[Federal Register Volume 78, Number 151 (Tuesday, August 6, 2013)]
[Proposed Rules]
[Pages 47582-47590]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-18211]
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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; Endangered Species
Status for the Sharpnose Shiner and Smalleye Shiner
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
list the sharpnose shiner (Notropis oxyrhynchus) and smalleye shiner
(N. buccula), two fish species from Texas, as endangered species under
the
[[Page 47583]]
Endangered Species Act of 1973, as amended (Act). If we finalize this
rule as proposed, it would add these species to the List of Endangered
and Threatened Wildlife and extend the Act's protections to these
species.
DATES: Written comments: We will accept comments received or postmarked
on or before October 7, 2013. Comments submitted electronically using
the Federal eRulemaking Portal (see ADDRESSES section, below) must be
received by 11:59 p.m. Eastern Time on the closing date.
Public informational session and public hearing: We will hold a
public hearing on September 4, 2013. The public information session
will begin at 5:00 p.m., and the public hearing will begin at 6:30 p.m.
and end at 8:00 p.m. Central Time.
ADDRESSES: Written comments: You may submit comments by one of the
following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R2-ES-2013-0083,
which is the docket number for this rulemaking. Then click on the
Search button. When you have located this proposed rule, you may submit
a comment by clicking on ``Comment Now!''
(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: FWS-R2-ES-2013-0083; Division of Policy and
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax
Drive, MS 2042-PDM; Arlington, VA 22203.
We request that you send comments only by the methods described
above. We will post all comments on http://www.regulations.gov under
Docket Number FWS-R2-ES-2013-0083. This generally means that we will
post any personal information you provide us (see the Information
Requested section below for more information).
Public informational session and public hearing: The public
informational session and hearing will be held in the Upstairs
Conference Room at the Abilene Civic Center, 1100 North 6th Street,
Abilene, Texas.
FOR FURTHER INFORMATION CONTACT: Erik Orsak, Acting Field Supervisor,
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. Persons who
use a telecommunications device for the deaf (TDD) may call the Federal
Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act, if a species is
determined to be an endangered or threatened species throughout all or
a significant portion of its range, we are required to promptly publish
a proposal in the Federal Register and make a determination on our
proposal within 1 year. Critical habitat shall be designated, to the
maximum extent prudent and determinable, for any species determined to
be an endangered or threatened species under the Act. Listing a species
as an endangered or threatened species and designations and revisions
of critical habitat can only be completed by issuing a rule. Elsewhere
in today's Federal Register (and available online at
www.regulations.gov at Docket Number FWS-R2-ES-2013-0083), we propose
to designate critical habitat for the sharpnose shiner (Notropis
oxyrhynchus) and smalleye shiner (N. buccula) under the Act.
This rule consists of a proposed rule to list the sharpnose shiner
and smalleye shiner as endangered species. The sharpnose shiner and
smalleye shiner are currently candidate species for which we have on
file sufficient information on biological vulnerability and threats to
support preparation of a listing proposal, but for which development of
a listing regulation has been precluded by other higher priority
listing activities. This proposed rule reassesses all available
information regarding status of and threats to the sharpnose shiner and
smalleye shiner.
The basis for our action. Under the Act, we can determine if a
species is in danger of extinction throughout all or a significant
portion of its range now (endangered) or likely to become endangered in
the foreseeable future (threatened). As part of our analysis we
consider whether it is endangered or threatened because of any five
factors affecting its continued existence: (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 manmade factors
affecting its continued existence. We have determined that habitat loss
and modification due to river fragmentation and decreased river flow
resulting mainly from reservoir impoundments and drought are primary
threats to the species.
We will seek peer review. We are seeking comments from
knowledgeable individuals with scientific expertise to review our
analysis of the best available science and application of that science
and to provide any additional scientific information to improve this
proposed rule. Because we will consider all comments and information we
receive during the comment period, our final determinations may differ
from this proposal.
