[Federal Register Volume 78, Number 137 (Wednesday, July 17, 2013)]
[Rules and Regulations]
[Pages 42702-42718]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-17087]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R3-ES-2012-0087; FXES11130900000C3-123-FF09E30000]
RIN 1018-AY45
Endangered and Threatened Wildlife and Plants; Establishment of a
Nonessential Experimental Population of Topeka Shiner (Notropis topeka)
in Northern Missouri
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), jointly with
the Missouri Department of Conservation and the Nature Conservancy,
will reestablish the Topeka shiner (Notropis topeka), a federally
endangered fish. We will reestablish the Topeka shiner under section
10(j) of the Endangered Species Act of 1973, as amended (Act), and
classify the reestablished population as a nonessential experimental
population (NEP) within portions of the species' historical range in
Adair, Gentry, Harrison, Putnam, Sullivan, and Worth Counties,
Missouri. This final rule provides a plan for establishing the NEP and
provides for allowable legal incidental taking of the Topeka shiner
within the defined NEP area. The best available data indicate that
reintroduction of Topeka shiner to portions of the species' historical
range in Adair, Gentry, Harrison, Putnam, Sullivan, and Worth Counties,
Missouri, is biologically feasible and will promote the conservation of
the species.
DATES: This rule becomes effective August 16, 2013.
ADDRESSES: This final rule, along with the public comments, and the
Environmental Action Statement for Categorical Exclusion are available
on the Internet at http://www.regulations.gov, Docket No. FWS-R3-ES-
2012-0087. Comments and materials received, as well as supporting
documentation used in the preparation of this rule, will be available
for public inspection, by appointment, during normal business hours at:
U.S. Fish and Wildlife Service, Ecological Services Field Office, 101
Park DeVille Dr.; Suite A, Columbia, MO 65203; telephone: 573-234-2132;
facsimile: 573-234-2181. Persons who use a telecommunications device
for the deaf (TDD) may call the Federal Information Relay Services
(FIRS) at 800-877-8339.
FOR FURTHER INFORMATION CONTACT: Amy Salveter, Field Supervisor,
telephone: 573-234-2132; facsimile: 573-234-2181. Direct all questions
or requests for additional information to: Topeka Shiner Questions,
U.S. Fish and Wildlife Service, Ecological Services Field Office, 101
Park DeVille Dr.; Suite A, Columbia, MO 65203. Persons who use a
telecommunications device for the deaf (TDD) may call the Federal
Information Relay Services (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Background
Statutory and Regulatory Framework
The Topeka shiner was listed as endangered throughout its range on
December 15, 1998 (63 FR 69008), and critical habitat was designated in
Iowa, Minnesota, and Nebraska on July 27, 2004 (69 FR 44736), under the
Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).
The Act provides that species listed as endangered are afforded
protection primarily through the prohibitions of section 9 and the
requirements of section 7. Section 9 of the Act, among other things,
prohibits the take of endangered wildlife. ``Take'' is defined by the
Act as harass, harm, pursue, hunt, shoot, wound, kill, trap, capture,
or collect, or attempt to engage in any such conduct. Section 7 of the
Act outlines the procedures for Federal interagency cooperation to
conserve federally listed species and protect designated critical
habitat. It mandates that all Federal agencies use their existing
authorities to further the
[[Page 42703]]
purposes of the Act by carrying out programs for the conservation of
listed species. It also states that Federal agencies must, in
consultation with the Service, ensure that any action they authorize,
fund, or carry out is not likely to jeopardize the continued existence
of a listed species or result in the destruction or adverse
modification of designated critical habitat. Section 7 of the Act does
not affect activities undertaken on private land unless they are
authorized, funded, or carried out by a Federal agency.
The 1982 amendments to the Act (16 U.S.C. 1531 et seq.) included
the addition of section 10(j) which allows for the designation of
reintroduced populations of listed species as ``experimental
populations.'' Under section 10(j) of the Act and our regulations at 50
CFR 17.81, the Service may designate as an experimental population a
population of endangered or threatened species that has been or will be
released into suitable natural habitat outside the species' current
natural range (but within its probable historical range, absent a
finding by the Director of the Service in the extreme case that the
primary habitat of the species has been unsuitably and irreversibly
altered or destroyed). With the experimental population designation,
the relevant population is treated as threatened for purposes of
section 9 of the Act, regardless of the species' designation elsewhere
in its range. Threatened designation allows us discretion in devising
management programs and special regulations for such a population.
Section 4(d) of the Act allows us to adopt whatever regulations are
necessary and advisable to provide for the conservation of a threatened
species. In these situations, the general regulations that extend most
section 9 prohibitions to threatened species do not apply to that
species, and the 10(j) rule contains the prohibitions and exemptions
necessary and appropriate to conserve that species.
Before authorizing the release as an experimental population of any
population (including eggs, propagules, or individuals) of an
endangered or threatened species, and before authorizing any necessary
transportation to conduct the release, the Service must find, by
regulation, that such release will further the conservation of the
species. In making such a finding, the Service uses the best scientific
and commercial data available to consider: (1) Any possible adverse
effects on extant populations of a species as a result of removal of
individuals, eggs, or propagules for introduction elsewhere; (2) the
likelihood that any such experimental population will become
established and survive in the foreseeable future; (3) the relative
effects that establishment of an experimental population will have on
the recovery of the species; and (4) the extent to which the introduced
population may be affected by existing or anticipated Federal or State
actions or private activities within or adjacent to the experimental
population area.
Furthermore, as set forth in 50 CFR 17.81(c), all regulations
designating experimental populations under section 10(j) must provide:
(1) Appropriate means to identify the experimental population,
including, but not limited to, its actual or proposed location, actual
or anticipated migration, number of specimens released or to be
released, and other criteria appropriate to identify the experimental
population(s); (2) a finding, based solely on the best scientific and
commercial data available, and the supporting factual basis, on whether
the experimental population is, or is not, essential to the continued
existence of the species in the wild; (3) management restrictions,
protective measures, or other special management concerns of that
population, which may include but are not limited to, measures to
isolate and/or contain the experimental population designated in the
regulation from natural populations; and (4) a process for periodic
review and evaluation of the success or failure of the release and the
effect of the release on the conservation and recovery of the species.
Under 50 CFR 17.81(d), the Service must consult with appropriate
State fish and wildlife agencies, local governmental entities, affected
Federal agencies, and affected private landowners in developing and
implementing experimental population rules. To the maximum extent
practicable, section 10(j) rules represent an agreement between the
Service, the affected State and Federal agencies, and persons holding
any interest in land that may be affected by the establishment of an
experimental population.
Based on the best scientific and commercial data available, we must
determine whether the experimental population is essential or
nonessential to the continued existence of the species. The regulations
(50 CFR 17.80(b)) state that an experimental population is considered
essential if its loss would be likely to appreciably reduce the
likelihood of survival of that species in the wild. All other
populations are considered nonessential.
We have determined that this experimental population will not be
essential to the continued existence of the species in the wild,
because its loss will not be likely to appreciably reduce the
likelihood of survival of Topeka shiner in the wild. We made this
determination because several populations of Topeka shiner are
considered secure and our 5-year review concluded that the species is
resilient to many threats identified at the time of listing (Service
2009, pp. 32-33).
In our January 23, 2013, proposed rule (78 FR 4813) to establish
this experimental population in three areas in northern Missouri, our
preliminary determination that the population was nonessential was
based on the existence of secure populations of Topeka shiner in South
Dakota and Minnesota, as well as the apparent resiliency of the species
to many threats identified at the time of listing. This led us to
conclude that loss of this experimental population would not
appreciably reduce the likelihood of survival of the Topeka shiner in
the wild. Since publishing that proposed rule, we have undertaken
efforts to re-evaluate the status of the species, particularly in the
northern part of its range where large complexes of occupied streams
exist. We will not conclude that status review before establishing this
experimental population, thus we determined it appropriate to re-
evaluate the nonessential status of this experimental population
without consideration of the existing northern populations.
While the states of South Dakota and Minnesota are estimated to
contain 70 percent of the currently known Topeka shiner populations,
they represent only approximately 20 percent of the species' known
historical range; the remaining estimated 80 percent of the Topeka
shiner's historical range occurs in Nebraska, Iowa, Kansas, and
Missouri (Service 2010, p. 32). Topeka shiner occupancy varies
throughout its historical range, and certain areas experience
apparently greater levels of threats (Service 2010, pp. 30-31). While
some local population declines since listing have been documented in
Kansas and Missouri (Service 2010, pp. 8, 9), Iowa, Minnesota,
Nebraska, and South Dakota have documented additional occupied streams
since listing (Service 2010, pp. 6-7; Mena 2013, pers. comm.). The
majority of occupied watersheds identified at the time of the species'
listing continue to be occupied today, despite ongoing actions that may
affect the species.
