[Federal Register Volume 78, Number 151 (Tuesday, August 6, 2013)]
[Proposed Rules]
[Pages 47612-47635]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-18212]



[[Page 47612]]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2013-0008; 4500030113]
RIN 1018-AZ34


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat 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 
designate critical habitat for the sharpnose shiner (Notropis 
oxyrhynchus) and smalleye shiner (N. buccula) under the Endangered 
Species Act of 1973, as amended (Act). In total, approximately 1,002 
river kilometers (623 river miles) of river segments occupied by the 
species in Baylor, Crosby, Fisher, Garza, Haskell, Kent, King, Knox, 
Stonewall, Throckmorton, and Young Counties in the upper Brazos River 
basin of Texas fall within the boundaries of the proposed critical 
habitat. If we finalize this rule as proposed, it would extend the 
Act's protections to these species' critical habitat.

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, 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 field, enter Docket No. FWS-R2-ES-
2013-0008, which is the docket number for this rulemaking. Then, in the 
Search panel on the left side of the screen, under the Document Type 
heading, click on the Proposed Rules link to locate this document. 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-2013-0008; 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-2013-0008. This generally means that we will 
post any personal information you provide us (see the Information 
Requested section below for more information).
    Coordinates or plot points: The coordinates or plot points or both 
from which the proposed critical habitat maps are generated and are 
available at http://www.fws.gov/southwest/es/ArlingtonTexas/, at http://www.regulations.gov at Docket No. FWS-R2-ES-2013-0008, and at the 
Arlington, Texas Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT). Any additional tools or supporting information 
that we may develop for this rulemaking will also be available at the 
Fish and Wildlife Service Web site and Field Office set out above, and 
may also be included in the preamble or at http://www.regulations.gov.
    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 Endangered Species Act 
(Act), any species that is determined to be endangered or threatened 
requires critical habitat to be designated, to the maximum extent 
prudent and determinable. Designations and revisions of critical 
habitat can only be completed by issuing a rule. Elsewhere in today's 
Federal Register, we propose to list the sharpnose shiner and smalleye 
shiner as endangered species under the Act.
    This rule consists of a proposed rule to designate critical habitat 
for the sharpnose shiner and smalleye shiner. The sharpnose shiner and 
smalleye shiner are proposed for listing under the Act. This rule 
proposes designation of critical habitat necessary for the conservation 
of the species.
    The basis for our action. Under the Endangered Species Act, any 
species that is determined to be an endangered or threatened species 
shall, to the maximum extent prudent and determinable, have habitat 
designated that is considered to be critical habitat. Section 4(b)(2) 
of the Endangered Species Act states that the Secretary shall designate 
and make revisions to critical habitat on the basis of the best 
available scientific data after taking into consideration the economic 
impact, national security impact, and any other relevant impact of 
specifying any particular area as critical habitat. The Secretary may 
exclude an area from critical habitat if he determines that the 
benefits of such exclusion outweigh the benefits of specifying such 
area as part of the critical habitat, unless he determines, based on 
the best scientific data available, that the failure to designate such 
area as critical habitat will result in the extinction of the species. 
The species are proposed for listing as endangered, and we also propose 
to designate approximately 1,002 river kilometers (km) (623 miles (mi)) 
of the upper Brazos River basin and the upland areas extending beyond 
the bankfull river channel by 30 meters (m) (98 feet (ft)) on each side 
as critical habitat in the following Texas counties: Baylor, Crosby, 
Fisher, Garza, Haskell, Kent, King, Knox, Stonewall, Throckmorton, and 
Young.
    We are preparing an economic analysis of the proposed designations 
of critical habitat. In order to consider economic impacts, we are 
preparing a new analysis of the economic impacts of the proposed 
critical habitat designations and related factors. We will announce the 
availability of the draft economic analysis as soon as it is completed, 
at which time we will seek additional public review and comment.
    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.

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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 reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et 
seq.), including whether there are threats to the species from human 
activity, the degree of which can be expected to increase due to the 
designation, and whether that increase in threats outweighs the benefit 
of designation such that the designation of critical habitat may not be 
prudent.
    (2) Specific information on:
    (a) The amount and distribution of the sharpnose shiner and 
smalleye shiner and their habitat;
    (b) What areas, that were occupied at the time of listing (or are 
currently occupied) and that contain features essential to the 
conservation of the species, should be included in the designation and 
why;
    (c) Special management considerations or protection that may be 
needed in critical habitat areas we are proposing, including managing 
for the potential effects of climate change; and
    (d) What areas not occupied at the time of listing are essential 
for the conservation of the species and why.
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts of these activities on these 
species and proposed critical habitat.
    (4) Information on the projected and reasonably likely impacts of 
climate change on the sharpnose shiner and smalleye shiner and proposed 
critical habitat.
    (5) Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation; in particular, we seek information on any impacts on small 
entities or families, and the benefits of including or excluding areas 
that exhibit these impacts.
    (6) Whether any specific areas we are proposing for critical 
habitat designation should be considered for exclusion under section 
4(b)(2) of the Act, and whether the benefits of potentially excluding 
any specific area outweigh the benefits of including that area under 
section 4(b)(2) of the Act.
    (7) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding or to better accommodate public concerns and 
comments.
    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.
    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-2013-0008, 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 the 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 at least three appropriate and independent specialists 
regarding this proposed rule. The purpose of peer review is to ensure 
that our critical habitat designations are based on scientifically 
sound data, assumptions, and analyses. We will invite these peer 
reviewers to comment 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

    All previous Federal actions are described in the proposal to list 
the sharpnose shiner and smalleye shiner as endangered species under 
the Act, which is published elsewhere in today's Federal Register.

