[Federal Register Volume 79, Number 149 (Monday, August 4, 2014)]
[Rules and Regulations]
[Pages 45273-45286]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-17692]
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Vol. 79
Monday,
No. 149
August 4, 2014
Part III
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Determination of
Endangered Status for the Sharpnose Shiner and Smalleye Shiner; Final
Rule
Federal Register / Vol. 79, No. 149 / Monday, August 4, 2014 / Rules
and Regulations
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2013-0083;4500030113]
RIN 1018-AY55
Endangered and Threatened Wildlife and Plants; Determination of
Endangered Status for the Sharpnose Shiner and Smalleye Shiner
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service, determine endangered
species status under the Endangered Species Act of 1973, as amended,
for the sharpnose shiner (Notropis oxyrhynchus) and smalleye shiner (N.
buccula), two fish species from Texas. The effect of this regulation
will be to add these species to the List of Endangered and Threatened
Wildlife. We have also determined that critical habitat for the
sharpnose shiner and smalleye shiner is prudent and determinable.
Elsewhere in today's Federal Register, we designate critical habitat
for the sharpnose shiner and smalleye shiner under the Act.
DATES: This rule becomes effective September 3, 2014.
ADDRESSES: This final rule is available on the Internet at http://www.regulations.gov and at http://www.fws.gov/southwest/es/ArlingtonTexas. Comments and materials received, as well as supporting
documentation used in the preparation of this rule, are available for
public inspection at http://www.regulations.gov. All of the comments,
materials, and documentation that we considered in this rulemaking are
available for public inspection, by appointment, during normal business
hours at: U.S. Fish and Wildlife Service, Arlington, Texas, Ecological
Services Field Office, 2005 NE Green Oaks Blvd., Suite 140, Arlington,
TX 76006; by telephone 817-277-1100; or by facsimile 817-277-1129.
FOR FURTHER INFORMATION CONTACT: Debra Bills, Field Supervisor,
Arlington, Texas, Ecological Services Field Office, (see ADDRESSES). If
you use a telecommunications device for the deaf (TDD), call the
Federal Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Endangered Species Act
(Act), a species or subspecies may warrant protection through listing
if it is endangered or threatened throughout all or a significant
portion of its range. Listing a species as an endangered or threatened
species can only be completed by issuing a rule. On August 6, 2013 (78
FR 47582; 78 FR 47612), we proposed to list the sharpnose shiner and
smalleye shiner as endangered species and proposed to designate
critical habitat under the Act. Elsewhere in today's Federal Register,
we finalize designation of critical habitat for the sharpnose shiner
and smalleye shiner under the Act.
This rule will finalize the listing of the sharpnose shiner and
smalleye shiner as endangered species.
The basis for our action. Under the Act, a species may be
determined to be an endangered or threatened species based on any of
five factors: (A) The present or threatened destruction, modification,
or curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; and (E) other natural or manmade factors affecting its
continued existence. We have determined that the sharpnose and smalleye
shiners meet the definition of an endangered species primarily because
of the present or threatened destruction, modification, or curtailment
of its habitat or range resulting mainly from impoundments and
alterations of natural stream flow.
Peer review and public comment. We sought comments from independent
specialists to ensure that our designation is based on scientifically
sound data, assumptions, and analyses. We invited these peer reviewers
to comment on our listing proposal. We also considered all comments and
information received during the public comment period.
Previous Federal Actions
On June 13, 2002 (67 FR 40657), the sharpnose shiner and smalleye
shiner were made candidates for listing under the Act. On May 11, 2004,
we received a petition to list the sharpnose shiner and smalleye
shiner. We published our petition finding on May 11, 2005 (70 FR
24899). Because the sharpnose shiner and smalleye shiner were
previously identified through our candidate assessment process, the
species had already received the equivalent of a substantial 90-day
finding and a warranted, but precluded, 12-month finding (67 FR 40657,
June 13, 2002). Through the annual candidate review process (69 FR
24876, May 4, 2004; 70 FR 24870, May 11, 2005; 71 FR 53756, September
12, 2006; 72 FR 69034, December 6, 2007; 73 FR 75176, December 10,
2008; 74 FR 57804, November 9, 2009; 75 FR 69222, November 10, 2010; 76
FR 66370, October 26, 2011; 77 FR 69994, November 21, 2012), the U.S.
Fish and Wildlife Service (Service) continued to solicit information
from the public regarding these species.
On August 6, 2013 (78 FR 47582; 78 FR 47612), we proposed to list
the sharpnose shiner and smalleye shiner under the Act as endangered
species and proposed to designate critical habitat. We held a public
hearing on September 4, 2013, in Abilene, Texas. On March 4, 2014 (79
FR 12138), we requested comments on the draft economic analysis of
critical habitat designation for the shiners, as well as the proposed
rule to designate critical habitat. This comment period closed on April
3, 2014 (79 FR 12138).
Background
Species Information
The April 2014 Species Status Assessment Report (SSA Report)
(Service 2014, entire), available online at www.regulations.gov under
Docket Number FWS-R2-ES-2013-0083, provides a thorough assessment of
sharpnose shiner and smalleye shiner biology and natural history, and
assesses demographic risks, threats, and limiting factors in the
context of determining viability and risk of extinction for the
species. The SSA Report has been updated since the August 6, 2013,
publication of the proposed rules with data received during the peer
review and public comment processes. In the SSA Report, we compile
biological data and a description of past, present, and likely future
threats (causes and effects) facing the sharpnose shiner and smalleye
shiner. Because data in these areas of science are limited, some
uncertainties are associated with this assessment. Where we have
substantial uncertainty, we have attempted to make our necessary
assumptions explicit in the SSA Report. We base our assumptions in
these areas on the best available scientific and commercial data.
Importantly, the SSA Report does not represent a decision by the
Service on whether these taxa should be listed as endangered or
threatened species under the Act. The SSA Report does, however, provide
the scientific basis that informs
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our decisions (see Summary of Biological Status and Threats in this
final rule), which involve the further application of standards within
the Act and its regulations and policies (see Determination) in this
final rule).
Summary of Biological Status and Threats
Our SSA Report documents the results of the comprehensive
biological status review for the sharpnose and smalleye shiners and
provides a thorough account of the species' overall viability and,
conversely, extinction risk (Service 2014, entire). The SSA Report
contains the data on which this final rule is based. The following is a
summary of the results and conclusions from the SSA Report.
The sharpnose shiner and smalleye shiner are small minnows native
to arid prairie streams of Texas originating from the Brazos River. The
naturally occurring historical distribution of the sharpnose shiner
included the Brazos River, Colorado River, and Wichita River in Texas,
while the naturally occurring historical distribution of the smalleye
shiner included only the Brazos River.
In conducting our status assessment, we first considered what the
two shiners need to ensure viability. We generally define viability as
the ability of the species to persist over the long term and,
conversely, to avoid extinction. We then evaluated whether those needs
currently exist and the repercussions to the species when those needs
are missing, diminished, or inaccessible. We next considered the
factors that are causing the species to lack what they need, including
historical, current, and future factors. Finally, considering the
information reviewed, we evaluated the current status and future
viability of the species in terms of resiliency, redundancy, and
representation.
Resiliency is the ability of a species to withstand stochastic
events and, in the case of the shiners, is best measured by the extent
of suitable habitat in terms of stream length. Redundancy is the
ability of a species to withstand catastrophic events by spreading the
risk and can be measured through the duplication and distribution of
resilient populations across the species' range. Representation is the
ability of a species to adapt to changing environmental conditions and
can be measured by the breadth of genetic diversity within and among
populations and the ecological diversity of populations across the
species' range. In the case of the shiners, we evaluate representation
based on the extent of the geographical range and the variability of
habitat characteristics within their range as indicators of genetic and
ecological diversity.
Our assessment found that both species of shiners have an overall
low viability (or low probability of persistence) in the near term
(over about the next 10 years) and a decreasing viability (increasing
risk of extinction) in the long-term future (over the next 11 to 50
years). For the shiners to be considered viable, individual fish need
specific vital resources for survival and completion of their life
cycles. Both species need wide, shallow, flowing waters generally less
than 0.5 meters (m) (1.6 feet (ft)) deep with sandy substrates, which
are found in mainstem rivers in the arid prairie region of Texas. Both
species broadcast-spawn eggs and sperm into open water asynchronously
(fish not spawning at the same time) during periods of low flow and
synchronously (many fish spawning at the same time) during periods of
elevated streamflow from April through September. Their eggs are semi-
buoyant and remain suspended 1 or 2 days in flowing water as they
develop into larvae. Larval fish remain suspended in the flowing water
column an additional 2 to 3 days as they develop into free-swimming
juvenile fish. In the absence of sufficient water velocities, suspended
eggs and larvae sink into the substrate where a majority likely dies.