Recovery actions for the Topeka shiner are also being undertaken
that lower extinction risk across the range.
[[Page 42704]]
For example, management plans currently being implemented by the
Missouri Department of Conservation (MDC 1999), the Kansas Department
of Wildlife and Parks (Mammoliti 2004), and the Fort Riley Military
Installation (U.S. Army 2001) were sufficient to preclude the need to
designate critical habitat in Missouri and Kansas (69 FR 44736).
Further, two of the plans have been updated (MDC 2010; U.S. Army 2010),
and this proposed reintroduction in Missouri represents an important
State-Federal partnership intended to fulfill Missouri's Ten Year
Strategic Plan for Recovery of the Topeka Shiner in Missouri (MDC
2010). Captive- rearing efforts have been successful, and plans are
ongoing to reintroduce Topeka shiners to a Kansas watershed where the
species was determined to be recently extirpated (Tabor 2013, pers.
comm.). Recovery actions in Iowa to restore off-channel habitats to
allow use by Topeka shiners have been effective (Service 2012).
Nebraska Game and Parks Commission developed a conservation assessment
in 2012 for Topeka shiners to assist in future conservation
decisionmaking (Panella 2012). Topeka shiners have been identified in
two new occupied streams in Nebraska since listing (Mena 2013, pers.
comm.).
With extant populations and ongoing recovery actions within the
range of the Topeka shiner, the species is expected to persist in other
watersheds within its historical range even if this reintroduction
effort is unsuccessful. We do not believe the species will be in
greater peril, nor will its likelihood of survival in the wild be
appreciably reduced if this experimental population is lost. We also
recognize the nonessential designation is important to our recovery
partners, and including section 10(j) is consistent with the
Congressional intent of the 1982 amendment of the Act. Congress allowed
such experimental populations to be identified as either essential or
nonessential, but noted the expectation that most experimental
populations would be nonessential (H.R. Conference Report No. 835,
supra at 34; Service 1984, p. 3388). As noted in our 1984 implementing
regulations, an essential experimental population would be a special
case, not the general rule (H.R. Conference Report No. 835, supra at
34; Service 1984, p. 3388). Therefore, we determine that this
experimental population of Topeka shiners in three areas in northern
Missouri is nonessential to the continued existence of the species in
the wild.
For the purposes of section 7 of the Act, we treat an NEP as a
threatened species when the NEP is located within a National Wildlife
Refuge or unit of the National Park Service, and Federal agency
conservation requirements under section 7(a)(1) and the Federal agency
consultation requirements of section 7(a)(2) of the Act apply. Section
7(a)(1) requires all Federal agencies to use their authorities to carry
out programs for the conservation of listed species. Section 7(a)(2)
requires that Federal agencies, in consultation with the Service,
ensure that any action authorized, funded, or carried out is not likely
to jeopardize the continued existence of a listed species or adversely
modify its critical habitat. When NEPs are located outside a National
Wildlife Refuge or National Park Service unit, then, for the purposes
of section 7, we treat the population as proposed for listing and only
section 7(a)(1) and section 7(a)(4) apply. In these instances, NEPs
provide additional flexibility because Federal agencies are not
required to consult with us under section 7(a)(2). Section 7(a)(4)
requires Federal agencies to confer (rather than consult) with the
Service on actions that are likely to jeopardize the continued
existence of a species proposed to be listed. The results of a
conference are in the form of conservation recommendations that are
optional as the agencies carry out, fund, or authorize activities.
Because the NEP is, by definition, not essential to the continued
existence of the species, the effects of proposed actions affecting the
NEP will generally not rise to the level of jeopardizing the continued
existence of the species. As a result, a formal conference will likely
never be required for Topeka shiners established within the NEP area.
Nonetheless, some agencies voluntarily confer with the Service on
actions that may affect a proposed species. Activities that are not
carried out, funded, or authorized by Federal agencies are not subject
to provisions or requirements in section 7.
On January 23, 2013, the Service published a proposed rule in the
Federal Register to establish a nonessential experimental population of
Topeka shiner within portions of the species' historical range in
Adair, Gentry, Harrison, Putnam, Sullivan, and Worth Counties, Missouri
(78 FR 4813). We contacted interested parties including Federal and
State agencies, local governments, scientific organizations, interest
groups, and private landowners through a press release and related fact
sheets, and emails. In addition, we notified the public and invited
comments through news releases to local media outlets. The public
comment period for the proposed rule closed on March 25, 2013.
Section 10(j)(2)(C)(ii) of the Act states that critical habitat
shall not be designated for any experimental population that is
determined to be nonessential. Accordingly, we cannot designate
critical habitat in areas where we establish an NEP.
Biological Information
The Topeka shiner is a small, stout minnow. This shiner species
averages 1.5 to 2.5 inches (in.) (3.81-6.35 centimeters (cm)) in length
at maturity, with a maximum size around 3 in. (7.62 cm) (Service 1993,
p. 4; Service 1998, p. 69008; Missouri Department of Conservation (MDC)
2010, p. 9). The head is short, and the mouth does not extend beyond
the front of the eye. The eye diameter is equal to or slightly longer
than the snout. All fins are plain except for the tail fin, which has a
chevron-shaped black spot at its base. Dorsal and pelvic fins each
contain 8 rays (Service 1993, p. 4; Service 1998, p. 69008; MDC 2010,
p. 9). The anal and pectoral fins contain 7 and 13 rays, respectively,
and there are 32 to 37 lateral line scales. Dorsally, the body is olive
with a distinct dark stripe preceding the dorsal fin. A dusky stripe
runs along the entire length of the lateral line (Service 1993, p. 4;
Service 1998, p. 69008; MDC 2010, p. 9). The scales above this line are
darkly outlined with pigment, appearing cross-hatched. Below the
lateral line, the body lacks pigment, appearing silvery-white (Pflieger
1975, pp. 161-162; Pflieger 1997, p. 154; Service 1993, p. 4; Service
1998, p. 69008). Males in breeding condition have orange-red fins and
``cheeks,'' and the dark lateral stripe diffuses. A distinct chevron-
like spot exists at the base of the caudal fin (Pflieger 1975, pp. 161-
162; Pflieger 1997, p. 154; Service 1993, p. 4; Service 1998, p.
69008).
Topeka shiners spawn in pool habitats over green sunfish (Lepomis
cyanellus) and orangespotted sunfish (L. humilis) nests from late May
through July in Missouri and Kansas (Pflieger 1975, p. 162; Pflieger
1997, p. 154; Kerns 1983, pp. 8-9; Kerns and Bonneau 2002, p. 139;
Stark et al. 2002, pp. 147-149). Males establish small territories on
the periphery of these nests. It is unclear to what extent Topeka
shiners are obligated to spawn over sunfish nests, or whether they can
successfully utilize other silt-free areas as spawning sites. In a fish
hatchery pond environment, Topeka shiner production was greatly
enhanced by the introduction of orangespotted sunfish (Cook 2011, pers.
comm.). Topeka
[[Page 42705]]
shiners feed primarily on insects, such as midges (chironomids), true
flies (dipterans), and mayflies (ephemeropterans), but they also are
known to feed on zooplankton such as cladocera and copepoda (Kerns and
Bonneau 2002, p. 138). Studies from Minnesota found Topeka shiners to
be omnivorous, ingesting a significant amount of plant material and
detritus along with animal matter (Dahle 2001, pp. 30-32; Hatch and
Besaw 2001, pp. 229-230).
Topeka shiners are a schooling species found in mixed-species
schools consisting primarily of redfin (Lythrurus umbratilis), sand
(Notropis stramineus), common (Luxilus cornutus), and red shiners
(Cyprinella lutrensis), and central stonerollers (Campostoma anomalum)
(Pflieger 1997, p. 155; Kerns and Bonneau 2002, p. 139). Topeka shiners
live a maximum of 3 years, although few survive to their third summer
(Kerns 1983, p. 16; Dahle 2001, pp. 30-31; Kerns and Bonneau 2002, p.
138). Topeka shiner populations appear to be more tolerant than other
native fish species to drought conditions in Kansas (Minckley and Cross
1959, p. 215; Barber 1986, pp. 70-71; Kerns and Bonneau 2002, p. 138).
The Topeka shiner is tolerant of high water temperatures and low
dissolved oxygen levels (Koehle 2006, p. 26), which may in part account
for the Topeka shiner's apparent drought condition tolerance. Topeka
shiners are typically found in small, low order, prairie streams with
good water quality and cool temperatures. These streams generally flow
all year; however, some may become intermittent during late summer and
fall. Pool water levels and cool temperatures are maintained by
percolation through the stream bed, spring flow, or groundwater seepage
when surface water flow ceases in these stream reaches (Minckley and
Cross 1959, p. 212; Pflieger 1975, p. 162; Service 1993, p. 5; Service
1998, p. 69008). Topeka shiners generally inhabit streams with clean
gravel, cobble, or sand bottoms. However, bedrock and clay hardpan
covered by a thin layer of silt are not uncommon (Minckley and Cross
1959, p. 212).
