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 ; Final Rule

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DEPARTMENT OF THE INTERIOR Executive Summary warranted, but precluded, 12-month Why we need to publish a rule. Under finding (67 FR 40657, June 13, 2002). Fish and Wildlife Service the Act (Act), a Through the annual candidate review species or subspecies may warrant process (69 FR 24876, May 4, 2004; 70 50 CFR Part 17 protection through listing if it is FR 24870, May 11, 2005; 71 FR 53756, endangered or threatened throughout all September 12, 2006; 72 FR 69034, [Docket No. FWS–R2–ES–2013– or a significant portion of its range. December 6, 2007; 73 FR 75176, 0083;4500030113] Listing a species as an endangered or December 10, 2008; 74 FR 57804, threatened species can only be November 9, 2009; 75 FR 69222, RIN 1018–AY55 completed by issuing a rule. On August November 10, 2010; 76 FR 66370, 6, 2013 (78 FR 47582; 78 FR 47612), we October 26, 2011; 77 FR 69994, Endangered and Threatened Wildlife proposed to list the sharpnose shiner November 21, 2012), the U.S. Fish and and Plants; Determination of and smalleye shiner as endangered Wildlife Service (Service) continued to Endangered Status for the Sharpnose species and proposed to designate solicit information from the public Shiner and Smalleye Shiner critical habitat under the Act. Elsewhere regarding these species. On August 6, 2013 (78 FR 47582; 78 in today’s Federal Register, we finalize AGENCY: Fish and Wildlife Service, FR 47612), we proposed to list the designation of critical habitat for the Interior. sharpnose shiner and smalleye shiner sharpnose shiner and smalleye shiner under the Act as endangered species ACTION: Final rule. under the Act. This rule will finalize the listing of the and proposed to designate critical SUMMARY: We, the U.S. Fish and sharpnose shiner and smalleye shiner as habitat. We held a public hearing on Wildlife Service, determine endangered endangered species. September 4, 2013, in Abilene, Texas. species status under the Endangered The basis for our action. Under the On March 4, 2014 (79 FR 12138), we Species Act of 1973, as amended, for the Act, a species may be determined to be requested comments on the draft sharpnose shiner ( an endangered or threatened species economic analysis of critical habitat oxyrhynchus) and smalleye shiner (N. based on any of five factors: (A) The designation for the shiners, as well as buccula), two fish species from Texas. present or threatened destruction, the proposed rule to designate critical The effect of this regulation will be to modification, or curtailment of its habitat. This comment period closed on add these species to the List of habitat or range; (B) overutilization for April 3, 2014 (79 FR 12138). Endangered and Threatened Wildlife. commercial, recreational, scientific, or Background We have also determined that critical educational purposes; (C) disease or habitat for the sharpnose shiner and Species Information predation; (D) the inadequacy of smalleye shiner is prudent and existing regulatory mechanisms; and (E) The April 2014 Species Status determinable. Elsewhere in today’s other natural or manmade factors Assessment Report (SSA Report) Federal Register, we designate critical affecting its continued existence. We (Service 2014, entire), available online habitat for the sharpnose shiner and have determined that the sharpnose and at www.regulations.gov under Docket smalleye shiner under the Act. smalleye shiners meet the definition of Number FWS–R2–ES–2013–0083, DATES: This rule becomes effective an endangered species primarily provides a thorough assessment of September 3, 2014. because of the present or threatened sharpnose shiner and smalleye shiner ADDRESSES: This final rule is available destruction, modification, or biology and natural history, and on the Internet at http:// curtailment of its habitat or range assesses demographic risks, threats, and www.regulations.gov and at http://www. resulting mainly from impoundments limiting factors in the context of fws.gov/southwest/es/ArlingtonTexas. and alterations of natural stream flow. determining viability and risk of Comments and materials received, as Peer review and public comment. We extinction for the species. The SSA well as supporting documentation used sought comments from independent Report has been updated since the in the preparation of this rule, are specialists to ensure that our August 6, 2013, publication of the available for public inspection at http:// designation is based on scientifically proposed rules with data received www.regulations.gov. All of the sound data, assumptions, and analyses. during the peer review and public comments, materials, and We invited these peer reviewers to comment processes. In the SSA Report, documentation that we considered in comment on our listing proposal. We we compile biological data and a this rulemaking are available for public also considered all comments and description of past, present, and likely inspection, by appointment, during information received during the public future threats (causes and effects) facing normal business hours at: U.S. Fish and comment period. the sharpnose shiner and smalleye shiner. Because data in these areas of Wildlife Service, Arlington, Texas, Previous Federal Actions Ecological Services Field Office, 2005 science are limited, some uncertainties NE Green Oaks Blvd., Suite 140, On June 13, 2002 (67 FR 40657), the are associated with this assessment. Arlington, TX 76006; by telephone 817– sharpnose shiner and smalleye shiner Where we have substantial uncertainty, 277–1100; or by facsimile 817–277– were made candidates for listing under we have attempted to make our 1129. the Act. On May 11, 2004, we received necessary assumptions explicit in the a petition to list the sharpnose shiner SSA Report. We base our assumptions FOR FURTHER INFORMATION CONTACT: and smalleye shiner. We published our in these areas on the best available Debra Bills, Field Supervisor, Arlington, petition finding on May 11, 2005 (70 FR scientific and commercial data. Texas, Ecological Services Field Office, 24899). Because the sharpnose shiner Importantly, the SSA Report does not (see ADDRESSES). If you use a and smalleye shiner were previously represent a decision by the Service on telecommunications device for the deaf identified through our candidate whether these taxa should be listed as (TDD), call the Federal Information assessment process, the species had endangered or threatened species under Relay Service (FIRS) at 800–877–8339. already received the equivalent of a the Act. The SSA Report does, however, SUPPLEMENTARY INFORMATION: substantial 90-day finding and a provide the scientific basis that informs