The reproductive strategy of these species makes them particularly
vulnerable to changes in the natural conditions of occupied habitat.
To sustain populations of the shiners long term, population
dynamics modeling suggests estimated mean spawning season river flows
of 2.61 cubic meters per second (m\3\s-\1\) (92 cubic feet
per second (cfs)) and 6.43 m\3\s-\1\ (227 cfs) are required
for the sharpnose and smalleye shiners, respectively. It is also
estimated that populations of shiners require approximately 275
kilometers (km) (171 miles (mi)) of unobstructed, flowing water during
the breeding season to support a successfully reproductive population.
This length of stream allows the eggs and larvae to remain suspended in
the water column and survive until they mature sufficiently to swim on
their own. Across their range, these species also need unobstructed
river lengths to allow for upstream and downstream movements to survive
seasons with poor environmental conditions in certain river reaches.
Unobstructed river reaches allow some fish to survive and recolonize
degraded reaches when conditions improve. In addition, these fish only
naturally live for 1 or 2 years, making the populations particularly
vulnerable when the necessary streamflow conditions for reproduction
are lacking for more than one season.
The current conditions of both species indicate that they do not
have the necessary resources for persistence in the immediate future.
Both species have experienced range reduction, with both fish having
lost at least half of their historical range. Both species are now
restricted to one population in the upper Brazos River basin. As a
result, sharpnose and smalleye shiners currently lack redundancy, which
is reducing the viability of these species as a whole. In addition,
streamflows within their current extant range are insufficient during
some years to support successful reproduction, such as occurred in
2011. These fish have been resilient to past stressors that occur over
short durations, and their populations appear capable of recovering
naturally even when an entire year's reproductive effort is lost.
However, without human intervention, given their short lifespan and
restricted range, stressors that persist for two or more reproductive
seasons (such as a severe drought) severely limit these species'
current viability, placing them at a high risk of extinction now.
The two primary factors affecting the current and future conditions
of these shiners are river fragmentation by impoundments and
alterations of the natural streamflow regime (by impoundments, drought,
groundwater withdrawal, and saltcedar encroachment) within their range.
Other secondary factors, such as water quality degradation and
commercial harvesting for fish bait, likely also impact these species
but to a lesser degree. These multiple factors are not acting
independently, but are acting together as different sources (or
causes), which can result in cumulative effects to lower the overall
viability of the species.
Fish barriers such as impoundments are currently restricting the
upstream and downstream movement of migrating fish and prevent survival
of the semi-buoyant eggs and larvae of sharpnose and smalleye shiners.
This is because the eggs and larvae cannot remain suspended in the
water column under non-flowing conditions in reservoirs or if
streamflows cease. Of the area once occupied by one or both species in
the Brazos, Colorado, and Wichita Rivers, only two contiguous river
segments remain with unobstructed lengths (without dams) greater than
275 km (171 mi): The upper Brazos River (where the fish are extant) and
the lower Brazos River (where the fish are either extirpated or
functionally extirpated). The effects of river habitat fragmentation
have occurred and
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continue to occur throughout the range of both species and are expected
to increase if proposed new reservoirs are constructed. River habitat
fragmentation is affecting both species at the individual, population,
and species levels, and puts the species at a high risk of extinction
currently and increasingly so into the long-term future.
The historical ranges of both species have been severely
fragmented, primarily by large reservoir impoundments, resulting in the
isolation of one population of each species in the upper Brazos River
basin. The construction of Possum Kingdom Reservoir in 1941, for
example, eliminated the ability of these species to migrate downstream
to wetter areas when the upper Brazos River experiences drought. There
are also a number of existing in-channel structures (primarily pipeline
crossings and low-water crossings) within the occupied range of these
species, some of which are known to restrict fish passage during
periods of low flow. Species extirpation has already occurred in areas
where river segments have been fragmented and reduced to less than 275
km (171 mi) in length.
In addition, future fragmentation of the remaining occupied habitat
of the upper Brazos River by new impoundments would decrease the
contiguous, unfragmented river habitat required by these species for
successful reproduction and impact the sole remaining population of
each of these species. Texas does not have adequate water supplies to
meet current or projected water demand in the upper Brazos River
region, and additional reservoir construction is considered imminent.
Possible new impoundments include the 2012 State Water Plan's proposed
Post Reservoir in Garza County, the Double Mountain Fork Reservoir
(East and West) in Stonewall County, and the South Bend Reservoir in
Young County. Because extirpation of these species is expected to
eventually occur in occupied river fragments reduced to less than 275
km (171 miles) in length, any new structures further fragmenting stream
habitats increases the likelihood of extinction for both species.
The natural flow regime is considered one of the most important
factors to which native riverine species, like the shiners, become
adapted, and alterations to it can have severe impacts on fishes. A
majority of sharpnose and smalleye shiner reproductive output occurs
through synchronized spawning during periods of elevated pulse flows
associated with storms, although successful reproduction is also
possible during periods of low to moderate flow. When streamflows are
insufficient, the fish cannot successfully spawn and reproduce. There
are several environmental changes that are a source of declining
streamflows within the range of the shiners. Downstream of reservoirs,
streamflows are lowered and stabilized, which has reduced or, in some
areas, eliminated successful reproduction in these species. In
addition, groundwater withdrawal and depletion will reduce or eliminate
the remaining springs and seeps of the upper Brazos River basin, which
will lower river flow. Drought is another obvious source of impact that
negatively affects streamflow and has severe impacts on sharpnose and
smalleye shiner reproduction. Severe droughts in this region are
expected to become more common as a result of ongoing climate change.
Finally, saltcedar encroachment is another source of environmental
change that not only is affecting streamflows but also restricts
channel width and increases channel depth. These stream channel changes
reduce the amount of wide channels and shallow waters preferred by
sharpnose and smalleye shiners. Reduced streamflow leading to river
pooling also affects the survival of adult and juvenile fishes because
water quality parameters such as salinity, dissolved oxygen, and
temperature may approach or exceed those tolerated by these species and
food availability becomes limited. Flow reduction and an altered flow
regime have occurred and continue to occur throughout the range of
these species and are expected to impact both species at the
individual, population, and species levels.
Within the reduced range of these species in the upper Brazos River
basin, there are currently at least 13 impoundments or other structures
(e.g., pipelines and low water crossings) affecting (to varying
degrees) the amount of stream flow within the occupied range of these
species. Upstream reservoirs serve as water supplies for various
consumptive water uses and reduce downstream flows available for the
fishes. Because the current impoundments restrict stream flow below the
minimum levels required for both species, we expect these impoundments
to impact both species at the individual, population, and species
levels.
Additional future impoundments, reservoir augmentations, and water
diversions are under consideration for construction within the upper
Brazos River basin, which would further reduce flows and fragment
remaining habitat. The construction of at least some of these
structures to meet future water demand in the region is likely to occur
within the next 50 years. These future impoundments, reservoir
augmentations, and water diversions will further increase the
likelihood of extinction for both species.
Besides impoundments and diversions of water from reservoirs, there
are other sources causing reduced stream flows in the upper Brazos
River basin. One such source is the projected warmer temperatures and
drier conditions in the upper Brazos River basin in the future. This
trend is already becoming apparent and exacerbates the risk of the
species' extinction from loss of river flow. River flow reductions and
river drying are also expected to increase as groundwater withdrawals
negatively impact already reduced spring flows. Saltcedar encroachment
also intensifies evaporative water loss along occupied river segments.
There are several existing efforts addressing threats to natural flow
regimes, including the Texas Environmental Flows Program, saltcedar
control programs, and groundwater conservation districts. However,
these programs and conservation efforts have not alleviated ongoing and
future threats negatively affecting water flow in the upper Brazos
River basin.
The effects of reduced stream flows on the shiners were
dramatically demonstrated during the summer spawning season of 2011.
During 2011, Texas experienced the worst 1-year drought on record, and
the upper Brazos River went dry. Some individual fish presumably found
refuge from the drying river in Possum Kingdom Lake downstream.
However, the non-flowing conditions in the river made reproduction
impossible, and any shiners in the lake would have faced increased
predation pressure from large, lake-adapted, piscivorous fish. Fearing
possible extinction of these species, State fishery and Texas Tech
University biologists captured sharpnose and smalleye shiners from
isolated pools in 2011, prior to their complete drying, and maintained
a small population in captivity until they were released back into the
lower Brazos River the following year. During the 2011 drought, no
sharpnose shiner or smalleye shiner reproduction was documented. Given
their short lifespan (they rarely survive through two reproductive
seasons, and most typically survive long enough to reproduce only
once); a similar drought in 2012 would have likely led to extinction of
both species. However, 2012 fish survey results of the upper
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Brazos River basin indicated drought conditions were not as intense as
those in 2011, and successful recruitment of sharpnose and smalleye
shiners occurred.
