Federal Register, Volume 78 Issue 15 (Wednesday, January 23, 2013)

[Federal Register Volume 78, Number 15 (Wednesday, January 23, 2013)]
[Proposed Rules]
[Pages 4813-4827]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-01153]

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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 in Northern
Missouri

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
establish a nonessential experimental population (NEP) of the Topeka
shiner (Notropis topeka), a federally endangered fish, under the
authority of section 10(j) of the Endangered Species Act of 1973, as
amended (Act). This proposed rule provides a plan for reintroducing
Topeka shiners into portions of the species' historical range in Adair,
Gentry, Harrison, Putnam, Sullivan, and Worth Counties, Missouri and
provides for allowable legal incidental taking of the Topeka shiner
within the defined NEP area. Topeka shiners will not be reintroduced
into the NEP area until after we issue a final regulation that
establishes the NEP.

DATES: Written comments: We will accept comments received or postmarked
on or before March 25, 2013. Please note that if you are using the
Federal eRulemaking Portal (see ADDRESSES), the deadline for submitting
an electronic comment is 11:59 p.m. Eastern Standard Time on this date.
We must receive requests for public hearings, in writing, at the
address shown in the FOR FURTHER INFORMATION CONTACT section by March
11, 2013.
Public Meetings: We will hold a public meeting on February 19,
2013, from 6:00 p.m. to 8:30 p.m. (Central Standard Time), in
Eagleville, Missouri, and on February 21, 2013, from 6:00 p.m. to 8:30
p.m. (Central Standard Time), in Green City, Missouri (see ADDRESSES).

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 field, enter FWS-R3-ES-2012-0087,
which is the docket number for this rulemaking. On the search results
page, under the Comment Period heading in the menu on the left side of
your screen, check the box next to ``Open'' to locate this document.
Please ensure you have found the correct document before submitting
your comments. If your comments will fit in the provided comment box,
please use this feature of http://www.regulations.gov, as it is most
compatible with our comment review procedures. If you attach your
comments as a separate document, our preferred file format is Microsoft
Word. If you attach multiple comments (such as form letters), our
preferred format is a spreadsheet in Microsoft Excel.
(2) By Hard Copy: Submit by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: FWS-R3-ES-2012-0087; 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. This
generally means that we will post any personal information you provide
us (see the Public Comments section below for more information).
Copies of Documents: The proposed rule is available on http://www.regulations.gov and available from our Web site at http://www.fws.gov/midwest/endangered. In addition, the supporting file for
this proposed rule will be available for public inspection, by
appointment, during normal business hours, at the Columbia, Missouri,
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
Public Meetings: We will hold a public meeting on February 19,
2013, from 6:00 p.m. to 8:30 p.m. (Central Standard Time), at the
Eagleville Community Center, 10028 10th St., Eagleville, Missouri
64442, and on February 21, 2013, from 6:00 p.m. to 8:30 p.m. (Central
Standard Time), at the Green City City Hall, 4 South Green St., Green
City, Missouri 63545.

FOR FURTHER INFORMATION CONTACT: Dr. Paul McKenzie, Fish and Wildlife
Biologist, 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 B, 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:

Public Comments

We intend any final rule resulting from this proposal to be as
effective as

[[Page 4814]]

possible. Therefore, we invite tribal and governmental agencies, the
scientific community, industry, and other interested parties to submit
comments or recommendations concerning any aspect of this proposed
rule. Comments should be as specific as possible.
Prior to issuing a final rule to implement this proposed action, we
will take into consideration all comments and any additional
information we receive. Such communications may lead to a final rule
that differs from this proposal. All comments, including commenters'
names and addresses, if provided to us, will become part of the
supporting record.
You may submit your comments and materials concerning the proposed
rule by one of the methods listed in the ADDRESSES section. Comments
must be submitted to http://www.regulations.gov before 11:59 p.m.
(Eastern Time) on the date specified in the DATES section. We will not
consider hand-delivered comments that we do not receive, or mailed
comments that are not postmarked, by the date specified in the DATES
section.
We will post your entire comment--including your personal
identifying information--on http://www.regulations.gov. If you provide
personal identifying information in your comment, 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.
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, or by
appointment, during normal business hours at the U.S. Fish and Wildlife
Service, Columbia, Missouri, Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT).