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our decisions (see Summary of as indicators of genetic and ecological reproduction are lacking for more than Biological Status and Threats in this diversity. one season. final rule), which involve the further Our assessment found that both The current conditions of both species application of standards within the Act species of shiners have an overall low indicate that they do not have the and its regulations and policies (see viability (or low probability of necessary resources for persistence in Determination) in this final rule). persistence) in the near term (over about the immediate future. Both species have the next 10 years) and a decreasing experienced range reduction, with both Summary of Biological Status and viability (increasing risk of extinction) fish having lost at least half of their Threats in the long-term future (over the next 11 historical range. Both species are now Our SSA Report documents the to 50 years). For the shiners to be restricted to one population in the results of the comprehensive biological considered viable, individual fish need upper basin. As a result, status review for the sharpnose and specific vital resources for survival and sharpnose and smalleye shiners smalleye shiners and provides a completion of their life cycles. Both currently lack redundancy, which is thorough account of the species’ overall species need wide, shallow, flowing reducing the viability of these species as viability and, conversely, extinction risk waters generally less than 0.5 meters (m) a whole. In addition, streamflows (Service 2014, entire). The SSA Report (1.6 feet (ft)) deep with sandy substrates, within their current extant range are contains the data on which this final which are found in mainstem rivers in insufficient during some years to rule is based. The following is a the arid prairie region of Texas. Both support successful reproduction, such summary of the results and conclusions species broadcast-spawn eggs and sperm as occurred in 2011. These fish have from the SSA Report. into open water asynchronously (fish been resilient to past stressors that occur The sharpnose shiner and smalleye not spawning at the same time) during over short durations, and their shiner are small minnows native to arid periods of low flow and synchronously populations appear capable of prairie streams of Texas originating from (many fish spawning at the same time) recovering naturally even when an the Brazos River. The naturally during periods of elevated streamflow entire year’s reproductive effort is lost. occurring historical distribution of the from April through September. Their However, without human intervention, sharpnose shiner included the Brazos eggs are semi-buoyant and remain given their short lifespan and restricted River, Colorado River, and Wichita suspended 1 or 2 days in flowing water range, stressors that persist for two or River in Texas, while the naturally as they develop into larvae. Larval fish more reproductive seasons (such as a occurring historical distribution of the remain suspended in the flowing water severe drought) severely limit these smalleye shiner included only the column an additional 2 to 3 days as they species’ current viability, placing them Brazos River. develop into free-swimming juvenile at a high risk of extinction now. In conducting our status assessment, fish. In the absence of sufficient water The two primary factors affecting the we first considered what the two shiners velocities, suspended eggs and larvae current and future conditions of these need to ensure viability. We generally sink into the substrate where a majority shiners are river fragmentation by define viability as the ability of the likely dies. The reproductive strategy of impoundments and alterations of the species to persist over the long term these species makes them particularly natural streamflow regime (by and, conversely, to avoid extinction. We vulnerable to changes in the natural impoundments, drought, groundwater then evaluated whether those needs conditions of occupied habitat. withdrawal, and saltcedar currently exist and the repercussions to To sustain populations of the shiners encroachment) within their range. Other the species when those needs are long term, population dynamics secondary factors, such as water quality missing, diminished, or inaccessible. modeling suggests estimated mean degradation and commercial harvesting We next considered the factors that are spawning season river flows of 2.61 for fish bait, likely also impact these causing the species to lack what they cubic meters per second (m3s¥1) (92 species but to a lesser degree. These need, including historical, current, and cubic feet per second (cfs)) and 6.43 multiple factors are not acting future factors. Finally, considering the m3s¥1 (227 cfs) are required for the independently, but are acting together information reviewed, we evaluated the sharpnose and smalleye shiners, as different sources (or causes), which current status and future viability of the respectively. It is also estimated that can result in cumulative effects to lower species in terms of resiliency, populations of shiners require the overall viability of the species. redundancy, and representation. approximately 275 kilometers (km) (171 Fish barriers such as impoundments Resiliency is the ability of a species to miles (mi)) of unobstructed, flowing are currently restricting the upstream withstand stochastic events and, in the water during the breeding season to and downstream movement of migrating case of the shiners, is best measured by support a successfully reproductive fish and prevent survival of the semi- the extent of suitable habitat in terms of population. This length of stream allows buoyant eggs and larvae of sharpnose stream length. Redundancy is the ability the eggs and larvae to remain suspended and smalleye shiners. This is because of a species to withstand catastrophic in the water column and survive until the eggs and larvae cannot remain events by spreading the risk and can be they mature sufficiently to swim on suspended in the water column under measured through the duplication and their own. Across their range, these non-flowing conditions in reservoirs or distribution of resilient populations species also need unobstructed river if streamflows cease. Of the area once across the species’ range. Representation lengths to allow for upstream and occupied by one or both species in the is the ability of a species to adapt to downstream movements to survive Brazos, Colorado, and Wichita Rivers, changing environmental conditions and seasons with poor environmental only two contiguous river segments can be measured by the breadth of conditions in certain river reaches. remain with unobstructed lengths genetic diversity within and among Unobstructed river reaches allow some (without dams) greater than 275 km (171 populations and the ecological diversity fish to survive and recolonize degraded mi): The upper Brazos River (where the of populations across the species’ range. reaches when conditions improve. In fish are extant) and the lower Brazos In the case of the shiners, we evaluate addition, these fish only naturally live River (where the fish are either representation based on the extent of the for 1 or 2 years, making the populations extirpated or functionally extirpated). geographical range and the variability of particularly vulnerable when the The effects of river habitat habitat characteristics within their range necessary streamflow conditions for fragmentation have occurred and