As remaining habitat of the shiners becomes more fragmented and
drought conditions intensify, the single remaining population of
sharpnose shiners and smalleye shiners will become more geographically
restricted, further reducing the viability of the species into the
future. Under these conditions, the severity of secondary threats, such
as water quality degradation from pollution and golden algal blooms,
and legally permitted commercial bait fish harvesting, will have a
larger impact on the species and a single pollutant discharge, golden
algal bloom, or commercial harvesting or other local event will
increase the risk of extinction of both species.
The shiners currently have limited viability and increased
vulnerability to extinction largely because of their stringent life-
history requirement of long, wide, flowing rivers to complete their
reproductive cycle. With a short lifespan allowing only one or two
breeding seasons and the need for unobstructed river reaches greater
than 275 km (171 mi) in length containing average flows greater than
2.61 m\3\s-\1\ (92 cfs) and 6.43 m\3\s-\1\ (227
cfs) (for the sharpnose and smalleye shiners, respectively) during the
summer, both species are at a high risk of extirpation when rivers are
fragmented by fish barriers and flows are reduced from human use and
drought-enhanced water shortages. These adverse conditions have already
resulted in substantial range reduction and isolation of the one
remaining population of both fish into the upper Brazos River basin.
The extant population of each shiner species is of adequate size, is
located in a contiguous stretch of river long enough to support
reproduction, and is generally considered resilient to local or short-
term environmental changes. However, with only one location, the
species lack any redundancy. Further, these species lack
representation, meaning they lack the ability to adapt to changing
environmental conditions in a timeframe that would avoid extinction.
Given the short lifespan and restricted range of these species,
without human intervention, lack of adequate flows (due to drought and
other stressors) persisting for two or more consecutive reproductive
seasons would likely lead to the species' extinction. With human water
use and ongoing regional drought, the probability of this happening in
the near term (about the next 10 years) is high, putting the species at
a high risk of extinction. Over the longer term (the next 11 to 50
years), these conditions will only continue to deteriorate as human
water use continues, construction of new dams within the extant range
is possible, and ongoing climate change exacerbates the likelihood of
drought. In conclusion, both species currently experience low viability
(low probability of persistence), and their viability is expected to
continue to decline into the future.
Summary of Comments and Recommendations
In the proposed rule published on August 6, 2013 (78 FR 47582), we
requested that all interested parties submit written comments on the
proposal by October 7, 2013. We also contacted appropriate Federal and
State agencies, scientific experts and organizations, and other
interested parties and invited them to comment on the proposal.
Newspaper notices inviting general public comment were published in the
Lubbock Avalanche, Abilene Reporter News, Waco Tribune Herald, and
Baylor County Banner. We received requests for a public hearing and
held one on September 4, 2013, in Abilene, TX.
During the comment period for the proposed rule, we received 268
comment letters, including 3 peer review comment letters, addressing
the proposed listing of sharpnose shiner and smalleye shiner. During
the September 4, 2013, public hearing, nine individuals or
organizations made comments on the proposed rule. Comments addressing
the proposed critical habitat designation were fully addressed in a
separate rulemaking action, and published elsewhere in the Federal
Register today. All substantive information provided during the comment
periods has either been incorporated directly into this final
determination, the SSA Report, or addressed below.
Comment From Peer Reviewers
In accordance with our peer review policy published on July 1, 1994
(59 FR 34270), we solicited expert opinion from four knowledgeable
individuals with scientific expertise that included familiarity with
sharpnose and smalleye shiners or their habitats, biological needs,
threats, general fish biology, or aquatic ecology. We received
responses from three of the peer reviewers.
We reviewed all comments received from the peer reviewers for
substantive issues and new information regarding the listing of
sharpnose shiners and smalleye shiners. The peer reviewers generally
concurred with our methods and our assessment of the current status of
these species. They provided additional information, clarifications,
and suggestions to improve the SSA Report. Peer reviewer comments were
all specific to the SSA Report and are incorporated into the SSA Report
or responded to in Appendix B of the SSA Report.
Comments From Federal Agencies
(1) Comment: The U.S. Department of Agriculture's Natural Resources
Conservation Service works with landowners on a voluntary basis to
apply conservation measures, some of which may benefit sharpnose and
smalleye shiners, and the Natural Resources Conservation Service
welcomes the opportunity to consult with the Service to determine the
effects of their actions on the habitat of these two species.
Our Response: The Service appreciates the work of the Natural
Resources Conservation Service and looks forward to working with them
as conservation partners regarding sharpnose and smalleye shiner
habitat.
Comments From the State
(2) Comment: The term ``groundwater withdrawal'' is too broad and
should be replaced with ``depletion of shallow, groundwater flows in
the Brazos River alluvium'' because there is no verifiable data linking
the use of the area's aquifers to reduced flow in the Brazos River.
More data are needed on the role of groundwater in this region and its
effect on the shiners.
Our Response: The Service considers the use of the term
``groundwater withdrawal'' to adequately capture the evidence provided
in the SSA Report and covers both depletion of shallow groundwater
flows of the alluvium as well as the removal of groundwater from deeper
within the aquifers. We agree more data would be helpful in
understanding the interaction between groundwater and surface water
flows in the upper Brazos River basin; however, we used the best
scientific and commercial data available to determine the effects of
groundwater withdrawal on surface water flows and we will continue to
investigate the effects of groundwater withdrawal on these species as
additional data become available.
(3) Comment: The Service lists several threats to sharpnose and
smalleye shiners but does not specifically acknowledge that farming and
ranching activities are not threats. It should be explicitly stated
that farming and ranching activities have been shown to
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have no detrimental impact on these species.
Our Response: In the SSA Report, we identified sources of current
threats and threats likely to occur now or in the immediate future
based on the best scientific and commercial data available. These
threats do not include ranching or farming. Our intent is only to
identify activities that likely pose a threat to these species now or
in the immediate future. At this time, the best scientific and
commercial data available does not indicate that cattle grazing or
current farming practices impact these species. However, beyond the
immediate future, it is conceivable that large-scale farming or
ranching activities could substantially reduce surface water flows in
the upper Brazos River basin by extensive groundwater withdrawal or
removal of surface water flows.
(4) Comment: Listing the sharpnose and smalleye shiner could affect
economic growth in the Brazos River basin or could limit the
development of needed water supplies and require management changes of
existing water supplies in important economic centers.
Our Response: For listing actions, the Act requires that we make
determinations ``solely on the basis of the best available scientific
and commercial data available'' (16 U.S.C. 1533(b)(1)(A)). Therefore,
we do not consider any potential information concerning economic or
other possible impacts when making listing determinations. We will work
with entities to conserve the shiners and develop workable solutions.
(5) Comment: More scientific data are needed regarding the status
of the shiners and their habitat in the upper Brazos River basin. The
species are surviving downstream of the upper segment of the Brazos
River; drought is the most obvious factor impacting these minnows, and
it does not make good sense to recreate an artificial environment for
species unable to adapt to it. A decision of this magnitude that could
affect vital water supplies and the economic future of communities
should not be based on uncertainty.
Our Response: Imperiled species often lack an abundance of
scientific data; however, the biological and habitat requirements of
the sharpnose and smalleye shiners have been well studied for many
years. Further, section 4 of the Act requires the Service to base its
decision to list species as either threatened or endangered based
solely on the best scientific and commercially available data. We
interpret the ``best available'' standard to mean we are required to
use the best scientific and commercial data available to us even though
it may be limited or uncertain.
The sharpnose and smalleye shiner are currently limited to the
upper Brazos River basin and are extirpated or functionally extirpated
from the lower Brazos River area. The sole remaining populations of
these species occur in the upper Brazos River basin. While the Service
agrees drought is an important factor affecting the viability of these
fish, drought is exacerbated by the impoundment of their natural
habitat, which further reduces water flows and impedes fish migration
to more suitable habitat during dry conditions. We are unclear as to
what artificial environment the commenter is referring. However, we are
not recreating an artificial environment. We are attempting to conserve
a healthy, natural aquatic ecosystem in the upper Brazos River basin is
important protect habitat for sharpnose and smalleye shiners and other
aquatic wildlife.
We sought comments from independent peer reviewers to ensure that
our determination is based on scientifically sound data, assumptions,
and analysis. We solicited information from the general public, non-
governmental conservation organizations, State and Federal agencies
that are familiar with the species and their habitats, academic
institutions, and groups and individuals that might have information
that would contribute to an update of our knowledge of the species, as
well as the activities and natural processes that might be contributing
to the decline of either species. While some uncertainty will always
exist, the existing body of literature on sharpnose shiners, smalleye
shiners, and similar broadcast-spawning minnows is the best available
information. See the SSA Report for more detailed information about
these species.