Critical Habitat

Background

    It is our intent to discuss below only those topics directly 
relevant to the proposed designation of critical habitat for the 
sharpnose shiner and smalleye shiner. For a thorough assessment of the 
species' biology and natural history, including limiting factors and 
species resource needs, please refer to the June 2013 version of the 
Status Assessment Report for the Sharpnose Shiner and Smalleye Shiner 
(SSA Report; Service 2013, entire, available online at 
www.regulations.gov under Docket No. FWS-R2-ES-2013-0008).
    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features:
    (a) Essential to the conservation of the species, and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and

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procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. Such designation does not allow the government 
or public to access private lands. Such designation does not require 
implementation of restoration, recovery, or enhancement measures by 
non-Federal landowners. Where a landowner requests Federal agency 
funding or authorization for an action that may affect a listed species 
or critical habitat, the consultation requirements of section 7(a)(2) 
of the Act would apply, but even in the event of a destruction or 
adverse modification finding, the obligation of the Federal action 
agency and the landowner is not to restore or recover the species, but 
to implement reasonable and prudent alternatives to avoid destruction 
or adverse modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, those physical or biological 
features that are essential to the conservation of the species (such as 
space, food, cover, and protected habitat). In identifying those 
physical and biological features within an area, we focus on the 
principal biological or physical constituent elements (primary 
constituent elements such as roost sites, nesting grounds, seasonal 
wetlands, water quality, tide, soil type) that are essential to the 
conservation of the species. Primary constituent elements are those 
specific elements of the physical or biological features that provide 
for a species' life-history processes and are essential to the 
conservation of the species.
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside the geographical 
area occupied by the species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. For example, an area currently occupied by the species, but 
that was not occupied at the time of listing, may be essential to the 
conservation of the species and may be included in the critical habitat 
designation. We designate critical habitat in areas outside the 
geographic area occupied by a species only when a designation limited 
to its range would be inadequate to ensure the conservation of the 
species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Further, our Policy on 
Information Standards Under the Endangered Species Act (published in 
the Federal Register on July 1, 1994 (59 FR 34271)), the Information 
Quality Act (section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), 
and our associated Information Quality Guidelines, provide criteria, 
establish procedures, and provide guidance to ensure that our decisions 
are based on the best scientific data available. They require our 
biologists, to the extent consistent with the Act and with the use of 
the best scientific data available, to use primary and original sources 
of information as the basis for recommendations to designate critical 
habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information developed during the listing process for the species. For 
the sharpnose and smalleye shiners, we rely on the June 2013 SSA Report 
(Service 2013, entire) and the proposed rule to list the species as 
endangered, which appears elsewhere in today's Federal Register. 
Additional information sources may include articles in peer-reviewed 
journals, conservation plans developed by States and counties, 
scientific status surveys and studies, biological assessments, other 
unpublished materials, or experts' opinions or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. Areas that are important to the 
conservation of the species, both inside and outside the critical 
habitat designation, will be subject to: (1) Conservation actions 
implemented under section 7(a)(1) of the Act, (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to ensure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species, and (3) section 9 of the Act's prohibitions on taking any 
individual of the species, including taking caused by actions that 
affect habitat. Federally funded or permitted projects affecting listed 
species outside their designated critical habitat areas may result in 
jeopardy findings in some cases. These protections and conservation 
tools will contribute to recovery of this species. Similarly, critical 
habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans 
(HCPs), or other species conservation planning efforts if new 
information available at the time of these planning efforts calls for a 
different outcome.

Prudency Determination

    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12), require that, to the maximum extent 
prudent and determinable, the Secretary shall designate critical 
habitat at the time the species is determined to be an endangered or 
threatened species. Our regulations (50 CFR 424.12(a)(1)) state that 
the designation of critical habitat is not prudent when one or both of 
the following situations exist:
    (1) The species is threatened by taking or other human activity, 
and identification of critical habitat can be expected to increase the 
degree of threat to the species, or
    (2) Such designation of critical habitat would not be beneficial to 
the species.
    There is currently no imminent threat of take attributed to 
noncommercial collection or vandalism for either of these species, and 
identification and mapping of critical habitat is not expected to 
initiate any such threat. In the absence of a finding that the 
designation of critical habitat would increase threats to a species, if 
there are any benefits to a critical habitat

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designation, then a prudent finding is warranted. The potential 
benefits include: (1) Triggering consultation under section 7 of the 
Act in new areas for actions in which there may be a Federal nexus 
where it would not otherwise occur because, for example, it has become 
unoccupied or the occupancy is in question; (2) focusing conservation 
activities on the most essential features and areas; (3) providing 
educational benefits to State or county governments or private 
entities; and (4) preventing people from causing inadvertent harm to 
the species. Therefore, because we have determined that the designation 
of critical habitat would not likely increase the degree of threat to 
the species, and may provide some measure of benefit, we find that 
designation of critical habitat is prudent for the sharpnose shiner and 
smalleye shiner.

Critical Habitat Determinability

    Having determined that designation is prudent, under section 
4(a)(3) of the Act, we must find whether critical habitat for the 
sharpnose shiner and smalleye shiner is determinable. Our regulations 
at 50 CFR 424.12(a)(2) state that critical habitat is not determinable 
when one or both of the following situations exist:
    (1) Information sufficient to perform required analyses of the 
impacts of the designation is lacking, or
    (2) The biological needs of the species are not sufficiently well 
known to permit identification of an area as critical habitat.
    When critical habitat is not determinable, the Act provides for an 
additional year to publish a critical habitat designation (16 U.S.C. 
1533(b)(6)(C)(ii)).
    We reviewed the available information pertaining to the biological 
needs of the species and habitat characteristics where this species is 
located. This and other information represent the best scientific data 
available and led us to conclude that the designation of critical 
habitat is determinable for the sharpnose shiner and smalleye shiner.

Physical or Biological Features

    In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and 
regulations at 50 CFR 424.12, in determining which areas within the 
geographical area occupied by the species at the time of listing to 
designate as critical habitat, we consider the physical or biological 
features that are essential to the conservation of the species and 
which may require special management considerations or protection. 
These include, but are not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, or rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historical, geographic, and ecological 
distributions of a species.

Sharpnose Shiner

    We derive the specific physical or biological features required for 
the sharpnose shiner from studies of this species' habitat, ecology, 
and life history as described below. We have used the best available 
information, as described in the June 2013 SSA Report (Service 2013, 
Chapter 2). To identify the physical and biological needs of the 
sharpnose shiner, we have relied on conditions at currently occupied 
locations where the shiner has been observed during surveys and the 
best information available on the species. Below, we summarize the 
physical and biological features needed by foraging and breeding 
sharpnose shiners. For a complete review of the physical and biological 
features required by the sharpnose shiner, see Chapter 2 of the June 
2013 SSA Report (Service 2013, Chapter 2). We have determined that the 
following physical or biological features are essential to the 
sharpnose shiner.

Space for Individual and Population Growth and for Normal Behavior

    Sharpnose shiners occur in fairly shallow, flowing water, often 
less than 0.5 meters (m) deep with sandy substrates. They broadcast 
spawn semi-buoyant eggs and larvae that may remain suspended in the 
water column for several days before they are capable of independent 
swimming, indicating there is a minimum river segment length necessary 
to support successful reproduction. A comparison of minimum estimated 
reach length requirements for similar species and current modeling 
efforts for this species indicate an unobstructed reach length of 
greater than 275 kilometers (km) (171 miles (mi)) is likely required to 
complete the species' life history. Lengths greater than 275 km (171 
mi) would also provide migratory pathways to refugia in which sharpnose 
shiners may survive drought conditions.
    Therefore, based on the information above and additional analysis 
in the June 2013 SSA Report (Service 2013, Chapter 2), we identify 
flowing water of sufficient unobstructed length (275 km (171 mi)) to be 
a physical or biological feature essential to the conservation of the 
sharpnose shiner.

Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements

    Sharpnose shiners are generalist feeders consuming aquatic and 
terrestrial invertebrates (mostly insects), plant material, and 
detritus. The presence of terrestrial insects in its diet suggests 
native riparian vegetation along the stream banks where the sharpnose 
shiners occur is important in providing food availability. The 
prevalence of sand-silt in the gut contents of sharpnose shiners 
indicate they likely forage among the sediments when food availability 
is low, suggesting river segments containing sandy substrates may be 
preferred by this species.
    Flowing water of sufficient quality (minimal pollution, lacking 
golden alga toxicity, and within physiological tolerances) is required 
for the survival of these species. Sharpnose shiners can tolerate 
temperatures of 39.2 [deg]C (102.6[emsp14][deg]F) only briefly and 
generally require oxygen concentrations above 2.66 milligrams per liter 
(mg/L). Sharpnose shiners experience significant mortality at 
salinities greater than 15 parts per thousand (ppt) (25 millisiemens 
per centimeter (mS/cm)). The susceptibility of sharpnose shiners to 
environmental pollutants is not well understood; however, it has been 
observed that petroleum contamination, and possibly other pollutants, 
are capable of killing this species. Although the effects of golden 
alga on sharpnose shiners have not been documented, toxic blooms in 
occupied habitat are certain to cause mortality.
    Native riparian vegetation adjacent to the river channel where the 
sharpnose shiner occurs is important as a source of food (terrestrial 
insects) and to maintain physical habitat conditions in the stream 
channel. Riparian areas are essential for energy and nutrient cycling, 
filtering runoff, absorbing and gradually releasing floodwaters, 
recharging groundwater, and maintaining stream flows. Healthy riparian 
corridors help ensure aquatic resources maintain the ecological 
integrity essential to stream fishes, including the sharpnose shiner. A 
riparian width of 30 m (98 ft) is generally sufficient to protect the 
water quality of adjacent streams and is expected to provide the 
necessary prey base for sharpnose shiners (Service 2013, Chapter 6).

[[Page 47616]]

    Therefore, based on the information above and additional analysis 
in the June 2013 SSA Report (Service 2013, Chapter 2), we identify 
river segments containing flowing water of sufficient quality (i.e., 
within physiological tolerances, low in toxic pollutants, and lacking 
toxic golden alga blooms) with sandy substrates, and their associated 
native riparian vegetation, to be physical or biological features 
essential to the conservation of the sharpnose shiner.

Cover or Shelter

    Specific cover or sheltering requirements for sharpnose shiners 
within the aquatic ecosystem have not been identified and may not be 
pertinent to their conservation because these fish mostly occur in open 
water. Therefore, we have not identified any specific cover or shelter 
habitat requirements to be physical or biological features essential to 
the conservation of the sharpnose shiner.

Sites for Breeding, Reproduction, or Rearing (or Development) of 
Offspring

    Successful reproduction by sharpnose shiners requires minimum 
levels of flowing water through the summer breeding season. Cyprinid 
eggs spawned into the pelagic zone (open water not near the river 
bottom) become semi-buoyant within 10 to 30 minutes, allowing them to 
drift through the water column for approximately 1 or 2 days prior to 
hatching. Larval stages may drift in the water column for an additional 
2 to 3 days post-hatching.
    Spawning occurs asynchronously (fish not spawning at the same time) 
from April through September during periods of no and low flow, and 
synchronously (many fish spawning at the same time) during elevated 
streamflow events. Successful recruitment (survival to the juvenile 
fish stage) does not occur during periods completely lacking flow. This 
is because in no-flow conditions, the floating eggs, zygotes, and 
larval fish of broadcast spawners sink and suffocate in the anoxic 
sediments and are more susceptible to predation. Modeling studies have 
estimated minimum mean summer discharge of 2.61 cubic meters per second 
(m3s-1) (92 cubic feet per second (cfs)) is 
necessary to sustain a population of sharpnose shiners.
    Therefore, based on the information above and additional analysis 
in the June 2013 SSA Report (Service 2013, Chapter 2), we identify 
river segments with a minimum mean summer discharge of approximately 
2.61 m3s-1 (92 cfs) to be physical or biological 
features essential to the conservation of the sharpnose shiner.

Habitats That Are Protected From Disturbance or Are Representative of 
the Historic, Geographical, and Ecological Distributions of a Species

    Sharpnose shiner habitat is subject to dynamic changes resulting 
from flooding and drying of occupied water ways. Consequently, 
fluctuating water levels create circumstances in which the extent of 
the sharpnose shiner's range vary over time, and may be periodically 
contracted or expanded depending on water availability. Worsening 
drought conditions are increasing the intensity and duration of river 
drying in the upper Brazos River basin. As a result of these dynamic 
changes, particularly during intense droughts, sharpnose shiners 
require unobstructed river segments through which they can migrate to 
find refuge from river drying. These fish can later emigrate from these 
refugia and recolonize normally occupied areas when suitable conditions 
return.
    Therefore, based on the information above and additional analysis 
in the June 2013 SSA Report (Service 2013, Chapter 2), we identify 
unobstructed river segments of at least 275 km (171 mi) to be a 
physical or biological feature essential to the conservation of the 
sharpnose shiner.

Smalleye Shiner

    We derive the specific physical or biological features required for 
the smalleye shiner from studies of this species' habitat, ecology, and 
life history as described below. We have used the best available 
information, as described in the June 2013 SSA Report (Service 2013, 
Chapter 2). To identify the physical and biological needs of the 
smalleye shiner, we have relied on conditions at currently occupied 
locations where the shiner has been observed during surveys and the 
best information available on the species. Below, we summarize the 
physical and biological features needed by foraging and breeding 
smalleye shiners. For a complete review of the physical and biological 
features required by the smalleye shiner, see Chapter 2 of the June 
2013 SSA Report (Service 2013, Chapter 2). We have determined that the 
following physical or biological features are essential to the smalleye 
shiner.