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

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Brazos River basin indicated drought of extinction. Over the longer term (the generally concurred with our methods conditions were not as intense as those next 11 to 50 years), these conditions and our assessment of the current status in 2011, and successful recruitment of will only continue to deteriorate as of these species. They provided sharpnose and smalleye shiners human water use continues, additional information, clarifications, occurred. construction of new dams within the and suggestions to improve the SSA As remaining habitat of the shiners extant range is possible, and ongoing Report. Peer reviewer comments were becomes more fragmented and drought climate change exacerbates the all specific to the SSA Report and are conditions intensify, the single likelihood of drought. In conclusion, incorporated into the SSA Report or remaining population of sharpnose both species currently experience low responded to in Appendix B of the SSA shiners and smalleye shiners will viability (low probability of Report. become more geographically restricted, persistence), and their viability is Comments From Federal Agencies further reducing the viability of the expected to continue to decline into the species into the future. Under these future. (1) Comment: The U.S. Department of conditions, the severity of secondary Agriculture’s Natural Resources threats, such as water quality Summary of Comments and Conservation Service works with degradation from pollution and golden Recommendations landowners on a voluntary basis to algal blooms, and legally permitted In the proposed rule published on apply conservation measures, some of commercial bait fish harvesting, will August 6, 2013 (78 FR 47582), we which may benefit sharpnose and have a larger impact on the species and requested that all interested parties smalleye shiners, and the Natural a single pollutant discharge, golden submit written comments on the Resources Conservation Service algal bloom, or commercial harvesting proposal by October 7, 2013. We also welcomes the opportunity to consult or other local event will increase the contacted appropriate Federal and State with the Service to determine the effects risk of extinction of both species. agencies, scientific experts and of their actions on the habitat of these The shiners currently have limited organizations, and other interested two species. viability and increased vulnerability to parties and invited them to comment on Our Response: The Service extinction largely because of their the proposal. Newspaper notices appreciates the work of the Natural stringent life-history requirement of inviting general public comment were Resources Conservation Service and long, wide, flowing rivers to complete published in the Lubbock Avalanche, looks forward to working with them as their reproductive cycle. With a short Abilene Reporter News, Waco Tribune conservation partners regarding lifespan allowing only one or two Herald, and Baylor County Banner. We sharpnose and smalleye shiner habitat. breeding seasons and the need for received requests for a public hearing Comments From the State unobstructed river reaches greater than and held one on September 4, 2013, in 275 km (171 mi) in length containing Abilene, TX. (2) Comment: The term ‘‘groundwater average flows greater than 2.61 m3s¥1 During the comment period for the withdrawal’’ is too broad and should be (92 cfs) and 6.43 m3s¥1 (227 cfs) (for the proposed rule, we received 268 replaced with ‘‘depletion of shallow, sharpnose and smalleye shiners, comment letters, including 3 peer groundwater flows in the Brazos River respectively) during the summer, both review comment letters, addressing the alluvium’’ because there is no verifiable species are at a high risk of extirpation proposed listing of sharpnose shiner data linking the use of the area’s when rivers are fragmented by fish and smalleye shiner. During the aquifers to reduced flow in the Brazos barriers and flows are reduced from September 4, 2013, public hearing, nine River. More data are needed on the role human use and drought-enhanced water individuals or organizations made of groundwater in this region and its shortages. These adverse conditions comments on the proposed rule. effect on the shiners. have already resulted in substantial Comments addressing the proposed Our Response: The Service considers range reduction and isolation of the one critical habitat designation were fully the use of the term ‘‘groundwater remaining population of both fish into addressed in a separate rulemaking withdrawal’’ to adequately capture the the upper Brazos River basin. The extant action, and published elsewhere in the evidence provided in the SSA Report population of each shiner species is of Federal Register today. All substantive and covers both depletion of shallow adequate size, is located in a contiguous information provided during the groundwater flows of the alluvium as stretch of river long enough to support comment periods has either been well as the removal of groundwater from reproduction, and is generally incorporated directly into this final deeper within the aquifers. We agree considered resilient to local or short- determination, the SSA Report, or more data would be helpful in term environmental changes. However, addressed below. understanding the interaction between with only one location, the species lack groundwater and surface water flows in any redundancy. Further, these species Comment From Peer Reviewers the upper Brazos River basin; however, lack representation, meaning they lack In accordance with our peer review we used the best scientific and the ability to adapt to changing policy published on July 1, 1994 (59 FR commercial data available to determine environmental conditions in a 34270), we solicited expert opinion the effects of groundwater withdrawal timeframe that would avoid extinction. from four knowledgeable individuals on surface water flows and we will Given the short lifespan and restricted with scientific expertise that included continue to investigate the effects of range of these species, without human familiarity with sharpnose and smalleye groundwater withdrawal on these intervention, lack of adequate flows shiners or their habitats, biological species as additional data become (due to drought and other stressors) needs, threats, general fish biology, or available. persisting for two or more consecutive aquatic ecology. We received responses (3) Comment: The Service lists several reproductive seasons would likely lead from three of the peer reviewers. threats to sharpnose and smalleye to the species’ extinction. With human We reviewed all comments received shiners but does not specifically water use and ongoing regional drought, from the peer reviewers for substantive acknowledge that farming and ranching the probability of this happening in the issues and new information regarding activities are not threats. It should be near term (about the next 10 years) is the listing of sharpnose shiners and explicitly stated that farming and high, putting the species at a high risk smalleye shiners. The peer reviewers ranching activities have been shown to