(6) Comment: A scientifically based approach including input from
affected stakeholders is under way to develop the necessary flows to
balance the needs of all users in the Brazos River basin. The listing
of these shiners could undermine this effort.
Our Response: The Service is aware of the Texas Environmental Flows
Program, a scientifically-based approach currently being developed per
Senate Bill 3 of the 2007 Texas Legislature. The Service considered
this information in section ``6.B. Minimize Impacts from Impoundments''
of the SSA Report. The Service has concluded that the listing of these
species does not undermine the Texas Environmental Flows Program. The
Service looks forward to working with the State to promote ecologically
sustainable water use and to provide information regarding impacts to
fish and wildlife resources from environmental flow recommendations
when available and applicable.
(7) Comment: The Service should discuss on-the-ground work for
saltcedar (Tamarix spp.) control with the appropriate agencies.
Our Response: The Service has been engaged with several
organizations involved in saltcedar control projects including the U.S.
Department of Agriculture's Natural Resources Conservation Service, The
Brazos River Authority, and our internal Partners for Fish and Wildlife
program. We look forward to continuing to work with these and
additional conservation partners in controlling saltcedar in the upper
Brazos River basin. Despite ongoing saltcedar control efforts, these
invasive plants continue to thrive in parts of the upper Brazos River
basin.
Public Comments
(8) Comment: A number of public comments opposed the listing of the
sharpnose shiner and smalleye shiner as federally endangered or
threatened species but provided no substantive scientific or commercial
evidence suggesting that listing is not warranted.
Our Response: While we appreciate the opinion of all interested
parties, the Service must base its decision of whether to list the
sharpnose shiner and smalleye shiner solely on the basis of the best
scientific and commercial data available.
(9) Comment: Several comments opposed the involvement of the
Federal Government in Texas' affairs or claimed the Texas Parks and
Wildlife Department could handle protection of the sharpnose shiner and
smalleye shiner.
Our Response: While the Texas Parks and Wildlife Department is a
valued partner in conserving imperiled species, they do not currently
list the sharpnose or smalleye shiners as endangered species, nor does
Texas' endangered species law protect the habitat on which these
species rely. Consequently, the threats to these species are not
completely ameliorated by current Texas actions or laws. The Service
looks forward to working with our State partners in the protection and
conservation of these species.
(10) Comment: Efforts to contain the naturally occurring salt
springs along the Salt Fork of the Brazos River would enhance water
quality during low flow conditions and would help mitigate the threat
from golden algae blooms.
[[Page 45279]]
Our Response: This is an issue that would be considered during the
recovery process.
(11) Comment: Listing the sharpnose and smalleye shiners as
endangered is inappropriate because there is neither a shortage of
their habitat nor populations.
Our Response: The sharpnose shiner was known historically and
naturally to inhabit approximately 3,417 km (2,123 mi) of river
segments in the Brazos, Red, and Colorado River basins, but now the
only sustainable population is restricted to approximately 1,009 km
(627 mi) of the upper Brazos River basin, a greater than 70 percent
reduction. The smalleye shiner was known historically and naturally to
inhabit approximately 2,067 km (1,284 mi) of river segments in the
Brazos River basin, but now the only sustainable population is
restricted to approximately 1,009 km (627 mi) of the upper Brazos River
basin, a greater than 51 percent reduction. These are the sole
remaining populations of these species. A more detailed description of
the species' current and historical ranges is in section ``2.D. Species
Rangewide Needs'' of the SSA Report. The two primary factors affecting
the current and future conditions of these shiners are river
fragmentation by impoundments and alterations of the natural streamflow
regime (by impoundments, drought, groundwater withdrawal, and saltcedar
encroachment) within their range. Other secondary factors, such as
water quality degradation and commercial harvesting for fish bait,
likely also impact these species but to a lesser degree. These multiple
factors are not acting independently, but are acting together as
different sources (or causes), which can result in cumulative effects
to lower the overall viability of the species.
(12) Comment: Sharpnose and smalleye shiners are sold as bait along
the Brazos River in Texas, but there are laws in place that severely
limit commercial harvesting of bait fish now and in the future.
However, sharpnose and smalleye shiners are sold as bait along the
Brazos River.
Our Response: Texas law requires commercial bait harvesters to
obtain a State permit before taking nongame fish, such as the shiners,
from public fresh waters of the State (Texas Administrative Code Title
31, Part 2, Chapter 57). We are aware of at least one existing State
permit that provides for commercial bait harvesting in the upper Brazos
River basin, where both sharpnose and smalleye shiners are known to
occur. At this time, the permits issued under Texas State law do not
require identification of fish collected for commercial bait at the
species level, do not put limits on the number of fish collected, and
do not prohibit the collection of sharpnose and smalleye shiners.
Consequently, commercial bait harvesting remains a threat despite the
Texas permitting system. Furthermore, upon effectiveness of this rule,
the ``take'' (as defined by Federal law) of either species will be
considered a violation of the Act, regardless of the effect of the
permits issued by the State of Texas.
(13) Comment: River fragmentation by impoundments and alterations
of natural stream flow is adequately regulated by current Texas State
law including Senate Bill 155, which states that no person may
construct or maintain a structure on land owned by the State of Texas
without a permit. The Brazos River bed is owned by the State of Texas.
Our Response: We recognize that Texas State law may regulate
aspects of the construction of impoundments in the Brazos River.
However, as discussed in the Final Listing Status Determination
(below), this law does not remove the threats to the species caused by
existing impoundments. Further, this law does not remove the
possibility of future impoundments causing further loss of unfragmented
habitat.
(14) Comment: The Service should not base part of the listing rule
on the unproven science surrounding climate change uncertainty in
applying climate change models at the local scale.
Our Response: The Service considered numerous scientific data
sources as cited in our SSA Report pertaining to climate change. The
best available scientific information shows unequivocally that the
Earth's climate is currently in a period of unusually rapid change, the
impacts of that change are already occurring (National Fish, Wildlife,
and Plants 2012, p. 9), and the region is likely to experience warmer
weather, which will further strain water resources through increased
water use, evaporation, and evapotranspiration.
Projections of climate change globally and for broad regions
through the 21st century are based on the results of modeling efforts
using state-of-the-art Atmosphere-Ocean General Circulation Models and
various greenhouse gas emissions scenarios (Meehl et al. 2007, p. 753;
Randall et al. 2007, pp. 596-599). However, the Service recognizes that
the current climate change models are not always downscaled to a local
level. Despite improvements in climate change science, climate change
models still have difficulties with certain predictive capabilities.
These difficulties are more pronounced at smaller spatial scales and
longer time scales. Model accuracy is limited by important small-scale
processes that cannot be represented explicitly in models and so must
be included in approximate form as they interact with larger-scale
features. This is partly due to limitations in computing power, but
also results from limitations in scientific understanding or in the
availability of detailed observations of some physical processes.
Consequently, models continue to display a range of outcomes in
response to specified initial conditions and forcing scenarios. Despite
such uncertainties, models predict climate warming under greenhouse gas
increases (Meehl et al. 2007, p. 762; Prinn et al. 2011, p. 527), which
is likely to worsen future drought conditions in the upper Brazos
River.
Drought conditions negatively impact sharpnose shiners and smalleye
shiners by reducing the availability and flow rate of river water
required to survive and reproduce. The frequency of spawning seasons
not meeting the estimated minimum mean summer discharge requirements to
support sharpnose and smalleye shiner growth appears to be increasing
(Service 2014, p. 42). With increasing drought, there is a projected
decrease in surface runoff up to 10 percent by the mid-21st century
(Mace and Wade 2008, p. 656; Karl et al. 2009, p. 45). As the intensity
and frequency of spawning season droughts increase and river flows
decrease, shiner survival and reproduction will be reduced. The SSA
Report and listing rules have been revised to more clearly recognize
the uncertainty in applying climate change models to the local scale of
the upper Brazos River basin.
(15) Comment: The Service received multiple requests for additional
public hearings. Requests contended that the Service provided
inadequate notification, that having a hearing for the proposed listing
rule and proposed critical habitat rule at the same time did not follow
the requirements outlined in the Act, and that the meeting was not
located close to proposed critical habitat.
Our Response: Section 4(b)(5) of the Act states that the Service
shall promptly hold one public hearing on the proposed regulation if
any person files a request for such a hearing within 45 days after the
date of the publication of the general notices. The Service did receive
a request for a public hearing, and the Service held a public hearing
on September 4, 2013, in Abilene, Texas.
The notification of the public hearing was clearly stated in both
the proposed rule to list the sharpnose shiner and smalleye shiner as
endangered and in
[[Page 45280]]
the proposed rule to designated critical habitat for these species on
August 6, 2013 (78 FR 47582; 78 FR 47612). A notification of the public
hearing was also published in the Lubbock Avalanche on Sunday, August
18th; the Abilene Reporter News on Sunday, August 18th; the Waco
Tribune Herald on Sunday, August 25th; and the Baylor County Banner
from August 15th through the 22nd. These newspapers have relatively
large distributions with one located immediately upstream of designated
critical habitat, one downstream of designated critical habitat, and
two having distributions in or around designated critical habitat.