Information Requested
Public Comments
We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from other concerned governmental agencies,
Native American tribes, the scientific community, industry, or any
other interested parties concerning this proposed rule. We particularly
seek comments concerning:
(1) The sharpnose and smalleye shiners' biology, range, and
population trends, including:
(a) Biological or ecological requirements of these species,
including habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns;
(d) Historical and current population levels, and current and
projected trends; and
(e) Past and ongoing conservation measures for these species, their
habitat, or both.
(2) Factors that may affect the continued existence of the species,
which may include habitat modification or destruction, overutilization,
disease, predation, the inadequacy of existing regulatory mechanisms,
or other natural or manmade factors.
(3) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to this species and existing regulations
that may be addressing those threats.
(4) Additional information concerning the historical and current
status, range, distribution, and population size of this species,
including the locations of any additional populations of this species.
(5) Information on the projected and reasonably likely impacts of
climate change on sharpnose and smalleye shiners.
(6) The relationship between groundwater withdrawal and the
reduction of surface water flow in areas occupied by sharpnose and
smalleye shiners.
[[Page 47584]]
(7) The relationship between saltcedar encroachment and the
reduction of surface water flow.
(8) The causation of toxic golden algal blooms and their potential
effect on sharpnose and smalleye shiners.
(9) Sources of surface water contamination, particularly petroleum
products, in the upper Brazos River basin.
(10) Information regarding future reservoir impoundments (and other
fish barrier construction) within the upper Brazos River basin and
their potential effects on surface water flows and fish migration
within habitat occupied by these species.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
Please note that submissions merely stating support for or
opposition to the action under consideration without providing
supporting information, although noted, will not be considered in
making a determination, as section 4(b)(1)(A) of the Act (16 U.S.C.
1531 et seq.) directs that determinations as to whether any species is
an endangered or threatened species must be made ``solely on the basis
of the best scientific and commercial data available.''
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in the ADDRESSES section. We request
that you send comments only by the methods described in the ADDRESSES
section.
If you submit information via http://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the Web site. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on http://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on http://www.regulations.gov at Docket
No. FWS-R2-ES-2013-0083, or by appointment, during normal business
hours, at the U.S. Fish and Wildlife Service, Arlington, Texas,
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
The June 2013 Sharpnose Shiner and Smalleye Shiner Species Status
Assessment Report (SSA Report; Service 2013, entire; see Status
Assessment for the Sharpnose Shiner and Smalleye Shiner section,
below), as well as comments and materials we receive and other
supporting documentation we used in preparing this proposed rule, will
be available for public inspection on http://www.regulations.gov at
Docket Number FWS-R2-ES-2013-0083 or by appointment, during normal
business hours, at the U.S. Fish and Wildlife Service, Arlington,
Texas, Ecological Services Field Office (see FOR FURTHER INFORMATION
CONTACT).
Public Hearing
Section 4(b)(5) of the Act provides for one or more public hearings
on this proposal, if requested. We will hold a public hearing on
Wednesday, September 4, 2013. The public information session will begin
at 5:00 p.m., and the public hearing will begin at 6:30 p.m. and end at
8:00 p.m. Central Time. The public informational session and hearing
will be held in the Upstairs Conference Room at Abilene Civic Center,
1100 North 6th Street, Abilene, Texas. People needing reasonable
accommodation in order to attend and participate in the public hearing
should contact Erik Orsak, Field Supervisor, Arlington, Texas,
Ecological Services Office, as soon as possible (see FOR FURTHER
INFORMATION CONTACT).
Peer Review
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), we will seek the expert
opinions of five appropriate and independent specialists regarding this
proposed rule. The purpose of peer review is to ensure that our listing
determination is based on scientifically sound data, assumptions, and
analyses. The peer reviewers have expertise in the biology and ecology
of riverine fishes and are currently reviewing the species status
report, which will inform our final determination. We will invite
comment from the peer reviewers during this public comment period.