Public Meetings

We will hold two public meetings on the dates listed in the DATES
section at the addresses listed in the ADDRESSES section. Persons
needing reasonable accommodations in order to attend and participate in
a public meeting should contact the Columbia, Missouri, Ecological
Services Field Office, at the address or phone number listed in the FOR
FURTHER INFORMATION CONTACT section as soon as possible. In order to
allow sufficient time to process requests, please call no later than
one week before the meeting. Information regarding this proposal is
available in alternative formats upon request.

Peer Review

In accordance with our policy, ``Notice of Interagency Cooperative
Policy for Peer Review in Endangered Species Act Activities,'' which
was published on July 1, 1994 (59 FR 34270), we will seek the expert
opinion of at least three appropriate and independent specialists
regarding scientific data and interpretations contained in this
proposed rule. We will send copies of this proposed rule to the peer
reviewers immediately following publication in the Federal Register.
The purpose of such review is to ensure that our decisions are based on
scientifically sound data, assumptions, and analysis. Accordingly, the
final decision may differ from this proposal.

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 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 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 an endangered or
threatened species that has been or will be released into suitable
habitat outside the species' current 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. 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 so the treatment
of an NEP as a threatened species allows us broad discretion in
devising management programs and special regulations for such a
population. In these situations, the general regulations that extend
most section 9 prohibitions to threatened species (50 CFR 17.31(a)) do
not apply to the NEP, and the 10(j) rule contains the prohibitions and
exemptions necessary and advisable to conserve the NEP.
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,

[[Page 4815]]

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 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
proposed experimental population would not be essential to the
continued existence of the species in the wild. This determination has
been made because populations of Topeka shiner in the northern part of
the species' range in Minnesota and South Dakota are considered secure
and some have concluded that the fish is resilient to many threats
identified at the time of listing (Service 2009, pp. 32-33). Therefore,
the Service proposes to designate a nonessential experimental
population for the species located in three areas in northern Missouri.
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 section 7(a)(1) and
the Federal agency conservation 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 on 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.
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 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.

[[Page 4816]]

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 were last observed in the following
Missouri streams: 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, over 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 the Proposed 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 release sites are to be under public ownership; (2)
ownership involves a partner committed to conservation; (3) proposed
release sites are within relatively close proximity to existing Topeka
shiner populations; (4) proposed 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 proposed reintroduction that will support
growth, survival, and natural reproduction. Sites selected are also
deemed to be adequate to facilitate expansion of reintroduced
populations.

[[Page 4817]]

Location of the Proposed 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, it
is likely that the species 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 proposed reintroduction
sites have suitable habitat necessary for the successful establishment
of the species (MDC 2011a, pp. 1-2).
The reintroduction areas would 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 would
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
would 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 proposed NEP portion of the watershed is
located in the headwaters of Little Creek and is estimated at 7,600
acres (ac) (3075 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 would 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 proposed 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 proposed reintroduction site would 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 predominately
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
proposed 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 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 proposed reintroduction site would
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

[[Page 4818]]

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 proposed 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 would be in at
least six ponds and all suitable stream reaches on MDC's Union Ridge
CA. Subsequent monitoring of Topeka shiners would 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 would 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 would also be added to littoral areas (0-1 meter deep).
The success of reproduction in these ponds would 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

There are apparently numerous reasons for the decline of the Topeka
shiner throughout its range. 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 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 proposed 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

[[Page 4819]]

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
would be regularly monitored to assess success of removal operations.
Additional treatments would 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 proposed reintroduction areas used in propagation efforts
would 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 would 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 would originate from
extant sites in Sugar Creek, Harrison County, and from fish propagated
at MDC's Lost Valley Hatchery in Warsaw, Missouri. Proposed NEP
reintroductions would include pond and stream habitats within the
Little Creek, Big Muddy Creek, and Spring Creek watersheds. Captive-
reared fish would 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 would be
placed into proposed 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 would be collected.

Parameters To Assess the Success of the Reintroduction

Sampling Sites
Information on fish species composition and simple stream habitat
conditions would be collected at sites throughout the proposed 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 would be selected
using a Generalized Random Tessellation Stratified (GRTS) design
(http://www.epa.gov/nheerl/arm/designing/design_intro.htm).
Fish Sampling
Each pool would 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 would be used for wide pools between 10 and 20 m in width.
All species present in a catch would 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)
would 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
would be based on consensus of the sampling crew. An adaptive
monitoring approach would be used to assess the NEP population numbers
and habitat variables; adjustments would be made, if necessary, after
assessing the monitoring techniques.
Initial Stocking
Ponds--Topeka shiners would be stocked at a rate of 500 fish per
acre in designated ponds at proposed reintroduction sites on public
properties. All fish would come from either Sugar Creek (Harrison
County) or those propagated at MDC's Lost Valley Hatchery.
Additionally, orangespotted sunfish would be stocked in each pond at a
rate of 25 to 50 fish per acre. The source of the sunfish would
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 would 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 would be the
same as described above for the ponds.
Supplemental Stocking
Supplemental stockings of Topeka shiners or sunfish would 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 would 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
would occur at the same rates described for initial stockings above.