Topeka shiners are found in pools and runs, and only rarely in
riffles. In the northern portion of its range (Iowa, Minnesota, and
South Dakota), the Topeka shiner is frequently found in off-channel
aquatic habitat (Clark 2000, p. 7; Dahle 2001, p. 8; Berg et al. 2004,
p. 1). These habitats are characterized by lack of flow, moderate
depth, and substrate composed of a thick silt and detritus layer (Dahle
2001, p. 9; Hatch 2001, p. 41). However, such off-channel habitat is
rarely found along prairie headwater streams in Missouri. Occasionally,
Topeka shiners have been found in larger streams, downstream of known
populations, presumably as migrants (Pflieger 1975, p. 162; Service
1993, pp. 5-9; Service 1998, p. 69008). Dahle (2001, p. 39) noted that
the Topeka shiner is a multiple clutch spawner and reported that
relative abundance was higher in off-channel habitat than instream
habitat.
The Topeka shiner was once widespread and abundant in headwater
streams throughout the Central Prairie Region of the United States. The
species' range historically included much of Missouri, Iowa, and
Kansas, as well as portions of Nebraska, South Dakota, and Minnesota
(Bailey and Allum 1962, pp. 68-70; Cross 1970, p. 254; Gilbert 1988, p.
317). In Missouri, Topeka shiners historically occurred in most of the
prairie and Ozark border portions of north and central Missouri. With
the exception of a population known from Cedar Creek, a tributary of
the Des Moines River in Clark County (Mississippi River basin), all
Topeka shiner populations in Missouri are known from the Missouri River
basin. The species once occupied portions of the Missouri, Grand,
Lamine, Chariton, Crooked, Des Moines, Loutre, Middle, Hundred and Two,
and Little Blue river basins (MDC 2010, p. 10).
Since 1940, the species has been extirpated from many Missouri
River tributaries, including Perche Creek, Petite Saline Creek, Tavern
Creek, Auxvasse Creek, Middle River, Moreau River, Splice Creek, Slate
Creek, Crooked River, Fishing River, Shoal Creek, Hundred and Two
River, and Little Blue River watersheds (Bailey and Allum 1962, pp. 69-
70; Pflieger 1971, p. 360; MDC 2010, p. 10). Topeka shiners have been
observed in the following Missouri streams, with the most recent
observations in parentheses: Moniteau Creek headwaters in Cooper and
Moniteau Counties (2008), Clear Creek (1992) and a tributary of Heath's
Creek (1995) in Cooper and Pettis Counties, Bonne Femme Creek watershed
in Boone County (1997), Sugar Creek and tributaries in Daviess and
Harrison Counties (2008), Dog Branch in Putnam County (1990), and Cedar
Creek in Clark County (1987) (MDC 2010, p. 10; Novinger 2011, pers.
comm.). It is presumed Topeka shiners are extirpated from the Bonne
Femme Creek watershed (MDC 2010, p. 10).
The Topeka shiner in Missouri exists in highly disjunct populations
in a small fraction of its historical range. Sampling specifically for
Topeka shiners during the early 1990s found this species at only 19
percent (14 of 72) of historical sites, and at only 15 percent (20 of
136) of the total sites sampled in Missouri (Gelwicks and Bruenderman
1996, p. 5). Additionally, the remaining populations were found to be
smaller than they had been recorded historically. For example, more
than 300 Topeka shiners were recorded among 7 locations in Bonne Femme
Creek from 1961 to 1983. However, during comparable surveys within the
same watershed, in the 1990s, only six Topeka shiners were identified
at two locations (Wiechman, MDC 2012, pers. comm.). The isolation and
small size of the remaining populations makes them highly vulnerable to
extirpation. Currently, remaining viable populations of Topeka shiners
can be consistently found in only two Missouri stream systems: Moniteau
Creek headwaters in Cooper and Moniteau Counties, and Sugar Creek
headwaters in Daviess and Harrison Counties. Several other streams have
produced samples of a few individuals in the past 25 years, but these
occurrences are based on a very limited number of fish (MDC 2010, p.
10).
Effects of Establishing a Nonessential Experimental Population on
Recovery of the Species
Restoring an endangered or threatened species to the point where it
is recovered is a primary goal of the Service's endangered species
program. Although a Service recovery plan has not been issued for the
Topeka shiner, the MDC devised State-specific recovery criteria for the
species in their 10-year Strategic Plan for the Recovery of the Topeka
Shiner in Missouri (MDC 2010, p. 8). The recovery goal of this plan is
to stabilize and enhance Topeka shiner numbers in Missouri by securing
populations in seven streams. Seven populations would be equivalent to
one half of the known populations sampled in Missouri since 1960. Two
main criteria were established to accomplish the goal: (1) Reduce or
eliminate major threats and restore suitable habitat in Moniteau Creek
and Sugar Creek watersheds, and (2) introduce (or reintroduce) and
establish secure populations in five additional streams (MDC 2010, p.
8). According to fisheries experts with the Missouri Department of
Conservation and as outlined in MDC's strategic plan, the designation
of a Topeka shiner NEP in Missouri is necessary to establish new
populations in the State (MDC 2010, p. 26).
The MDC (2011a, pp. 1-2; 2011b, pp. 2-3; 2011c, p. 3) established
six criteria for identifying possible reintroduction sites in Missouri:
(1) Propagation and
[[Page 42706]]
release sites are to be under public ownership; (2) ownership involves
a partner committed to conservation; (3) release sites are within
relatively close proximity to existing Topeka shiner populations; (4)
release sites are within the overall historical range of the species in
Missouri; (5) the overall condition of the stream (e.g., land use,
environmental parameters, stream bank and channel stability, ecological
and biological integrity) and watershed is suitable; and (6) the
perceived likelihood of success of the reintroduction is high because
there are no physical barriers that will prevent the species from
inhabiting these sites. We have selected high-quality streams for
reintroduction that will support growth, survival, and natural
reproduction. Sites selected are also deemed to be adequate to
facilitate expansion of reintroduced populations.
Location of the Nonessential Experimental Population
Based on criteria outlined above for reintroduction sites, Little
Creek headwaters in Harrison County; East Fork Big Muddy Creek in
Gentry, Harrison, and Worth Counties; and tributaries of Spring Creek
in Adair, Putnam, and Sullivan Counties have been identified for
initial release efforts (MDC 2010, pp. 27-31). Although no historical
records exist of Topeka shiner in the selected reintroduction sites,
the species likely once inhabited these waters. Our conclusion is based
on the following: (1) The species was historically known from adjacent
watersheds--Little Creek and Big Muddy Creek are located approximately
16-19 air miles (mi.) (25.75-30.58 air kilometers (km)) from extant
sites in Harrison County, Missouri (Wiechman 2012, pers. comm.), and
the Spring Creek watershed in Adair, Putnam, and Sullivan Counties is
located approximately 11 air mi. (17.7 air km) (Novinger 2012, pers.
comm.) from a historical location in Putnam County, Missouri; (2)
habitat is identical or similar to currently occupied sites in Harrison
County, Missouri; and (3) the reintroduction sites have suitable
habitat necessary for the successful establishment of the species (MDC
2011a, pp. 1-2).
The reintroduction areas will include both pond (similar to off-
channel habitats used by the species elsewhere within its range) and
stream habitats. Initial donor populations of Topeka shiner will
originate from extant sites in Sugar Creek, Harrison County, and be
propagated at MDC's Lost Valley Hatchery in Warsaw, Missouri. Future
captive-breeding of the Topeka shiner would occur in pond habitats, and
the progeny would be used to stock the NEP streams rather than
continual use of the Lost Valley Hatchery (Novinger 2012, pers. comm.).
The subsequent use of pond fish for ongoing reintroduction efforts will
be dependent upon the success of propagation efforts at The Nature
Conservancy's Dunn Ranch, MDC's Pawnee Prairie Natural Area (NA), and
MDC's Union Ridge Conservation Area (CA) (see below) (Novinger 2012,
pers. comm.).
Little Creek
Little Creek is a tributary to West Fork Big Creek in the greater
Grand River drainage. The NEP portion of the watershed is located in
the headwaters of Little Creek and is estimated at 7,600 acres (ac)
(3,075 hectares (ha)). The area extends from the backwaters of Harrison
County Lake, upstream to the headwaters of Little Creek, and includes
all tributaries in this reach from the reservoir to headwaters.
