endangered and in E:\FR\FM\04AUR3.SGM 04AUR3 mstockstill on DSK4VPTVN1PROD with RULES3 45280 Federal Register / Vol. 79, No. 149 / Monday, August 4, 2014 / Rules and Regulations the proposed rule to designated critical habitat for these species on August 6, 2013 (78 FR 47582; 78 FR 47612). A notification of the public hearing was also published in the Lubbock Avalanche on Sunday, August 18th; the Abilene Reporter News on Sunday, August 18th; the Waco Tribune Herald on Sunday, August 25th; and the Baylor County Banner from August 15th through the 22nd. These newspapers have relatively large distributions with one located immediately upstream of designated critical habitat, one downstream of designated critical habitat, and two having distributions in or around designated critical habitat. The Service mailed letters, which included information regarding the public hearing to over 100 recipients, shortly after the proposed rules published on August 6, 2013. Letter recipients included Federal agencies, State agencies, city offices, county courthouses, and numerous nongovernmental organizations. Service staff also contacted approximately 56 local media outlets and posted a news release containing the public hearing announcement on the Arlington, Texas, Ecological Services Field Office and Service’s Southwest Region Web pages. The Act does not require the Service to hold multiple public hearings in multiple locations. The Act also does not indicate a necessary proximity to proposed critical habitat within which to hold a public hearing. The Service chose Abilene, Texas, because it is the largest city centrally located to the proposed designated critical habitat that contained a venue of appropriate size and with reasonable access by major roads and highways. The Service also held the public hearing in the evening to provide adequate time for attendees to travel after normal work hours. To provide additional opportunity for the public to provide comments, the Service reopened the comment period on the proposed rule to designate critical habitat for these species for 30 days to coincide with the availability of the Draft Economic Analysis of the Proposed Designation of Critical Habitat for Sharpnose and Smalleye Shiners on March 4, 2014 (79 FR 12138). (16) Comment: There have been droughts of this magnitude before, and the sharpnose and smalleye shiners continue to exist. Our Response: According to available U.S. Geological Survey flow station data, the worst 1-year drought recorded in the upper Brazos River basin occurred in 2011, and the best available commercial and scientific data suggest the trend of increasing drought intensity and duration is likely to worsen in the VerDate Mar<15>2010 18:01 Aug 01, 2014 Jkt 232001 future. Prior to U.S. Geological Survey flow monitoring and construction of Brazos River impoundments, droughts of equal intensity may have occurred, but the sharpnose and smalleye shiner were likely capable of surviving because cumulative threats, such as river fragmentation from constructed impoundments, were not present at that time. Threats to the species do not necessarily act individually but act cumulatively. These cumulative, negative impacts exceed those that would be expected from each threat individually. Due to drought conditions and lack of streamflow in 2011 there was no observed recruitment of juvenile sharpnose or smalleye shiners during sampling efforts of the upper Brazos River during the spawning season of 2011 (Wilde 2012b, pers. comm.). Given these species at most survive for two reproductive seasons, severe drought conditions during consecutive spawning seasons may result in local extirpations or complete extinction unless recovery actions are implemented. The summer of 2011 provided an example of what happens to these species when water availability is reduced by in-channel impoundments (water withheld for municipal use in the upper Brazos River basin), continued groundwater depletion (particularly for agricultural use in the upper Brazos River basin), saltcedar encroachment (particularly in the downstream portion of the upper Brazos River), and severe drought (2011 being Texas’ worst 1-year drought on record). When these factors acted together, the upper Brazos River dried up over much of its length, and a complete lack of reproduction and recruitment was observed for these species. The impoundment of Possum Kingdom Lake also exacerbated the impact of flow regime alteration to these species by blocking the downstream movement of these fish to areas with suitable conditions for survival and reproduction, as may have historically occurred during extreme circumstances. Negative effects were likely also exacerbated by increased predation pressure on adult sharpnose and smalleye shiners seeking refuge in Possum Kingdom Lake by larger, lenticadapted piscivorous fish species. (17) Comment: Large landowners often cannot participate in cost-share programs (such as those for saltcedar control to benefit sharpnose and smalleye shiners) because of earned income. If the government mandates saltcedar control, it will come out of their pockets. Our Response: The Service does not have authority to mandate what private PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 landowners do with their land and cannot require landowners to engage in conservation activities, such as saltcedar control. Many cost-share programs consider positive impacts to threatened or endangered species when deciding projects to fund; therefore, landowners who are eligible for cost-share programs and would like to implement saltcedar control on land of the upper Brazos River basin may be more likely to receive cost-share. (18) Comment: The public should know who has been chosen as peer reviewers or have input in choosing who peer reviews the listing rules and species status assessment. Our Response: Peer reviewer names are made available to the public when their comments are officially submitted and posted on www.regulations.gov as with any public commenter. Release of peer reviewer names prior to the submission of their review can subject them to public and political pressures. The Service relies on peer review to provide a thorough and expert opinion on the science used to make listing decisions and it should be guarded against outside influences that could affect the subjectivity of that review. In selecting peer reviewers we followed the guidelines for Federal agencies spelled out in the Office of Management and Budget (OMB) ‘‘Final Information Quality Bulletin for Peer Review,’’ released December 16, 2004, and the Service’s ‘‘Information Quality Guidelines and Peer Review’’, revised June 2012. Part of the peer review process is to provide information online about how each peer review is to be conducted. Prior to publishing the proposed listing and critical habitat rule for the shiners, we posted a peer review plan on our Web site at http://www.fws. gov/southwest/science/peerreview.html, which included information about the process and criteria used for selecting peer reviewers. (19) Comment: The effluent from the City of Lubbock has raised the alkali level of the Brazos River such that it is borderline for human consumption. Our Response: The Service is unaware of any data linking alkalinity levels to City of Lubbock effluent, nor is it aware of any data suggesting the alkalinity of the upper Brazos River basin is above normal levels. The commenter did not provide any citations or documentation to support this comment. (20) Comment: The Service justifies the proposed rule, in part, by alleging a decline in population of the species without providing an estimate of historical or current population data. A review of historical surveys or population monitoring surveys could be E:\FR\FM\04AUR3.SGM 04AUR3 mstockstill on DSK4VPTVN1PROD with RULES3 Federal Register / Vol. 79, No. 149 / Monday, August 4, 2014 / Rules and Regulations implemented to determine population trends and relative distribution. Our Response: The Service is using range restriction and intensity of threats to the species as indicators of species status. Population size and fish abundance are not perfect measures of population health for the sharpnose and smalleye shiner because numbers of fish vary widely with changing habitat conditions and because ongoing threats to the species have the ability to cause extirpation and extinction regardless of population size. Recent and ongoing survey efforts are adding to the body of knowledge for these fish. In their occupied range, both species are distributed throughout the upper Brazos River depending on habitat conditions (available surface water within tolerable physiological limits) at the time of collection. See our response to comment (11) above for additional information. (21) Comment: The Service fails to support the designated historical and current range of either species. The Service does not present findings for a state-wide survey or comprehensive presence or absence survey within their historical ranges. Our Response: The historical and current ranges of sharpnose and smalleye shiners are based on peerreviewed published accounts of these species, survey results, and analysis of museum specimens collected and geographically digitized by ichthyologists. While there is not a State-wide or comprehensive survey effort within the historical range, the Service must use the best scientific and commercial data available. For the purposes of determining historical and current ranges, these sources represent the best available commercial and scientific data. (22) Comment: The Service does not consider the possibility of future flood events or bait fish introductions that could result in transferring sharpnose or smalleye shiners from the upper Brazos River to the Colorado River or areas outside the current or native range. Our Response: The Brazos and Colorado Rivers contain several impoundments that serve as water storage and flood control devices. Also, sharpnose and smalleye shiners are considered extirpated or functionally extirpated in the lower Brazos River where such a connection with the Colorado River would occur during a flood event. The occupied segments of the upper Brazos River basin are generally under such low-flow conditions that the basin is unlikely to experience a flood of sufficient magnitude to connect it to another river basin. Based on this information, it VerDate Mar<15>2010 18:01 Aug 01, 2014 Jkt 232001 appears unlikely that flooding would transport shiners to the Colorado River or outside their current range. The Service recognizes in the SSA Report that these species could be transferred as bait fish. However, a river where a fish may be transferred would need suitable habitat to establish and maintain a population, and there are limited rivers in the area that provide suitable habitat. Further, it is likely that a suitable number of individuals would need to be transferred in order to survive and establish a population. However, if such a transfer would occur, these species would be protected wherever they are found due to listing under the Act. (23) Comment: The Service does not address the viability or importance of historical populations outside of the Brazos River basin. Our Response: The natural historical distribution of the sharpnose shiner is considered to include the Brazos, Colorado, and Wichita River basins. However, the species is now extirpated from the Colorado and Wichita Rivers, as well as the middle and lower sections of the Brazos River. Consequently, there are no populations outside of the upper segment of the Brazos River, and, therefore, no additional populations exist to contribute to the viability of the species. In the SSA Report, the Service provides an analysis of the historical contribution of non-Brazos River populations to both shiner species as a whole in the section ‘‘2. Rangewide Needs’’ and clearly indicates our position on the current status of those populations. (24) Comment: The Service provides no evidence that sharpnose shiners naturally occurred in the Colorado and Wichita River basins. Without sufficient evidence of a larger historical range, the Service cannot conclude that there has been a range reduction for this species. Our Response: The natural occurrence of sharpnose shiners in the Colorado and Wichita Rivers is based on published literature, museum specimens, flood data, and expert opinion. These sources are the best available scientific and commercial data and provide adequate support of the determination that the sharpnose shiner is native to these Rivers. Even discounting the Colorado and Wichita River populations, the sharpnose shiner would be experiencing a range reduction of more than 50 percent due primarily to fragmentation and alteration of flows within the middle Brazos River by impoundments. See our response to comment (11) above for additional information. PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 45281 (25) Comment: Genetic analyses could better elucidate the status of the sharpnose and smalleye shiners of the upper Brazos River basin. Our Response: The Service agrees that genetic studies for these two species would be useful; however, the Service must use the best available scientific and commercial data at the time of listing. The Service is in the process of funding a study through section 6 of the Act to determine the genetic structure of the remaining populations of both species. (26) Comment: Studies focused on determining the minimum flow rate, duration, and critical river sections for successful spawning would provide useful information to manage short-term viability and long-term survivability for these shiner species. Our Response: The Service agrees that additional studies on the minimum flow rate required to keep the semi-buoyant life-history stages of these species afloat would be useful. However, the Service has used the best scientific and commercial data available. Based on current life-history information, population dynamics modeling estimates a mean summer water discharge of approximately 2.61 m3s¥1 (92 cfs) is necessary to sustain populations of sharpnose shiners (Durham 2007, p. 110), while a higher mean discharge of approximately 6.43 m3s¥1 (227 cfs) is necessary for smalleye shiners (Durham and Wilde 2009b, p. 670). See section ‘‘2.C.2. Streamflow Requirements’’ of the SSA Report for additional information. (27) Comment: Inclusion of stream gauge data from the 1950s could be useful as a partial indicator of how the two species respond to extended drought. Our Response: The Service has added stream gauge data going back to 1940 in its analysis of drought conditions in the upper Brazos River basin and has also added an additional stream gauge site. See section ‘‘3.D. Drought’’ of the SSA Report for further discussion. (28) Comment: The listing package and SSA Report do not provide sufficient, conclusive evidence connecting stated threats to a decline in species abundance or a reduction in range, including the effects of impoundment on river fragmentation. Neither the listing package nor SSA Report demonstrates the cumulative effects of threats. Our Response: The Causes and Effects Threat Analyses in Chapter 3 of the SSA Report discusses how the threats negatively affect sharpnose and smalleye shiners. The SSA Report also includes a section on cumulative effects E:\FR\FM\04AUR3.SGM 04AUR3 mstockstill on DSK4VPTVN1PROD with RULES3 45282 Federal Register / Vol. 79, No. 149 / Monday, August 4, 2014 / Rules and Regulations (‘‘K. Cumulative Effects’’). Further, the SSA Report has been peer-reviewed by experts in the field of ichthyology and aquatic ecology, and they found the SSA Report to be a scientifically sound document. (29) Comment: Neither the listing package nor SSA Report demonstrate how stream reach lengths of at least 275 km (171 mi) are necessary for the continued existence of either species. Our Response: Section ‘‘2.C.3 Stream Reach Length Requirements’’ of the SSA Report provides a complete analysis and justification for the estimated 275-km (171-mi) requirement based on the best available scientific and commercial data. As stated in the SSA Report, the Service recognizes that the necessary stream length requirements may vary with flow rates, water temperature, and channel morphology, but the 275 km (171 mi) is based on modeling population status and reach length, which indicate extirpation of eight different Great Plains broadcastspawning minnow species occurred in river fragments less than 115 km (71 mi; Perkin et al. 2010, p. 7) and that no extirpations were recorded in reaches greater than 275 km (171 mi). (30) Comment: The Service has not made any of the scientific studies or materials upon which it relied to prepare the SSA Report or rulemaking documents available online. Our Response: Comments and materials received, as well as supporting documentation used in the preparation of this rule, are available for public inspection, by appointment, during normal business hours at Arlington, Texas, Ecological Services Field Office, (see ADDRESSES). A complete literature cited is included within the SSA Report. (31) Comment: The Service failed to properly analyze the species under the Act’s five listing criteria: (1) The present or threatened destruction, modification, or curtailment of a species’ habitat or range; (2) overutilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) the inadequacy of existing regulatory mechanisms; and (5) other natural or man-made factors affecting the species’ continued existence. Our Response: Under section 4(a)(1) of the Act, the ‘‘Secretary shall . . . determine whether any species is an endangered species or a threatened species because of any of the following factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory VerDate Mar<15>2010 18:01 Aug 01, 2014 Jkt 232001 mechanisms; or (E) other natural or man-made factors affecting its continued existence.’’ Neither the Act nor its implementing regulations direct the Service to evaluate the five factors in a particular format. The Service may present its evaluation of information under the five factors by discussing all of the information relevant to each factor and providing a factor-specific conclusion before moving to the next factor (an ‘‘outline’’ format). For this rule, we presented this information in a different format that we believe leads to greater clarity in our understanding of the science, its uncertainties, and the application of our statutory framework to that science. Therefore, while the presentation of information in this rule differs from past practice, it differs in format only. We have evaluated the same body of information that we would have evaluated under the five factors ‘‘outline’’ format, we are applying the same information standard, and we are applying the same statutory framework in reaching our conclusions. Our determination for the sharpnose and smalleye shiners ties each threat to one of the five factors (see Determination section). (32) Comment: The Service failed to properly consider impacts from the inadequacy of existing regulatory mechanisms on stream flow. Our Response: The ‘‘B. Groundwater Withdrawal’’ and ‘‘A. Impoundments’’ sections of the SSA Report discusses impacts on stream flow in detail. The Service has considered the existing State regulatory mechanisms, but these efforts do not ameliorate the threats to these species to the point that the species do not meet the definition of endangered. (33) Comment: The Service failed to properly consider impacts from conservation measures associated with saltcedar control and a captive propagation and release program. Our Response: The Service recognizes several ongoing saltcedar control projects including the Texas Agrilife Extension Saltcedar Biological Control Implementation Program, the U.S. Department of Agriculture Natural Resources Conservation Service’s saltcedar cost-share control program, the Brazos River Authority’s saltcedar control program, and the Service’s saltcedar cost-share programs. However, participation in these programs is mostly voluntary, and even, when implemented, these programs have not been fully successful in eradicating saltcedar from the upper Brazos River basin. The Texas Parks and Wildlife Department and Texas Tech PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 University’s release of fish into the lower Brazos River was a response to intense drought during the summer of 2011 and is not part of a formal reintroduction plan. While Texas Tech University maintains a small stock of sharpnose and smalleye shiners in the laboratory, they are primarily used for research purposes. They do not have a captive propagation program in place to breed and release fish into the wild on a large-scale basis. Based on the best scientific and commercial data available, it is presumed that the fish released into the lower Brazos River are either extirpated or functionally extirpated. The Service has considered these conservation measures, but these efforts do not ameliorate the threats to these species to the point that the species do not meet the definition of endangered. (34) Comment: The listing of a species under the Act based principally or exclusively on climate change impacts necessarily involves policy questions that are assigned by the Constitution to Congress. The Act is not an appropriate mechanism to regulate climate change and greenhouse gas emissions. Our Response: Our decision to list the species was based on river fragmentation, alterations of the natural flow regime, water quality degradation, and commercial bait harvesting; and not principally on climate change. We acknowledged in our rule that the projected impacts of climate change could exacerbate these threats that the species are facing in the future. Furthermore, we are not attempting, through this rule, to use the Act to regulate climate change or greenhouse gases. We are making a decision as to whether the species meet the definition of endangered or threatened. To do so, the Act requires the Service to evaluate five factors, individually and in combination, including natural or manmade factors that are affecting the species’ continued existence. This necessarily includes assessing potential impacts to a species or its habitat caused by global climate change. (35) Comment: The Service has not thoroughly reviewed the local groundwater conservation districts’ rights and responsibilities as dictated by Chapter 36 of the