The Service mailed letters, which included information regarding
the public hearing to over 100 recipients, shortly after the proposed
rules published on August 6, 2013. Letter recipients included Federal
agencies, State agencies, city offices, county courthouses, and
numerous nongovernmental organizations. Service staff also contacted
approximately 56 local media outlets and posted a news release
containing the public hearing announcement on the Arlington, Texas,
Ecological Services Field Office and Service's Southwest Region Web
pages.
The Act does not require the Service to hold multiple public
hearings in multiple locations. The Act also does not indicate a
necessary proximity to proposed critical habitat within which to hold a
public hearing. The Service chose Abilene, Texas, because it is the
largest city centrally located to the proposed designated critical
habitat that contained a venue of appropriate size and with reasonable
access by major roads and highways. The Service also held the public
hearing in the evening to provide adequate time for attendees to travel
after normal work hours. To provide additional opportunity for the
public to provide comments, the Service reopened the comment period on
the proposed rule to designate critical habitat for these species for
30 days to coincide with the availability of the Draft Economic
Analysis of the Proposed Designation of Critical Habitat for Sharpnose
and Smalleye Shiners on March 4, 2014 (79 FR 12138).
(16) Comment: There have been droughts of this magnitude before,
and the sharpnose and smalleye shiners continue to exist.
Our Response: According to available U.S. Geological Survey flow
station data, the worst 1-year drought recorded in the upper Brazos
River basin occurred in 2011, and the best available commercial and
scientific data suggest the trend of increasing drought intensity and
duration is likely to worsen in the future. Prior to U.S. Geological
Survey flow monitoring and construction of Brazos River impoundments,
droughts of equal intensity may have occurred, but the sharpnose and
smalleye shiner were likely capable of surviving because cumulative
threats, such as river fragmentation from constructed impoundments,
were not present at that time. Threats to the species do not
necessarily act individually but act cumulatively. These cumulative,
negative impacts exceed those that would be expected from each threat
individually.
Due to drought conditions and lack of streamflow in 2011 there was
no observed recruitment of juvenile sharpnose or smalleye shiners
during sampling efforts of the upper Brazos River during the spawning
season of 2011 (Wilde 2012b, pers. comm.). Given these species at most
survive for two reproductive seasons, severe drought conditions during
consecutive spawning seasons may result in local extirpations or
complete extinction unless recovery actions are implemented. The summer
of 2011 provided an example of what happens to these species when water
availability is reduced by in-channel impoundments (water withheld for
municipal use in the upper Brazos River basin), continued groundwater
depletion (particularly for agricultural use in the upper Brazos River
basin), saltcedar encroachment (particularly in the downstream portion
of the upper Brazos River), and severe drought (2011 being Texas' worst
1-year drought on record). When these factors acted together, the upper
Brazos River dried up over much of its length, and a complete lack of
reproduction and recruitment was observed for these species. The
impoundment of Possum Kingdom Lake also exacerbated the impact of flow
regime alteration to these species by blocking the downstream movement
of these fish to areas with suitable conditions for survival and
reproduction, as may have historically occurred during extreme
circumstances. Negative effects were likely also exacerbated by
increased predation pressure on adult sharpnose and smalleye shiners
seeking refuge in Possum Kingdom Lake by larger, lentic-adapted
piscivorous fish species.
(17) Comment: Large landowners often cannot participate in cost-
share programs (such as those for saltcedar control to benefit
sharpnose and smalleye shiners) because of earned income. If the
government mandates saltcedar control, it will come out of their
pockets.
Our Response: The Service does not have authority to mandate what
private landowners do with their land and cannot require landowners to
engage in conservation activities, such as saltcedar control. Many
cost-share programs consider positive impacts to threatened or
endangered species when deciding projects to fund; therefore,
landowners who are eligible for cost-share programs and would like to
implement saltcedar control on land of the upper Brazos River basin may
be more likely to receive cost-share.
(18) Comment: The public should know who has been chosen as peer
reviewers or have input in choosing who peer reviews the listing rules
and species status assessment.
Our Response: Peer reviewer names are made available to the public
when their comments are officially submitted and posted on
www.regulations.gov as with any public commenter. Release of peer
reviewer names prior to the submission of their review can subject them
to public and political pressures. The Service relies on peer review to
provide a thorough and expert opinion on the science used to make
listing decisions and it should be guarded against outside influences
that could affect the subjectivity of that review.
In selecting peer reviewers we followed the guidelines for Federal
agencies spelled out in the Office of Management and Budget (OMB)
``Final Information Quality Bulletin for Peer Review,'' released
December 16, 2004, and the Service's ``Information Quality Guidelines
and Peer Review'', revised June 2012. Part of the peer review process
is to provide information online about how each peer review is to be
conducted. Prior to publishing the proposed listing and critical
habitat rule for the shiners, we posted a peer review plan on our Web
site at http://www.fws.gov/southwest/science/peerreview.html, which
included information about the process and criteria used for selecting
peer reviewers.
(19) Comment: The effluent from the City of Lubbock has raised the
alkali level of the Brazos River such that it is borderline for human
consumption.
Our Response: The Service is unaware of any data linking alkalinity
levels to City of Lubbock effluent, nor is it aware of any data
suggesting the alkalinity of the upper Brazos River basin is above
normal levels. The commenter did not provide any citations or
documentation to support this comment.
(20) Comment: The Service justifies the proposed rule, in part, by
alleging a decline in population of the species without providing an
estimate of historical or current population data. A review of
historical surveys or population monitoring surveys could be
[[Page 45281]]
implemented to determine population trends and relative distribution.
Our Response: The Service is using range restriction and intensity
of threats to the species as indicators of species status. Population
size and fish abundance are not perfect measures of population health
for the sharpnose and smalleye shiner because numbers of fish vary
widely with changing habitat conditions and because ongoing threats to
the species have the ability to cause extirpation and extinction
regardless of population size. Recent and ongoing survey efforts are
adding to the body of knowledge for these fish. In their occupied
range, both species are distributed throughout the upper Brazos River
depending on habitat conditions (available surface water within
tolerable physiological limits) at the time of collection. See our
response to comment (11) above for additional information.
(21) Comment: The Service fails to support the designated
historical and current range of either species. The Service does not
present findings for a state-wide survey or comprehensive presence or
absence survey within their historical ranges.
Our Response: The historical and current ranges of sharpnose and
smalleye shiners are based on peer-reviewed published accounts of these
species, survey results, and analysis of museum specimens collected and
geographically digitized by ichthyologists. While there is not a State-
wide or comprehensive survey effort within the historical range, the
Service must use the best scientific and commercial data available. For
the purposes of determining historical and current ranges, these
sources represent the best available commercial and scientific data.
(22) Comment: The Service does not consider the possibility of
future flood events or bait fish introductions that could result in
transferring sharpnose or smalleye shiners from the upper Brazos River
to the Colorado River or areas outside the current or native range.
Our Response: The Brazos and Colorado Rivers contain several
impoundments that serve as water storage and flood control devices.
Also, sharpnose and smalleye shiners are considered extirpated or
functionally extirpated in the lower Brazos River where such a
connection with the Colorado River would occur during a flood event.
The occupied segments of the upper Brazos River basin are generally
under such low-flow conditions that the basin is unlikely to experience
a flood of sufficient magnitude to connect it to another river basin.
Based on this information, it appears unlikely that flooding would
transport shiners to the Colorado River or outside their current range.
The Service recognizes in the SSA Report that these species could
be transferred as bait fish. However, a river where a fish may be
transferred would need suitable habitat to establish and maintain a
population, and there are limited rivers in the area that provide
suitable habitat. Further, it is likely that a suitable number of
individuals would need to be transferred in order to survive and
establish a population. However, if such a transfer would occur, these
species would be protected wherever they are found due to listing under
the Act.
(23) Comment: The Service does not address the viability or
importance of historical populations outside of the Brazos River basin.
Our Response: The natural historical distribution of the sharpnose
shiner is considered to include the Brazos, Colorado, and Wichita River
basins. However, the species is now extirpated from the Colorado and
Wichita Rivers, as well as the middle and lower sections of the Brazos
River. Consequently, there are no populations outside of the upper
segment of the Brazos River, and, therefore, no additional populations
exist to contribute to the viability of the species. In the SSA Report,
the Service provides an analysis of the historical contribution of non-
Brazos River populations to both shiner species as a whole in the
section ``2. Rangewide Needs'' and clearly indicates our position on
the current status of those populations.
(24) Comment: The Service provides no evidence that sharpnose
shiners naturally occurred in the Colorado and Wichita River basins.