Specific reintroduction sites will be located in select ponds (greater
than 8 feet (2.44 m) deep) and in headwater stream reaches on Dunn
Ranch, which is owned and operated by The Nature Conservancy (TNC).
Dunn Ranch comprises the upper half of the watershed, and it has
several characteristics that promote a successful reintroduction
program (e.g., land management within the watershed is excellent) (MDC
2011a, p. 2). Harrison County Lake (280 ac) (113.1 ha) is identified as
the downstream extent of the NEP because it supports a popular sport
fishery with abundant predator fishes (largemouth bass, crappie,
channel catfish), which greatly limit the potential for downstream
migration of cyprinid species (MDC 2011a, p. 2). Little Creek is
approximately 16 air miles (mi.) (25.75 air kilometers (km)) from
extant sites in Harrison County, Missouri (Wiechman 2012, pers. comm.).
A physical barrier in Harrison County Lake downstream of the
reintroduction site will prevent the mixing of wild and reintroduced
populations of Topeka shiners (MDC 2011a, p. 7).
Big Muddy Creek
Big Muddy Creek is a tributary to the East Fork Grand River
drainage, and its watershed covers 44,339 ac. Land use is predominantly
grassland (60 percent), containing minor components of cropland (16
percent) and deciduous forest (15 percent). Cropland is concentrated in
the bottomland along the mainstem of Big Muddy Creek. Grassed uplands
are mostly used for cattle grazing and hay production. Headwaters of
Big Muddy Creek (upper 33 percent of watershed) lie within the Grand
River Grasslands Conservation Opportunity Area (GRGCOA). Two notable
properties within the GRGCOA portion of Big Muddy Creek include MDC's
Pawnee Prairie Natural Area (NA) (476 ac) (192 ha) and TNC's Pawnee
Prairie (500 ac) (202 ha), which are cooperatively managed for native
prairie and associated wildlife (MDC 2011b, pp. 1-2).
The 10-year-old GRGCOA covers approximately 70,000 ac (28,327 ha)
in northern Missouri and southern Iowa, with approximately 14,800 ac
(5,989 ha) (21 percent) located within the Big Muddy Creek basin. In
northern Missouri, GRGCOA is believed to have the greatest potential to
restore a functioning tallgrass prairie ecosystem on a landscape scale.
The MDC, TNC, the Iowa Department of Natural Resources, the Natural
Resources Conservation Service, the Service, and interested private
landowners are working cooperatively to restore prairie, promote soil
conservation practices, and enhance habitat for prairie chickens in
this area. Prescribed burning is commonly used to help meet these
objectives. Experimental patch-burn grazing on Pawnee Prairie NA is
also being evaluated by MDC and Iowa State University (MDC 2011b, p.
2).
The eastern side of MDC's Emmet and Leah Seat Memorial (Seat)
Conservation Area (CA) (2,030 ac) (821 ha) is located within the Little
Muddy Creek basin, a lower sub-basin to Big Muddy Creek. Little Muddy
Creek basin is located outside the GRGCOA. Seat CA is a mixture of old
field, grasslands, cropland, and woodland habitats. The area features
public hunting (deer, turkey, quail, small game), primitive camping, an
archery range, 16 fishable ponds (totaling 13 ac), and a permanent
stream. The area is managed primarily for upland game hunting (MDC
2011b, p. 2).
The Big Muddy Creek watershed, from its confluence with East Fork
Grand River upstream through all headwaters, is included in the NEP
area for the following reasons: (1) There are no known fish barriers;
(2) there are no reservoirs (except small farm ponds) with abundant
predator fishes; and (3) stream size remains relatively small with
habitat conditions comparable to those found in reaches of Sugar Creek
where Topeka shiners occur. Big Muddy Creek is approximately 19 air
miles (mi.) (30.58 air kilometers (km)) from extant sites in Harrison
County, Missouri (Wiechman 2012, pers. comm.). East Fork Grand River is
believed to effectively limit the potential for downstream migration of
[[Page 42707]]
cyprinids given its higher densities of predator fishes (predominantly
channel catfish) and minimal cover for small fish (MDC 2011b, p. 2). A
physical barrier in the East Fork of the Grand River downstream of the
reintroduction site will prevent mixing of wild and reintroduced
populations of Topeka shiners (MDC 2011b, p. 9).
Spring Creek
Spring Creek is a tributary to the Chariton River, and its
watershed covers 60,869 ac (24,632 ha). Land use is essentially limited
to deciduous woodlands (41 percent) and grassland (39 percent), with
only 10 percent cropland. Cropland is concentrated in the bottomland
along the mainstem of Spring Creek and in the upper watershed in the
Unionville Plains. Grassed uplands are mostly used for cattle grazing
and hay production. The Union Ridge Conservation Opportunity Area
(URCOA) and the Spring Creek Priority Watershed (SCPW) encompass
roughly 75 percent of the Spring Creek watershed. MDC ownership within
the watershed includes Morris Prairie CA (167 ac) (67 ha), Dark Hollow
NA (315 ac) (127 ha), Union Ridge CA (8,110 ac) (3,282 ha), and
Shoemaker CA (259 ac) (104 ha). Morris Prairie NA (47 ac) (19 ha) and
Spring Creek Ranch NA (1,769 ac) (716 ha) are located within the
boundaries of Morris Prairie CA and Union Ridge CA, respectively. These
properties are managed for native prairie-savanna-woodland and
associated wildlife (MDC 2011c, p. 1).
The Spring Creek watershed, from its confluence with the Chariton
River upstream through all headwaters, is included in the NEP area for
the following reasons: (1) There are no known fish barriers; (2) there
are no reservoirs (except small farm ponds) with abundant predator
fishes; and (3) stream size remains relatively small, with habitat
conditions comparable to those found in reaches of Sugar Creek where
Topeka shiners occur. The Spring Creek watershed in Adair, Putnam, and
Sullivan Counties is located approximately 47 air mi. (75.64 air km)
(Wiechman 2012, pers. comm.) from extant sites in Harrison County, and
the Spring Creek locations are not in any watershed where there are
extant records of Topeka shiner (MDC 2011c, pp. 8-11). The Chariton
River is believed to effectively limit the potential for downstream
migration of Topeka shiners given its higher densities of predator
fishes (predominantly channel catfish) and minimal cover for small fish
(MDC 2011c, p. 2).
Initial reintroduction sites for Topeka shiners will be in at least
six ponds and all suitable stream reaches on MDC's Union Ridge CA.
Subsequent monitoring of Topeka shiners will be restricted to the
middle-Spring Creek sub-basin of the Spring Creek watershed. Within
Spring Creek, this sub-basin is believed to offer the greatest
potential to establish a self-sustaining population of Topeka shiners,
and the smaller size of the middle-Spring Creek sub-basin also allows
for regional Fisheries staff to reasonably complete monitoring efforts
and evaluate success (MDC 2011c, p. 2).
Likelihood of Population Establishment and Survival
A subset of the ponds on Dunn Ranch, Pawnee Prairie, and Union
Ridge CA determined to be suitable for the propagation of Topeka
shiners will be treated with rotenone to remove potential predators
prior to stocking (MDC 2011a, p. 2; MDC 20011b, p. 2; MDC 2011c, p. 3).
Spawning gravel will also be added to littoral areas (0-1 meter deep).
The success of reproduction in these ponds will be compared to ponds
with bare soil bottom types that did not receive spawning gravel.
Reducing predators and increasing spawning success should increase the
likelihood of population establishment and survival.
Addressing Causes of Extirpation
The Topeka shiner has declined throughout its range for apparently
numerous reasons. Reductions and disappearance of many Topeka shiner
populations appear to be related to a combination of physical
degradation of habitat and species interactions (MDC 2010, p. 11).
Physical degradation of habitat is primarily related to patterns of
land use including destruction, modification and fragmentation of
habitat resulting from siltation, reduced water quality, tributary
impoundment, and reduction of water levels (MDC 2010, p. 11). These
habitat alterations may have been caused by intensive agriculture,
urbanization, and highway construction (Minckley and Cross 1959, p.
216; Cross and Moss 1987, p. 165; Pflieger 1997, p. 199; Tabor 1992,
pp. 38-39; MDC 2010, p. 11).
Bayless et al. (2003, p. 47) found that generally good water
quality and habitat prevailed in the Moniteau Creek watershed, where
the largest remaining populations of the Topeka shiner persist. No
overall pattern relating Topeka shiner distribution and water quality
was detectable; however, the Topeka shiner has never been observed in
sub-basins of the watershed characterized by chronically extreme levels
of urbanization, nutrient additions, and turbidity. Construction of
watershed impoundments that limit sediment-flushing flows and provide a
source of piscivorous predators, low-water crossings that obstruct
animal and particle passage, and reduction of groundwater levels
resulting from irrigation may have also contributed to the Topeka
shiner's decline (Layher 1993, pp. 15-17; Tabor 1992, p. 39; Pflieger
1997, p. 155; Schrank et al. 2001, p. 419; Mammoliti 2002, p. 2; MDC
2010, p. 11).