Space for Individual and Population Growth and for Normal Behavior

    Smalleye shiners occur in fairly shallow, flowing water, often less 
than 0.5 m deep with sandy substrates. They broadcast spawn semi-
buoyant eggs and larvae that may remain suspended in the water column 
for several days before larval fish are capable of independent 
swimming, indicating there is a minimum stream reach length necessary 
to support successful reproduction. A comparison of minimum estimated 
reach length requirements for similar species and current modeling 
efforts for this species indicate that an unobstructed reach length of 
greater than 275 km (171 mi) is likely required to complete the 
species' life history. Lengths greater than 275 km (171 mi) would also 
provide migratory pathways to refugia in which smalleye shiners may 
survive drought conditions.
    Therefore, based on the information above and additional analysis 
in the June 2013 SSA Report (Service 2013, Chapter 2), we identify 
flowing water of sufficient unobstructed length (275 km (171 mi)) to be 
a physical or biological feature essential to the conservation of the 
smalleye shiner.

Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements

    Smalleye shiners are generalist feeders consuming aquatic and 
terrestrial invertebrates (mostly insects), plant material, and 
detritus. The presence of terrestrial insects in the smalleye shiner's 
diet suggests native riparian vegetation along the banks of inhabited 
rivers is important in providing food availability, as well as the 
general health of the aquatic riverine ecosystem. The prevalence of 
sand-silt in the gut contents of smalleye shiners indicate they likely 
forage among the sediments when food availability is low, suggesting 
river segments containing sandy substrates may be preferred by this 
species.
    Water of sufficient quality (minimal pollution, lacking golden alga 
toxicity, and within physiological tolerances) is required for the 
survival of these species. Smalleye shiners can tolerate temperatures 
of 40.6 [deg]C (105.1 [deg]F) only briefly and generally require oxygen 
concentrations above 2.11 mg/L. Smalleye shiners experience significant 
mortality at salinities greater than 18 ppt (30 mS/cm). The 
susceptibility of smalleye shiners to environmental pollutants is not 
well understood; however, it has been observed that petroleum 
contamination, and possibly other pollutants, are capable of killing 
this species. Although the effects of golden alga on smalleye shiners 
have not been documented, blooms in occupied habitat are certain to 
cause mortality in this species.
    Native riparian vegetation adjacent to the river channel where the 
smalleye

[[Page 47617]]

shiner occurs is important as a source of food (terrestrial insects) 
and to maintain physical habitat conditions in the stream channel. 
Riparian areas are essential for energy and nutrient cycling, filtering 
runoff, absorbing and gradually releasing floodwaters, recharging 
groundwater, and maintaining stream flows. Healthy riparian corridors 
help ensure aquatic resources maintain the ecological integrity 
essential to stream fishes, including the smalleye shiner. A riparian 
width of 30 m (98 ft) is generally sufficient to protect the water 
quality of adjacent streams and is expected to provide the necessary 
prey base for smalleye shiners (Service 2013, Chapter 6).
    Therefore, based on the information above and additional analysis 
in the June 2013 SSA Report (Service 2013, Chapter 2), we identify 
sandy-bottomed river segments containing flowing water of sufficient 
quality (i.e., within physiological tolerance, low in toxic pollutants, 
and lacking toxic golden algal blooms), and their associated native 
riparian vegetation, to be physical or biological features essential to 
the conservation of the smalleye shiner.

Cover or Shelter

    Specific cover or sheltering requirements for smalleye shiners 
within the aquatic ecosystem have not been identified and may not be 
pertinent to their conservation because these fish mostly occur in open 
water. Therefore, we have not identified any specific cover or shelter 
habitat requirements to be physical or biological features essential to 
the conservation of the smalleye shiner.

Sites for Breeding, Reproduction, or Rearing (or Development) of 
Offspring

    Successful reproduction by smalleye shiners requires minimum levels 
of flowing water through the summer breeding season. Cyprinid eggs 
spawned into the pelagic zone (open water not near the river bottom) 
become semi-buoyant within 10 to 30 minutes, allowing them to drift 
through the water column for approximately 1 or 2 days prior to 
hatching. Larval stages may drift in the water column for an additional 
2 to 3 days post-hatching.
    Spawning occurs asynchronously from April through September during 
periods of no and low flow, and synchronously during elevated 
streamflow events. Successful recruitment (survival to the juvenile 
fish stage) does not occur during periods completely lacking flow. This 
is because in no-flow conditions, the floating eggs, zygotes, and 
larval fish of broadcast spawners sink and suffocate in the anoxic 
sediments and are more susceptible to predation. Modeling studies have 
estimated minimum mean summer discharge of 6.43 
m3s-1 (227 cfs) is necessary to sustain a 
population of the smalleye shiner.
    Therefore, based on the information above and additional analysis 
in the June 2013 SSA Report (Service 2013, Chapter 2), we identify 
river segments with a minimum mean summer discharge of approximately 
6.43 m3s-1 (227 cfs) to be physical or biological 
features essential to the conservation of the smalleye shiner.

Habitats That Are Protected From Disturbance or Are Representative of 
the Historic, Geographical, and Ecological Distributions of a Species

    Smalleye shiner habitat is subject to dynamic changes resulting 
from flooding and drying of occupied water ways. Consequently, 
fluctuating water levels create circumstances in which the extent of 
the sharpnose and smalleye shiner's range vary over time, and may be 
periodically contracted or expanded depending on water availability. 
Worsening drought conditions are increasing the intensity and duration 
of river drying in the upper Brazos River basin. As a result of these 
dynamic changes, particularly during intense droughts, smalleye shiners 
require unobstructed river segments through which they can migrate to 
find refuge from river drying. These fish can later emigrate from these 
refugia and recolonize normally occupied areas when suitable conditions 
return.
    Therefore, based on the information above and additional analysis 
in the June 2013 SSA Report (Service 2013, Chapter 2), we identify 
unobstructed river segments of at least 275 km (171 mi) to be a 
physical or biological feature essential to the conservation of the 
sharpnose shiner.
Summary of Physical or Biological Features
    In summary, the sharpnose shiner and smalleye shiner need specific 
vital resources for survival and completion of their life histories. 
One of the most important aspects of their life histories is that their 
broadcast-spawn eggs and developing larvae require flowing water of 
sufficient length within which they develop into free-swimming juvenile 
fish. In addition, sharpnose shiners and smalleye shiners typically 
live for no more than two breeding seasons. As a result, if resources 
are not available in a single spawning season, their populations would 
be greatly impacted, and if resources are not available through two 
consecutive breeding seasons the impacts would be catastrophic.
    The sharpnose shiner and smalleye shiner have exceptionally 
specialized habitat requirements to support these life-history needs 
and maintain adequate population sizes. Habitat requirements are 
characterized by river segments of greater than 275 km (171 mi) with 
estimated average spawning season flows greater than 2.61 
m\3\s-1 (92 cfs) for the sharpnose shiner and of 6.43 
m\3\s-1 (227 cfs) for the smalleye shiner. River segment 
lengths of 275 km (171 mi) or greater also aid in providing sharpnose 
and smalleye shiners refugia from river drying during severe drought. 
In addition, individual shiners also need sandy substrates to support 
foraging, water quality within their physiological and toxicological 
tolerances, and intact upland vegetation capable of supporting their 
prey base. Intact upland vegetation is also important in providing 
adequate filtration of surface water runoff to maintain a healthy 
aquatic ecosystem.
    Populations of sharpnose shiners and smalleye shiners with a high 
likelihood of long-term viability require contiguous river segments 
containing the physical and biological features that are essential to 
the conservation of these species. This contiguous suitable habitat is 
necessary to retain the reproductive success of these species in the 
face of natural and manmade seasonal fluctuations of water 
availability. Sharpnose shiner and smalleye shiner habitat is subject 
to dynamic changes resulting from flooding and drying of occupied water 
ways. Consequently, fluctuating water levels create circumstances in 
which the extent of the sharpnose and smalleye shiner's range vary over 
time, and may be periodically contracted or expanded depending on water 
availability.