Without sufficient evidence of a larger historical range, the Service
cannot conclude that there has been a range reduction for this species.
Our Response: The natural occurrence of sharpnose shiners in the
Colorado and Wichita Rivers is based on published literature, museum
specimens, flood data, and expert opinion. These sources are the best
available scientific and commercial data and provide adequate support
of the determination that the sharpnose shiner is native to these
Rivers. Even discounting the Colorado and Wichita River populations,
the sharpnose shiner would be experiencing a range reduction of more
than 50 percent due primarily to fragmentation and alteration of flows
within the middle Brazos River by impoundments. See our response to
comment (11) above for additional information.
(25) Comment: Genetic analyses could better elucidate the status of
the sharpnose and smalleye shiners of the upper Brazos River basin.
Our Response: The Service agrees that genetic studies for these two
species would be useful; however, the Service must use the best
available scientific and commercial data at the time of listing. The
Service is in the process of funding a study through section 6 of the
Act to determine the genetic structure of the remaining populations of
both species.
(26) Comment: Studies focused on determining the minimum flow rate,
duration, and critical river sections for successful spawning would
provide useful information to manage short-term viability and long-term
survivability for these shiner species.
Our Response: The Service agrees that additional studies on the
minimum flow rate required to keep the semi-buoyant life-history stages
of these species afloat would be useful. However, the Service has used
the best scientific and commercial data available. Based on current
life-history information, population dynamics modeling estimates a mean
summer water discharge of approximately 2.61 m\3\s-\1\ (92
cfs) is necessary to sustain populations of sharpnose shiners (Durham
2007, p. 110), while a higher mean discharge of approximately 6.43
m\3\s-\1\ (227 cfs) is necessary for smalleye shiners
(Durham and Wilde 2009b, p. 670). See section ``2.C.2. Streamflow
Requirements'' of the SSA Report for additional information.
(27) Comment: Inclusion of stream gauge data from the 1950s could
be useful as a partial indicator of how the two species respond to
extended drought.
Our Response: The Service has added stream gauge data going back to
1940 in its analysis of drought conditions in the upper Brazos River
basin and has also added an additional stream gauge site. See section
``3.D. Drought'' of the SSA Report for further discussion.
(28) Comment: The listing package and SSA Report do not provide
sufficient, conclusive evidence connecting stated threats to a decline
in species abundance or a reduction in range, including the effects of
impoundment on river fragmentation. Neither the listing package nor SSA
Report demonstrates the cumulative effects of threats.
Our Response: The Causes and Effects Threat Analyses in Chapter 3
of the SSA Report discusses how the threats negatively affect sharpnose
and smalleye shiners. The SSA Report also includes a section on
cumulative effects
[[Page 45282]]
(``K. Cumulative Effects''). Further, the SSA Report has been peer-
reviewed by experts in the field of ichthyology and aquatic ecology,
and they found the SSA Report to be a scientifically sound document.
(29) Comment: Neither the listing package nor SSA Report
demonstrate how stream reach lengths of at least 275 km (171 mi) are
necessary for the continued existence of either species.
Our Response: Section ``2.C.3 Stream Reach Length Requirements'' of
the SSA Report provides a complete analysis and justification for the
estimated 275-km (171-mi) requirement based on the best available
scientific and commercial data. As stated in the SSA Report, the
Service recognizes that the necessary stream length requirements may
vary with flow rates, water temperature, and channel morphology, but
the 275 km (171 mi) is based on modeling population status and reach
length, which indicate extirpation of eight different Great Plains
broadcast-spawning minnow species occurred in river fragments less than
115 km (71 mi; Perkin et al. 2010, p. 7) and that no extirpations were
recorded in reaches greater than 275 km (171 mi).
(30) Comment: The Service has not made any of the scientific
studies or materials upon which it relied to prepare the SSA Report or
rulemaking documents available online.
Our Response: Comments and materials received, as well as
supporting documentation used in the preparation of this rule, are
available for public inspection, by appointment, during normal business
hours at Arlington, Texas, Ecological Services Field Office, (see
ADDRESSES). A complete literature cited is included within the SSA
Report.
(31) Comment: The Service failed to properly analyze the species
under the Act's five listing criteria: (1) The present or threatened
destruction, modification, or curtailment of a species' habitat or
range; (2) overutilization for commercial, recreational, scientific, or
educational purposes; (3) disease or predation; (4) the inadequacy of
existing regulatory mechanisms; and (5) other natural or man-made
factors affecting the species' continued existence.
Our Response: Under section 4(a)(1) of the Act, the ``Secretary
shall . . . determine whether any species is an endangered species or a
threatened species because of any of the following factors: (A) The
present or threatened destruction, modification, or curtailment of its
habitat or range; (B) overutilization for commercial, recreational,
scientific, or educational purposes; (C) disease or predation; (D) the
inadequacy of existing regulatory mechanisms; or (E) other natural or
man-made factors affecting its continued existence.'' Neither the Act
nor its implementing regulations direct the Service to evaluate the
five factors in a particular format. The Service may present its
evaluation of information under the five factors by discussing all of
the information relevant to each factor and providing a factor-specific
conclusion before moving to the next factor (an ``outline'' format).
For this rule, we presented this information in a different format that
we believe leads to greater clarity in our understanding of the
science, its uncertainties, and the application of our statutory
framework to that science. Therefore, while the presentation of
information in this rule differs from past practice, it differs in
format only. We have evaluated the same body of information that we
would have evaluated under the five factors ``outline'' format, we are
applying the same information standard, and we are applying the same
statutory framework in reaching our conclusions. Our determination for
the sharpnose and smalleye shiners ties each threat to one of the five
factors (see Determination section).
(32) Comment: The Service failed to properly consider impacts from
the inadequacy of existing regulatory mechanisms on stream flow.
Our Response: The ``B. Groundwater Withdrawal'' and ``A.
Impoundments'' sections of the SSA Report discusses impacts on stream
flow in detail. The Service has considered the existing State
regulatory mechanisms, but these efforts do not ameliorate the threats
to these species to the point that the species do not meet the
definition of endangered.
(33) Comment: The Service failed to properly consider impacts from
conservation measures associated with saltcedar control and a captive
propagation and release program.
Our Response: The Service recognizes several ongoing saltcedar
control projects including the Texas Agrilife Extension Saltcedar
Biological Control Implementation Program, the U.S. Department of
Agriculture Natural Resources Conservation Service's saltcedar cost-
share control program, the Brazos River Authority's saltcedar control
program, and the Service's saltcedar cost-share programs. However,
participation in these programs is mostly voluntary, and even, when
implemented, these programs have not been fully successful in
eradicating saltcedar from the upper Brazos River basin.
The Texas Parks and Wildlife Department and Texas Tech University's
release of fish into the lower Brazos River was a response to intense
drought during the summer of 2011 and is not part of a formal
reintroduction plan. While Texas Tech University maintains a small
stock of sharpnose and smalleye shiners in the laboratory, they are
primarily used for research purposes. They do not have a captive
propagation program in place to breed and release fish into the wild on
a large-scale basis. Based on the best scientific and commercial data
available, it is presumed that the fish released into the lower Brazos
River are either extirpated or functionally extirpated. The Service has
considered these conservation measures, but these efforts do not
ameliorate the threats to these species to the point that the species
do not meet the definition of endangered.
(34) Comment: The listing of a species under the Act based
principally or exclusively on climate change impacts necessarily
involves policy questions that are assigned by the Constitution to
Congress. The Act is not an appropriate mechanism to regulate climate
change and greenhouse gas emissions.
Our Response: Our decision to list the species was based on river
fragmentation, alterations of the natural flow regime, water quality
degradation, and commercial bait harvesting; and not principally on
climate change. We acknowledged in our rule that the projected impacts
of climate change could exacerbate these threats that the species are
facing in the future.
Furthermore, we are not attempting, through this rule, to use the
Act to regulate climate change or greenhouse gases. We are making a
decision as to whether the species meet the definition of endangered or
threatened. To do so, the Act requires the Service to evaluate five
factors, individually and in combination, including natural or man-made
factors that are affecting the species' continued existence. This
necessarily includes assessing potential impacts to a species or its
habitat caused by global climate change.
(35) Comment: The Service has not thoroughly reviewed the local
groundwater conservation districts' rights and responsibilities as
dictated by Chapter 36 of the Texas Water Code. Local districts can
help alleviate the groundwater issues identified by the Service.