Species interactions, such as predation and competition with other
fishes, have likely played a role in the decline of the Topeka shiner
in portions of its range. Stocking piscivores such as largemouth bass
(Micropterus salmoides), crappie (Pomoxis spp.), and bluegill (Lepomis
macrochirus) in ponds constructed in watersheds containing the Topeka
shiner has probably accelerated the decline of the Topeka shiner
through predation (MDC 2010, p. 11). Additionally, Pflieger (1997, p.
155) suggested that the introduced blackstripe topminnow (Fundulus
notatus) and western mosquitofish (Gambusia affinis) likely compete
with the Topeka shiner for food.
The Topeka shiner in Missouri has declined in the presence of
largemouth bass, bluegill, and blackstripe topminnow, and this decline
coincided with the decline of other fishes considered generally
tolerant of poor physical and chemical conditions but intolerant of
species interactions (Winston 2002, p. 249). Schrank et al. (2001, p.
413) noted that sites where the Topeka shiner had been extirpated in
Kansas had a greater number of small impoundments in the watershed,
longer pools, higher catch per effort of largemouth bass, and higher
species diversity by trophic guild and richness compared to sites where
the Topeka shiner was extant. Dahle and Hatch (2002, p. 3) determined
the threat of predation of Topeka shiners by piscivorous fish
(including largemouth bass) in southwest Minnesota streams was low due
to the rarity of such predators.
Other unidentified factors may be responsible for the loss of the
Topeka shiner from some streams and for localized undocumented fish
kills. Further study is needed to determine the relative significance
of habitat degradation versus species interactions as causes for the
decline of the Topeka shiner. Koehle (2006, p. 26) found Topeka shiners
to be tolerant of high water temperatures and low dissolved oxygen
levels. Additional experimental
[[Page 42708]]
studies would be particularly useful to elucidate the physiological
tolerances and behavior of the Topeka shiner in addition to comparisons
of the hydrology, water chemistry, physical habitat, land use
practices, and fish communities in areas where the species persists and
where it has been extirpated (MDC 2010, p. 11).
All reintroduction sites are on public land, and are properly
managed to prevent potential causes of extirpation (Pflieger 1997, pp.
154-155). In addition to implementing management techniques that will
sustain headwater prairie stream habitat, efforts have been undertaken
to eliminate potential predation by nonnative piscivorous fish (MDC
2010, pp. 26-31). Ponds on Dunn Ranch, Pawnee Prairie NA, and Union
Ridge CA determined to be suitable for the propagation of Topeka
shiners were treated with rotenone during the summer of 2011, to remove
potential piscivorous predators prior to stocking (MDC 2011a, p. 2; MDC
20011b, p. 2; MDC 2011c, p. 3). Ponds will be regularly monitored to
assess success of removal operations. Additional treatments will be
provided if needed to ensure ponds are free of fish predators before
any stocking takes place. Such actions should improve the probability
of success of reintroduction efforts. Ponds on reintroduction areas
used in propagation efforts will likely duplicate off-channel habitats
occupied by Topeka shiners elsewhere within the species' range (MDC
2010, p. 26). The use of such ponds in propagation efforts will serve
as refugia for Topeka shiners during extreme drought and may provide
excellent sources of intra-basin transfers to promote population
expansion (MDC 2011a, p. 2).
Release Procedures
Initial donor populations of Topeka shiner will originate from
extant sites in Sugar Creek, Harrison County, and from fish propagated
at MDC's Lost Valley Hatchery in Warsaw, Missouri. NEP reintroductions
will include pond and stream habitats within the Little Creek, Big
Muddy Creek, and Spring Creek watersheds. Captive-reared fish will be
stocked into stream and pond habitats by MDC fisheries personnel.
Cooperators include MDC, TNC, and the Service. Topeka shiners that are
subsequently and successfully reared in ponds on Dunn Ranch, Pawnee
Prairie NA, and the Union Ridge CA will be placed into stream habitats
following established stocking protocols described in the
reintroduction plans (MDC 2011a, 2011b, and 2011c). We do not
anticipate that the removal of fish would have a deleterious effect on
the genetics of the species, because only a sample of Topeka shiners in
Sugar Creek will be collected.
Parameters To Assess the Success of the Reintroduction
Sampling Sites
Information on fish species composition and simple stream habitat
conditions will be collected at sites throughout the NEP portion of the
Little Creek, Big Muddy Creek, and Spring Creek watersheds prior to
initial stockings. Twenty-five sites with 3 pools per site that are at
least 200 meters (m) in length will be selected using a Generalized
Random Tessellation Stratified (GRTS) design (http://www.epa.gov/nheerl/arm/designing/design_intro.htm).
Fish Sampling
Each pool will be sampled once with a 15-foot (ft) (4.57-m) x 6-ft
(1.83-m), one-eighth-inch (0.32-centimeters (cm)) mesh drag seine to
collect fish. To be more effective in narrow pools (width less than 6
m), the net may be shortened to facilitate sampling. Two nets hauled
side-by-side will be used for wide pools between 10 and 20 m in width.
All species present in a catch will be identified and categorized by
apparent relative abundance: ``Low'' is defined by low approximate
number (fewer than 10 fish) and low approximate percent of total catch
(less than 5 percent); ``medium'' (10-50 fish, less than 25 percent);
or ``high'' (greater than 50 fish, greater than 25 percent). Presence
of juvenile Topeka shiners (less than 40 millimeters (mm) total length)
will be noted as an indication of spawning at each site.
Habitat--Habitat variables to be measured in the field in each pool
include: Global Positioning System (GPS) coordinates at the downstream
edge of the pool using Universal Transverse Mercator North American
Datum of 1983 (UTM NAD83); water temperature and conductivity (measured
with a handheld meter, indicates ion concentration and relative degree
of water replenishment); pool length and representative pool width
(measured with rangefinder or meter stick), and maximum depth (via
meter stick or similar); visual assessments of the relative amount of
silt or organic debris covering the stream bottom (1 = almost none, 2 =
thin layer, 3 = thick layer) and overall substrate type/coarseness (1 =
clay or bedrock, 2 = small rock less than 128 mm diameter/cobble, 3 =
large rock greater than 128 mm); degree of pool isolation (1 =
intermittent or isolated, 2 = continuous or interconnected by flowing
water habitat); and overall level of seining difficulty (1 = not
difficult, 2 = difficult). Visual assessments and level of difficulty
will be based on consensus of the sampling crew. An adaptive monitoring
approach will be used to assess the NEP population numbers and habitat
variables; adjustments will be made, if necessary, after assessing the
monitoring techniques.
Initial Stocking
Ponds--Topeka shiners will be stocked at a rate of 500 fish per
acre in designated ponds at reintroduction sites on public properties.
All fish will come from either Sugar Creek (Harrison County) or those
propagated at MDC's Lost Valley Hatchery. Additionally, orangespotted
sunfish will be stocked in each pond at a rate of 25 to 50 fish per
acre. The source of the sunfish will preferably be from Sugar Creek
broodstock propagated at MDC's Lost Valley Hatchery or another local
basin within the greater Grand River watershed. Green sunfish (also
from local basins) may be substituted to meet desired stocking rates
for sunfish if adequate numbers of orangespotted sunfish cannot be
reasonably collected.
Stream Reaches--Topeka shiners will also be stocked in suitable
stream reaches within the NEP area on public properties at a minimum
rate of 5,000 fish per mile. Based on monitoring data, a need for
stocking sunfish would be determined for selected stream reaches on
public properties. Sources of Topeka shiners and sunfish will be the
same as described above for the ponds.
Supplemental Stocking
Supplemental stockings of Topeka shiners or sunfish will be
conducted for ponds or selected stream reaches on public properties
within the greater NEP portion of Little, Big Muddy, and Spring creeks,
if necessary. Criteria for such stockings will be determined by MDC
fisheries personnel as needed and necessary to meet reintroduction
goals outlined in MDC's 10-year Action Plan for the Topeka Shiner (MDC
2010, pp. 29-35). Supplemental stocking rates in ponds and streams will
occur at the same rates described for initial stockings above.
Effects on Extant Populations
Individual Topeka shiners used to establish an experimental
population will be supplied by MDC's Lost Valley Hatchery in Warsaw,
MO, propagated under the Federal Fish and Wildlife Permit
TE71730A. The donor population for the Lost Valley Hatchery is
from sites in Sugar Creek, Harrison
[[Page 42709]]
County, Missouri. Sugar Creek's Topeka shiner population is closest to
reintroduction sites. Typical gear used for small cyprinids will be
used to collect Topeka shiners, and they will be held at Lost Valley
Hatchery until they could be stocked into pond and stream habitats at
identified reintroduction sites.