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have no detrimental impact on these commercial data available to us even sustainable water use and to provide species. though it may be limited or uncertain. information regarding impacts to fish Our Response: In the SSA Report, we The sharpnose and smalleye shiner and wildlife resources from identified sources of current threats and are currently limited to the upper environmental flow recommendations threats likely to occur now or in the Brazos River basin and are extirpated or when available and applicable. immediate future based on the best functionally extirpated from the lower (7) Comment: The Service should scientific and commercial data Brazos River area. The sole remaining discuss on-the-ground work for available. These threats do not include populations of these species occur in saltcedar ( spp.) control with ranching or farming. Our intent is only the upper Brazos River basin. While the the appropriate agencies. Service agrees drought is an important to identify activities that likely pose a Our Response: The Service has been threat to these species now or in the factor affecting the viability of these fish, drought is exacerbated by the engaged with several organizations immediate future. At this time, the best involved in saltcedar control projects scientific and commercial data available impoundment of their natural habitat, which further reduces water flows and including the U.S. Department of does not indicate that cattle grazing or Agriculture’s Natural Resources current farming practices impact these impedes fish migration to more suitable habitat during dry conditions. We are Conservation Service, The Brazos River species. However, beyond the Authority, and our internal Partners for immediate future, it is conceivable that unclear as to what artificial environment the commenter is referring. Fish and Wildlife program. We look large-scale farming or ranching activities forward to continuing to work with could substantially reduce surface water However, we are not recreating an artificial environment. We are these and additional conservation flows in the upper Brazos River basin by partners in controlling saltcedar in the extensive groundwater withdrawal or attempting to conserve a healthy, natural aquatic ecosystem in the upper upper Brazos River basin. Despite removal of surface water flows. ongoing saltcedar control efforts, these (4) Comment: Listing the sharpnose Brazos River basin is important protect habitat for sharpnose and smalleye invasive plants continue to thrive in and smalleye shiner could affect parts of the upper Brazos River basin. economic growth in the Brazos River shiners and other aquatic wildlife. We sought comments from basin or could limit the development of Public Comments independent peer reviewers to ensure needed water supplies and require that our determination is based on (8) Comment: A number of public management changes of existing water scientifically sound data, assumptions, comments opposed the listing of the supplies in important economic centers. and analysis. We solicited information sharpnose shiner and smalleye shiner as Our Response: For listing actions, the from the general public, non- federally endangered or threatened Act requires that we make governmental conservation species but provided no substantive determinations ‘‘solely on the basis of organizations, State and Federal scientific or commercial evidence the best available scientific and agencies that are familiar with the suggesting that listing is not warranted. commercial data available’’ (16 U.S.C. species and their habitats, academic Our Response: While we appreciate 1533(b)(1)(A)). Therefore, we do not institutions, and groups and individuals the opinion of all interested parties, the consider any potential information that might have information that would Service must base its decision of concerning economic or other possible contribute to an update of our whether to list the sharpnose shiner and impacts when making listing knowledge of the species, as well as the smalleye shiner solely on the basis of determinations. We will work with activities and natural processes that the best scientific and commercial data entities to conserve the shiners and might be contributing to the decline of available. develop workable solutions. either species. While some uncertainty (9) Comment: Several comments (5) Comment: More scientific data are will always exist, the existing body of needed regarding the status of the opposed the involvement of the Federal literature on sharpnose shiners, Government in Texas’ affairs or claimed shiners and their habitat in the upper smalleye shiners, and similar broadcast- Brazos River basin. The species are the Texas Parks and Wildlife spawning minnows is the best available Department could handle protection of surviving downstream of the upper information. See the SSA Report for segment of the Brazos River; drought is the sharpnose shiner and smalleye more detailed information about these shiner. the most obvious factor impacting these species. minnows, and it does not make good (6) Comment: A scientifically based Our Response: While the Texas Parks sense to recreate an artificial approach including input from affected and Wildlife Department is a valued environment for species unable to adapt stakeholders is under way to develop partner in conserving imperiled species, to it. A decision of this magnitude that the necessary flows to balance the needs they do not currently list the sharpnose could affect vital water supplies and the of all users in the Brazos River basin. or smalleye shiners as endangered economic future of communities should The listing of these shiners could species, nor does Texas’ endangered not be based on uncertainty. undermine this effort. species law protect the habitat on which Our Response: Imperiled species often Our Response: The Service is aware of these species rely. Consequently, the lack an abundance of scientific data; the Texas Environmental Flows threats to these species are not however, the biological and habitat Program, a scientifically-based approach completely ameliorated by current requirements of the sharpnose and currently being developed per Senate Texas actions or laws. The Service looks smalleye shiners have been well studied Bill 3 of the 2007 Texas Legislature. The forward to working with our State for many years. Further, section 4 of the Service considered this information in partners in the protection and Act requires the Service to base its section ‘‘6.B. Minimize Impacts from conservation of these species. decision to list species as either Impoundments’’ of the SSA Report. The (10) Comment: Efforts to contain the threatened or endangered based solely Service has concluded that the listing of naturally occurring salt springs along on the best scientific and commercially these species does not undermine the the Salt Fork of the Brazos River would available data. We interpret the ‘‘best Texas Environmental Flows Program. enhance water quality during low flow available’’ standard to mean we are The Service looks forward to working conditions and would help mitigate the required to use the best scientific and with the State to promote ecologically threat from golden algae blooms.