Primary Constituent Elements for the Sharpnose Shiner and Smalleye 
Shiner

    According to 50 CFR 424.12(b), we are required to identify the 
physical or biological features essential to the conservation of the 
sharpnose shiner and smalleye shiner within the geographic area 
occupied by the species at the time of listing, focusing on the 
features' primary constituent elements. We consider primary constituent 
elements to be the elements of physical or biological features that 
provide for a species' life-history processes and that are essential to 
the conservation of the species.

[[Page 47618]]

Sharpnose Shiner

    Based on our current knowledge of the physical or biological 
features and habitat characteristics required to sustain the species' 
life-history processes (Service 2013, Chapter 2), we determine that the 
primary constituent element (PCE) specific to the sharpnose shiner 
consists of a riverine system with habitat to support all life stages 
of sharpnose shiners, which includes:
    (1) Unobstructed, sandy-bottomed river segments greater than 275 km 
(171 mi) in length.
    (2) Flowing water of greater than approximately 2.61 
m\3\s-1 (92 cfs) averaged over the shiner spawning season 
(April through September).
    (3) Water of sufficient quality to support survival and 
reproduction, characterized by:
    a. Temperatures generally less than 39.2 [deg]C 
(102.6[emsp14][deg]F);
    b. Dissolved oxygen concentrations generally greater than 2.66 mg/
L;
    c. Salinities generally less than 15 ppt (25 mS/cm); and
    d. Sufficiently low petroleum and other pollutant concentrations 
such that mortality does not occur.
    (4) Native riparian vegetation capable of maintaining river water 
quality, providing a terrestrial prey base, and maintaining a healthy 
riparian ecosystem.

Smalleye Shiner

    Based on our current knowledge of the physical or biological 
features and habitat characteristics required to sustain the species' 
life-history processes (Service 2013, Chapter 2), we determine that the 
primary constituent element (PCEs) specific to the smalleye shiner 
consists of a riverine system with habitat to support all life history 
stages of smalleye shiners, which includes:
    (1) Unobstructed, sandy-bottomed river segments greater than 275 km 
(171 mi) in length.
    (2) Flowing water of greater than approximately 6.43 
m\3\s-1 (227 cfs) averaged over the shiner spawning season 
(April through September).
    (3) Water of sufficient quality to support survival and 
reproduction, characterized by:
    a. Temperatures generally less than 40.6 [deg]C 
(105.1[emsp14][deg]F);
    b. Dissolved oxygen concentrations generally greater than 2.11 mg/
L;
    c. Salinities less than 18 ppt (30 mS/cm); and
    d. Sufficiently low petroleum and other pollutant concentrations 
such that mortality does not occur.
    (4) Native riparian vegetation capable of maintaining river water 
quality, providing a terrestrial prey base, and maintaining a healthy 
riparian ecosystem.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the specific 
areas within the geographic area occupied by the species at the time of 
listing contain features that are essential to the conservation of the 
species and which may require special management considerations or 
protection. The features essential to the conservation of these species 
may require special management considerations or protection to reduce 
the following threats: Habitat loss and modification from fragmentation 
of river segments; alteration to natural flow regimes by impoundment, 
groundwater withdrawal, and drought; water quality degradation; and 
invasive saltcedar encroachment.
    River fragmentation decreases the unobstructed river length 
required for successful reproduction in these species. Impoundments, 
groundwater withdrawal, saltcedar encroachment, and drought have the 
potential to reduce river flow below the minimum requirement to keep 
the eggs and larvae of these species afloat and ultimately for 
sustainment of sharpnose and smalleye shiner populations. Water quality 
degradation resulting from pollution sources; lack of flows maintaining 
adequate temperatures, oxygen concentrations, and salinities; and the 
destruction of adjacent riparian vegetation's run-off filtering 
abilities may result in water quality parameters beyond which sharpnose 
and smalleye shiners are capable of surviving. As such, the features 
essential to the conservation of these species require special 
management from these threats.
    For sharpnose shiners and smalleye shiners, special management 
considerations or protection are needed to address threats. Management 
activities that could ameliorate threats include, but are not limited 
to: (1) Removing or modifying existing minor fish barriers to allow 
fish passage; (2) managing existing reservoirs to allow sufficient 
river flow to support shiner reproduction and population growth; (3) 
protecting groundwater, surface water, and spring flow quantity; (4) 
protecting water quality by implementing comprehensive programs to 
control and reduce point sources and non-point sources of pollution; 
and (5) protecting and managing native riparian vegetation. A more 
complete discussion of the threats to the sharpnose shiner and smalleye 
shiner and their habitats can be found in the June 2013 SSA Report 
(Service 2013, Chapter 3).