Texas Water Code. Local districts can help alleviate the groundwater issues identified by the Service. Our Response: Local groundwater conservation districts provide for the conservation, preservation, protection, recharging, and prevention of waste of groundwater. While many actions that the conservation districts enforce likely reduce groundwater consumption, these E:\FR\FM\04AUR3.SGM 04AUR3 mstockstill on DSK4VPTVN1PROD with RULES3 Federal Register / Vol. 79, No. 149 / Monday, August 4, 2014 / Rules and Regulations actions are not entirely consistent with the protection of surface water flows for sharpnose and smalleye shiners. Section 36.103 of the Texas Water Code permits groundwater conservation districts to erect dams; drain lakes, draws, depressions, and creeks; and install pumps to recharge groundwater reservoirs. The protection of groundwater supplies at the expense of damming and depleting surface water would be detrimental to these species. Insofar as groundwater conservation districts reduce the number of wells by land parcel size and support general water conservation measures, they are benefiting the sharpnose and smalleye shiners and the upper Brazos River basin ecosystem in general. However, groundwater conservation districts do not explicitly conserve groundwater to support surface water flows to maintain a healthy riverine environment for fish and other aquatic species. Conservation districts also do not cover all areas of the upper Brazos River basin. Further, the Texas State Water Plan estimates increased groundwater withdrawals in the future. These efforts do not ameliorate the threats to sharpnose and smalleye shiners or their habitat to the point that the species do not meet the definition of endangered. (36) Comment: Why are smalleye and sharpnose shiners not listed as endangered in the Clear Fork of the Brazos River? Our Response: We are listing the shiners wherever they are found. However, the best available scientific and commercial information does not indicate that the sharpnose and smalleye shiners have ever been collected from the Clear Fork of the Brazos River; therefore, the Service has no basis to assume they once existed there historically or exist there currently. The Donnell Mill Dam on the Clear Fork of the Brazos River located approximately 21.5 km (13.3 mi) upstream of its confluence with the Brazos River mainstem has acted as a fish migration barrier since the late 1870s and may be partially responsible for the lack of records of these species from this river. (37) Comment: After the devastating drought of 2011 in the upper Brazos River basin, smalleye and sharpnose shiners recovered in 2012 and survived without the Service’s help. Our Response: Rainfall, and hence surface water flows, was greater in 2012 than during 2011. If a similar or worse drought had occurred in 2012 these fish may now be extinct. During 2011, the spring-fed isolated pools in the upper Brazos River and Possum Kingdom Lake provided refuge for adult sharpnose and VerDate Mar<15>2010 18:01 Aug 01, 2014 Jkt 232001 smalleye shiners. Surviving adults were able to later recolonize the river channel and reproduce when river water levels rose. Given their short lifespan and restricted range, stressors that persist for two or more reproductive seasons (such as a severe drought) severely limit these species’ current viability, placing them at a high risk of extinction now. (38) Comment: If the proposed rule would require fencing the river to keep livestock away, it would impose a financial burden on landowners. Our Response: The best available scientific and commercial information does not indicate that cattle pose a threat to sharpnose or smalleye shiners, and anecdotal data indicate that cattle may be beneficial in maintaining a wide, shallow river channel. See our response to comments (4) and (17) above for additional information. Summary of Changes From Proposed Rule Only minor changes and clarifications were made to the listing rule based on comments received. The SSA Report was updated, clarified, and expanded based on several peer review and public comments. These minor changes did not alter our previous assessment of these species from the proposed rule to the final rule. Determination Standard for Review Section 4 of the Act (16 U.S.C. 1533), and its implementing regulations at 50 CFR part 424, set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of the Act, the Secretary is to make threatened or endangered determinations required by subsection 4(a)(1) solely on the basis of the best scientific and commercial data available to her after conducting a review of the status of the species and after taking into account conservation efforts by States or foreign nations. The standards for determining whether a species is threatened or endangered are provided in section 3 of the Act. An endangered species is any species that is ‘‘in danger of extinction throughout all or a significant portion of its range.’’ A threatened species is any species that is ‘‘likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.’’ Per section 4(a)(1) of the Act, in reviewing the status of the species to determine if it meets the definitions of threatened or endangered, we determine whether any species is an endangered species or a threatened species because of any of the following five factors: (A) PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 45283 The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; and (E) other natural or manmade factors affecting its continued existence. Listing actions may be warranted based on any of the above threat factors, singly or in combination. Until recently, the Service has presented its evaluation of information under the five listing factors in an outline format, discussing all of the information relevant to any given factor and providing a factor-specific conclusion before moving to the next factor. However, the Act does not require findings under each of the factors, only an overall determination as to status (e.g., threatened, endangered, not warranted). Ongoing efforts to improve the efficiency and efficacy of the Service’s implementation of the Act have led us to present this information in a different format that we believe leads to greater clarity in our understanding of the science, its uncertainties, and the application of our statutory framework to that science. Therefore, while the presentation of information in this rule differs from past practice, it differs in format only. We have evaluated the same body of information that we would have evaluated under the five listing factors outline format, we are applying the same information standard, and we are applying the same statutory framework in reaching our conclusions. Final Listing Status Determination We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the sharpnose shiner and smalleye shiner. Based on our review of the best available scientific and commercial information, we conclude that the sharpnose shiner and smalleye shiner are currently in danger of extinction throughout all of their range and, therefore, each meets the definition of an endangered species. This finding, explained below, is based on our conclusions that these species exhibit low viability, as characterized by not having the resiliency to overcome persistent threats and insufficient population redundancy to overcome catastrophic events. We found the sharpnose shiner and smalleye shiner are at an elevated risk of extinction now and no data indicate that the situation will improve without significant conservation intervention. We, therefore, find that the sharpnose shiner E:\FR\FM\04AUR3.SGM 04AUR3 mstockstill on DSK4VPTVN1PROD with RULES3 45284 Federal Register / Vol. 79, No. 149 / Monday, August 4, 2014 / Rules and Regulations and smalleye shiner warrant endangered species listing status determination. On the basis of our biological review documented in the March 2014 SSA Report, we found that the sharpnose shiner and smalleye shiner are vulnerable to extinction due to their reduced ranges and their highly specific reproductive strategies. These species are currently restricted to the upper Brazos River and its major tributaries, which represents a greater than 70 percent reduction in range for the sharpnose shiner and a greater than 50 percent range reduction for the smalleye shiner. The occupied river segments of the upper Brazos River currently retain the necessary length (greater than 275 km (171 mi)) to support successful broadcast-spawning reproduction in these species. However, these river segments have naturally occurring periods of low flow, periods completely lacking flow, and periods of complete drying (Factor A)—often during the dry summer months, which is also when these species spawn. The eggs and larvae of these species require flowing water of sufficient velocity to keep their eggs and larvae afloat and alive. During periods of insufficient river flow, reproduction is not successful and no young are produced (Factor A). Our review found the primary factors leading to a high risk of extinction for these fishes include habitat loss and modification due to river fragmentation and decreased river flow, resulting mainly from reservoir impoundments (Factor A). Drought, exacerbated by climate change (Factor E), and groundwater withdrawals also act as sources to reduce stream flows and modify stream habitats (Factor A). Fragmentation due to reservoir construction has resulted in a substantially reduced range with only one isolated population of each species in the upper Brazos River. With only one isolated population remaining, these species have no redundancy, reduced resiliency due to the inability to disperse downstream, and limited representation. This situation puts the species in danger of extinction from only one adverse event (such as insufficient flow rates for 2 consecutive years). Secondary causes of habitat modifications include water quality degradation and saltcedar encroachment that alters stream channels (Factor A). As population sizes decrease, localized concerns, such as commercial harvesting of individuals, also increases the risk of extinction (Factors B). We evaluated whether the sharpnose shiner and smalleye shiner are in danger of extinction now (i.e., an endangered species) or are likely to become in VerDate Mar<15>2010 18:01 Aug 01, 2014 Jkt 232001 danger of extinction in the foreseeable future (i.e., a threatened species). The foreseeable future refers to the extent to which the Secretary can reasonably rely on predictions about the future in making determinations about the conservation status of the species. A key statutory difference between an endangered species and a threatened species is the timing of when a species may be in danger of extinction, either now (endangered species) or in the foreseeable future (threatened species). Because of the fact-specific nature of listing determinations, there is no single metric for determining if a species is presently ‘‘in danger of extinction.’’ In the case of the sharpnose shiner and smalleye shiner, the best available information indicates the severe range reduction and isolation of these species to a single population in the upper Brazos River basin places these species in danger of extinction now, and the situation is exacerbated by the ongoing and intensifying effects of river fragmentation (Factor A), drought (Factor A), saltcedar encroachment (Factor A), water quality degradation (Factor A), and commercial bait harvesting (Factor B). The current threats affecting these species are expected to continue (or even increase without substantial conservation efforts), causing both species to be in danger of extinction now. Therefore, because these species have been reduced to less than half of their previously occupied range and because both species are restricted to a single, non-resilient population at a high risk of extinction from a variety of unabated threats, we find both species are in danger of extinction now and meet the definition of an endangered species (i.e., in danger of extinction), in accordance with sections 3(6) and 4(a)(1) of the Act. Under the Act and our implementing regulations, a species may warrant listing if it is threatened or endangered throughout all or a significant portion of its range. The threats to the survival of these species occur throughout their range and are not restricted to any particular significant portion of their range. Accordingly, our assessments and determinations apply to these species throughout their entire range. In conclusion, as described above, after a review of the best available scientific and commercial information as it relates to the status of the species and the five listing factors, we find the sharpnose shiner and smalleye shiner are in danger of extinction now. Therefore, we are listing the sharpnose shiner and smalleye shiner as endangered species in accordance with section 3(6) of the Act. We find that a PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 threatened species status is not appropriate for the sharpnose or smalleye shiner because the overall risk of extinction is high at this time and the existing populations are not sufficiently resilient to support viable populations. Available Conservation Measures Regulations at 50 CFR 424.18 require final rules to include a description of conservation measures available under the rule. Following is an explanation of the measures that may be implemented for the conservation of the shiners under this final rule. Conservation measures provided to species listed as endangered or threatened species under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness and conservation by Federal, State, and local agencies, private organizations, and individuals. The Act encourages cooperation with the States and requires that recovery actions be carried out for all listed species. The protection measures required of Federal agencies and the prohibitions against certain activities are discussed, in part, below. The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Subsection 4(f) of the Act requires the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species’ decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, selfsustaining, and functioning components of their ecosystems. Recovery planning includes the development of a recovery outline shortly after a species is listed, preparation of a draft and final recovery plan, and revisions to the plan as significant new information becomes available. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. The recovery plan identifies sitespecific management actions that will achieve recovery of the species, measurable criteria that determine when a species may be downlisted or delisted, and methods for monitoring recovery E:\FR\FM\04AUR3.SGM 04AUR3 mstockstill on DSK4VPTVN1PROD with RULES3 Federal Register / Vol. 79, No. 149 / Monday, August 4, 2014 / Rules and Regulations progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Recovery teams (comprising species experts, Federal and State agencies, nongovernmental organizations, and stakeholders) are often established to develop recovery plans. When completed, the recovery outline, draft recovery plan, and the final recovery plan will be available on our Web site (http://www.fws.gov/ endangered), or from our Arlington, Texas, Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, tribal, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration (e.g., restoration of native vegetation), research, captive propagation and reintroduction, and outreach and education. The recovery of many listed species cannot be accomplished solely on Federal lands because their range may not occur primarily or solely on non-Federal lands. To achieve recovery of these species requires cooperative conservation efforts on private, State, and Tribal lands. Because these species are listed as endangered, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost-share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the State of Texas would be eligible for Federal funds to implement management actions that promote the protection and recovery of the sharpnose and smalleye shiners. Information on our grant programs that are available to aid species recovery can be found at: http://www.fws.gov/grants. Please let us know if you are interested in participating in recovery efforts for these species. Additionally, we invite you to submit any new information on these species whenever it becomes available and any information you may have for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT). Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as endangered or threatened and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. VerDate Mar<15>2010 18:01 Aug 01, 2014 Jkt 232001 Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into formal consultation with the Service. Federal agency actions within the species’ habitat that may require conference or consultation or both as described in the preceding paragraph include but are not limited to: permitting of interbasin water transfers, permitting of large groundwater withdrawal projects, permitting of inchannel mining and dredging, issuance of section 404 Clean Water Act (33 U.S.C. 1251 et seq.) permits by the U.S. Army Corps of Engineers, and construction and maintenance of roads or highways by the Federal Highway Administration. The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to all endangered wildlife. The prohibitions, codified at 50 CFR 17.21 for endangered wildlife, in part, make it illegal for any person subject to the jurisdiction of the United States to take (includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these), import, export, ship in interstate commerce in the course of commercial activity, or sell or offer for sale in interstate or foreign commerce any listed species. It is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Certain exceptions apply to agents of the Service and State conservation agencies. We may issue permits to carry out otherwise prohibited activities involving endangered and threatened wildlife species under certain circumstances. Regulations governing permits are codified at 50 CFR 17.22 for endangered species, and at 17.32 for threatened species. With regard to endangered wildlife, a permit must be issued for the following purposes: for scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities. PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 45285 Our policy, as published in the Federal Register on July 1, 1994 (59 FR 34272), is to identify to the maximum extent practicable at the time a species is listed, those activities that would or would not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effect of a proposed listing on proposed and ongoing activities within the range of species proposed for listing. The following activities could potentially result in a violation of section 9 of the Act; this list is not comprehensive: (1) Unauthorized collecting, handling, possessing, selling, in interstate commerce, delivering, carrying, or transporting of the species, including import or export across State lines and international boundaries, except for properly documented antique specimens of these taxa at least 100 years old, as defined by section 10(h)(1) of the Act. (2) Unauthorized destruction or alteration of sharpnose and smalleye shiner habitats (e.g., unpermitted instream dredging, impoundment, or construction; water diversion or withdrawal; channelization; discharge of fill material) that impairs essential behaviors such as breeding, feeding, or sheltering, or results in killing or injuring sharpnose or smalleye shiners. Such activities could include, but are not limited to, the destruction of upland riparian areas in a manner that negatively impacts the river ecosystem. (3) Capture, survey, or collection of specimens of these taxa without a permit from the Service under section 10(a)(1)(A) of the Act. Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Arlington, Texas, Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). Required Determinations National Environmental Policy Act We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), need not be prepared in connection with regulations pursuant to section 4(a) of the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). Government-to-Government Relationship With Tribes In accordance with the President’s memorandum of April 29, 1994 E:\FR\FM\04AUR3.SGM 04AUR3 45286 Federal Register / Vol. 79, No. 149 / Monday, August 4, 2014 / Rules and Regulations (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments), and the Department of the Interior’s manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to tribes. There are no tribes within the current or historical range of the species. recordkeeping requirements, Transportation. References Cited Regulation Promulgation A complete list of all references cited in this rule is available on the Internet at http://www.regulations.gov within the SSA Report (Service 2014, Literature Cited) or upon request from the Arlington, Texas, Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as follows: Author(s) * Authority: 16 U.S.C. 1361–1407; 1531– 1544; 4201–4245; unless otherwise noted. 2. Amend § 17.11(h) by adding the following entries to the List of Endangered and Threatened Wildlife in alphabetical order under FISHES: ■ List of Subjects in 50 CFR Part 17 § 17.11 Endangered and threatened wildlife. Endangered and threatened species, Exports, Imports, Reporting and * Vertebrate population where endangered or threatened * * * (h) * * * Status * Historic range Scientific name * 1. The authority citation for part 17 continues to read as follows: ■ The primary authors of this document are the staff members of the Arlington, Texas, Ecological Services Field Office (see ADDRESSES). Species Common name PART 17—[AMENDED] * * When listed * Critical habitat * Special rules * Fishes * Shiner, sharpnose ...... Shiner, smalleye ........ * * Notropis oxyrhynchus Notropis buccula ........ * * * U.S.A. (TX) U.S.A. (TX) * * Entire Entire * * E E 840 840 * * Dated: July 18, 2014. Betsy Hildebrandt, Acting Director, U.S. Fish and Wildlife Service. [FR Doc. 2014–17692 Filed 8–1–14; 8:45 am] mstockstill on DSK4VPTVN1PROD with RULES3 BILLING CODE 4310–55–P VerDate Mar<15>2010 19:01 Aug 01, 2014 Jkt 232001 PO 00000 Frm 00014 Fmt 4701 Sfmt 9990 E:\FR\FM\04AUR3.SGM 04AUR3 * 17.95(e) 17.95(e) NA NA *