We will consider all comments and information we receive during
this comment period on this proposed rule during our preparation of a
final determination. Accordingly, the final decision may differ from
this proposal.
Previous Federal Actions
On June 13, 2002, the sharpnose shiner (Notropis oxyrhynchus) and
smalleye shiner (N. buccula) were made candidates for listing (67 FR
40657) under the Act. On May 11, 2004, we received a petition to list
the sharpnose shiner and smalleye shiner, which were already on the
candidate list; 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
Service continued to solicit information from the public regarding
these species.
Status Assessment for the Sharpnose Shiner and Smalleye Shiner
Introduction
The June 2013 SSA Report (Service 2013, 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. 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 proposed for listing as endangered or threatened species
under the Act. The SSA Report does, however, provide the scientific
basis that informs our decisions, which involve the further application
of standards within the Act and its regulations and policies.
Summary of Biological Status and Threats
Our June 2013 SSA Report documents the results of the comprehensive
biological status review for the sharpnose shiner and smalleye shiner,
and provides a thorough account of the species' overall viability and,
conversely, extinction risk (Service
[[Page 47585]]
2013, entire). 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 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 each
of 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 it needs, 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 the 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 its 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 half a meter deep (1.6 ft) with sandy substrates, which are found
in mainstem rivers in the arid prairie region of Texas. The most
important part of their life history is their reproductive strategies.
Both species broadcast-spawn eggs and sperm into open water
asynchronously (fish not spawning at the same time) from April through
September during periods of low flow and synchronously (many fish
spawning at the same time) during periods of elevated streamflow. 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 and
subsequently die.
To sustain populations of the shiners, experimental analysis
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.
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.
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.
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 dramatic 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 significantly 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 functionally extirpated).
The effects of habitat fragmentation have occurred and continue to
occur throughout the range of both species and are expected to increase
if proposed new reservoirs are constructed. 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
[[Page 47586]]
experiences drought. There is 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. 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 occur
in occupied river fragments reduced to less than 275 km (171 miles) in
length, any new structures further fragmenting stream habitats
significantly increase 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 flow
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 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. 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
affecting (to varying degrees) the amount of stream flow within the
occupied range of these species. These 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, 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 highly likely to occur within the
next 50 years. These future impoundments, reservoir augmentatons, 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 climate change, which is projected to
result in warmer temperatures and drier conditions in the upper Brazos
River in the future. This trend is already becoming apparent and
exacerbates the likelihood of species extinction from loss of river
flow. Reductions to river flow 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.
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 fish biologists from Texas
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 typically live only two reproductive seasons), a similar drought
in 2012 would have likely led to extinction of both species. However,
2012 fish survey results of the upper Brazos River indicated drought
conditions were not as intense as those in 2011, and sharpnose and
smalleye shiners persisted.
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
severely increase the risk of extinction of both species.
The shiners currently have limited viability and increased
vulnerability to extinction because of their stringent life-history
requirement of long, 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
[[Page 47587]]
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 conditions have already
resulted in a significant range reduction and isolation of the one
remaining population of both fish into the upper Brazos River. The
extant population of each shiner species is located in a contiguous
stretch of river long enough to support reproduction, is of adequate
size, and is generally considered resilient to local or short-term
environmental changes. However, with only one location, the species
lack any redundancy, and it is presumed these species lack the genetic
and ecological representation to adapt to ongoing threats. 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 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, including possible construction of new dams within the
extant range, and as there are enhanced chances of drought due to
ongoing climate change. In conclusion, the current condition of both
species is at a low viability (low probability of persistence), and
their viability is only expected to decline into the future.
Determination
Standard for Review
Section 4 of the Act, 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(b)(1)(a), the Secretary is to make endangered or threatened
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 endangered or threatened
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.'' Under
section 4(a)(1) of the Act, in reviewing the status of the species to
determine if it meets the definitions of endangered or threatened, 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.