The 10-year Strategic Plan for the Recovery of the Topeka Shiner in
Missouri (MDC 2010, pp. 29-35) and reintroduction plans for Topeka
shiner in the Little Creek, Big Muddy Creek, and Spring Creek
watersheds (MDC 2011a, pp. 1-9; MDC 2011b, pp. 1-11; MDC 2011c, pp. 1-
11) contain additional information on the release procedures and
monitoring protocols (see FOR FURTHER INFORMATION CONTACT for copies of
this document or go to http://www.regulations.gov).
Status of the NEP Population
We will ensure, through our section 10 permitting authority and the
section 7 consultation process, that the use of Topeka shiner from the
donor population within the Sugar Creek Basin for releases into Little
Creek, Big Muddy Creek, and Spring Creek is not likely to jeopardize
the continued existence of the species in the wild.
The special rule that accompanies this section 10(j) final rule is
designed to broadly exempt, from the section 9 take prohibitions, any
take of Topeka shiners that is incidental to otherwise lawful
activities. We provide this exemption because we believe that such
incidental take of members of the NEP associated with otherwise lawful
activities is necessary and advisable for the conservation of the
species.
This designation is justified because no adverse effects to extant
wild or captive Topeka shiner populations will result from release of
progeny from the Sugar Creek population. Transfer of disease or mixing
of wild and reintroduced populations is not possible due to the
distances involved between the donor population and reintroductions,
the watersheds involved, and the physical barriers associated with the
Little Creek and Big Muddy Creek watersheds. The majority of the
reintroductions will occur on managed public land, and exemptions from
prohibition for activities on private land are not likely to result in
the loss of the NEP. Successful propagation of Topeka shiners in ponds
at Dunn Ranch, Pawnee Prairie NA, and Union Ridge CA will provide a
continual reservoir of Topeka shiners for supplemental stocking as
needed. We expect that the reintroduction effort into Little, Big
Muddy, and Spring creeks will result in the successful establishment of
a self-sustaining population of Topeka shiners, which will contribute
to the recovery of the species.
Extent to Which the Reintroduced Population May Be Affected by Land
Management Within the NEP Watersheds
We conclude that the effects of Federal, State, or private actions
and activities will not pose a substantial threat to Topeka shiner
establishment and persistence in the Little Creek, Big Muddy Creek, and
Spring Creek watersheds, because most activities currently occurring in
the NEP area are compatible with Topeka shiner recovery, and there is
no information to suggest that future activities will be incompatible
with Topeka shiner recovery. Most of the area containing suitable
release sites with high potential for Topeka shiner establishment is
managed by MDC or TNC through the following mechanisms:
(1) There are existing best management practices (BMPs) for Topeka
shiners that are followed by MDC and TNC; these practices include
recommendations to maintain the water quality and headwater stream
habitat (MDC 2000, p. 1).
(2) Reintroduction plans have been developed for all NEP sites (MDC
2011a, pp. 1-9; MDC 2011b, pp. 1-11; MDC 2011c, pp. 1-9).
(3) All reintroduction sites are managed to maintain Topeka shiner
habitat (MDC 2011a, pp. 1-9; MDC 2011b, pp. 1-11; MDC 2011c, pp. 1-9).
Management issues related to the Topeka shiner NEP that have been
considered include:
(a) Incidental take: The regulations implementing the Act define
``incidental take'' as take that is incidental to, and not the purpose
of, carrying out an otherwise lawful activity (50 CFR 17.3), such as
agricultural activities and other rural development, and other
activities that are in accordance with Federal, Tribal, State, and
local laws and regulations. Experimental population special rules
contain specific prohibitions and exceptions regarding the taking of
individual animals. By finalizing this 10(j) rule, incidental take of
Topeka shiners within the NEP area will not be prohibited, provided
that the take is unintentional and is in accordance with the special
rule that is a part of this 10(j) rule. However, if we find evidence of
intentional take of an individual Topeka shiner within the NEP that is
not authorized by the special rule, we will refer the matter to the
appropriate law enforcement entities for investigation.
(b) Special handling: In accordance with 50 CFR 17.21(c)(3), any
employee or agent of the Service, any other Federal land management
agency, or State personnel, designated for such purposes, may in the
course of their official duties, handle individual Topeka shiners to
aid sick or injured individual Topeka shiners, or to salvage dead
individual Topeka shiners. Other persons will need to acquire permits
from the Service for these activities.
(c) Coordination with landowners and land managers: The Service and
our cooperators have identified issues and concerns associated with the
Topeka shiner nonessential experimental population establishment. The
NEP establishment was discussed with potentially affected State
agencies, Tribal entities, local governments, businesses, and
landowners within the reestablishment area. Affected State agencies,
landowners, and land managers have indicated support for, or no
opposition to, the NEP establishment, provided an NEP is designated and
a special rule is promulgated to exempt incidental take from the
prohibitions under section 9.
(d) Public awareness and cooperation: We will inform the general
public of the importance of this reintroduction project in the overall
recovery of the Topeka shiner in Missouri. After the publication of the
proposed rule, we hosted two public meetings on February 19 and March
7, 2013, and informed the public of the purpose of the reintroduction,
while emphasizing that the proposed NEP would not impact activities on
private property. Additionally, MDC fisheries and private land
biologists and the Service will highlight the same issues while working
with private landowners on various landowner incentive programs or when
providing technical assistance within the designated NEP watersheds.
The designation of the NEP within Little Creek, Big Muddy Creek, and
Spring Creek will provide greater flexibility in the management of the
reintroduced Topeka shiner individuals. Affected State agencies,
landowners, and land managers have either indicated support for, or no
opposition to, the population establishment, provided the NEP is
designated and a special rule is promulgated that does not prohibit
incidental take.
(e) Potential impacts to other federally listed species: No other
federally listed species are present within streams where the NEP is to
be designated; therefore, Topeka shiner reintroductions
[[Page 42710]]
will not impact any other federally listed species.
(f) Monitoring and evaluation: Monitoring of changes in the
distribution of Topeka shiners will be undertaken using occupancy
modeling or a similar approach following procedural guidelines
described in MacKenzie et al. (2006, pp. 183-224). Monitoring will be
undertaken annually by personnel of the MDC, and results will be
communicated to the public during future public meetings and through
the use of outreach documents. If monitoring of released individuals
indicates that reintroductions have been successful, additional release
areas may be identified in a proposed rule in the Federal Register at a
future date, following guidelines outlined in MDC's 10-year Strategic
Plan for Recovery of the Topeka Shiner in Missouri (MDC 2010, p. 8). We
project that it will be necessary to establish Topeka shiners in seven
reintroduced populations to achieve recovery of the species in Missouri
(MDC 2010, p. 26). However, this final rule covers only three of the
seven reintroductions because the potential establishment of the
remaining four populations will be contingent upon the success of
initial propagation and release efforts. Reintroduction into the
remaining sites will also follow the same protocols and guidelines
conducted under this 10(j) rule, including the opportunity for the
public to comment on such reintroductions in a possible future proposed
rule.
Reintroduction Effectiveness Monitoring
Evaluations of our reintroduction goal and objectives will require
monitoring for at least 10 years following initial stockings. Initial
success of the reintroduction efforts will be evaluated through annual
sampling of ponds and selected stream reaches on public properties
during the first 3 years following initial stockings. Pond sampling
will include fall seining with at least five, one-fourth arc pulls
around the shore. Catch rates (fish per pull) will be recorded for
shiners and sunfish, and a subsample of up to 100 Topeka shiners will
be used to evaluate natural reproduction. Topeka shiners that are less
than 40 mm (1.6 inches) in length will be considered juveniles. Minnow
traps may also be used as a comparison to seining data. Stream sampling
will follow the methods described earlier for ``Baseline Data''
sampling. After the first 3 years, ponds stocked with Topeka shiners
will be monitored biennially for 10 years. Stream monitoring will be
continued annually for 10 years to measure changes in the distribution
of Topeka shiners, other fishes in the watershed, and trends in stream
habitat conditions. Program Presence (Hines 2006) software to estimate
patch occupancy and related parameters will be used to evaluate changes
in occupancy and determine Topeka shiner use of Little Creek, Big
Muddy, and Spring Creek watersheds.
Donor Population Monitoring
The MDC will continue to monitor the donor population of Topeka
shiners in Sugar Creek. Monitoring of the donor population will follow
guidelines established in the 10-Year Strategic Plan for the Recovery
of Topeka Shiner in Missouri (MDC 2010, pp. 55-60); however, occupancy
modeling will follow the protocols and principles in MacKenzie et al.