Agencies

[Federal Register Volume 79, Number 149 (Monday, August 4, 2014)]
[Rules and Regulations]
[Pages 45273-45286]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-17692]



[[Page 45273]]

Vol. 79

Monday,

No. 149

August 4, 2014

Part III





Department of the Interior





-----------------------------------------------------------------------





Fish and Wildlife Service





-----------------------------------------------------------------------





50 CFR Part 17





Endangered and Threatened Wildlife and Plants; Determination of 
Endangered Status for the Sharpnose Shiner and Smalleye Shiner; Final 
Rule

Federal Register / Vol. 79, No. 149 / Monday, August 4, 2014 / Rules 
and Regulations

[[Page 45274]]


-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2013-0083;4500030113]
RIN 1018-AY55


Endangered and Threatened Wildlife and Plants; Determination of 
Endangered Status for the Sharpnose Shiner and Smalleye Shiner

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service, determine endangered 
species status under the Endangered Species Act of 1973, as amended, 
for the sharpnose shiner (Notropis oxyrhynchus) and smalleye shiner (N. 
buccula), two fish species from Texas. The effect of this regulation 
will be to add these species to the List of Endangered and Threatened 
Wildlife. We have also determined that critical habitat for the 
sharpnose shiner and smalleye shiner is prudent and determinable. 
Elsewhere in today's Federal Register, we designate critical habitat 
for the sharpnose shiner and smalleye shiner under the Act.

DATES: This rule becomes effective September 3, 2014.

ADDRESSES: This final rule is available on the Internet at http://www.regulations.gov and at http://www.fws.gov/southwest/es/ArlingtonTexas. Comments and materials received, as well as supporting 
documentation used in the preparation of this rule, are available for 
public inspection at http://www.regulations.gov. All of the comments, 
materials, and documentation that we considered in this rulemaking are 
available for public inspection, by appointment, during normal business 
hours at: U.S. Fish and Wildlife Service, Arlington, Texas, Ecological 
Services Field Office, 2005 NE Green Oaks Blvd., Suite 140, Arlington, 
TX 76006; by telephone 817-277-1100; or by facsimile 817-277-1129.

FOR FURTHER INFORMATION CONTACT: Debra Bills, Field Supervisor, 
Arlington, Texas, Ecological Services Field Office, (see ADDRESSES). If 
you use a telecommunications device for the deaf (TDD), call the 
Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. Under the Endangered Species Act 
(Act), a species or subspecies may warrant protection through listing 
if it is endangered or threatened throughout all or a significant 
portion of its range. Listing a species as an endangered or threatened 
species can only be completed by issuing a rule. On August 6, 2013 (78 
FR 47582; 78 FR 47612), we proposed to list the sharpnose shiner and 
smalleye shiner as endangered species and proposed to designate 
critical habitat under the Act. Elsewhere in today's Federal Register, 
we finalize designation of critical habitat for the sharpnose shiner 
and smalleye shiner under the Act.
    This rule will finalize the listing of the sharpnose shiner and 
smalleye shiner as endangered species.
    The basis for our action. Under the Act, a species may be 
determined to be an endangered or threatened species based on any of 
five factors: (A) The present or threatened destruction, modification, 
or curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; and (E) other natural or manmade factors affecting its 
continued existence. We have determined that the sharpnose and smalleye 
shiners meet the definition of an endangered species primarily because 
of the present or threatened destruction, modification, or curtailment 
of its habitat or range resulting mainly from impoundments and 
alterations of natural stream flow.
    Peer review and public comment. We sought comments from independent 
specialists to ensure that our designation is based on scientifically 
sound data, assumptions, and analyses. We invited these peer reviewers 
to comment on our listing proposal. We also considered all comments and 
information received during the public comment period.

Previous Federal Actions

    On June 13, 2002 (67 FR 40657), the sharpnose shiner and smalleye 
shiner were made candidates for listing under the Act. On May 11, 2004, 
we received a petition to list the sharpnose shiner and smalleye 
shiner. We published our petition finding on May 11, 2005 (70 FR 
24899). Because the sharpnose shiner and smalleye shiner were 
previously identified through our candidate assessment process, the 
species had already received the equivalent of a substantial 90-day 
finding and a warranted, but precluded, 12-month finding (67 FR 40657, 
June 13, 2002). Through the annual candidate review process (69 FR 
24876, May 4, 2004; 70 FR 24870, May 11, 2005; 71 FR 53756, September 
12, 2006; 72 FR 69034, December 6, 2007; 73 FR 75176, December 10, 
2008; 74 FR 57804, November 9, 2009; 75 FR 69222, November 10, 2010; 76 
FR 66370, October 26, 2011; 77 FR 69994, November 21, 2012), the U.S. 
Fish and Wildlife Service (Service) continued to solicit information 
from the public regarding these species.
    On August 6, 2013 (78 FR 47582; 78 FR 47612), we proposed to list 
the sharpnose shiner and smalleye shiner under the Act as endangered 
species and proposed to designate critical habitat. We held a public 
hearing on September 4, 2013, in Abilene, Texas. On March 4, 2014 (79 
FR 12138), we requested comments on the draft economic analysis of 
critical habitat designation for the shiners, as well as the proposed 
rule to designate critical habitat. This comment period closed on April 
3, 2014 (79 FR 12138).

Background

Species Information

    The April 2014 Species Status Assessment Report (SSA Report) 
(Service 2014, entire), available online at www.regulations.gov under 
Docket Number FWS-R2-ES-2013-0083, provides a thorough assessment of 
sharpnose shiner and smalleye shiner biology and natural history, and 
assesses demographic risks, threats, and limiting factors in the 
context of determining viability and risk of extinction for the 
species. The SSA Report has been updated since the August 6, 2013, 
publication of the proposed rules with data received during the peer 
review and public comment processes. In the SSA Report, we compile 
biological data and a description of past, present, and likely future 
threats (causes and effects) facing the sharpnose shiner and smalleye 
shiner. Because data in these areas of science are limited, some 
uncertainties are associated with this assessment. Where we have 
substantial uncertainty, we have attempted to make our necessary 
assumptions explicit in the SSA Report. We base our assumptions in 
these areas on the best available scientific and commercial data. 
Importantly, the SSA Report does not represent a decision by the 
Service on whether these taxa should be listed as endangered or 
threatened species under the Act. The SSA Report does, however, provide 
the scientific basis that informs

[[Page 45275]]

our decisions (see Summary of Biological Status and Threats in this 
final rule), which involve the further application of standards within 
the Act and its regulations and policies (see Determination) in this 
final rule).