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(2) of the Act, we use the best 
scientific data available to designate critical habitat. For this 
proposed rule, we rely heavily on the analysis of biological 
information reviewed in the June 2013 SSA Report (Service 2013). In 
accordance with section 3(5)(A) of the Act and its implementing 
regulation at 50 CFR 424.12(e), we first determined what specific 
areas, within the geographical area occupied by the species at the time 
they are listed, contain the physical or biological features that are 
essential to the conservation of the species and which may require 
special management considerations or protections. Next, we considered 
whether designating any additional areas--outside those currently 
occupied at the time of listing--are necessary to ensure the 
conservation of the species. We are not currently proposing to 
designate any areas outside the geographical area occupied by the 
species because no areas were determined to be essential for the 
conservation of either species. Finally, we described how we determined 
the lateral extent and mapping processes used in developing the 
proposed critical habitat units.
Areas Occupied at the Time of Listing
    For the purpose of designating critical habitat for the sharpnose 
and smalleye shiners, we defined occupancy based on several criteria. 
First, survey results since 2008 confirm that both species persist 
within the Brazos River basin of Texas upstream of Possum Kingdom Lake 
in the Brazos River main stem, Salt Fork of the Brazos River, Double 
Mountain Fork of the Brazos River, and North Fork Double Mountain Fork 
of the Brazos River (Service 2013, Chapter 4). We chose to use survey 
results from the last 5 years because these data are relatively 
consistent from year to year and represent the best available 
information for what areas should be considered occupied at the time of 
listing. Second, a lack of sufficient fish sampling exists for some 
tributaries once known to be historically occupied by one or both 
species. The sharpnose and smalleye shiner are similar in their 
biology, and they are both capable of colonizing river segments when 
conditions are favorable. Therefore, we considered tributary streams 
occupied at the time of listing if they were previously occupied by 
either species and are contiguous (i.e., lacking fish migration 
barriers) with areas in the

[[Page 47619]]

upper Brazos River confirmed to be occupied by both species. Third, 
tributaries for which we had no information that either species 
recently or historically occurred were not considered occupied, even if 
they were contiguous with areas that are currently occupied.
    Segments considered to be occupied at the time of listing were then 
assessed to determine if they contained the physical or biological 
features for the species and whether they required special management 
or protection. River segments not exceeding 275 km (171 mi) upstream of 
the lentic waters of Possum Kingdom Lake were not included because they 
lack the necessary physical or biological features for successful 
reproduction. Segments that do not typically maintain suitable water 
quality conditions (i.e., within physiological tolerances, minimal 
pollution, lacking regular golden alga blooms) were not included 
because they would not likely support a viable population of shiners. 
Segments not likely to maintain minimum mean spawning season flows 
capable of sustaining populations of either species, even during 
favorable climatic conditions, were also not included because they 
would not support successful reproduction.
    The lower Brazos River, where shiners were released in 2012, is 
considered unoccupied for the purposes of determining critical habitat 
because prior to their 2012 release, both species had become extirpated 
or were functionally extirpated from this area as no fish had been 
collected since 2006. The release effort in 2012 was likely 
insufficient to restart a population of these species in the lower 
Brazos River. Therefore, given the old age and small number of fish 
released in 2012, it is likely they are extirpated from this reach of 
the Brazos River (Service 2013, Chapter 4).
Areas Unoccupied at the Time of Listing
    To determine if any areas not considered occupied at the time of 
listing are essential for the conservation of the species we 
considered: (1) Whether the area was historically occupied; (2) the 
potential contribution of the area to the conservation of each species 
based on our June 2013 SSA Report (Service 2013, Chapter 2); (3) 
whether the area could be restored to contain the habitat conditions 
needed to support the species; and (4) whether a viable population of 
the species could be reestablished at the site. We recognize that both 
species likely need additional areas beyond those currently occupied in 
order to have sufficient redundancy and resiliency for long-term 
viability. However, our review of the areas within the historical range 
found that none of them have all four of these necessary 
characteristics to be considered essential for the conservation of 
either species.
    We considered four areas that were historically occupied by one or 
both species as possible critical habitat: The Colorado River, Wichita 
River, middle Brazos River (between Possum Kingdom Lake and the low 
water crossing near the City of Marlin, Falls County, Texas) and lower 
Brazos River (downstream of Marlin to the Gulf of Mexico). The smalleye 
shiner is not known to have naturally occurred outside of the Brazos 
River basin, so neither the Colorado nor Wichita Rivers were considered 
essential for the conservation of that species. For the sharpnose 
shiner, our review found that neither the Colorado nor Wichita Rivers 
were considered necessary to maintain viability of either species 
because of the limited abundance and distribution of this shiner 
historically. In addition, both of these rivers have extensive 
impoundments such that the unfragmented stream length needed for 
reproduction by these species is lacking. These impoundments are 
expected to continue to exist into the future with no apparent 
potential for their removal, thereby eliminating the ability of the 
Colorado or Wichita Rivers to contain the necessary habitat conditions 
to support either species. Therefore, the Colorado and Wichita Rivers 
were not proposed as critical habitat for either species because of 
limited importance to the conservation of the species and the inability 
to restore the necessary habitat conditions for the species.
    The middle Brazos River also lacks the necessary unimpounded river 
length required to support sharpnose and smalleye shiner reproduction 
(Service 2013, Chapter 4). These impoundments are expected to exist 
into the future with no apparent potential for their removal. As a 
result, there is no ability for these areas to be restored to contain 
the necessary habitat conditions to support the species. Therefore, 
since this area of the middle Brazos River cannot be restored to 
appropriate habitat conditions we find it is not essential for the 
conservation of either species, and we did not propose it as critical 
habitat.
    The lower Brazos River was also found to likely have limited 
importance to the overall viability for both species (Service 2013, 
Chapter 2). The lower Brazos River does contain an unimpounded stream 
length long enough to support reproduction of sharpnose and smalleye 
shiners; however, their populations in this segment have already 
declined to the point that we presume they are extirpated from this 
reach. We expect the extirpation was the result of poor habitat 
conditions. Both the flow regime and river channel morphology of the 
lower Brazos River are considerably different (higher flow and deeper, 
wider channel) than the upper Brazos River, so this segment may never 
have supported populations of either species independent of the upper 
Brazos River populations. As a result, it is unlikely that sharpnose 
and smalleye shiners are capable of sustaining populations in the lower 
Brazos River without constant emigration (downstream dispersal) from 
the upstream source population in the upper Brazos River, which is now 
isolated by impoundments in the middle Brazos River. Therefore, with 
limited importance and the inability to support populations, we find 
the lower Brazos River is not essential for the conservation of either 
species, and we did not propose this area for critical habitat.
    In conclusion, based on the best available information we conclude 
that the areas within the historical range of one or both species, but 
not occupied by either species at the time of listing, are not 
essential for the conservation of either species. The Colorado and 
Wichita Rivers do not contribute substantially to the conservation of 
the sharpnose shiner. The middle Brazos River cannot be restored to 
contain the necessary habitat conditions to support either species. The 
lower Brazos River may not be important for the conservation of either 
species and is not likely able to support a viable population of either 
species. Therefore, we have not proposed any areas as critical habitat 
beyond what is occupied at the time of listing.
Lateral Extent
    In determining the lateral extent (overbank areas adjacent to the 
river channel) of critical habitat along proposed riverine segments, we 
considered the definition of critical habitat under the Act. Under the 
Act, critical habitat must contain the physical or biological features 
essential to a species' conservation and which may require special 
management considerations or protection. Conservation of the river 
channel alone is not sufficient to conserve sharpnose and smalleye 
shiners because the nearby native riparian vegetation areas adjacent to 
the river channel where the shiners occur are important components of 
the critical habitat for the shiners as a source of food (terrestrial 
insects) and to maintain physical habitat conditions in