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

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

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implemented to determine population appears unlikely that flooding would (25) Comment: Genetic analyses could trends and relative distribution. transport shiners to the Colorado River better elucidate the status of the Our Response: The Service is using or outside their current range. sharpnose and smalleye shiners of the range restriction and intensity of threats The Service recognizes in the SSA upper Brazos River basin. to the species as indicators of species Report that these species could be Our Response: The Service agrees that status. Population size and fish transferred as bait fish. However, a river genetic studies for these two species abundance are not perfect measures of where a fish may be transferred would would be useful; however, the Service population health for the sharpnose and need suitable habitat to establish and must use the best available scientific smalleye shiner because numbers of fish maintain a population, and there are and commercial data at the time of vary widely with changing habitat limited rivers in the area that provide listing. The Service is in the process of conditions and because ongoing threats suitable habitat. Further, it is likely that funding a study through section 6 of the to the species have the ability to cause a suitable number of individuals would Act to determine the genetic structure of extirpation and extinction regardless of need to be transferred in order to the remaining populations of both population size. Recent and ongoing survive and establish a population. species. survey efforts are adding to the body of However, if such a transfer would occur, (26) Comment: Studies focused on knowledge for these fish. In their these species would be protected determining the minimum flow rate, occupied range, both species are wherever they are found due to listing duration, and critical river sections for distributed throughout the upper Brazos under the Act. successful spawning would provide River depending on habitat conditions (23) Comment: The Service does not useful information to manage short-term (available surface water within tolerable address the viability or importance of viability and long-term survivability for physiological limits) at the time of historical populations outside of the these shiner species. Our Response: The Service agrees that collection. See our response to comment Brazos River basin. additional studies on the minimum flow (11) above for additional information. Our Response: The natural historical (21) Comment: The Service fails to rate required to keep the semi-buoyant distribution of the sharpnose shiner is support the designated historical and life-history stages of these species afloat considered to include the Brazos, current range of either species. The would be useful. However, the Service Colorado, and Wichita River basins. Service does not present findings for a has used the best scientific and However, the species is now extirpated state-wide survey or comprehensive commercial data available. Based on from the Colorado and Wichita Rivers, presence or absence survey within their current life-history information, as well as the middle and lower sections historical ranges. population dynamics modeling Our Response: The historical and of the Brazos River. Consequently, there estimates a mean summer water current ranges of sharpnose and are no populations outside of the upper discharge of approximately 2.61 m3s¥1 smalleye shiners are based on peer- segment of the Brazos River, and, (92 cfs) is necessary to sustain reviewed published accounts of these therefore, no additional populations populations of sharpnose shiners species, survey results, and analysis of exist to contribute to the viability of the (Durham 2007, p. 110), while a higher museum specimens collected and species. In the SSA Report, the Service mean discharge of approximately 6.43 geographically digitized by provides an analysis of the historical m3s¥1 (227 cfs) is necessary for ichthyologists. While there is not a contribution of non-Brazos River smalleye shiners (Durham and Wilde State-wide or comprehensive survey populations to both shiner species as a 2009b, p. 670). See section ‘‘2.C.2. effort within the historical range, the whole in the section ‘‘2. Rangewide Streamflow Requirements’’ of the SSA Service must use the best scientific and Needs’’ and clearly indicates our Report for additional information. commercial data available. For the position on the current status of those (27) Comment: Inclusion of stream purposes of determining historical and populations. gauge data from the 1950s could be current ranges, these sources represent (24) Comment: The Service provides useful as a partial indicator of how the the best available commercial and no evidence that sharpnose shiners two species respond to extended scientific data. naturally occurred in the Colorado and drought. (22) Comment: The Service does not Wichita River basins. Without sufficient Our Response: The Service has added consider the possibility of future flood evidence of a larger historical range, the stream gauge data going back to 1940 in events or bait fish introductions that Service cannot conclude that there has its analysis of drought conditions in the could result in transferring sharpnose or been a range reduction for this species. upper Brazos River basin and has also smalleye shiners from the upper Brazos Our Response: The natural occurrence added an additional stream gauge site. River to the Colorado River or areas of sharpnose shiners in the Colorado See section ‘‘3.D. Drought’’ of the SSA outside the current or native range. and Wichita Rivers is based on Report for further discussion. Our Response: The Brazos and published literature, museum (28) Comment: The listing package Colorado Rivers contain several specimens, flood data, and expert and SSA Report do not provide impoundments that serve as water opinion. These sources are the best sufficient, conclusive evidence storage and flood control devices. Also, available scientific and commercial data connecting stated threats to a decline in sharpnose and smalleye shiners are and provide adequate support of the species abundance or a reduction in considered extirpated or functionally determination that the sharpnose shiner range, including the effects of extirpated in the lower Brazos River is native to these Rivers. Even impoundment on river fragmentation. where such a connection with the discounting the Colorado and Wichita Neither the listing package nor SSA Colorado River would occur during a River populations, the sharpnose shiner Report demonstrates the cumulative flood event. The occupied segments of would be experiencing a range effects of threats. the upper Brazos River basin are reduction of more than 50 percent due Our Response: The Causes and Effects generally under such low-flow primarily to fragmentation and Threat Analyses in Chapter 3 of the SSA conditions that the basin is unlikely to alteration of flows within the middle Report discusses how the threats experience a flood of sufficient Brazos River by impoundments. See our negatively affect sharpnose and magnitude to connect it to another river response to comment (11) above for smalleye shiners. The SSA Report also basin. Based on this information, it additional information. includes a section on cumulative effects