Summary of Biological Status and Threats

    Our SSA Report documents the results of the comprehensive 
biological status review for the sharpnose and smalleye shiners and 
provides a thorough account of the species' overall viability and, 
conversely, extinction risk (Service 2014, entire). The SSA Report 
contains the data on which this final rule is based. The following is a 
summary of the results and conclusions from the SSA Report.
    The sharpnose shiner and smalleye shiner are small minnows native 
to arid prairie streams of Texas originating from the Brazos River. The 
naturally occurring historical distribution of the sharpnose shiner 
included the Brazos River, Colorado River, and Wichita River in Texas, 
while the naturally occurring historical distribution of the smalleye 
shiner included only the Brazos River.
    In conducting our status assessment, we first considered what the 
two shiners need to ensure viability. We generally define viability as 
the ability of the species to persist over the long term and, 
conversely, to avoid extinction. We then evaluated whether those needs 
currently exist and the repercussions to the species when those needs 
are missing, diminished, or inaccessible. We next considered the 
factors that are causing the species to lack what they need, including 
historical, current, and future factors. Finally, considering the 
information reviewed, we evaluated the current status and future 
viability of the species in terms of resiliency, redundancy, and 
representation.
    Resiliency is the ability of a species to withstand stochastic 
events and, in the case of the shiners, is best measured by the extent 
of suitable habitat in terms of stream length. Redundancy is the 
ability of a species to withstand catastrophic events by spreading the 
risk and can be measured through the duplication and distribution of 
resilient populations across the species' range. Representation is the 
ability of a species to adapt to changing environmental conditions and 
can be measured by the breadth of genetic diversity within and among 
populations and the ecological diversity of populations across the 
species' range. In the case of the shiners, we evaluate representation 
based on the extent of the geographical range and the variability of 
habitat characteristics within their range as indicators of genetic and 
ecological diversity.
    Our assessment found that both species of shiners have an overall 
low viability (or low probability of persistence) in the near term 
(over about the next 10 years) and a decreasing viability (increasing 
risk of extinction) in the long-term future (over the next 11 to 50 
years). For the shiners to be considered viable, individual fish need 
specific vital resources for survival and completion of their life 
cycles. Both species need wide, shallow, flowing waters generally less 
than 0.5 meters (m) (1.6 feet (ft)) deep with sandy substrates, which 
are found in mainstem rivers in the arid prairie region of Texas. Both 
species broadcast-spawn eggs and sperm into open water asynchronously 
(fish not spawning at the same time) during periods of low flow and 
synchronously (many fish spawning at the same time) during periods of 
elevated streamflow from April through September. Their eggs are semi-
buoyant and remain suspended 1 or 2 days in flowing water as they 
develop into larvae. Larval fish remain suspended in the flowing water 
column an additional 2 to 3 days as they develop into free-swimming 
juvenile fish. In the absence of sufficient water velocities, suspended 
eggs and larvae sink into the substrate where a majority likely dies. 
The reproductive strategy of these species makes them particularly 
vulnerable to changes in the natural conditions of occupied habitat.
    To sustain populations of the shiners long term, population 
dynamics modeling suggests estimated mean spawning season river flows 
of 2.61 cubic meters per second (m\3\s-\1\) (92 cubic feet 
per second (cfs)) and 6.43 m\3\s-\1\ (227 cfs) are required 
for the sharpnose and smalleye shiners, respectively. It is also 
estimated that populations of shiners require approximately 275 
kilometers (km) (171 miles (mi)) of unobstructed, flowing water during 
the breeding season to support a successfully reproductive population. 
This length of stream allows the eggs and larvae to remain suspended in 
the water column and survive until they mature sufficiently to swim on 
their own. Across their range, these species also need unobstructed 
river lengths to allow for upstream and downstream movements to survive 
seasons with poor environmental conditions in certain river reaches. 
Unobstructed river reaches allow some fish to survive and recolonize 
degraded reaches when conditions improve. In addition, these fish only 
naturally live for 1 or 2 years, making the populations particularly 
vulnerable when the necessary streamflow conditions for reproduction 
are lacking for more than one season.
    The current conditions of both species indicate that they do not 
have the necessary resources for persistence in the immediate future. 
Both species have experienced range reduction, with both fish having 
lost at least half of their historical range. Both species are now 
restricted to one population in the upper Brazos River basin. As a 
result, sharpnose and smalleye shiners currently lack redundancy, which 
is reducing the viability of these species as a whole. In addition, 
streamflows within their current extant range are insufficient during 
some years to support successful reproduction, such as occurred in 
2011. These fish have been resilient to past stressors that occur over 
short durations, and their populations appear capable of recovering 
naturally even when an entire year's reproductive effort is lost. 
However, without human intervention, given their short lifespan and 
restricted range, stressors that persist for two or more reproductive 
seasons (such as a severe drought) severely limit these species' 
current viability, placing them at a high risk of extinction now.
    The two primary factors affecting the current and future conditions 
of these shiners are river fragmentation by impoundments and 
alterations of the natural streamflow regime (by impoundments, drought, 
groundwater withdrawal, and saltcedar encroachment) within their range. 
Other secondary factors, such as water quality degradation and 
commercial harvesting for fish bait, likely also impact these species 
but to a lesser degree. These multiple factors are not acting 
independently, but are acting together as different sources (or 
causes), which can result in cumulative effects to lower the overall 
viability of the species.
    Fish barriers such as impoundments are currently restricting the 
upstream and downstream movement of migrating fish and prevent survival 
of the semi-buoyant eggs and larvae of sharpnose and smalleye shiners. 
This is because the eggs and larvae cannot remain suspended in the 
water column under non-flowing conditions in reservoirs or if 
streamflows cease. Of the area once occupied by one or both species in 
the Brazos, Colorado, and Wichita Rivers, only two contiguous river 
segments remain with unobstructed lengths (without dams) greater than 
275 km (171 mi): The upper Brazos River (where the fish are extant) and 
the lower Brazos River (where the fish are either extirpated or 
functionally extirpated). The effects of river habitat fragmentation 
have occurred and

[[Page 45276]]

continue to occur throughout the range of both species and are expected 
to increase if proposed new reservoirs are constructed. River habitat 
fragmentation is affecting both species at the individual, population, 
and species levels, and puts the species at a high risk of extinction 
currently and increasingly so into the long-term future.
    The historical ranges of both species have been severely 
fragmented, primarily by large reservoir impoundments, resulting in the 
isolation of one population of each species in the upper Brazos River 
basin. The construction of Possum Kingdom Reservoir in 1941, for 
example, eliminated the ability of these species to migrate downstream 
to wetter areas when the upper Brazos River experiences drought. There 
are also a number of existing in-channel structures (primarily pipeline 
crossings and low-water crossings) within the occupied range of these 
species, some of which are known to restrict fish passage during 
periods of low flow. Species extirpation has already occurred in areas 
where river segments have been fragmented and reduced to less than 275 
km (171 mi) in length.
    In addition, future fragmentation of the remaining occupied habitat 
of the upper Brazos River by new impoundments would decrease the 
contiguous, unfragmented river habitat required by these species for 
successful reproduction and impact the sole remaining population of 
each of these species. Texas does not have adequate water supplies to 
meet current or projected water demand in the upper Brazos River 
region, and additional reservoir construction is considered imminent. 
Possible new impoundments include the 2012 State Water Plan's proposed 
Post Reservoir in Garza County, the Double Mountain Fork Reservoir 
(East and West) in Stonewall County, and the South Bend Reservoir in 
Young County. Because extirpation of these species is expected to 
eventually occur in occupied river fragments reduced to less than 275 
km (171 miles) in length, any new structures further fragmenting stream 
habitats increases the likelihood of extinction for both species.
    The natural flow regime is considered one of the most important 
factors to which native riverine species, like the shiners, become 
adapted, and alterations to it can have severe impacts on fishes. A 
majority of sharpnose and smalleye shiner reproductive output occurs 
through synchronized spawning during periods of elevated pulse flows 
associated with storms, although successful reproduction is also 
possible during periods of low to moderate flow. When streamflows are 
insufficient, the fish cannot successfully spawn and reproduce. There 
are several environmental changes that are a source of declining 
streamflows within the range of the shiners. Downstream of reservoirs, 
streamflows are lowered and stabilized, which has reduced or, in some 
areas, eliminated successful reproduction in these species. In 
addition, groundwater withdrawal and depletion will reduce or eliminate 
the remaining springs and seeps of the upper Brazos River basin, which 
will lower river flow. Drought is another obvious source of impact that 
negatively affects streamflow and has severe impacts on sharpnose and 
smalleye shiner reproduction. Severe droughts in this region are 
expected to become more common as a result of ongoing climate change. 
Finally, saltcedar encroachment is another source of environmental 
change that not only is affecting streamflows but also restricts 
channel width and increases channel depth. These stream channel changes 
reduce the amount of wide channels and shallow waters preferred by 
sharpnose and smalleye shiners. Reduced streamflow leading to river 
pooling also affects the survival of adult and juvenile fishes because 
water quality parameters such as salinity, dissolved oxygen, and 
temperature may approach or exceed those tolerated by these species and 
food availability becomes limited. Flow reduction and an altered flow 
regime have occurred and continue to occur throughout the range of 
these species and are expected to impact both species at the 
individual, population, and species levels.
    Within the reduced range of these species in the upper Brazos River 
basin, there are currently at least 13 impoundments or other structures 
(e.g., pipelines and low water crossings) affecting (to varying 
degrees) the amount of stream flow within the occupied range of these 
species. Upstream reservoirs serve as water supplies for various 
consumptive water uses and reduce downstream flows available for the 
fishes. Because the current impoundments restrict stream flow below the 
minimum levels required for both species, we expect these impoundments 
to impact both species at the individual, population, and species 
levels.
    Additional future impoundments, reservoir augmentations, and water 
diversions are under consideration for construction within the upper 
Brazos River basin, which would further reduce flows and fragment 
remaining habitat. The construction of at least some of these 
structures to meet future water demand in the region is likely to occur 
within the next 50 years. These future impoundments, reservoir 
augmentations, and water diversions will further increase the 
likelihood of extinction for both species.
    Besides impoundments and diversions of water from reservoirs, there 
are other sources causing reduced stream flows in the upper Brazos 
River basin. One such source is the projected warmer temperatures and 
drier conditions in the upper Brazos River basin in the future. This 
trend is already becoming apparent and exacerbates the risk of the 
species' extinction from loss of river flow. River flow reductions and 
river drying are also expected to increase as groundwater withdrawals 
negatively impact already reduced spring flows. Saltcedar encroachment 
also intensifies evaporative water loss along occupied river segments. 
There are several existing efforts addressing threats to natural flow 
regimes, including the Texas Environmental Flows Program, saltcedar 
control programs, and groundwater conservation districts. However, 
these programs and conservation efforts have not alleviated ongoing and 
future threats negatively affecting water flow in the upper Brazos 
River basin.
    The effects of reduced stream flows on the shiners were 
dramatically demonstrated during the summer spawning season of 2011. 
During 2011, Texas experienced the worst 1-year drought on record, and 
the upper Brazos River went dry. Some individual fish presumably found 
refuge from the drying river in Possum Kingdom Lake downstream. 
However, the non-flowing conditions in the river made reproduction 
impossible, and any shiners in the lake would have faced increased 
predation pressure from large, lake-adapted, piscivorous fish. Fearing 
possible extinction of these species, State fishery and Texas Tech 
University biologists captured sharpnose and smalleye shiners from 
isolated pools in 2011, prior to their complete drying, and maintained 
a small population in captivity until they were released back into the 
lower Brazos River the following year. During the 2011 drought, no 
sharpnose shiner or smalleye shiner reproduction was documented. Given 
their short lifespan (they rarely survive through two reproductive 
seasons, and most typically survive long enough to reproduce only 
once); a similar drought in 2012 would have likely led to extinction of 
both species. However, 2012 fish survey results of the upper

[[Page 45277]]

Brazos River basin indicated drought conditions were not as intense as 
those in 2011, and successful recruitment of sharpnose and smalleye 
shiners occurred.
    As remaining habitat of the shiners becomes more fragmented and 
drought conditions intensify, the single remaining population of 
sharpnose shiners and smalleye shiners will become more geographically 
restricted, further reducing the viability of the species into the 
future. Under these conditions, the severity of secondary threats, such 
as water quality degradation from pollution and golden algal blooms, 
and legally permitted commercial bait fish harvesting, will have a 
larger impact on the species and a single pollutant discharge, golden 
algal bloom, or commercial harvesting or other local event will 
increase the risk of extinction of both species.
    The shiners currently have limited viability and increased 
vulnerability to extinction largely because of their stringent life-
history requirement of long, wide, flowing rivers to complete their 
reproductive cycle. With a short lifespan allowing only one or two 
breeding seasons and the need for unobstructed river reaches greater 
than 275 km (171 mi) in length containing average flows greater than 
2.61 m\3\s-\1\ (92 cfs) and 6.43 m\3\s-\1\ (227 
cfs) (for the sharpnose and smalleye shiners, respectively) during the 
summer, both species are at a high risk of extirpation when rivers are 
fragmented by fish barriers and flows are reduced from human use and 
drought-enhanced water shortages. These adverse conditions have already 
resulted in substantial range reduction and isolation of the one 
remaining population of both fish into the upper Brazos River basin. 
The extant population of each shiner species is of adequate size, is 
located in a contiguous stretch of river long enough to support 
reproduction, and is generally considered resilient to local or short-
term environmental changes. However, with only one location, the 
species lack any redundancy. Further, these species lack 
representation, meaning they lack the ability to adapt to changing 
environmental conditions in a timeframe that would avoid extinction.
    Given the short lifespan and restricted range of these species, 
without human intervention, lack of adequate flows (due to drought and 
other stressors) persisting for two or more consecutive reproductive 
seasons would likely lead to the species' extinction. With human water 
use and ongoing regional drought, the probability of this happening in 
the near term (about the next 10 years) is high, putting the species at 
a high risk of extinction. Over the longer term (the next 11 to 50 
years), these conditions will only continue to deteriorate as human 
water use continues, construction of new dams within the extant range 
is possible, and ongoing climate change exacerbates the likelihood of 
drought. In conclusion, both species currently experience low viability 
(low probability of persistence), and their viability is expected to 
continue to decline into the future.