(2006, pp. 183-224) to assess the status of the species. If monitoring
detects a significant decline in donor populations, appropriate
management action will be taken.
Monitoring Impacts to Other Listed Species
No other federally listed species occur within ponds or streams
targeted for reintroductions; therefore, this monitoring will not
impact any other federally listed species.
Summary of Comments and Responses
In the proposed rule published on January 23, 2013 (78 FR 4813), we
requested that all interested parties submit written comments on the
proposal by March 25, 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
Albany Ledger, the Bethany Republican Clipper, the Grant City Time's
Tribune, the Kirksville Daily Express, the Milan Standard, and the
Unionville Republican. We held a public meeting on February 19, 2013,
in Eagleville, Missouri, and one on March 7, 2013, in Green City,
Missouri.
During the public comment period on the proposed rule, we received
a total of two comment letters addressing the proposed special rule.
During the public meetings held on February 19, 2013, and March 7,
2013, representatives from The Nature Conservancy provided verbal
comments on the proposed rule. All comments received supported the
Service's proposed rule. All substantive information provided during
the comment periods has either been incorporated directly into this
final determination or addressed below.
Peer Review
In accordance with our peer review policy published on July 1, 1994
(59 FR 34270), we solicited expert opinion from two knowledgeable
individuals with scientific expertise that included familiarity with
Topeka shiner and its habitat, biological needs, and threats and from
two individuals who are recognized fish biology, ecology and
conservation experts. We received a response from one of the peer
reviewers.
We reviewed all comments received from one peer reviewer for
substantive issues and new information regarding the proposed 10(j)
determination and reintroduction of Topeka shiner into portions of the
species' historical range in Adair, Gentry, Harrison, Putnam, Sullivan,
and Worth Counties, Missouri. The peer reviewer concurred with our
methods and conclusions, and commented that determining the success of
initial reintroductions before proposing the establishment of
additional populations was wise conservation planning. He further
concurred that the proposed reintroductions would further the
conservation of Topeka shiner in Missouri.
Comments From States
Section 4(i) of the Act states, ``the Secretary shall submit to the
State agency a written justification for his failure to adopt
regulations consistent with the agency's comments or petition.'' The
Missouri Department of Conservation completely supports the proposed
action. They have been active partners with the Service in
reintroduction efforts and much of the information, proposed locations,
monitoring protocols, and propagation goals provided in the proposed
rule are outlined in their 2010 State Action Plan (MDC 2010, pp. 7-60).
The MDC State Action Plan includes guidelines for establishing seven
populations within the species' historical range, including
recommendations for release locations, stocking rates, site
preparations at pond locations, and monitoring protocols for assessing
the success of reintroduction efforts.
Public Comments
Comment: Two commenters wholeheartedly supported the proposed rule
and noted that such reintroductions were necessary due to habitat loss.
Our Response: The Service concurs that reintroductions are now
necessary due to habitat destruction that contributed to the species'
decline.
Comment: One commenter questioned the need to designate
reintroductions as
[[Page 42711]]
a nonessential experimental population and the necessity to exempt from
prohibitions any actions that could result in the incidental take of
Topeka shiners.
Our Response: The Service believes that the designation of a
nonessential experimental population enables us to provide regulatory
flexibility that will ensure continued cooperation with private
landowners and further enhance the likelihood of success.
Comment: One commenter questioned whether the Service would
continue to view reintroduced fish as a nonessential experimental
population, whether stocked fish were unable to recover on their own,
and whether new measures and resources would be devoted to enhance the
conservation of such individuals.
Our Response: The designation as a nonessential experimental
population is not contingent upon the ability of stocked fish to
successfully reproduce in the wild. The Service's determination that
reintroductions are not essential to the continued existence of the
species in the wild would not change. Nonetheless, the decision to
establish two additional reintroduced populations in an effort to meet
MDC's goal of seven populations (two are extant) will depend on the
success of the reintroduction sites outlined in this final rule.
Whether reintroduced fish will subsequently reproduce on their own is
yet to be determined. MDC and TNC are committed to managing sites
targeted for reintroductions to the benefit of Topeka shiners to the
maximum extent practical and logistically feasible.
Comment: One commenter asked if a failure of reintroductions would
reflect on the species' ability to recover in the wild.
Our Response: The Service believes that reintroductions are
essential to recovery of the species in Missouri. The success of
reintroductions depends on a number of factors (e.g., population
levels, genetics, climatic variables) and the failure of such efforts
would not necessarily be due to a species' ability to recover on its
own without human assistance. In the event reintroduced fish do not
reproduce, the Service, MDC, and TNC will use an adaptive management
framework to determine what adjustments in reintroduction strategies
would be needed to further recovery and improve the likelihood of
success. Without reintroduction efforts, it is possible, however, that
the species could become extirpated in the State. Consequently, we have
determined that reintroductions will further the conservation of the
species.
Findings
We followed the procedures required by the Act, NEPA, and the
Administrative Procedure Act during this Federal rulemaking process. We
solicited public comment on the proposed NEP designation. We have
considered all comments received on the proposed rule before making
this final determination. Based on the above information, and using the
best scientific and commercial data available (in accordance with 50
CFR 17.81), we find that releasing Topeka shiners into portions of the
species' historical range in Adair, Gentry, Harrison, Putnam, Sullivan,
and Worth Counties, Missouri will further the conservation of the
species, but that this population is not essential to the continued
existence of the species in the wild.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget will
review all significant rules. The Office of Information and Regulatory
Affairs has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C.
601 et seq.), whenever a Federal agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare, and make
available for public comment, a regulatory flexibility analysis that
describes the effect of the rule on small entities (small businesses,
small organizations, and small government jurisdictions). However, no
regulatory flexibility analysis is required if the head of an agency
certifies that the rule will not have a significant economic impact on
a substantial number of small entities. SBREFA amended the Regulatory
Flexibility Act to require Federal agencies to provide a statement of
the factual basis for certifying that a rule will not have a
significant economic impact on a substantial number of small entities.
We are certifying that this rule will not have a significant economic
effect on a substantial number of small entities. The following
discussion explains our rationale.
The area affected in this final includes the release areas in
northern Missouri and adjacent areas into which Topeka shiners may
disperse, which over time could include significant portions of the
NEP. Because of the regulatory flexibility for Federal agency actions
provided by the NEP designation and because of the exemption for
incidental take in this special rule, we do not expect this rule to
have significant effects on any activities within Federal, State, or
private lands within the NEP. In regard to section 7(a)(2), the
population is treated as proposed for listing and Federal action
agencies are not required to consult on their activities. Section
7(a)(4) requires Federal agencies to confer (rather than consult) with
the Service on actions that are likely to jeopardize the continued
existence of a proposed species. Results of a conference are advisory
in nature and do not restrict agencies from carrying out, funding, or
authorizing activities. In addition, section 7(a)(1) requires Federal
agencies to use their authorities to carry out programs to further the
conservation of listed species, which will apply on any lands within
the NEP area. As a result, and in accordance with these regulations,
some modifications to proposed Federal actions within the NEP area may
occur to benefit the Topeka shiner, but we do not expect projects would
be halted or substantially modified as a result of these regulations.
This final rule will broadly authorize incidental take of the
Topeka shiner within the NEP area, when such take is incidental to an
otherwise lawful activity, such as agricultural activities, animal
husbandry, grazing, ranching, road and utility maintenance and
construction, other rural development, camping, hiking, fishing,
hunting, vehicle use of roads and highways, and other activities in the
NEP area that are in accordance with Federal, Tribal,
[[Page 42712]]
State, and local laws and regulations. Intentional take for purposes
other than authorized data collection or recovery purposes will not be
permitted. Intentional take for research or recovery purposes will
require a section 10(a)(1)(A) recovery permit under the Act.
The principal activities on private property near the designated
NEP area are agriculture, rural development, and recreation. We
conclude the presence of the Topeka shiner will not affect the use of
lands for these purposes because there will be no new or additional
economic or regulatory restrictions imposed upon States, non-Federal
entities, or members of the public due to the presence of the Topeka
shiner, and Federal agencies will have to comply only with sections
7(a)(1) and 7(a)(4) of the Act in these areas. Therefore, this
rulemaking is not expected to have any significant adverse impacts to
activities on private lands within the NEP area.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.):
(1) This final rule will not ``significantly or uniquely'' affect
small governments. We have determined and certify under the Unfunded
Mandates Reform Act, 2 U.S.C. 1502 et seq., that this rulemaking will
not impose a cost of $100 million or more in any given year on local or
State governments or private entities. A Small Government Agency Plan
is not required. As explained above, small governments will not be
affected because the NEP designation will not place additional
requirements on any city, county, or other local municipalities.