[[Page 47620]]

the stream channel. Riparian areas are essential for energy and 
nutrient cycling, filtering runoff, absorbing and gradually releasing 
floodwaters, recharging groundwater, and maintaining stream flows. 
Healthy riparian corridors help ensure aquatic resources maintain the 
ecological integrity essential to stream fishes, including the 
sharpnose shiner and smalleye shiner.
    A riparian width of 5 to 30 m (16 to 98 ft) is generally sufficient 
to protect the water quality of adjacent streams. The ability of 
riparian buffers to filter surface runoff is largely dependent on 
vegetation density, type, and slope, with dense, grassy vegetation and 
gentle slopes facilitating filtration. A riparian buffer width of 30 to 
500 m (98 to 1,640 ft) should be sufficient to provide wildlife 
habitat; however, the riparian zone of the upper Brazos River may never 
have been extensive due to the aridity of the area, and the terrestrial 
insect prey base of the shiners would likely persist at even the 
thinnest recommended width. A riparian width of 30 m (98 ft) beyond the 
bankfull width of the river should be sufficient to maintain proper 
runoff filtration and provide the water quality and food base required 
by sharpnose and smalleye shiners (Service 2013, Chapter 6). As such, 
the proposed critical habitat includes the stream and river segments 
identified below and an area extending 30 meters (98 ft) 
perpendicularly to the stream channel beyond bankfull width. The 
bankfull width is the width of the stream or river at bankfull 
discharge and often corresponds to the edge of the riparian vegetation. 
Bankfull discharge is significant because it is the flow at which water 
begins to leave the active channel and move into the floodplain and 
serves to identify the point at which the active channel ceases and the 
floodplain begins.
Mapping
    For each species, we are proposing one critical habitat unit, 
divided into six subunits. These subunits are derived from the most 
recent USGS high-resolution National Hydrological Flowline Dataset. 
Although river channels migrate naturally, it is assumed the segment 
lengths and locations will remain reasonably accurate over an extended 
period of time. All mapping was performed using ArcMap version 10 
(Environmental Systems Research Institute, Inc.), a computer Geographic 
Information System (GIS) program.
    We set the limits of each critical habitat subunit by identifying 
landmarks (reservoirs and dams) that clearly act as barriers to fish 
migration. Partial barriers to fish migration that impede fish movement 
only during low river flow are not used to identify segment endpoints 
because it is presumed fish may occasionally be capable of traversing 
these impediments. Stream confluences are also used to delineate the 
boundaries of subunits contiguous with other critical habitat subunits 
because they are logical and recognizable termini.
    When determining proposed critical habitat boundaries, we also made 
every effort to avoid including developed areas such as lands covered 
by buildings, pavement, and other structures because such lands lack 
physical or biological features for the sharpnose shiner and smalleye 
shiner. The scale of the maps we prepared under the parameters for 
publication within the Code of Federal Regulations may not reflect the 
exclusion of such developed lands. Any such lands inadvertently left 
inside critical habitat boundaries shown on the maps of this proposed 
rule have been excluded by text in the proposed rule and are not 
proposed for designation as critical habitat. Therefore, if the 
critical habitat is finalized as proposed, a Federal action involving 
these lands would not trigger section 7 consultation with respect to 
critical habitat and the requirement of no adverse modification unless 
the specific action would affect the physical or biological features in 
the adjacent critical habitat.
Summary
    In summary, we are proposing for designation as critical habitat 
geographic areas that we have determined are occupied by the sharpnose 
shiner and smalleye shiner at the time of listing and contain 
sufficient elements of physical or biological features to support life-
history processes essential to the conservation of the species and that 
may require special management considerations or protection. We are not 
proposing to designate any unoccupied areas as critical habitat.
    The critical habitat designation is defined by the maps, as 
modified by any accompanying regulatory text, presented at the end of 
this document in the Proposed Regulation Promulgation section. We will 
make the coordinates or plot points or both on which each map is based 
available to the public on http://www.regulations.gov at Docket No. 
FWS-R2-ES-2013-0008, at http://www.fws.gov/southwest/es/ArlingtonTexas/
, and at the Arlington, Texas, Ecological Services Field Office (see 
FOR FURTHER INFORMATION CONTACT above).

Proposed Critical Habitat Designation

    We are proposing to designate a single critical habitat unit 
divided into six subunits in Texas of approximately 1,002 river km (623 
mi) of the upper Brazos River basin and the upland areas extending 
beyond the bankfull river channel by 30 meters on each side. The six 
subunits proposed as critical habitat make up the contiguous, 
unobstructed section of the upper Brazos River system consisting of 
portions of the Brazos River main stem, Salt Fork of the Brazos River, 
White River, Double Mountain Fork of the Brazos River, North Fork 
Double Mountain Fork of the Brazos River, and South Fork Double 
Mountain Fork of the Brazos River. The critical habitat areas we 
describe below constitute our current best assessment of areas that 
contain the essential physical or biological features for both species 
(although the needs of both species differ slightly) and meet the 
definition of critical habitat for both shiner species. The subunits we 
propose as critical habitat are shown in Table 1.

Table 1--Proposed Critical Habitat Subunits for the Sharpnose Shiner and
                             Smalleye Shiner
------------------------------------------------------------------------
                                                   Length of subunit in
            Critical habitat subunit             river kilometers (river
                                                          miles)
------------------------------------------------------------------------
Subunit 1. Upper Brazos River Main Stem........            326.8 (203.1)
Subunit 2. Salt Fork of the Brazos River.......            275.1 (171.0)
Subunit 3. White River.........................              40.3 (25.1)
Subunit 4. Double Mountain Fork of the Brazos              239.8 (149.0)
 River.........................................
Subunit 5. North Fork Double Mountain Fork of               108.6 (67.5)
 the Brazos River..............................
Subunit 6. South Fork Double Mountain Fork of                 11.1 (6.9)
 the Brazos River..............................
                                                ------------------------

[[Page 47621]]

 
    Total......................................          1,001.9 (622.5)
------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.