Summary of Comments and Recommendations

    In the proposed rule published on August 6, 2013 (78 FR 47582), we 
requested that all interested parties submit written comments on the 
proposal by October 7, 2013. We also contacted appropriate Federal and 
State agencies, scientific experts and organizations, and other 
interested parties and invited them to comment on the proposal. 
Newspaper notices inviting general public comment were published in the 
Lubbock Avalanche, Abilene Reporter News, Waco Tribune Herald, and 
Baylor County Banner. We received requests for a public hearing and 
held one on September 4, 2013, in Abilene, TX.
    During the comment period for the proposed rule, we received 268 
comment letters, including 3 peer review comment letters, addressing 
the proposed listing of sharpnose shiner and smalleye shiner. During 
the September 4, 2013, public hearing, nine individuals or 
organizations made comments on the proposed rule. Comments addressing 
the proposed critical habitat designation were fully addressed in a 
separate rulemaking action, and published elsewhere in the Federal 
Register today. All substantive information provided during the comment 
periods has either been incorporated directly into this final 
determination, the SSA Report, or addressed below.

Comment From Peer Reviewers

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited expert opinion from four knowledgeable 
individuals with scientific expertise that included familiarity with 
sharpnose and smalleye shiners or their habitats, biological needs, 
threats, general fish biology, or aquatic ecology. We received 
responses from three of the peer reviewers.
    We reviewed all comments received from the peer reviewers for 
substantive issues and new information regarding the listing of 
sharpnose shiners and smalleye shiners. The peer reviewers generally 
concurred with our methods and our assessment of the current status of 
these species. They provided additional information, clarifications, 
and suggestions to improve the SSA Report. Peer reviewer comments were 
all specific to the SSA Report and are incorporated into the SSA Report 
or responded to in Appendix B of the SSA Report.

Comments From Federal Agencies

    (1) Comment: The U.S. Department of Agriculture's Natural Resources 
Conservation Service works with landowners on a voluntary basis to 
apply conservation measures, some of which may benefit sharpnose and 
smalleye shiners, and the Natural Resources Conservation Service 
welcomes the opportunity to consult with the Service to determine the 
effects of their actions on the habitat of these two species.
    Our Response: The Service appreciates the work of the Natural 
Resources Conservation Service and looks forward to working with them 
as conservation partners regarding sharpnose and smalleye shiner 
habitat.

Comments From the State

    (2) Comment: The term ``groundwater withdrawal'' is too broad and 
should be replaced with ``depletion of shallow, groundwater flows in 
the Brazos River alluvium'' because there is no verifiable data linking 
the use of the area's aquifers to reduced flow in the Brazos River. 
More data are needed on the role of groundwater in this region and its 
effect on the shiners.
    Our Response: The Service considers the use of the term 
``groundwater withdrawal'' to adequately capture the evidence provided 
in the SSA Report and covers both depletion of shallow groundwater 
flows of the alluvium as well as the removal of groundwater from deeper 
within the aquifers. We agree more data would be helpful in 
understanding the interaction between groundwater and surface water 
flows in the upper Brazos River basin; however, we used the best 
scientific and commercial data available to determine the effects of 
groundwater withdrawal on surface water flows and we will continue to 
investigate the effects of groundwater withdrawal on these species as 
additional data become available.
    (3) Comment: The Service lists several threats to sharpnose and 
smalleye shiners but does not specifically acknowledge that farming and 
ranching activities are not threats. It should be explicitly stated 
that farming and ranching activities have been shown to

[[Page 45278]]

have no detrimental impact on these species.
    Our Response: In the SSA Report, we identified sources of current 
threats and threats likely to occur now or in the immediate future 
based on the best scientific and commercial data available. These 
threats do not include ranching or farming. Our intent is only to 
identify activities that likely pose a threat to these species now or 
in the immediate future. At this time, the best scientific and 
commercial data available does not indicate that cattle grazing or 
current farming practices impact these species. However, beyond the 
immediate future, it is conceivable that large-scale farming or 
ranching activities could substantially reduce surface water flows in 
the upper Brazos River basin by extensive groundwater withdrawal or 
removal of surface water flows.
    (4) Comment: Listing the sharpnose and smalleye shiner could affect 
economic growth in the Brazos River basin or could limit the 
development of needed water supplies and require management changes of 
existing water supplies in important economic centers.
    Our Response: For listing actions, the Act requires that we make 
determinations ``solely on the basis of the best available scientific 
and commercial data available'' (16 U.S.C. 1533(b)(1)(A)). Therefore, 
we do not consider any potential information concerning economic or 
other possible impacts when making listing determinations. We will work 
with entities to conserve the shiners and develop workable solutions.
    (5) Comment: More scientific data are needed regarding the status 
of the shiners and their habitat in the upper Brazos River basin. The 
species are surviving downstream of the upper segment of the Brazos 
River; drought is the most obvious factor impacting these minnows, and 
it does not make good sense to recreate an artificial environment for 
species unable to adapt to it. A decision of this magnitude that could 
affect vital water supplies and the economic future of communities 
should not be based on uncertainty.
    Our Response: Imperiled species often lack an abundance of 
scientific data; however, the biological and habitat requirements of 
the sharpnose and smalleye shiners have been well studied for many 
years. Further, section 4 of the Act requires the Service to base its 
decision to list species as either threatened or endangered based 
solely on the best scientific and commercially available data. We 
interpret the ``best available'' standard to mean we are required to 
use the best scientific and commercial data available to us even though 
it may be limited or uncertain.
    The sharpnose and smalleye shiner are currently limited to the 
upper Brazos River basin and are extirpated or functionally extirpated 
from the lower Brazos River area. The sole remaining populations of 
these species occur in the upper Brazos River basin. While the Service 
agrees drought is an important factor affecting the viability of these 
fish, drought is exacerbated by the impoundment of their natural 
habitat, which further reduces water flows and impedes fish migration 
to more suitable habitat during dry conditions. We are unclear as to 
what artificial environment the commenter is referring. However, we are 
not recreating an artificial environment. We are attempting to conserve 
a healthy, natural aquatic ecosystem in the upper Brazos River basin is 
important protect habitat for sharpnose and smalleye shiners and other 
aquatic wildlife.
    We sought comments from independent peer reviewers to ensure that 
our determination is based on scientifically sound data, assumptions, 
and analysis. We solicited information from the general public, non-
governmental conservation organizations, State and Federal agencies 
that are familiar with the species and their habitats, academic 
institutions, and groups and individuals that might have information 
that would contribute to an update of our knowledge of the species, as 
well as the activities and natural processes that might be contributing 
to the decline of either species. While some uncertainty will always 
exist, the existing body of literature on sharpnose shiners, smalleye 
shiners, and similar broadcast-spawning minnows is the best available 
information. See the SSA Report for more detailed information about 
these species.
    (6) Comment: A scientifically based approach including input from 
affected stakeholders is under way to develop the necessary flows to 
balance the needs of all users in the Brazos River basin. The listing 
of these shiners could undermine this effort.
    Our Response: The Service is aware of the Texas Environmental Flows 
Program, a scientifically-based approach currently being developed per 
Senate Bill 3 of the 2007 Texas Legislature. The Service considered 
this information in section ``6.B. Minimize Impacts from Impoundments'' 
of the SSA Report. The Service has concluded that the listing of these 
species does not undermine the Texas Environmental Flows Program. The 
Service looks forward to working with the State to promote ecologically 
sustainable water use and to provide information regarding impacts to 
fish and wildlife resources from environmental flow recommendations 
when available and applicable.
    (7) Comment: The Service should discuss on-the-ground work for 
saltcedar (Tamarix spp.) control with the appropriate agencies.
    Our Response: The Service has been engaged with several 
organizations involved in saltcedar control projects including the U.S. 
Department of Agriculture's Natural Resources Conservation Service, The 
Brazos River Authority, and our internal Partners for Fish and Wildlife 
program. We look forward to continuing to work with these and 
additional conservation partners in controlling saltcedar in the upper 
Brazos River basin. Despite ongoing saltcedar control efforts, these 
invasive plants continue to thrive in parts of the upper Brazos River 
basin.

Public Comments

    (8) Comment: A number of public comments opposed the listing of the 
sharpnose shiner and smalleye shiner as federally endangered or 
threatened species but provided no substantive scientific or commercial 
evidence suggesting that listing is not warranted.
    Our Response: While we appreciate the opinion of all interested 
parties, the Service must base its decision of whether to list the 
sharpnose shiner and smalleye shiner solely on the basis of the best 
scientific and commercial data available.
    (9) Comment: Several comments opposed the involvement of the 
Federal Government in Texas' affairs or claimed the Texas Parks and 
Wildlife Department could handle protection of the sharpnose shiner and 
smalleye shiner.
    Our Response: While the Texas Parks and Wildlife Department is a 
valued partner in conserving imperiled species, they do not currently 
list the sharpnose or smalleye shiners as endangered species, nor does 
Texas' endangered species law protect the habitat on which these 
species rely. Consequently, the threats to these species are not 
completely ameliorated by current Texas actions or laws. The Service 
looks forward to working with our State partners in the protection and 
conservation of these species.
    (10) Comment: Efforts to contain the naturally occurring salt 
springs along the Salt Fork of the Brazos River would enhance water 
quality during low flow conditions and would help mitigate the threat 
from golden algae blooms.

[[Page 45279]]

    Our Response: This is an issue that would be considered during the 
recovery process.
    (11) Comment: Listing the sharpnose and smalleye shiners as 
endangered is inappropriate because there is neither a shortage of 
their habitat nor populations.
    Our Response: The sharpnose shiner was known historically and 
naturally to inhabit approximately 3,417 km (2,123 mi) of river 
segments in the Brazos, Red, and Colorado River basins, but now the 
only sustainable population is restricted to approximately 1,009 km 
(627 mi) of the upper Brazos River basin, a greater than 70 percent 
reduction. The smalleye shiner was known historically and naturally to 
inhabit approximately 2,067 km (1,284 mi) of river segments in the 
Brazos River basin, but now the only sustainable population is 
restricted to approximately 1,009 km (627 mi) of the upper Brazos River 
basin, a greater than 51 percent reduction. These are the sole 
remaining populations of these species. A more detailed description of 
the species' current and historical ranges is in section ``2.D. Species 
Rangewide Needs'' of the SSA Report. The two primary factors affecting 
the current and future conditions of these shiners are river 
fragmentation by impoundments and alterations of the natural streamflow 
regime (by impoundments, drought, groundwater withdrawal, and saltcedar 
encroachment) within their range. Other secondary factors, such as 
water quality degradation and commercial harvesting for fish bait, 
likely also impact these species but to a lesser degree. These multiple 
factors are not acting independently, but are acting together as 
different sources (or causes), which can result in cumulative effects 
to lower the overall viability of the species.
    (12) Comment: Sharpnose and smalleye shiners are sold as bait along 
the Brazos River in Texas, but there are laws in place that severely 
limit commercial harvesting of bait fish now and in the future. 
However, sharpnose and smalleye shiners are sold as bait along the 
Brazos River.
    Our Response: Texas law requires commercial bait harvesters to 
obtain a State permit before taking nongame fish, such as the shiners, 
from public fresh waters of the State (Texas Administrative Code Title 
31, Part 2, Chapter 57). We are aware of at least one existing State 
permit that provides for commercial bait harvesting in the upper Brazos 
River basin, where both sharpnose and smalleye shiners are known to 
occur. At this time, the permits issued under Texas State law do not 
require identification of fish collected for commercial bait at the 
species level, do not put limits on the number of fish collected, and 
do not prohibit the collection of sharpnose and smalleye shiners. 
Consequently, commercial bait harvesting remains a threat despite the 
Texas permitting system. Furthermore, upon effectiveness of this rule, 
the ``take'' (as defined by Federal law) of either species will be 
considered a violation of the Act, regardless of the effect of the 
permits issued by the State of Texas.
    (13) Comment: River fragmentation by impoundments and alterations 
of natural stream flow is adequately regulated by current Texas State 
law including Senate Bill 155, which states that no person may 
construct or maintain a structure on land owned by the State of Texas 
without a permit. The Brazos River bed is owned by the State of Texas.
    Our Response: We recognize that Texas State law may regulate 
aspects of the construction of impoundments in the Brazos River. 
However, as discussed in the Final Listing Status Determination 
(below), this law does not remove the threats to the species caused by 
existing impoundments. Further, this law does not remove the 
possibility of future impoundments causing further loss of unfragmented 
habitat.
    (14) Comment: The Service should not base part of the listing rule 
on the unproven science surrounding climate change uncertainty in 
applying climate change models at the local scale.
    Our Response: The Service considered numerous scientific data 
sources as cited in our SSA Report pertaining to climate change. The 
best available scientific information shows unequivocally that the 
Earth's climate is currently in a period of unusually rapid change, the 
impacts of that change are already occurring (National Fish, Wildlife, 
and Plants 2012, p. 9), and the region is likely to experience warmer 
weather, which will further strain water resources through increased 
water use, evaporation, and evapotranspiration.
    Projections of climate change globally and for broad regions 
through the 21st century are based on the results of modeling efforts 
using state-of-the-art Atmosphere-Ocean General Circulation Models and 
various greenhouse gas emissions scenarios (Meehl et al. 2007, p. 753; 
Randall et al. 2007, pp. 596-599). However, the Service recognizes that 
the current climate change models are not always downscaled to a local 
level. Despite improvements in climate change science, climate change 
models still have difficulties with certain predictive capabilities. 
These difficulties are more pronounced at smaller spatial scales and 
longer time scales. Model accuracy is limited by important small-scale 
processes that cannot be represented explicitly in models and so must 
be included in approximate form as they interact with larger-scale 
features. This is partly due to limitations in computing power, but 
also results from limitations in scientific understanding or in the 
availability of detailed observations of some physical processes. 
Consequently, models continue to display a range of outcomes in 
response to specified initial conditions and forcing scenarios. Despite 
such uncertainties, models predict climate warming under greenhouse gas 
increases (Meehl et al. 2007, p. 762; Prinn et al. 2011, p. 527), which 
is likely to worsen future drought conditions in the upper Brazos 
River.
    Drought conditions negatively impact sharpnose shiners and smalleye 
shiners by reducing the availability and flow rate of river water 
required to survive and reproduce. The frequency of spawning seasons 
not meeting the estimated minimum mean summer discharge requirements to 
support sharpnose and smalleye shiner growth appears to be increasing 
(Service 2014, p. 42). With increasing drought, there is a projected 
decrease in surface runoff up to 10 percent by the mid-21st century 
(Mace and Wade 2008, p. 656; Karl et al. 2009, p. 45). As the intensity 
and frequency of spawning season droughts increase and river flows 
decrease, shiner survival and reproduction will be reduced. The SSA 
Report and listing rules have been revised to more clearly recognize 
the uncertainty in applying climate change models to the local scale of 
the upper Brazos River basin.
    (15) Comment: The Service received multiple requests for additional 
public hearings. Requests contended that the Service provided 
inadequate notification, that having a hearing for the proposed listing 
rule and proposed critical habitat rule at the same time did not follow 
the requirements outlined in the Act, and that the meeting was not 
located close to proposed critical habitat.
    Our Response: Section 4(b)(5) of the Act states that the Service 
shall promptly hold one public hearing on the proposed regulation if 
any person files a request for such a hearing within 45 days after the 
date of the publication of the general notices. The Service did receive 
a request for a public hearing, and the Service held a public hearing 
on September 4, 2013, in Abilene, Texas.
    The notification of the public hearing was clearly stated in both 
the proposed rule to list the sharpnose shiner and smalleye shiner as 
endangered and in