Effects on Extant Populations

Individual Topeka shiners used to establish an experimental
population would 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 County, Missouri. Sugar Creek's
Topeka shiner population is closest to the proposed reintroduction
sites. Typical gear used for small cyprinids would be used to collect
Topeka shiners, and they would be held at Lost Valley Hatchery until
they could be stocked into pond and stream habitats at proposed
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

[[Page 4820]]

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 Proposed Population
We would 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 proposed special rule that accompanies this section 10(j)
proposed 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 propose to 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 would result from release of
progeny from the Sugar Creek population. There is no possibility of any
transfer of disease or mixing of wild and reintroduced populations due
to the distances involved between the donor population and proposed
reintroductions, the watersheds involved, and the physical barriers
associated with the Little Creek and Big Muddy Creek watersheds. The
majority of the reintroductions would occur on managed public land, and
exemptions from prohibition for activities on private land are not
likely to result in the loss of the proposed NEP. Successful
propagation of Topeka shiners in ponds at Dunn Ranch, Pawnee Prairie
NA, and Union Ridge CA would 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 would
result in the successful establishment of a self-sustaining population
of Topeka shiners, which would contribute to the recovery of the
species.

Extent to Which the Reintroduced Population May Be Affected by Land
Management Within the Proposed NEP Watersheds

We conclude that the effects of Federal, State, or private actions
and activities would 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 proposed NEP area are compatible with Topeka shiner recovery, and
there is no information to suggest that future activities would 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 proposed NEP
sites (MDC 2011a, pp. 1-9; MDC 2011b, pp. 1-11; MDC 2011c, pp. 1-9).
(3) All proposed 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 proposed 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. If this 10(j) rule is finalized, incidental take of
Topeka shiners within the NEP area would 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 there is evidence
of intentional take of an individual Topeka shiner within the NEP that
is not authorized by the special rule, we would 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 would 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
proposed Topeka shiner nonessential experimental population
establishment. The proposed NEP establishment was discussed with
potentially affected State agencies, Tribal entities, local
governments, businesses, and landowners within the proposed
reestablishment area. Affected State agencies, landowners, and land
managers have either indicated support for, or no opposition to, the
proposed 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. We will host public meetings
after the publication of this proposed rule and inform the public of
the purpose of the reintroduction, while emphasizing that the proposed
NEP would not impact activities on private property (see Public
Meetings). 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 proposed NEP watersheds. The
designation of the NEP within Little Creek, Big Muddy Creek, and Spring
Creek would provide greater flexibility in the management of the
reintroduced Topeka shiner individuals.
(e) Potential impacts to other federally listed species: No other
federally listed species are present within streams where the NEP is
proposed; therefore, Topeka shiner reintroductions would not impact any
other federally listed species.
(f) Monitoring and evaluation: Monitoring of changes in the
distribution of Topeka shiners would be undertaken using occupancy
modeling or a similar approach following procedural guidelines
described in MacKenzie et al. (2006, pp. 183-224). Monitoring would be
undertaken annually by personnel of the MDC, and results would 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

[[Page 4821]]

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 proposed 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 would 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 would be evaluated through annual
sampling of ponds and selected stream reaches on public properties
during the first 3 years following initial stockings. Pond sampling
would include fall seining with at least five, one-fourth arc pulls
around the shore. Catch rates (fish per pull) would be recorded for
shiners and sunfish, and a subsample of up to 100 Topeka shiners would
be used to evaluate natural reproduction. Topeka shiners that are less
than 40 mm (1.6 inches) in length would be considered juveniles. Minnow
traps may also be used as a comparison to seining data. Stream sampling
would follow the methods described earlier for ``Baseline Data''
sampling. After the first 3 years, ponds stocked with Topeka shiners
would be monitored biennially for 10 years. Stream monitoring would 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 would 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 would continue to monitor the donor population of Topeka
shiners in Sugar Creek. Monitoring of the donor population would 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 would 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 would be taken.

Monitoring Impacts to Other Listed Species

No other federally listed species occur within ponds or streams
proposed for reintroductions; therefore, this monitoring would not be
necessary.

