[Federal Register Volume 78, Number 151 (Tuesday, August 6, 2013)]
[Proposed Rules]
[Pages 47582-47590]
From the Federal Register Online via the Government Publishing 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]]

 
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *

    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