[[Page 45280]]

the proposed rule to designated critical habitat for these species on 
August 6, 2013 (78 FR 47582; 78 FR 47612). A notification of the public 
hearing was also published in the Lubbock Avalanche on Sunday, August 
18th; the Abilene Reporter News on Sunday, August 18th; the Waco 
Tribune Herald on Sunday, August 25th; and the Baylor County Banner 
from August 15th through the 22nd. These newspapers have relatively 
large distributions with one located immediately upstream of designated 
critical habitat, one downstream of designated critical habitat, and 
two having distributions in or around designated critical habitat.
    The Service mailed letters, which included information regarding 
the public hearing to over 100 recipients, shortly after the proposed 
rules published on August 6, 2013. Letter recipients included Federal 
agencies, State agencies, city offices, county courthouses, and 
numerous nongovernmental organizations. Service staff also contacted 
approximately 56 local media outlets and posted a news release 
containing the public hearing announcement on the Arlington, Texas, 
Ecological Services Field Office and Service's Southwest Region Web 
pages.
    The Act does not require the Service to hold multiple public 
hearings in multiple locations. The Act also does not indicate a 
necessary proximity to proposed critical habitat within which to hold a 
public hearing. The Service chose Abilene, Texas, because it is the 
largest city centrally located to the proposed designated critical 
habitat that contained a venue of appropriate size and with reasonable 
access by major roads and highways. The Service also held the public 
hearing in the evening to provide adequate time for attendees to travel 
after normal work hours. To provide additional opportunity for the 
public to provide comments, the Service reopened the comment period on 
the proposed rule to designate critical habitat for these species for 
30 days to coincide with the availability of the Draft Economic 
Analysis of the Proposed Designation of Critical Habitat for Sharpnose 
and Smalleye Shiners on March 4, 2014 (79 FR 12138).
    (16) Comment: There have been droughts of this magnitude before, 
and the sharpnose and smalleye shiners continue to exist.
    Our Response: According to available U.S. Geological Survey flow 
station data, the worst 1-year drought recorded in the upper Brazos 
River basin occurred in 2011, and the best available commercial and 
scientific data suggest the trend of increasing drought intensity and 
duration is likely to worsen in the future. Prior to U.S. Geological 
Survey flow monitoring and construction of Brazos River impoundments, 
droughts of equal intensity may have occurred, but the sharpnose and 
smalleye shiner were likely capable of surviving because cumulative 
threats, such as river fragmentation from constructed impoundments, 
were not present at that time. Threats to the species do not 
necessarily act individually but act cumulatively. These cumulative, 
negative impacts exceed those that would be expected from each threat 
individually.
    Due to drought conditions and lack of streamflow in 2011 there was 
no observed recruitment of juvenile sharpnose or smalleye shiners 
during sampling efforts of the upper Brazos River during the spawning 
season of 2011 (Wilde 2012b, pers. comm.). Given these species at most 
survive for two reproductive seasons, severe drought conditions during 
consecutive spawning seasons may result in local extirpations or 
complete extinction unless recovery actions are implemented. The summer 
of 2011 provided an example of what happens to these species when water 
availability is reduced by in-channel impoundments (water withheld for 
municipal use in the upper Brazos River basin), continued groundwater 
depletion (particularly for agricultural use in the upper Brazos River 
basin), saltcedar encroachment (particularly in the downstream portion 
of the upper Brazos River), and severe drought (2011 being Texas' worst 
1-year drought on record). When these factors acted together, the upper 
Brazos River dried up over much of its length, and a complete lack of 
reproduction and recruitment was observed for these species. The 
impoundment of Possum Kingdom Lake also exacerbated the impact of flow 
regime alteration to these species by blocking the downstream movement 
of these fish to areas with suitable conditions for survival and 
reproduction, as may have historically occurred during extreme 
circumstances. Negative effects were likely also exacerbated by 
increased predation pressure on adult sharpnose and smalleye shiners 
seeking refuge in Possum Kingdom Lake by larger, lentic-adapted 
piscivorous fish species.
    (17) Comment: Large landowners often cannot participate in cost-
share programs (such as those for saltcedar control to benefit 
sharpnose and smalleye shiners) because of earned income. If the 
government mandates saltcedar control, it will come out of their 
pockets.
    Our Response: The Service does not have authority to mandate what 
private landowners do with their land and cannot require landowners to 
engage in conservation activities, such as saltcedar control. Many 
cost-share programs consider positive impacts to threatened or 
endangered species when deciding projects to fund; therefore, 
landowners who are eligible for cost-share programs and would like to 
implement saltcedar control on land of the upper Brazos River basin may 
be more likely to receive cost-share.
    (18) Comment: The public should know who has been chosen as peer 
reviewers or have input in choosing who peer reviews the listing rules 
and species status assessment.
    Our Response: Peer reviewer names are made available to the public 
when their comments are officially submitted and posted on 
www.regulations.gov as with any public commenter. Release of peer 
reviewer names prior to the submission of their review can subject them 
to public and political pressures. The Service relies on peer review to 
provide a thorough and expert opinion on the science used to make 
listing decisions and it should be guarded against outside influences 
that could affect the subjectivity of that review.
    In selecting peer reviewers we followed the guidelines for Federal 
agencies spelled out in the Office of Management and Budget (OMB) 
``Final Information Quality Bulletin for Peer Review,'' released 
December 16, 2004, and the Service's ``Information Quality Guidelines 
and Peer Review'', revised June 2012. Part of the peer review process 
is to provide information online about how each peer review is to be 
conducted. Prior to publishing the proposed listing and critical 
habitat rule for the shiners, we posted a peer review plan on our Web 
site at http://www.fws.gov/southwest/science/peerreview.html, which 
included information about the process and criteria used for selecting 
peer reviewers.
    (19) Comment: The effluent from the City of Lubbock has raised the 
alkali level of the Brazos River such that it is borderline for human 
consumption.
    Our Response: The Service is unaware of any data linking alkalinity 
levels to City of Lubbock effluent, nor is it aware of any data 
suggesting the alkalinity of the upper Brazos River basin is above 
normal levels. The commenter did not provide any citations or 
documentation to support this comment.
    (20) Comment: The Service justifies the proposed rule, in part, by 
alleging a decline in population of the species without providing an 
estimate of historical or current population data. A review of 
historical surveys or population monitoring surveys could be

[[Page 45281]]

implemented to determine population trends and relative distribution.
    Our Response: The Service is using range restriction and intensity 
of threats to the species as indicators of species status. Population 
size and fish abundance are not perfect measures of population health 
for the sharpnose and smalleye shiner because numbers of fish vary 
widely with changing habitat conditions and because ongoing threats to 
the species have the ability to cause extirpation and extinction 
regardless of population size. Recent and ongoing survey efforts are 
adding to the body of knowledge for these fish. In their occupied 
range, both species are distributed throughout the upper Brazos River 
depending on habitat conditions (available surface water within 
tolerable physiological limits) at the time of collection. See our 
response to comment (11) above for additional information.
    (21) Comment: The Service fails to support the designated 
historical and current range of either species. The Service does not 
present findings for a state-wide survey or comprehensive presence or 
absence survey within their historical ranges.
    Our Response: The historical and current ranges of sharpnose and 
smalleye shiners are based on peer-reviewed published accounts of these 
species, survey results, and analysis of museum specimens collected and 
geographically digitized by ichthyologists. While there is not a State-
wide or comprehensive survey effort within the historical range, the 
Service must use the best scientific and commercial data available. For 
the purposes of determining historical and current ranges, these 
sources represent the best available commercial and scientific data.
    (22) Comment: The Service does not consider the possibility of 
future flood events or bait fish introductions that could result in 
transferring sharpnose or smalleye shiners from the upper Brazos River 
to the Colorado River or areas outside the current or native range.
    Our Response: The Brazos and Colorado Rivers contain several 
impoundments that serve as water storage and flood control devices. 
Also, sharpnose and smalleye shiners are considered extirpated or 
functionally extirpated in the lower Brazos River where such a 
connection with the Colorado River would occur during a flood event. 
The occupied segments of the upper Brazos River basin are generally 
under such low-flow conditions that the basin is unlikely to experience 
a flood of sufficient magnitude to connect it to another river basin. 
Based on this information, it appears unlikely that flooding would 
transport shiners to the Colorado River or outside their current range.
    The Service recognizes in the SSA Report that these species could 
be transferred as bait fish. However, a river where a fish may be 
transferred would need suitable habitat to establish and maintain a 
population, and there are limited rivers in the area that provide 
suitable habitat. Further, it is likely that a suitable number of 
individuals would need to be transferred in order to survive and 
establish a population. However, if such a transfer would occur, these 
species would be protected wherever they are found due to listing under 
the Act.
    (23) Comment: The Service does not address the viability or 
importance of historical populations outside of the Brazos River basin.
    Our Response: The natural historical distribution of the sharpnose 
shiner is considered to include the Brazos, Colorado, and Wichita River 
basins. However, the species is now extirpated from the Colorado and 
Wichita Rivers, as well as the middle and lower sections of the Brazos 
River. Consequently, there are no populations outside of the upper 
segment of the Brazos River, and, therefore, no additional populations 
exist to contribute to the viability of the species. In the SSA Report, 
the Service provides an analysis of the historical contribution of non-
Brazos River populations to both shiner species as a whole in the 
section ``2. Rangewide Needs'' and clearly indicates our position on 
the current status of those populations.
    (24) Comment: The Service provides no evidence that sharpnose 
shiners naturally occurred in the Colorado and Wichita River basins. 
Without sufficient evidence of a larger historical range, the Service 
cannot conclude that there has been a range reduction for this species.
    Our Response: The natural occurrence of sharpnose shiners in the 
Colorado and Wichita Rivers is based on published literature, museum 
specimens, flood data, and expert opinion. These sources are the best 
available scientific and commercial data and provide adequate support 
of the determination that the sharpnose shiner is native to these 
Rivers. Even discounting the Colorado and Wichita River populations, 
the sharpnose shiner would be experiencing a range reduction of more 
than 50 percent due primarily to fragmentation and alteration of flows 
within the middle Brazos River by impoundments. See our response to 
comment (11) above for additional information.
    (25) Comment: Genetic analyses could better elucidate the status of 
the sharpnose and smalleye shiners of the upper Brazos River basin.
    Our Response: The Service agrees that genetic studies for these two 
species would be useful; however, the Service must use the best 
available scientific and commercial data at the time of listing. The 
Service is in the process of funding a study through section 6 of the 
Act to determine the genetic structure of the remaining populations of 
both species.
    (26) Comment: Studies focused on determining the minimum flow rate, 
duration, and critical river sections for successful spawning would 
provide useful information to manage short-term viability and long-term 
survivability for these shiner species.
    Our Response: The Service agrees that additional studies on the 
minimum flow rate required to keep the semi-buoyant life-history stages 
of these species afloat would be useful. However, the Service has used 
the best scientific and commercial data available. Based on current 
life-history information, population dynamics modeling estimates a mean 
summer water discharge of approximately 2.61 m\3\s-\1\ (92 
cfs) is necessary to sustain populations of sharpnose shiners (Durham 
2007, p. 110), while a higher mean discharge of approximately 6.43 
m\3\s-\1\ (227 cfs) is necessary for smalleye shiners 
(Durham and Wilde 2009b, p. 670). See section ``2.C.2. Streamflow 
Requirements'' of the SSA Report for additional information.
    (27) Comment: Inclusion of stream gauge data from the 1950s could 
be useful as a partial indicator of how the two species respond to 
extended drought.
    Our Response: The Service has added stream gauge data going back to 
1940 in its analysis of drought conditions in the upper Brazos River 
basin and has also added an additional stream gauge site. See section 
``3.D. Drought'' of the SSA Report for further discussion.
    (28) Comment: The listing package and SSA Report do not provide 
sufficient, conclusive evidence connecting stated threats to a decline 
in species abundance or a reduction in range, including the effects of 
impoundment on river fragmentation. Neither the listing package nor SSA 
Report demonstrates the cumulative effects of threats.
    Our Response: The Causes and Effects Threat Analyses in Chapter 3 
of the SSA Report discusses how the threats negatively affect sharpnose 
and smalleye shiners. The SSA Report also includes a section on 
cumulative effects