Findings

Our regulations at 50 CFR 17.81(b) specify four elements that
should be considered and support this finding: (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. The above analysis (see Background) addresses these
required components.
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 shiner into Little Creek, Big Muddy Creek, and
Spring Creek would further the conservation of the species but that
this population is not essential to the continued existence of the
species in the wild.

Peer Review

In accordance with our policy on peer review, published on July 1,
1994 (59 FR 34270), we will provide copies of this proposed rule to
three or more appropriate and independent specialists in order to
solicit comments on the scientific data and assumptions relating to the
supportive biological and ecological information for this proposed NEP
designation. The purpose of such review is to ensure that the proposed
NEP designation is based on the best scientific information available.
We will invite these peer reviewers to comment during the public
comment period and will consider their comments and information on this
proposed rule during preparation of a final determination.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) 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, if adopted as proposed, this rule will not have
a significant economic effect on a substantial number of small
entities. The following discussion explains our rationale.
The area that would be affected if this proposed rule is adopted
includes the release areas in northern Missouri and adjacent areas into
which Topeka

[[Page 4822]]

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 the proposed 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 would
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.
If adopted, this proposal would 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, State, and local
laws and regulations. Intentional take for purposes other than
authorized data collection or recovery purposes would not be permitted.
Intentional take for research or recovery purposes would require a
section 10(a)(1)(A) recovery permit under the Act.
The principal activities on private property near the proposed NEP
area are agriculture, rural development, and recreation. We conclude
the presence of the Topeka shiner would not affect the use of lands for
these purposes because there would 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 would only have to comply with sections 7(a)(1) and
7(a)(4) of the Act in these areas. Therefore, if adopted as proposed,
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) If adopted, this proposal 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 proposed 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 would not be affected because the proposed 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 proposed NEP
designation for the Topeka shiner would not impose any additional
management or protection requirements on the States or other entities.

Takings (E.O. 12630)

In accordance with Executive Order 12630, the proposed rule does
not have significant takings implications. This rule would 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 would 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) Would not effectively compel a property owner to suffer a physical
invasion of property and (2) would not deny all economically beneficial
or productive use of the land or aquatic resources. This rule would
substantially advance a legitimate government interest (conservation
and recovery of a listed species) and would 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 proposed rule has significant Federalism effects and have
determined that a federalism impact summary statement is not required.
This rule would 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 proposed
rule with the affected resource agencies in Missouri. Achieving the
recovery goals for this species in Missouri would 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 would not change; and fiscal capacity
would not be substantially directly affected. The special rule would
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 would not unduly burden the
judicial system and would 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 proposed 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

[[Page 4823]]

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 proposed for
reintroductions. Therefore, no tribal lands would 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.

Clarity of This Rule (E.O. 12866)

We are required by E.O. 12866, E.O. 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 comment should be as specific as
possible. For example, you should tell us the numbers of the sections
and paragraphs that are unclearly written, which sections or sentences
are too long, or the sections where you feel lists and tables would be
useful.

References Cited

A complete list of all references cited in this proposed 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).

Authors

The primary authors of this proposed 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.

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; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; 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
------------------------------------------------------ Historic range where endangered or Status When Critical Special
Common name Scientific name threatened listed habitat rules
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * * * *
Fishes
Shiner, Topeka.................. Notropis U.S.A. (IA, KS, Entire, except where E 654 17.95(e) NA
topeka=tristis. MN, MO, NE, SD). listed as an
experimental
population..
Shiner, Topeka.................. Notropis U.S.A. (IA, KS, U.S.A. (MO--specified XN ........... NA 17.84(n)
topeka=tristis. MN, MO, NE, SD). 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 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 proposed. 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.

[[Page 4824]]

(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.
(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] TP23JA13.009

[[Page 4825]]

(6) Note: Map of the NEP area for the Topeka shiner in Little Creek
watershed, Harrison County, follows:
[GRAPHIC] [TIFF OMITTED] TP23JA13.010

[[Page 4826]]

(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] TP23JA13.011

[[Page 4827]]

(8) Note: Map of the NEP area for the Topeka shiner in Spring Creek
watershed, Adair, Putnam, and Sullivan Counties, follows:
[GRAPHIC] [TIFF OMITTED] TP23JA13.012

* * * * *

Dated: January 2, 2013.
Michael Bean,
Acting Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-01153 Filed 1-22-13; 8:45 am]
BILLING CODE 4310-55-C