Our Response: Local groundwater conservation districts provide for
the conservation, preservation, protection, recharging, and prevention
of waste of groundwater. While many actions that the conservation
districts enforce likely reduce groundwater consumption, these
[[Page 45283]]
actions are not entirely consistent with the protection of surface
water flows for sharpnose and smalleye shiners. Section 36.103 of the
Texas Water Code permits groundwater conservation districts to erect
dams; drain lakes, draws, depressions, and creeks; and install pumps to
recharge groundwater reservoirs. The protection of groundwater supplies
at the expense of damming and depleting surface water would be
detrimental to these species. Insofar as groundwater conservation
districts reduce the number of wells by land parcel size and support
general water conservation measures, they are benefiting the sharpnose
and smalleye shiners and the upper Brazos River basin ecosystem in
general. However, groundwater conservation districts do not explicitly
conserve groundwater to support surface water flows to maintain a
healthy riverine environment for fish and other aquatic species.
Conservation districts also do not cover all areas of the upper Brazos
River basin. Further, the Texas State Water Plan estimates increased
groundwater withdrawals in the future. These efforts do not ameliorate
the threats to sharpnose and smalleye shiners or their habitat to the
point that the species do not meet the definition of endangered.
(36) Comment: Why are smalleye and sharpnose shiners not listed as
endangered in the Clear Fork of the Brazos River?
Our Response: We are listing the shiners wherever they are found.
However, the best available scientific and commercial information does
not indicate that the sharpnose and smalleye shiners have ever been
collected from the Clear Fork of the Brazos River; therefore, the
Service has no basis to assume they once existed there historically or
exist there currently. The Donnell Mill Dam on the Clear Fork of the
Brazos River located approximately 21.5 km (13.3 mi) upstream of its
confluence with the Brazos River mainstem has acted as a fish migration
barrier since the late 1870s and may be partially responsible for the
lack of records of these species from this river.
(37) Comment: After the devastating drought of 2011 in the upper
Brazos River basin, smalleye and sharpnose shiners recovered in 2012
and survived without the Service's help.
Our Response: Rainfall, and hence surface water flows, was greater
in 2012 than during 2011. If a similar or worse drought had occurred in
2012 these fish may now be extinct. During 2011, the spring-fed
isolated pools in the upper Brazos River and Possum Kingdom Lake
provided refuge for adult sharpnose and smalleye shiners. Surviving
adults were able to later recolonize the river channel and reproduce
when river water levels rose. Given their short lifespan and restricted
range, stressors that persist for two or more reproductive seasons
(such as a severe drought) severely limit these species' current
viability, placing them at a high risk of extinction now.
(38) Comment: If the proposed rule would require fencing the river
to keep livestock away, it would impose a financial burden on
landowners.
Our Response: The best available scientific and commercial
information does not indicate that cattle pose a threat to sharpnose or
smalleye shiners, and anecdotal data indicate that cattle may be
beneficial in maintaining a wide, shallow river channel. See our
response to comments (4) and (17) above for additional information.
Summary of Changes From Proposed Rule
Only minor changes and clarifications were made to the listing rule
based on comments received. The SSA Report was updated, clarified, and
expanded based on several peer review and public comments. These minor
changes did not alter our previous assessment of these species from the
proposed rule to the final rule.
Determination
Standard for Review
Section 4 of the Act (16 U.S.C. 1533), and its implementing
regulations at 50 CFR part 424, set forth the procedures for adding
species to the Federal Lists of Endangered and Threatened Wildlife and
Plants. Under section 4(a)(1) of the Act, the Secretary is to make
threatened or endangered determinations required by subsection 4(a)(1)
solely on the basis of the best scientific and commercial data
available to her after conducting a review of the status of the species
and after taking into account conservation efforts by States or foreign
nations. The standards for determining whether a species is threatened
or endangered are provided in section 3 of the Act. An endangered
species is any species that is ``in danger of extinction throughout all
or a significant portion of its range.'' A threatened species is any
species that is ``likely to become an endangered species within the
foreseeable future throughout all or a significant portion of its
range.'' Per section 4(a)(1) of the Act, in reviewing the status of the
species to determine if it meets the definitions of threatened or
endangered, we determine whether any species is an endangered species
or a threatened species because of any of the following five factors:
(A) The present or threatened destruction, modification, or curtailment
of its habitat or range; (B) overutilization for commercial,
recreational, scientific, or educational purposes; (C) disease or
predation; (D) the inadequacy of existing regulatory mechanisms; and
(E) other natural or manmade factors affecting its continued existence.
Listing actions may be warranted based on any of the above threat
factors, singly or in combination.
Until recently, the Service has presented its evaluation of
information under the five listing factors in an outline format,
discussing all of the information relevant to any given factor and
providing a factor-specific conclusion before moving to the next
factor. However, the Act does not require findings under each of the
factors, only an overall determination as to status (e.g., threatened,
endangered, not warranted). Ongoing efforts to improve the efficiency
and efficacy of the Service's implementation of the Act have led us to
present this information in a different format that we believe leads to
greater clarity in our understanding of the science, its uncertainties,
and the application of our statutory framework to that science.
Therefore, while the presentation of information in this rule differs
from past practice, it differs in format only. We have evaluated the
same body of information that we would have evaluated under the five
listing factors outline format, we are applying the same information
standard, and we are applying the same statutory framework in reaching
our conclusions.
Final Listing Status Determination
We have carefully assessed the best scientific and commercial
information available regarding the past, present, and future threats
to the sharpnose shiner and smalleye shiner. Based on our review of the
best available scientific and commercial information, we conclude that
the sharpnose shiner and smalleye shiner are currently in danger of
extinction throughout all of their range and, therefore, each meets the
definition of an endangered species. This finding, explained below, is
based on our conclusions that these species exhibit low viability, as
characterized by not having the resiliency to overcome persistent
threats and insufficient population redundancy to overcome catastrophic
events. We found the sharpnose shiner and smalleye shiner are at an
elevated risk of extinction now and no data indicate that the situation
will improve without significant conservation intervention. We,
therefore, find that the sharpnose shiner
[[Page 45284]]
and smalleye shiner warrant endangered species listing status
determination.
On the basis of our biological review documented in the March 2014
SSA Report, we found that the sharpnose shiner and smalleye shiner are
vulnerable to extinction due to their reduced ranges and their highly
specific reproductive strategies. These species are currently
restricted to the upper Brazos River and its major tributaries, which
represents a greater than 70 percent reduction in range for the
sharpnose shiner and a greater than 50 percent range reduction for the
smalleye shiner. The occupied river segments of the upper Brazos River
currently retain the necessary length (greater than 275 km (171 mi)) to
support successful broadcast-spawning reproduction in these species.
However, these river segments have naturally occurring periods of low
flow, periods completely lacking flow, and periods of complete drying
(Factor A)--often during the dry summer months, which is also when
these species spawn. The eggs and larvae of these species require
flowing water of sufficient velocity to keep their eggs and larvae
afloat and alive. During periods of insufficient river flow,
reproduction is not successful and no young are produced (Factor A).
Our review found the primary factors leading to a high risk of
extinction for these fishes include habitat loss and modification due
to river fragmentation and decreased river flow, resulting mainly from
reservoir impoundments (Factor A). Drought, exacerbated by climate
change (Factor E), and groundwater withdrawals also act as sources to
reduce stream flows and modify stream habitats (Factor A).
Fragmentation due to reservoir construction has resulted in a
substantially reduced range with only one isolated population of each
species in the upper Brazos River. With only one isolated population
remaining, these species have no redundancy, reduced resiliency due to
the inability to disperse downstream, and limited representation. This
situation puts the species in danger of extinction from only one
adverse event (such as insufficient flow rates for 2 consecutive
years). Secondary causes of habitat modifications include water quality
degradation and saltcedar encroachment that alters stream channels
(Factor A). As population sizes decrease, localized concerns, such as
commercial harvesting of individuals, also increases the risk of
extinction (Factors B).
We evaluated whether the sharpnose shiner and smalleye shiner are
in danger of extinction now (i.e., an endangered species) or are likely
to become in danger of extinction in the foreseeable future (i.e., a
threatened species). The foreseeable future refers to the extent to
which the Secretary can reasonably rely on predictions about the future
in making determinations about the conservation status of the species.
A key statutory difference between an endangered species and a
threatened species is the timing of when a species may be in danger of
extinction, either now (endangered species) or in the foreseeable
future (threatened species). Because of the fact-specific nature of
listing determinations, there is no single metric for determining if a
species is presently ``in danger of extinction.'' In the case of the
sharpnose shiner and smalleye shiner, the best available information
indicates the severe range reduction and isolation of these species to
a single population in the upper Brazos River basin places these
species in danger of extinction now, and the situation is exacerbated
by the ongoing and intensifying effects of river fragmentation (Factor
A), drought (Factor A), saltcedar encroachment (Factor A), water
quality degradation (Factor A), and commercial bait harvesting (Factor
B). The current threats affecting these species are expected to
continue (or even increase without substantial conservation efforts),
causing both species to be in danger of extinction now. Therefore,
because these species have been reduced to less than half of their
previously occupied range and because both species are restricted to a
single, non-resilient population at a high risk of extinction from a
variety of unabated threats, we find both species are in danger of
extinction now and meet the definition of an endangered species (i.e.,
in danger of extinction), in accordance with sections 3(6) and 4(a)(1)
of the Act.