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

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actions are not entirely consistent with smalleye shiners. Surviving adults were The present or threatened destruction, the protection of surface water flows for able to later recolonize the river channel modification, or curtailment of its sharpnose and smalleye shiners. Section and reproduce when river water levels habitat or range; (B) overutilization for 36.103 of the Texas Water Code permits rose. Given their short lifespan and commercial, recreational, scientific, or groundwater conservation districts to restricted range, stressors that persist for educational purposes; (C) disease or erect dams; drain lakes, draws, two or more reproductive seasons (such predation; (D) the inadequacy of depressions, and creeks; and install as a severe drought) severely limit these existing regulatory mechanisms; and (E) pumps to recharge groundwater species’ current viability, placing them other natural or manmade factors reservoirs. The protection of at a high risk of extinction now. affecting its continued existence. Listing groundwater supplies at the expense of (38) Comment: If the proposed rule actions may be warranted based on any damming and depleting surface water would require fencing the river to keep of the above threat factors, singly or in would be detrimental to these species. livestock away, it would impose a combination. Insofar as groundwater conservation financial burden on landowners. Until recently, the Service has districts reduce the number of wells by Our Response: The best available presented its evaluation of information land parcel size and support general scientific and commercial information under the five listing factors in an water conservation measures, they are does not indicate that cattle pose a outline format, discussing all of the benefiting the sharpnose and smalleye threat to sharpnose or smalleye shiners, information relevant to any given factor shiners and the upper Brazos River and anecdotal data indicate that cattle and providing a factor-specific basin ecosystem in general. However, may be beneficial in maintaining a conclusion before moving to the next groundwater conservation districts do wide, shallow river channel. See our factor. However, the Act does not not explicitly conserve groundwater to response to comments (4) and (17) require findings under each of the support surface water flows to maintain above for additional information. factors, only an overall determination as a healthy riverine environment for fish to status (e.g., threatened, endangered, and other aquatic species. Conservation Summary of Changes From Proposed not warranted). Ongoing efforts to districts also do not cover all areas of Rule improve the efficiency and efficacy of the upper Brazos River basin. Further, Only minor changes and clarifications the Service’s implementation of the Act the Texas State Water Plan estimates were made to the listing rule based on have led us to present this information increased groundwater withdrawals in comments received. The SSA Report in a different format that we believe the future. These efforts do not was updated, clarified, and expanded leads to greater clarity in our ameliorate the threats to sharpnose and based on several peer review and public understanding of the science, its smalleye shiners or their habitat to the comments. These minor changes did not uncertainties, and the application of our point that the species do not meet the alter our previous assessment of these statutory framework to that science. definition of endangered. species from the proposed rule to the Therefore, while the presentation of (36) Comment: Why are smalleye and final rule. information in this rule differs from past sharpnose shiners not listed as practice, it differs in format only. We endangered in the Clear Fork of the Determination have evaluated the same body of Brazos River? Standard for Review information that we would have Our Response: We are listing the evaluated under the five listing factors shiners wherever they are found. Section 4 of the Act (16 U.S.C. 1533), outline format, we are applying the However, the best available scientific and its implementing regulations at 50 same information standard, and we are and commercial information does not CFR part 424, set forth the procedures applying the same statutory framework indicate that the sharpnose and for adding species to the Federal Lists in reaching our conclusions. smalleye shiners have ever been of Endangered and Threatened Wildlife collected from the Clear Fork of the and Plants. Under section 4(a)(1) of the Final Listing Status Determination Brazos River; therefore, the Service has Act, the Secretary is to make threatened We have carefully assessed the best no basis to assume they once existed or endangered determinations required scientific and commercial information there historically or exist there by subsection 4(a)(1) solely on the basis available regarding the past, present, currently. The Donnell Mill Dam on the of the best scientific and commercial and future threats to the sharpnose Clear Fork of the Brazos River located data available to her after conducting a shiner and smalleye shiner. Based on approximately 21.5 km (13.3 mi) review of the status of the species and our review of the best available upstream of its confluence with the after taking into account conservation scientific and commercial information, Brazos River mainstem has acted as a efforts by States or foreign nations. The we conclude that the sharpnose shiner fish migration barrier since the late standards for determining whether a and smalleye shiner are currently in 1870s and may be partially responsible species is threatened or endangered are danger of extinction throughout all of for the lack of records of these species provided in section 3 of the Act. An their range and, therefore, each meets from this river. endangered species is any species that the definition of an endangered species. (37) Comment: After the devastating is ‘‘in danger of extinction throughout This finding, explained below, is based drought of 2011 in the upper Brazos all or a significant portion of its range.’’ on our conclusions that these species River basin, smalleye and sharpnose A threatened species is any species that exhibit low viability, as characterized by shiners recovered in 2012 and survived is ‘‘likely to become an endangered not having the resiliency to overcome without the Service’s help. species within the foreseeable future persistent threats and insufficient Our Response: Rainfall, and hence throughout all or a significant portion of population redundancy to overcome surface water flows, was greater in 2012 its range.’’ Per section 4(a)(1) of the Act, catastrophic events. We found the than during 2011. If a similar or worse in reviewing the status of the species to sharpnose shiner and smalleye shiner drought had occurred in 2012 these fish determine if it meets the definitions of are at an elevated risk of extinction now may now be extinct. During 2011, the threatened or endangered, we determine and no data indicate that the situation spring-fed isolated pools in the upper whether any species is an endangered will improve without significant Brazos River and Possum Kingdom Lake species or a threatened species because conservation intervention. We, provided refuge for adult sharpnose and of any of the following five factors: (A) therefore, find that the sharpnose shiner