Proposed Listing Status Determination
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, both meet 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. We found the sharpnose shiner and smalleye shiner are in
danger of extinction now, and the situation will not improve without
significant conservation intervention. We, therefore, find that the
sharpnose shiner and smalleye shiner warrant listing as endangered
species.
On the basis of our biological review documented in the June 2013
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 miles))
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--
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.
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. Drought, exacerbated by climate change, and
groundwater withdrawals also act as sources to reduce stream flows and
modify stream habitats. 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. As population sizes decrease, localized
concerns, such as commercial harvesting of individuals, also increases
the risk of extinction.
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 places these species in
danger of extinction now, and the situation is exacerbated by the
ongoing and intensifying effects of river fragmentation, climate-
change-induced
[[Page 47588]]
drought, saltcedar encroachment, water quality degradation, and
commercial bait harvesting. The current threats affecting these species
are expected to continue (or even increase without substantial
conservaton efforts), causing both species to be in danger of
extinction now--as nearly occurred during the drought of 2011.
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.
In conclusion, 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 propose to list
the sharpnose shiner and smalleye shiner as endangered species in
accordance with section 3(6) of the Act.
Under the Act and our implementing regulations, a species may
warrant listing if it is endangered or threatened throughout all or a
significant portion of its range. The threats to the survival of the
sharpnose shiner and smalleye shiner occur throughout these species'
ranges and are not restricted to any particular significant portion of
those ranges. Accordingly, our assessments and determinations apply to
the species throughout their entire ranges.
Available Conservation Measures
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, tribal, 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 required by 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 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, tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., removal of existing fish barriers), 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.
If these species are listed, 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 shiner and smalleye shiner.
Information on our grant programs that are available to aid species
recovery can be found at: http://www.fws.gov/grants.
Although the sharpnose shiner and smalleye shiner are only proposed
for listing under the Act at this time, please let us know if you are
interested in participating in recovery efforts for this 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 may 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 of section 9(a)(2) of the Act, codified at
50 CFR 17.21 for endangered
[[Page 47589]]
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. Under the Lacey Act
(18 U.S.C. 42-43; 16 U.S.C. 3371-3378), 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,
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 it negatively impacts the river
ecosystem.
(3) Capture, survey, or collection of specimens of this taxon
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
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in the ADDRESSES section. To
better help us revise the rule, your comments should be as specific as
possible. For example, you should tell us the numbers of the sections
or paragraphs that are unclearly written, which sections or sentences
are too long, the sections where you feel lists or tables would be
useful, etc.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
We have determined that environmental assessments and environmental
impact statements, as defined under the authority of the National
Environmental Policy Act of 1969, need not be prepared in connection
with listing a species as an endangered or threatened species under the
Endangered Species Act. We published a notice outlining our reasons for
this determination in the Federal Register on October 25, 1983 (48 FR
49244).
References
A complete list of references used in support of this proposed
rulemaking is available on the Internet at http://www.regulations.gov
under Docket Number FWS-R2-ES-2013-0083 in the June 2013 Status
Assessment Report for the Sharpnose Shiner and Smalleye Shiner (Service
2013, Literature Cited) and upon request from the Arlington, Texas,
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
Authors
The primary authors of this document are the staff members of the
Arlington, Texas, Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; 4201-4245, unless
otherwise noted.
0
2. In Sec. 17.11(h), add entries for ``Shiner, sharpnose'' and
``Shiner, smalleye'' in alphabetical order under FISHES to 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, sharpnose................ Notropis oxyrhynchus U.S. (TX).......... Entire............. E ........... NA NA
Shiner, smalleye................. Notropis buccula.... U.S. (TX).......... Entire............. E ........... NA NA
[[Page 47590]]
* * * * * * *
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* * * * *
Dated: July 15, 2013.
Daniel M. Ashe,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2013-18211 Filed 8-5-13; 8:45 am]
BILLING CODE 4310-55-P