Under the Act and our implementing regulations, a species may
warrant listing if it is threatened or endangered throughout all or a
significant portion of its range. The threats to the survival of these
species occur throughout their range and are not restricted to any
particular significant portion of their range. Accordingly, our
assessments and determinations apply to these species throughout their
entire range.
In conclusion, as described above, after a review of the best
available scientific and commercial information as it relates to the
status of the species and the five listing factors, we find the
sharpnose shiner and smalleye shiner are in danger of extinction now.
Therefore, we are listing the sharpnose shiner and smalleye shiner as
endangered species in accordance with section 3(6) of the Act. We find
that a threatened species status is not appropriate for the sharpnose
or smalleye shiner because the overall risk of extinction is high at
this time and the existing populations are not sufficiently resilient
to support viable populations.
Available Conservation Measures
Regulations at 50 CFR 424.18 require final rules to include a
description of conservation measures available under the rule.
Following is an explanation of the measures that may be implemented for
the conservation of the shiners under this final rule.
Conservation measures provided to species listed as endangered or
threatened species under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
practices. Recognition through listing results in public awareness and
conservation by Federal, State, and local agencies, private
organizations, and individuals. The Act encourages cooperation with the
States and requires that recovery actions be carried out for all listed
species. The protection measures required of Federal agencies and the
prohibitions against certain activities are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Subsection 4(f) of the Act requires the Service to develop and
implement recovery plans for the conservation of endangered and
threatened species. The recovery planning process involves the
identification of actions that are necessary to halt or reverse the
species' decline by addressing the threats to its survival and
recovery. The goal of this process is to restore listed species to a
point where they are secure, self-sustaining, and functioning
components of their ecosystems.
Recovery planning includes the development of a recovery outline
shortly after a species is listed, preparation of a draft and final
recovery plan, and revisions to the plan as significant new information
becomes available. The recovery outline guides the immediate
implementation of urgent recovery actions and describes the process to
be used to develop a recovery plan. The recovery plan identifies site-
specific management actions that will achieve recovery of the species,
measurable criteria that determine when a species may be downlisted or
delisted, and methods for monitoring recovery
[[Page 45285]]
progress. Recovery plans also establish a framework for agencies to
coordinate their recovery efforts and provide estimates of the cost of
implementing recovery tasks. Recovery teams (comprising species
experts, Federal and State agencies, nongovernmental organizations, and
stakeholders) are often established to develop recovery plans. When
completed, the recovery outline, draft recovery plan, and the final
recovery plan will be available on our Web site (http://www.fws.gov/endangered), or from our Arlington, Texas, Ecological Services Field
Office (see FOR FURTHER INFORMATION CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, tribal, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their range may not occur primarily or solely on
non-Federal lands. To achieve recovery of these species requires
cooperative conservation efforts on private, State, and Tribal lands.
Because these species are listed as endangered, funding for
recovery actions will be available from a variety of sources, including
Federal budgets, State programs, and cost-share grants for non-Federal
landowners, the academic community, and nongovernmental organizations.
In addition, pursuant to section 6 of the Act, the State of Texas would
be eligible for Federal funds to implement management actions that
promote the protection and recovery of the sharpnose and smalleye
shiners. Information on our grant programs that are available to aid
species recovery can be found at: http://www.fws.gov/grants.
Please let us know if you are interested in participating in
recovery efforts for these species. Additionally, we invite you to
submit any new information on these species whenever it becomes
available and any information you may have for recovery planning
purposes (see FOR FURTHER INFORMATION CONTACT).
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is proposed or listed as
endangered or threatened and with respect to its critical habitat, if
any is designated. Regulations implementing this interagency
cooperation provision of the Act are codified at 50 CFR part 402.
Section 7(a)(4) of the Act requires Federal agencies to confer with the
Service on any action that is likely to jeopardize the continued
existence of a species proposed for listing or result in destruction or
adverse modification of proposed critical habitat. If a species is
listed subsequently, section 7(a)(2) of the Act requires Federal
agencies to ensure that activities they authorize, fund, or carry out
are not likely to jeopardize the continued existence of the species or
destroy or adversely modify its critical habitat. If a Federal action
may affect a listed species or its critical habitat, the responsible
Federal agency must enter into formal consultation with the Service.
Federal agency actions within the species' habitat that may require
conference or consultation or both as described in the preceding
paragraph include but are not limited to: permitting of interbasin
water transfers, permitting of large groundwater withdrawal projects,
permitting of in-channel mining and dredging, issuance of section 404
Clean Water Act (33 U.S.C. 1251 et seq.) permits by the U.S. Army Corps
of Engineers, and construction and maintenance of roads or highways by
the Federal Highway Administration.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to all endangered
wildlife. The prohibitions, codified at 50 CFR 17.21 for endangered
wildlife, in part, make it illegal for any person subject to the
jurisdiction of the United States to take (includes harass, harm,
pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to
attempt any of these), import, export, ship in interstate commerce in
the course of commercial activity, or sell or offer for sale in
interstate or foreign commerce any listed species. It is also illegal
to possess, sell, deliver, carry, transport, or ship any such wildlife
that has been taken illegally. Certain exceptions apply to agents of
the Service and State conservation agencies.
We may issue permits to carry out otherwise prohibited activities
involving endangered and threatened wildlife species under certain
circumstances. Regulations governing permits are codified at 50 CFR
17.22 for endangered species, and at 17.32 for threatened species. With
regard to endangered wildlife, a permit must be issued for the
following purposes: for scientific purposes, to enhance the propagation
or survival of the species, and for incidental take in connection with
otherwise lawful activities.
Our policy, as published in the Federal Register on July 1, 1994
(59 FR 34272), is to identify to the maximum extent practicable at the
time a species is listed, those activities that would or would not
constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effect of a proposed
listing on proposed and ongoing activities within the range of species
proposed for listing. The following activities could potentially result
in a violation of section 9 of the Act; this list is not comprehensive:
(1) Unauthorized collecting, handling, possessing, selling, in
interstate commerce, delivering, carrying, or transporting of the
species, including import or export across State lines and
international boundaries, except for properly documented antique
specimens of these taxa at least 100 years old, as defined by section
10(h)(1) of the Act.
(2) Unauthorized destruction or alteration of sharpnose and
smalleye shiner habitats (e.g., unpermitted in-stream dredging,
impoundment, or construction; water diversion or withdrawal;
channelization; discharge of fill material) that impairs essential
behaviors such as breeding, feeding, or sheltering, or results in
killing or injuring sharpnose or smalleye shiners. Such activities
could include, but are not limited to, the destruction of upland
riparian areas in a manner that negatively impacts the river ecosystem.
(3) Capture, survey, or collection of specimens of these taxa
without a permit from the Service under section 10(a)(1)(A) of the Act.
Questions regarding whether specific activities would constitute a
violation of section 9 of the Act should be directed to the Arlington,
Texas, Ecological Services Field Office (see FOR FURTHER INFORMATION
CONTACT).
Required Determinations
National Environmental Policy Act
We have determined that environmental assessments and environmental
impact statements, as defined under the authority of the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), need not be
prepared in connection with regulations pursuant to section 4(a) of the
Act. We published a notice outlining our reasons for this determination
in the Federal Register on October 25, 1983 (48 FR 49244).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
[[Page 45286]]
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination With Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
tribes in developing programs for healthy ecosystems, to acknowledge
that tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to tribes. There are no tribes within the current
or historical range of the species.
References Cited
A complete list of all references cited in this rule is available
on the Internet at http://www.regulations.gov within the SSA Report
(Service 2014, Literature Cited) or upon request from the Arlington,
Texas, Ecological Services Field Office (see FOR FURTHER INFORMATION
CONTACT).
Author(s)
The primary authors of this document are the staff members of the
Arlington, Texas, Ecological Services Field Office (see ADDRESSES).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as follows:
PART 17--[AMENDED]
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; 4201-4245; unless
otherwise noted.
0
2. Amend Sec. 17.11(h) by adding the following entries to the List of
Endangered and Threatened Wildlife in alphabetical order under FISHES:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
------------------------------------------------------------ population where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Fishes
* * * * * * *
Shiner, sharpnose.................. Notropis oxyrhynchus.. U.S.A. (TX) Entire E 840 17.95(e) NA
Shiner, smalleye................... Notropis buccula...... U.S.A. (TX) Entire E 840 17.95(e) NA
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Dated: July 18, 2014.
Betsy Hildebrandt,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2014-17692 Filed 8-1-14; 8:45 am]
BILLING CODE 4310-55-P