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and smalleye shiner warrant endangered danger of extinction in the foreseeable threatened species status is not species listing status determination. future (i.e., a threatened species). The appropriate for the sharpnose or On the basis of our biological review foreseeable future refers to the extent to smalleye shiner because the overall risk documented in the March 2014 SSA which the Secretary can reasonably rely of extinction is high at this time and the Report, we found that the sharpnose on predictions about the future in existing populations are not sufficiently shiner and smalleye shiner are making determinations about the resilient to support viable populations. vulnerable to extinction due to their conservation status of the species. A key Available Conservation Measures reduced ranges and their highly specific statutory difference between an reproductive strategies. These species endangered species and a threatened Regulations at 50 CFR 424.18 require are currently restricted to the upper species is the timing of when a species final rules to include a description of Brazos River and its major tributaries, may be in danger of extinction, either conservation measures available under which represents a greater than 70 now (endangered species) or in the the rule. Following is an explanation of percent reduction in range for the foreseeable future (threatened species). the measures that may be implemented sharpnose shiner and a greater than 50 Because of the fact-specific nature of for the conservation of the shiners under percent range reduction for the smalleye listing determinations, there is no single this final rule. shiner. The occupied river segments of metric for determining if a species is Conservation measures provided to the upper Brazos River currently retain presently ‘‘in danger of extinction.’’ In species listed as endangered or the necessary length (greater than 275 the case of the sharpnose shiner and threatened species under the Act km (171 mi)) to support successful smalleye shiner, the best available include recognition, recovery actions, broadcast-spawning reproduction in information indicates the severe range requirements for Federal protection, and these species. However, these river reduction and isolation of these species prohibitions against certain practices. segments have naturally occurring to a single population in the upper Recognition through listing results in periods of low flow, periods completely Brazos River basin places these species public awareness and conservation by lacking flow, and periods of complete in danger of extinction now, and the Federal, State, and local agencies, drying (Factor A)—often during the dry situation is exacerbated by the ongoing private organizations, and individuals. summer months, which is also when and intensifying effects of river The Act encourages cooperation with these species spawn. The eggs and fragmentation (Factor A), drought the States and requires that recovery larvae of these species require flowing (Factor A), saltcedar encroachment actions be carried out for all listed water of sufficient velocity to keep their (Factor A), water quality degradation species. The protection measures eggs and larvae afloat and alive. During (Factor A), and commercial bait required of Federal agencies and the periods of insufficient river flow, harvesting (Factor B). The current prohibitions against certain activities reproduction is not successful and no threats affecting these species are are discussed, in part, below. young are produced (Factor A). expected to continue (or even increase The primary purpose of the Act is the Our review found the primary factors without substantial conservation conservation of endangered and leading to a high risk of extinction for efforts), causing both species to be in threatened species and the ecosystems these fishes include habitat loss and danger of extinction now. Therefore, upon which they depend. The ultimate modification due to river fragmentation because these species have been goal of such conservation efforts is the and decreased river flow, resulting reduced to less than half of their recovery of these listed species, so that mainly from reservoir impoundments previously occupied range and because they no longer need the protective (Factor A). Drought, exacerbated by both species are restricted to a single, measures of the Act. Subsection 4(f) of climate change (Factor E), and non-resilient population at a high risk of the Act requires the Service to develop groundwater withdrawals also act as extinction from a variety of unabated and implement recovery plans for the sources to reduce stream flows and threats, we find both species are in conservation of endangered and modify stream habitats (Factor A). danger of extinction now and meet the threatened species. The recovery Fragmentation due to reservoir definition of an endangered species (i.e., planning process involves the construction has resulted in a in danger of extinction), in accordance identification of actions that are substantially reduced range with only with sections 3(6) and 4(a)(1) of the Act. necessary to halt or reverse the species’ one isolated population of each species Under the Act and our implementing decline by addressing the threats to its in the upper Brazos River. With only regulations, a species may warrant survival and recovery. The goal of this one isolated population remaining, listing if it is threatened or endangered process is to restore listed species to a these species have no redundancy, throughout all or a significant portion of point where they are secure, self- reduced resiliency due to the inability its range. The threats to the survival of sustaining, and functioning components to disperse downstream, and limited these species occur throughout their of their ecosystems. representation. This situation puts the range and are not restricted to any Recovery planning includes the species in danger of extinction from particular significant portion of their development of a recovery outline only one adverse event (such as range. Accordingly, our assessments and shortly after a species is listed, insufficient flow rates for 2 consecutive determinations apply to these species preparation of a draft and final recovery years). Secondary causes of habitat throughout their entire range. plan, and revisions to the plan as modifications include water quality In conclusion, as described above, significant new information becomes degradation and saltcedar encroachment after a review of the best available available. The recovery outline guides that alters stream channels (Factor A). scientific and commercial information the immediate implementation of urgent As population sizes decrease, localized as it relates to the status of the species recovery actions and describes the concerns, such as commercial and the five listing factors, we find the process to be used to develop a recovery harvesting of individuals, also increases sharpnose shiner and smalleye shiner plan. The recovery plan identifies site- the risk of extinction (Factors B). are in danger of extinction now. specific management actions that will We evaluated whether the sharpnose Therefore, we are listing the sharpnose achieve recovery of the species, shiner and smalleye shiner are in danger shiner and smalleye shiner as measurable criteria that determine when of extinction now (i.e., an endangered endangered species in accordance with a species may be downlisted or delisted, species) or are likely to become in section 3(6) of the Act. We find that a and methods for monitoring recovery