[[Page 45282]]

(``K. Cumulative Effects''). Further, the SSA Report has been peer-
reviewed by experts in the field of ichthyology and aquatic ecology, 
and they found the SSA Report to be a scientifically sound document.
    (29) Comment: Neither the listing package nor SSA Report 
demonstrate how stream reach lengths of at least 275 km (171 mi) are 
necessary for the continued existence of either species.
    Our Response: Section ``2.C.3 Stream Reach Length Requirements'' of 
the SSA Report provides a complete analysis and justification for the 
estimated 275-km (171-mi) requirement based on the best available 
scientific and commercial data. As stated in the SSA Report, the 
Service recognizes that the necessary stream length requirements may 
vary with flow rates, water temperature, and channel morphology, but 
the 275 km (171 mi) is based on modeling population status and reach 
length, which indicate extirpation of eight different Great Plains 
broadcast-spawning minnow species occurred in river fragments less than 
115 km (71 mi; Perkin et al. 2010, p. 7) and that no extirpations were 
recorded in reaches greater than 275 km (171 mi).
    (30) Comment: The Service has not made any of the scientific 
studies or materials upon which it relied to prepare the SSA Report or 
rulemaking documents available online.
    Our Response: Comments and materials received, as well as 
supporting documentation used in the preparation of this rule, are 
available for public inspection, by appointment, during normal business 
hours at Arlington, Texas, Ecological Services Field Office, (see 
ADDRESSES). A complete literature cited is included within the SSA 
Report.
    (31) Comment: The Service failed to properly analyze the species 
under the Act's five listing criteria: (1) The present or threatened 
destruction, modification, or curtailment of a species' habitat or 
range; (2) overutilization for commercial, recreational, scientific, or 
educational purposes; (3) disease or predation; (4) the inadequacy of 
existing regulatory mechanisms; and (5) other natural or man-made 
factors affecting the species' continued existence.
    Our Response: Under section 4(a)(1) of the Act, the ``Secretary 
shall . . . determine whether any species is an endangered species or a 
threatened species because of any of the following factors: (A) The 
present or threatened destruction, modification, or curtailment of its 
habitat or range; (B) overutilization for commercial, recreational, 
scientific, or educational purposes; (C) disease or predation; (D) the 
inadequacy of existing regulatory mechanisms; or (E) other natural or 
man-made factors affecting its continued existence.'' Neither the Act 
nor its implementing regulations direct the Service to evaluate the 
five factors in a particular format. The Service may present its 
evaluation of information under the five factors by discussing all of 
the information relevant to each factor and providing a factor-specific 
conclusion before moving to the next factor (an ``outline'' format). 
For this rule, we presented this information in a different format that 
we believe leads to greater clarity in our understanding of the 
science, its uncertainties, and the application of our statutory 
framework to that science. Therefore, while the presentation of 
information in this rule differs from past practice, it differs in 
format only. We have evaluated the same body of information that we 
would have evaluated under the five factors ``outline'' format, we are 
applying the same information standard, and we are applying the same 
statutory framework in reaching our conclusions. Our determination for 
the sharpnose and smalleye shiners ties each threat to one of the five 
factors (see Determination section).
    (32) Comment: The Service failed to properly consider impacts from 
the inadequacy of existing regulatory mechanisms on stream flow.
    Our Response: The ``B. Groundwater Withdrawal'' and ``A. 
Impoundments'' sections of the SSA Report discusses impacts on stream 
flow in detail. The Service has considered the existing State 
regulatory mechanisms, but these efforts do not ameliorate the threats 
to these species to the point that the species do not meet the 
definition of endangered.
    (33) Comment: The Service failed to properly consider impacts from 
conservation measures associated with saltcedar control and a captive 
propagation and release program.
    Our Response: The Service recognizes several ongoing saltcedar 
control projects including the Texas Agrilife Extension Saltcedar 
Biological Control Implementation Program, the U.S. Department of 
Agriculture Natural Resources Conservation Service's saltcedar cost-
share control program, the Brazos River Authority's saltcedar control 
program, and the Service's saltcedar cost-share programs. However, 
participation in these programs is mostly voluntary, and even, when 
implemented, these programs have not been fully successful in 
eradicating saltcedar from the upper Brazos River basin.
    The Texas Parks and Wildlife Department and Texas Tech University's 
release of fish into the lower Brazos River was a response to intense 
drought during the summer of 2011 and is not part of a formal 
reintroduction plan. While Texas Tech University maintains a small 
stock of sharpnose and smalleye shiners in the laboratory, they are 
primarily used for research purposes. They do not have a captive 
propagation program in place to breed and release fish into the wild on 
a large-scale basis. Based on the best scientific and commercial data 
available, it is presumed that the fish released into the lower Brazos 
River are either extirpated or functionally extirpated. The Service has 
considered these conservation measures, but these efforts do not 
ameliorate the threats to these species to the point that the species 
do not meet the definition of endangered.
    (34) Comment: The listing of a species under the Act based 
principally or exclusively on climate change impacts necessarily 
involves policy questions that are assigned by the Constitution to 
Congress. The Act is not an appropriate mechanism to regulate climate 
change and greenhouse gas emissions.
    Our Response: Our decision to list the species was based on river 
fragmentation, alterations of the natural flow regime, water quality 
degradation, and commercial bait harvesting; and not principally on 
climate change. We acknowledged in our rule that the projected impacts 
of climate change could exacerbate these threats that the species are 
facing in the future.
    Furthermore, we are not attempting, through this rule, to use the 
Act to regulate climate change or greenhouse gases. We are making a 
decision as to whether the species meet the definition of endangered or 
threatened. To do so, the Act requires the Service to evaluate five 
factors, individually and in combination, including natural or man-made 
factors that are affecting the species' continued existence. This 
necessarily includes assessing potential impacts to a species or its 
habitat caused by global climate change.
    (35) Comment: The Service has not thoroughly reviewed the local 
groundwater conservation districts' rights and responsibilities as 
dictated by Chapter 36 of the Texas Water Code. Local districts can 
help alleviate the groundwater issues identified by the Service.
    Our Response: Local groundwater conservation districts provide for 
the conservation, preservation, protection, recharging, and prevention 
of waste of groundwater. While many actions that the conservation 
districts enforce likely reduce groundwater consumption, these

[[Page 45283]]

actions are not entirely consistent with the protection of surface 
water flows for sharpnose and smalleye shiners. Section 36.103 of the 
Texas Water Code permits groundwater conservation districts to erect 
dams; drain lakes, draws, depressions, and creeks; and install pumps to 
recharge groundwater reservoirs. The protection of groundwater supplies 
at the expense of damming and depleting surface water would be 
detrimental to these species. Insofar as groundwater conservation 
districts reduce the number of wells by land parcel size and support 
general water conservation measures, they are benefiting the sharpnose 
and smalleye shiners and the upper Brazos River basin ecosystem in 
general. However, groundwater conservation districts do not explicitly 
conserve groundwater to support surface water flows to maintain a 
healthy riverine environment for fish and other aquatic species. 
Conservation districts also do not cover all areas of the upper Brazos 
River basin. Further, the Texas State Water Plan estimates increased 
groundwater withdrawals in the future. These efforts do not ameliorate 
the threats to sharpnose and smalleye shiners or their habitat to the 
point that the species do not meet the definition of endangered.
    (36) Comment: Why are smalleye and sharpnose shiners not listed as 
endangered in the Clear Fork of the Brazos River?
    Our Response: We are listing the shiners wherever they are found. 
However, the best available scientific and commercial information does 
not indicate that the sharpnose and smalleye shiners have ever been 
collected from the Clear Fork of the Brazos River; therefore, the 
Service has no basis to assume they once existed there historically or 
exist there currently. The Donnell Mill Dam on the Clear Fork of the 
Brazos River located approximately 21.5 km (13.3 mi) upstream of its 
confluence with the Brazos River mainstem has acted as a fish migration 
barrier since the late 1870s and may be partially responsible for the 
lack of records of these species from this river.
    (37) Comment: After the devastating drought of 2011 in the upper 
Brazos River basin, smalleye and sharpnose shiners recovered in 2012 
and survived without the Service's help.
    Our Response: Rainfall, and hence surface water flows, was greater 
in 2012 than during 2011. If a similar or worse drought had occurred in 
2012 these fish may now be extinct. During 2011, the spring-fed 
isolated pools in the upper Brazos River and Possum Kingdom Lake 
provided refuge for adult sharpnose and smalleye shiners. Surviving 
adults were able to later recolonize the river channel and reproduce 
when river water levels rose. Given their short lifespan and restricted 
range, stressors that persist for two or more reproductive seasons 
(such as a severe drought) severely limit these species' current 
viability, placing them at a high risk of extinction now.
    (38) Comment: If the proposed rule would require fencing the river 
to keep livestock away, it would impose a financial burden on 
landowners.
    Our Response: The best available scientific and commercial 
information does not indicate that cattle pose a threat to sharpnose or 
smalleye shiners, and anecdotal data indicate that cattle may be 
beneficial in maintaining a wide, shallow river channel. See our 
response to comments (4) and (17) above for additional information.

Summary of Changes From Proposed Rule

    Only minor changes and clarifications were made to the listing rule 
based on comments received. The SSA Report was updated, clarified, and 
expanded based on several peer review and public comments. These minor 
changes did not alter our previous assessment of these species from the 
proposed rule to the final rule.

Determination

Standard for Review

    Section 4 of the Act (16 U.S.C. 1533), and its implementing 
regulations at 50 CFR part 424, set forth the procedures for adding 
species to the Federal Lists of Endangered and Threatened Wildlife and 
Plants. Under section 4(a)(1) of the Act, the Secretary is to make 
threatened or endangered determinations required by subsection 4(a)(1) 
solely on the basis of the best scientific and commercial data 
available to her after conducting a review of the status of the species 
and after taking into account conservation efforts by States or foreign 
nations. The standards for determining whether a species is threatened 
or endangered are provided in section 3 of the Act. An endangered 
species is any species that is ``in danger of extinction throughout all 
or a significant portion of its range.'' A threatened species is any 
species that is ``likely to become an endangered species within the 
foreseeable future throughout all or a significant portion of its 
range.'' Per section 4(a)(1) of the Act, in reviewing the status of the 
species to determine if it meets the definitions of threatened or 
endangered, we determine whether any species is an endangered species 
or a threatened species because of any of the following five factors: 
(A) The present or threatened destruction, modification, or curtailment 
of its habitat or range; (B) overutilization for commercial, 
recreational, scientific, or educational purposes; (C) disease or 
predation; (D) the inadequacy of existing regulatory mechanisms; and 
(E) other natural or manmade factors affecting its continued existence. 
Listing actions may be warranted based on any of the above threat 
factors, singly or in combination.
    Until recently, the Service has presented its evaluation of 
information under the five listing factors in an outline format, 
discussing all of the information relevant to any given factor and 
providing a factor-specific conclusion before moving to the next 
factor. However, the Act does not require findings under each of the 
factors, only an overall determination as to status (e.g., threatened, 
endangered, not warranted). Ongoing efforts to improve the efficiency 
and efficacy of the Service's implementation of the Act have led us to 
present this information in a different format that we believe leads to 
greater clarity in our understanding of the science, its uncertainties, 
and the application of our statutory framework to that science. 
Therefore, while the presentation of information in this rule differs 
from past practice, it differs in format only. We have evaluated the 
same body of information that we would have evaluated under the five 
listing factors outline format, we are applying the same information 
standard, and we are applying the same statutory framework in reaching 
our conclusions.