(2) This rule will not produce a Federal mandate of $100 million or
greater in any year (i.e., it is not a ``significant regulatory
action'' under the Unfunded Mandates Reform Act). This NEP designation
for the Topeka shiner will not impose any additional management or
protection requirements on the States or other entities.
Takings (E.O. 12630)
In accordance with Executive Order 12630, this final rule does not
have significant takings implications. This rule will allow for the
take of reintroduced Topeka shiners when such take is incidental to an
otherwise legal activity, such as agricultural activities and other
rural development, camping, hiking, hunting, vehicle use of roads and
highways, and other activities that are in accordance with Federal,
State, Tribal, and local laws and regulations. Therefore, we do not
believe that establishment of this NEP will conflict with existing or
proposed human activities or hinder public use of the Little Creek, Big
Muddy Creek, and Spring Creek or its tributaries.
A takings implication assessment is not required because this rule:
(1) Will not effectively compel a property owner to suffer a physical
invasion of property and (2) will not deny all economically beneficial
or productive use of the land or aquatic resources. This rule will
substantially advance a legitimate government interest (conservation
and recovery of a listed species) and will not present a barrier to all
reasonable and expected beneficial use of private property.
Federalism (E.O. 13132)
In accordance with Executive Order 13132, we have considered
whether this final rule has significant Federalism effects and have
determined that a federalism impact summary statement is not required.
This rule will not have substantial direct effects on the States, on
the relationship between the Federal Government and the States, or on
the distribution of power and responsibilities among the various levels
of government. In keeping with Department of the Interior policy, we
requested information from and coordinated development of this final
rule with the affected resource agencies in Missouri. Achieving the
recovery goals for this species in Missouri will contribute to its
eventual delisting and its return to State management. No intrusion on
State policy or administration is expected; roles or responsibilities
of Federal or State governments will not change; and fiscal capacity
will not be substantially directly affected. The special rule will
operate to maintain the existing relationship between the State and the
Federal Government and is being undertaken in coordination with the
State of Missouri. Therefore, this rule does not have significant
Federalism effects or implications to warrant the preparation of a
federalism impact summary statement under the provisions of Executive
Order 13132.
Civil Justice Reform (E.O. 12988)
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this rule will not unduly burden the
judicial system and will meet the requirements of sections (3)(a) and
(3)(b)(2) of the Order.
Paperwork Reduction Act
Office of Management and Budget (OMB) regulations at 5 CFR 1320,
which implement provisions of the Paperwork Reduction Act (44 U.S.C.
3501 et seq.), require that Federal agencies obtain approval from OMB
before collecting information from the public. This final rule does not
contain any new information collections that require approval. OMB has
approved our collection of information associated with reporting the
taking of experimental populations (50 CFR 17.84) and assigned control
number 1018-0095, which expires on May 31, 2014. We may not collect or
sponsor, and you are not required to respond to, a collection of
information unless it displays a currently valid OMB control number.
National Environmental Policy Act
The reintroduction of native species into suitable habitat within
their historical or established range is categorically excluded from
NEPA documentation requirements consistent with 40 CFR 1508.4, 43 CFR
46.205, 43 CFR 46.210, and 516 DM 8.5 B(6).
Government-to-Government Relationship With Tribes
In accordance with the presidential memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175 (65 FR 67249), and
the Department of Interior Manual Chapter 512 DM 2, we have considered
possible effects on federally recognized Indian tribes and have
determined that there are no tribal lands within the areas targeted for
reintroductions. Therefore, no tribal lands will be affected by this
rule.
Energy Supply, Distribution or Use (E.O. 13211)
Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. This rule is not
expected to significantly affect energy supplies, distribution, and
use. Because this action is not a significant energy action, no
Statement of Energy Effects is required.
References Cited
A complete list of all references cited in this final rule is
available at http://www.regulations.gov at Docket No. FWS-R3-ES-2012-
0087 or upon request from the Columbia, Missouri, Ecological Services
Field Office (see FOR FURTHER INFORMATION CONTACT).
[[Page 42713]]
Authors
The primary authors of this final rule are staff members of the
Service's Columbia, Missouri, Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, we hereby amend part 17, subchapter B of chapter I,
title 50 of the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; 4201-4245; unless
otherwise noted.
0
2. Amend Sec. 17.11(h) by revising the entry for ``Shiner, Topeka''
under ``FISHES'' in the List of Endangered and Threatened Wildlife to
read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
-------------------------------------------------------- population where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
FISHES
* * * * * * *
Shiner, Topeka................... Notropis U.S.A. (IA, KS, MN, Entire, except E 654 17.95(e) NA
topeka=tristis. MO, NE, SD). where listed as an
experimental
population.
Shiner, Topeka................... Notropis U.S.A. (IA, KS, MN, U.S.A. (MO-- XN ........... NA 17.84(n)
topeka=tristis. MO, NE, SD). specified portions
of Little Creek,
Big Muddy Creek,
and Spring Creek
watersheds in
Adair, Gentry,
Harrison, Putnam,
Sullivan, and
Worth Counties;
see
17.84(n)(1)(i)).
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.84 by adding paragraph (n) to read as follows:
Sec. 17.84 Special rules--vertebrates.
* * * * *
(n) Topeka shiner (Notropis topeka).
(1) Where is the Topeka shiner designated as a nonessential
experimental population (NEP)? (i) The NEP area for the Topeka shiner
is within the species' historical range and includes those waters
within the Missouri counties of Adair, Gentry, Harrison, Putnam,
Sullivan, and Worth identified below in paragraph (n)(5) of this
section.
(ii) The Topeka shiner is not known to currently exist in Adair,
Gentry, Putnam, Sullivan, and Worth Counties in Missouri, or in those
portions of Harrison County, Missouri, where the NEP is being
designated. Based on its habitat requirements and potential predation
by other fish predators, we do not expect this species to become
established outside this NEP area, although there is a remote chance it
may.
(iii) We will not change the NEP designations to ``essential
experimental,'' ``threatened,'' or ``endangered'' within the NEP area
without a public rulemaking. Additionally, we will not designate
critical habitat for this NEP, as provided by 16 U.S.C.
1539(j)(2)(C)(ii).
(2) What activities are not allowed in the NEP area? (i) Except as
expressly allowed in paragraph (n)(3) of this section, all the
prohibitions of Sec. 17.21 apply to the Topeka shiner NEP.
(ii) Any manner of take not described under paragraph (n)(3) of
this section is prohibited in the NEP area.
(iii) You may not possess, sell, deliver, carry, transport, ship,
import, or export by any means, Topeka shiners, or parts thereof, that
are taken or possessed in violation of paragraph (n)(3) of this section
or in violation of the applicable State fish and wildlife laws or
regulations or the Act.
(iv) You may not attempt to commit, solicit another to commit, or
cause to be committed any offense defined in paragraph (n)(2)(iii) of
this section.
(3) What take is allowed in the NEP area? Take of this species that
is incidental to an otherwise legal activity, such as agriculture,
forestry and wildlife management, land development, recreation, and
other activities, is allowed provided that the activity is not in
violation of any applicable State fish and wildlife laws or
regulations.
(4) How will the effectiveness of these reintroductions be
monitored? We will monitor reintroduction efforts to assess changes in
distribution within each watershed by sampling ponds and streams where
releases occur for 10 years after reintroduction. Streams will be
sampled annually, and ponds will be sampled annually for the first 3
years and biennially thereafter.
[[Page 42714]]
(5) Note: Map of the NEP areas [Big Muddy Creek (Gentry, Harrison,
and Worth Counties), Little Creek (Harrison County), and Spring Creek
(Adair, Putnam, and Sullivan Counties)] for the Topeka shiner, follows:
BILLING CODE 4310-55-P
[GRAPHIC] [TIFF OMITTED] TR17JY13.000
[[Page 42715]]
(6) Note: Map of the NEP area for the Topeka shiner in Little Creek
watershed, Harrison County, follows:
[GRAPHIC] [TIFF OMITTED] TR17JY13.001
[[Page 42716]]
(7) Note: Map of the NEP area for the Topeka shiner in Big Muddy
Creek watershed, Gentry, Harrison, and Worth Counties, follows:
[GRAPHIC] [TIFF OMITTED] TR17JY13.002
[[Page 42717]]
(8) Note: Map of the NEP area for the Topeka shiner in Spring Creek
watershed, Adair, Putnam, and Sullivan Counties, follows:
[GRAPHIC] [TIFF OMITTED] TR17JY13.003
[[Page 42718]]
* * * * *
Dated: July 9, 2013.
Michael J. Bean,
Principal Deputy Acting Assistant Secretary for Fish and Wildlife and
Parks.
[FR Doc. 2013-17087 Filed 7-16-13; 8:45 am]
BILLING CODE 4310-55-C