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progress. Recovery plans also establish Section 7(a)(4) of the Act requires Our policy, as published in the a framework for agencies to coordinate Federal agencies to confer with the Federal Register on July 1, 1994 (59 FR their recovery efforts and provide Service on any action that is likely to 34272), is to identify to the maximum estimates of the cost of implementing jeopardize the continued existence of a extent practicable at the time a species recovery tasks. Recovery teams species proposed for listing or result in is listed, those activities that would or (comprising species experts, Federal destruction or adverse modification of would not constitute a violation of and State agencies, nongovernmental proposed critical habitat. If a species is section 9 of the Act. The intent of this organizations, and stakeholders) are listed subsequently, section 7(a)(2) of policy is to increase public awareness of often established to develop recovery the Act requires Federal agencies to the effect of a proposed listing on plans. When completed, the recovery ensure that activities they authorize, proposed and ongoing activities within outline, draft recovery plan, and the fund, or carry out are not likely to the range of species proposed for listing. final recovery plan will be available on jeopardize the continued existence of The following activities could our Web site (http://www.fws.gov/ the species or destroy or adversely potentially result in a violation of endangered), or from our Arlington, modify its critical habitat. If a Federal section 9 of the Act; this list is not Texas, Ecological Services Field Office action may affect a listed species or its comprehensive: (see FOR FURTHER INFORMATION CONTACT). critical habitat, the responsible Federal (1) Unauthorized collecting, handling, Implementation of recovery actions agency must enter into formal possessing, selling, in interstate generally requires the participation of a consultation with the Service. commerce, delivering, carrying, or broad range of partners, including other Federal agency actions within the transporting of the species, including Federal agencies, States, tribal, species’ habitat that may require import or export across State lines and nongovernmental organizations, conference or consultation or both as international boundaries, except for businesses, and private landowners. described in the preceding paragraph properly documented antique Examples of recovery actions include include but are not limited to: specimens of these taxa at least 100 habitat restoration (e.g., restoration of permitting of interbasin water transfers, years old, as defined by section 10(h)(1) native vegetation), research, captive permitting of large groundwater of the Act. (2) Unauthorized destruction or propagation and reintroduction, and withdrawal projects, permitting of in- alteration of sharpnose and smalleye outreach and education. The recovery of channel mining and dredging, issuance shiner habitats (e.g., unpermitted in- many listed species cannot be of section 404 Clean Water Act (33 stream dredging, impoundment, or accomplished solely on Federal lands U.S.C. 1251 et seq.) permits by the U.S. construction; water diversion or because their range may not occur Army Corps of Engineers, and withdrawal; channelization; discharge primarily or solely on non-Federal construction and maintenance of roads of fill material) that impairs essential lands. To achieve recovery of these or highways by the Federal Highway species requires cooperative behaviors such as breeding, feeding, or Administration. conservation efforts on private, State, sheltering, or results in killing or The Act and its implementing and Tribal lands. injuring sharpnose or smalleye shiners. Because these species are listed as regulations set forth a series of general Such activities could include, but are endangered, funding for recovery prohibitions and exceptions that apply not limited to, the destruction of upland actions will be available from a variety to all endangered wildlife. The riparian areas in a manner that of sources, including Federal budgets, prohibitions, codified at 50 CFR 17.21 negatively impacts the river ecosystem. State programs, and cost-share grants for for endangered wildlife, in part, make it (3) Capture, survey, or collection of non-Federal landowners, the academic illegal for any person subject to the specimens of these taxa without a community, and nongovernmental jurisdiction of the United States to take permit from the Service under section organizations. In addition, pursuant to (includes harass, harm, pursue, hunt, 10(a)(1)(A) of the Act. section 6 of the Act, the State of Texas shoot, wound, kill, trap, capture, or Questions regarding whether specific would be eligible for Federal funds to collect; or to attempt any of these), activities would constitute a violation of implement management actions that import, export, ship in interstate section 9 of the Act should be directed promote the protection and recovery of commerce in the course of commercial to the Arlington, Texas, Ecological the sharpnose and smalleye shiners. activity, or sell or offer for sale in Services Field Office (see FOR FURTHER Information on our grant programs that interstate or foreign commerce any INFORMATION CONTACT). listed species. It is also illegal to are available to aid species recovery can Required Determinations be found at: http://www.fws.gov/grants. possess, sell, deliver, carry, transport, or Please let us know if you are ship any such wildlife that has been National Environmental Policy Act interested in participating in recovery taken illegally. Certain exceptions apply We have determined that efforts for these species. Additionally, to agents of the Service and State environmental assessments and we invite you to submit any new conservation agencies. environmental impact statements, as information on these species whenever We may issue permits to carry out defined under the authority of the it becomes available and any otherwise prohibited activities National Environmental Policy Act of information you may have for recovery involving endangered and threatened 1969 (42 U.S.C. 4321 et seq.), need not planning purposes (see FOR FURTHER wildlife species under certain be prepared in connection with INFORMATION CONTACT). circumstances. Regulations governing regulations pursuant to section 4(a) of Section 7(a) of the Act requires permits are codified at 50 CFR 17.22 for the Act. We published a notice outlining Federal agencies to evaluate their endangered species, and at 17.32 for our reasons for this determination in the actions with respect to any species that threatened species. With regard to Federal Register on October 25, 1983 is proposed or listed as endangered or endangered wildlife, a permit must be (48 FR 49244). threatened and with respect to its issued for the following purposes: for critical habitat, if any is designated. scientific purposes, to enhance the Government-to-Government Regulations implementing this propagation or survival of the species, Relationship With Tribes interagency cooperation provision of the and for incidental take in connection In accordance with the President’s Act are codified at 50 CFR part 402. with otherwise lawful activities. memorandum of April 29, 1994

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(Government-to-Government Relations There are no tribes within the current or recordkeeping requirements, with Native American Tribal historical range of the species. Transportation. Governments; 59 FR 22951), Executive Regulation Promulgation Order 13175 (Consultation and References Cited Coordination With Indian Tribal A complete list of all references cited Accordingly, we amend part 17, Governments), and the Department of in this rule is available on the Internet subchapter B of chapter I, title 50 of the the Interior’s manual at 512 DM 2, we at http://www.regulations.gov within the Code of Federal Regulations, as follows: readily acknowledge our responsibility SSA Report (Service 2014, Literature PART 17—[AMENDED] to communicate meaningfully with Cited) or upon request from the recognized Federal Tribes on a Arlington, Texas, Ecological Services ■ government-to-government basis. In 1. The authority citation for part 17 Field Office (see FOR FURTHER continues to read as follows: accordance with Secretarial Order 3206 INFORMATION CONTACT). of June 5, 1997 (American Indian Tribal Authority: 16 U.S.C. 1361–1407; 1531– Rights, Federal-Tribal Trust Author(s) 1544; 4201–4245; unless otherwise noted. Responsibilities, and the Endangered ■ The primary authors of this document 2. Amend § 17.11(h) by adding the Species Act), we readily acknowledge following entries to the List of our responsibilities to work directly are the staff members of the Arlington, Texas, Ecological Services Field Office Endangered and Threatened Wildlife in with tribes in developing programs for alphabetical order under FISHES: healthy ecosystems, to acknowledge that (see ADDRESSES). tribal lands are not subject to the same List of Subjects in 50 CFR Part 17 § 17.11 Endangered and threatened controls as Federal public lands, to wildlife. remain sensitive to Indian culture, and Endangered and threatened species, * * * * * to make information available to tribes. Exports, Imports, Reporting and (h) * * *

Species Vertebrate population Historic where Status When Critical Special Common name Scientific name range endangered or listed habitat rules 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

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