Final Listing Status Determination

    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
to the sharpnose shiner and smalleye shiner. Based on our review of the 
best available scientific and commercial information, we conclude that 
the sharpnose shiner and smalleye shiner are currently in danger of 
extinction throughout all of their range and, therefore, each meets the 
definition of an endangered species. This finding, explained below, is 
based on our conclusions that these species exhibit low viability, as 
characterized by not having the resiliency to overcome persistent 
threats and insufficient population redundancy to overcome catastrophic 
events. We found the sharpnose shiner and smalleye shiner are at an 
elevated risk of extinction now and no data indicate that the situation 
will improve without significant conservation intervention. We, 
therefore, find that the sharpnose shiner

[[Page 45284]]

and smalleye shiner warrant endangered species listing status 
determination.
    On the basis of our biological review documented in the March 2014 
SSA Report, we found that the sharpnose shiner and smalleye shiner are 
vulnerable to extinction due to their reduced ranges and their highly 
specific reproductive strategies. These species are currently 
restricted to the upper Brazos River and its major tributaries, which 
represents a greater than 70 percent reduction in range for the 
sharpnose shiner and a greater than 50 percent range reduction for the 
smalleye shiner. The occupied river segments of the upper Brazos River 
currently retain the necessary length (greater than 275 km (171 mi)) to 
support successful broadcast-spawning reproduction in these species. 
However, these river segments have naturally occurring periods of low 
flow, periods completely lacking flow, and periods of complete drying 
(Factor A)--often during the dry summer months, which is also when 
these species spawn. The eggs and larvae of these species require 
flowing water of sufficient velocity to keep their eggs and larvae 
afloat and alive. During periods of insufficient river flow, 
reproduction is not successful and no young are produced (Factor A).
    Our review found the primary factors leading to a high risk of 
extinction for these fishes include habitat loss and modification due 
to river fragmentation and decreased river flow, resulting mainly from 
reservoir impoundments (Factor A). Drought, exacerbated by climate 
change (Factor E), and groundwater withdrawals also act as sources to 
reduce stream flows and modify stream habitats (Factor A). 
Fragmentation due to reservoir construction has resulted in a 
substantially reduced range with only one isolated population of each 
species in the upper Brazos River. With only one isolated population 
remaining, these species have no redundancy, reduced resiliency due to 
the inability to disperse downstream, and limited representation. This 
situation puts the species in danger of extinction from only one 
adverse event (such as insufficient flow rates for 2 consecutive 
years). Secondary causes of habitat modifications include water quality 
degradation and saltcedar encroachment that alters stream channels 
(Factor A). As population sizes decrease, localized concerns, such as 
commercial harvesting of individuals, also increases the risk of 
extinction (Factors B).
    We evaluated whether the sharpnose shiner and smalleye shiner are 
in danger of extinction now (i.e., an endangered species) or are likely 
to become in danger of extinction in the foreseeable future (i.e., a 
threatened species). The foreseeable future refers to the extent to 
which the Secretary can reasonably rely on predictions about the future 
in making determinations about the conservation status of the species. 
A key statutory difference between an endangered species and a 
threatened species is the timing of when a species may be in danger of 
extinction, either now (endangered species) or in the foreseeable 
future (threatened species). Because of the fact-specific nature of 
listing determinations, there is no single metric for determining if a 
species is presently ``in danger of extinction.'' In the case of the 
sharpnose shiner and smalleye shiner, the best available information 
indicates the severe range reduction and isolation of these species to 
a single population in the upper Brazos River basin places these 
species in danger of extinction now, and the situation is exacerbated 
by the ongoing and intensifying effects of river fragmentation (Factor 
A), drought (Factor A), saltcedar encroachment (Factor A), water 
quality degradation (Factor A), and commercial bait harvesting (Factor 
B). The current threats affecting these species are expected to 
continue (or even increase without substantial conservation efforts), 
causing both species to be in danger of extinction now. Therefore, 
because these species have been reduced to less than half of their 
previously occupied range and because both species are restricted to a 
single, non-resilient population at a high risk of extinction from a 
variety of unabated threats, we find both species are in danger of 
extinction now and meet the definition of an endangered species (i.e., 
in danger of extinction), in accordance with sections 3(6) and 4(a)(1) 
of the Act.
    Under the Act and our implementing regulations, a species may 
warrant listing if it is threatened or endangered throughout all or a 
significant portion of its range. The threats to the survival of these 
species occur throughout their range and are not restricted to any 
particular significant portion of their range. Accordingly, our 
assessments and determinations apply to these species throughout their 
entire range.
    In conclusion, as described above, after a review of the best 
available scientific and commercial information as it relates to the 
status of the species and the five listing factors, we find the 
sharpnose shiner and smalleye shiner are in danger of extinction now. 
Therefore, we are listing the sharpnose shiner and smalleye shiner as 
endangered species in accordance with section 3(6) of the Act. We find 
that a threatened species status is not appropriate for the sharpnose 
or smalleye shiner because the overall risk of extinction is high at 
this time and the existing populations are not sufficiently resilient 
to support viable populations.

Available Conservation Measures

    Regulations at 50 CFR 424.18 require final rules to include a 
description of conservation measures available under the rule. 
Following is an explanation of the measures that may be implemented for 
the conservation of the shiners under this final rule.
    Conservation measures provided to species listed as endangered or 
threatened species under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing results in public awareness and 
conservation by Federal, State, and local agencies, private 
organizations, and individuals. The Act encourages cooperation with the 
States and requires that recovery actions be carried out for all listed 
species. The protection measures required of Federal agencies and the 
prohibitions against certain activities are discussed, in part, below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Subsection 4(f) of the Act requires the Service to develop and 
implement recovery plans for the conservation of endangered and 
threatened species. The recovery planning process involves the 
identification of actions that are necessary to halt or reverse the 
species' decline by addressing the threats to its survival and 
recovery. The goal of this process is to restore listed species to a 
point where they are secure, self-sustaining, and functioning 
components of their ecosystems.
    Recovery planning includes the development of a recovery outline 
shortly after a species is listed, preparation of a draft and final 
recovery plan, and revisions to the plan as significant new information 
becomes available. The recovery outline guides the immediate 
implementation of urgent recovery actions and describes the process to 
be used to develop a recovery plan. The recovery plan identifies site-
specific management actions that will achieve recovery of the species, 
measurable criteria that determine when a species may be downlisted or 
delisted, and methods for monitoring recovery

[[Page 45285]]

progress. Recovery plans also establish a framework for agencies to 
coordinate their recovery efforts and provide estimates of the cost of 
implementing recovery tasks. Recovery teams (comprising species 
experts, Federal and State agencies, nongovernmental organizations, and 
stakeholders) are often established to develop recovery plans. When 
completed, the recovery outline, draft recovery plan, and the final 
recovery plan will be available on our Web site (http://www.fws.gov/endangered), or from our Arlington, Texas, Ecological Services Field 
Office (see FOR FURTHER INFORMATION CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, tribal, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research, captive 
propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands because their range may not occur primarily or solely on 
non-Federal lands. To achieve recovery of these species requires 
cooperative conservation efforts on private, State, and Tribal lands.
    Because these species are listed as endangered, funding for 
recovery actions will be available from a variety of sources, including 
Federal budgets, State programs, and cost-share grants for non-Federal 
landowners, the academic community, and nongovernmental organizations. 
In addition, pursuant to section 6 of the Act, the State of Texas would 
be eligible for Federal funds to implement management actions that 
promote the protection and recovery of the sharpnose and smalleye 
shiners. Information on our grant programs that are available to aid 
species recovery can be found at: http://www.fws.gov/grants.
    Please let us know if you are interested in participating in 
recovery efforts for these species. Additionally, we invite you to 
submit any new information on these species whenever it becomes 
available and any information you may have for recovery planning 
purposes (see FOR FURTHER INFORMATION CONTACT).
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is proposed or listed as 
endangered or threatened and with respect to its critical habitat, if 
any is designated. Regulations implementing this interagency 
cooperation provision of the Act are codified at 50 CFR part 402. 
Section 7(a)(4) of the Act requires Federal agencies to confer with the 
Service on any action that is likely to jeopardize the continued 
existence of a species proposed for listing or result in destruction or 
adverse modification of proposed critical habitat. If a species is 
listed subsequently, section 7(a)(2) of the Act requires Federal 
agencies to ensure that activities they authorize, fund, or carry out 
are not likely to jeopardize the continued existence of the species or 
destroy or adversely modify its critical habitat. If a Federal action 
may affect a listed species or its critical habitat, the responsible 
Federal agency must enter into formal consultation with the Service.
    Federal agency actions within the species' habitat that may require 
conference or consultation or both as described in the preceding 
paragraph include but are not limited to: permitting of interbasin 
water transfers, permitting of large groundwater withdrawal projects, 
permitting of in-channel mining and dredging, issuance of section 404 
Clean Water Act (33 U.S.C. 1251 et seq.) permits by the U.S. Army Corps 
of Engineers, and construction and maintenance of roads or highways by 
the Federal Highway Administration.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to all endangered 
wildlife. The prohibitions, codified at 50 CFR 17.21 for endangered 
wildlife, in part, make it illegal for any person subject to the 
jurisdiction of the United States to take (includes harass, harm, 
pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to 
attempt any of these), import, export, ship in interstate commerce in 
the course of commercial activity, or sell or offer for sale in 
interstate or foreign commerce any listed species. It is also illegal 
to possess, sell, deliver, carry, transport, or ship any such wildlife 
that has been taken illegally. Certain exceptions apply to agents of 
the Service and State conservation agencies.
    We may issue permits to carry out otherwise prohibited activities 
involving endangered and threatened wildlife species under certain 
circumstances. Regulations governing permits are codified at 50 CFR 
17.22 for endangered species, and at 17.32 for threatened species. With 
regard to endangered wildlife, a permit must be issued for the 
following purposes: for scientific purposes, to enhance the propagation 
or survival of the species, and for incidental take in connection with 
otherwise lawful activities.
    Our policy, as published in the Federal Register on July 1, 1994 
(59 FR 34272), is to identify to the maximum extent practicable at the 
time a species is listed, those activities that would or would not 
constitute a violation of section 9 of the Act. The intent of this 
policy is to increase public awareness of the effect of a proposed 
listing on proposed and ongoing activities within the range of species 
proposed for listing. The following activities could potentially result 
in a violation of section 9 of the Act; this list is not comprehensive:
    (1) Unauthorized collecting, handling, possessing, selling, in 
interstate commerce, delivering, carrying, or transporting of the 
species, including import or export across State lines and 
international boundaries, except for properly documented antique 
specimens of these taxa at least 100 years old, as defined by section 
10(h)(1) of the Act.
    (2) Unauthorized destruction or alteration of sharpnose and 
smalleye shiner habitats (e.g., unpermitted in-stream dredging, 
impoundment, or construction; water diversion or withdrawal; 
channelization; discharge of fill material) that impairs essential 
behaviors such as breeding, feeding, or sheltering, or results in 
killing or injuring sharpnose or smalleye shiners. Such activities 
could include, but are not limited to, the destruction of upland 
riparian areas in a manner that negatively impacts the river ecosystem.
    (3) Capture, survey, or collection of specimens of these taxa 
without a permit from the Service under section 10(a)(1)(A) of the Act.
    Questions regarding whether specific activities would constitute a 
violation of section 9 of the Act should be directed to the Arlington, 
Texas, Ecological Services Field Office (see FOR FURTHER INFORMATION 
CONTACT).

Required Determinations

National Environmental Policy Act

    We have determined that environmental assessments and environmental 
impact statements, as defined under the authority of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), need not be 
prepared in connection with regulations pursuant to section 4(a) of the 
Act. We published a notice outlining our reasons for this determination 
in the Federal Register on October 25, 1983 (48 FR 49244).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994

[[Page 45286]]

(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination With Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
tribes in developing programs for healthy ecosystems, to acknowledge 
that tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to tribes. There are no tribes within the current 
or historical range of the species.

References Cited

    A complete list of all references cited in this rule is available 
on the Internet at http://www.regulations.gov within the SSA Report 
(Service 2014, Literature Cited) or upon request from the Arlington, 
Texas, Ecological Services Field Office (see FOR FURTHER INFORMATION 
CONTACT).

Author(s)

    The primary authors of this document are the staff members of the 
Arlington, Texas, Ecological Services Field Office (see ADDRESSES).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

    Accordingly, we amend part 17, subchapter B of chapter I, title 50 
of the Code of Federal Regulations, as follows:

PART 17--[AMENDED]

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

    Authority:  16 U.S.C. 1361-1407; 1531-1544; 4201-4245; unless 
otherwise noted.


0
2. Amend Sec.  17.11(h) by adding the following entries to the List of 
Endangered and Threatened Wildlife in alphabetical order under FISHES:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                          Species                                                   Vertebrate
------------------------------------------------------------                    population  where                               Critical       Special
                                                              Historic  range      endangered or      Status    When  listed     habitat        rules
            Common name                  Scientific name                            threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Fishes
 
                                                                      * * * * * * *
Shiner, sharpnose..................  Notropis oxyrhynchus..       U.S.A. (TX)             Entire            E           840      17.95(e)            NA
Shiner, smalleye...................  Notropis buccula......       U.S.A. (TX)             Entire            E           840      17.95(e)            NA
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


    Dated: July 18, 2014.
 Betsy Hildebrandt,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2014-17692 Filed 8-1-14; 8:45 am]
BILLING CODE 4310-55-P