    The critical habitat areas include the river channels within the 
identified stream segments. The stream beds of navigable waters (stream 
beds maintaining an average width of at least 30 ft wide from the mouth 
up) in Texas are generally owned by the State, in trust for the public, 
while the lands alongside the streams can be privately owned. 
Therefore, for all stream segments included in the proposed critical 
habitat; the stream beds, including the small, seasonally dry portion 
of the stream beds between the bankfull width, where vegetation occurs; 
and the wetted channel, are owned by the State for the purposes of this 
proposed rule. To the best of our knowledge, all adjacent riparian 
areas are privately owned.

Unit Description

    We determined the proposed unit of the upper Brazos River basin and 
its subunits are occupied by both species at the time of listing 
(Service 2013, Chapter 4). The upper Brazos River critical habitat 
unit, when considered in its entirety, exhibits all four of the primary 
constituent elements of critical habitat for both species. Some 
individual subunits may not contain all of the physical or biological 
features of critical habitat under all climatic conditions. For 
example, the elements of physical and biological features supporting 
the life-history processes of sharpnose and smalleye shiners are highly 
dependent on the naturally variable climatic conditions and river flow 
characteristics of the upper Brazos River basin and may not be present 
in all critical habitat subunits at all times (i.e., during severe 
droughts). However, each subunit likely contains suitable habitat 
during wet climatic conditions and will exhibit one or more of the 
essential physical or biological features that may require special 
management considerations or protection and are therefore included in 
the proposed designation under section 3(5)(A)(i) of the Act.
    Subunits are designated based on sufficient elements of physical or 
biological features being present to support life-history processes of 
the sharpnose and smalleye shiners. Some subunits contain all of the 
identified elements of physical or biological features and support 
multiple life-history processes, while other subunits contain only some 
elements of the physical or biological features necessary to support 
each species' particular use of that habitat. The following subunit 
descriptions briefly describe each of the proposed critical habitat 
subunits and the reasons why they meet the definition of critical 
habitat for the sharpnose shiner and smalleye shiner. The subunits are 
generally numbered from downstream to upstream.

Subunit 1: Upper Brazos River Main Stem

    Subunit 1 is 326.8 km (203.1 mi) long in Young, Throckmorton, 
Baylor, Knox, King, and Stonewall Counties. The downstream extent of 
the Upper Brazos River Main Stem Subunit is approximately 15 river km 
(9.3 miles) upstream of the eastern border of Young County where it 
intersects the upper portion of Possum Kingdom Lake. The upstream 
extent of this subunit is at the confluence of the Double Mountain Fork 
of the Brazos River and the Salt Fork of the Brazos River where they 
form the Brazos River main stem.
    Subunit 1 provides an adequate length of unobstructed, sandy 
bottomed river (PCE 1) often with sufficient flow (PCE 2) and water 
quality (PCE 3) to support sharpnose and smalleye shiner survival and 
reproduction. However, during periods of severe drought, sufficient 
flow may not be maintained. Many upland areas adjacent to this subunit 
are encroached by saltcedar, although it generally contains the native 
riparian vegetation capable of maintaining river water quality and an 
adequate prey base for both shiner species (PCE 4).
    Habitat features in this subunit are primarily threatened by 
groundwater withdrawal, saltcedar invasion, water quality degradation, 
drought, and impoundment. The South Bend Reservoir, identified as a 
feasible water management strategy by the Brazos G Regional Water 
Planning Group, would occur on this subunit if constructed, while the 
Throckmorton Reservoir and Millers Creek Reservoir Augmentation would 
occur on tributaries that discharge into this subunit (Service 2013, 
Chapter 3). The physical or biological features in this subunit may 
require special management considerations or protection to minimize 
impacts from these threats.

Subunit 2: Salt Fork of the Brazos River

    Subunit 2 is 275.1 km (171 mi) long in Stonewall, Kent, and Garza 
Counties. The downstream extent of the Salt Fork of the Brazos River 
Subunit is at the confluence of the Double Mountain Fork of the Brazos 
River and the Salt Fork of the Brazos River where they form the Brazos 
River main stem. The upstream extent of this subunit is on the Salt 
Fork of the Brazos River at the McDonald Road crossing in Garza County, 
which acts as a barrier to fish passage.
    Subunit 2 provides an adequate length of unobstructed, sandy 
bottomed river (PCE 1) often with sufficient flow (PCE 2) and water 
quality (PCE 3) to support sharpnose and smalleye shiner survival and 
reproduction. However, during periods of severe drought, sufficient 
flow may not be maintained and naturally occurring salt plumes may 
occasionally result in inadequate water quality. Many upland areas 
adjacent to this subunit are encroached by saltcedar, although it 
generally contains the native riparian vegetation capable of 
maintaining river water quality and an adequate prey base for both 
shiner species (PCE 4).
    Habitat features in this subunit are primarily threatened by 
groundwater withdrawal, saltcedar invasion, desalination projects, 
water quality degradation, and drought. Several of these threats have 
the potential to decrease surface water volume available for fish use. 
The threat of reservoir impoundment is minimized because the highly 
saline water of this subunit is generally of little use for industrial, 
agricultural, and municipal needs. The physical or biological features 
in this subunit may require special management considerations or 
protection to minimize impacts from these threats.

Subunit 3: White River

    Subunit 3 is 40.3 km (25.1 mi) long in Kent, Garza, and Crosby 
Counties. The downstream extent of the White River Subunit is at the 
confluence of the White River with the Salt Fork of the Brazos River. 
The upstream extent is immediately downstream of the White

[[Page 47622]]

River Lake impoundment on the White River.
    Given the lack of adequate sampling from this area, records of the 
smalleye shiner from the White River are old and rare, and sharpnose 
shiners have never been recorded from this subunit (Service 2013, 
Chapter 2). However, records of both species have been documented 
within the last 5 years from the Salt Fork of the Brazos River less 
than 1 km (0.6 mi) downstream of the confluence of this subunit. 
Therefore, the White River Subunit is contiguous with areas currently 
occupied by both species, and there are no fish barriers to prevent 
them from migrating into this area. Therefore, given the information 
above and the biological similarity between these species, we consider 
this subunit within the geographic range occupied by both species. 
Furthermore, the White River provides surface water flow of relatively 
low salinity into the Salt Fork of the Brazos River, which may be 
important in maintaining the water quality of this downstream subunit.
    Subunit 3 provides an adequate length of unobstructed, sandy 
bottomed river (PCE 1) when considered as part of the contiguous 
critical habitat unit as a whole. This subunit likely contains only 
sufficient flow (PCE 2) and water quality (PCE 3) to support sharpnose 
and smalleye shiner survival and reproduction under wet climatic 
conditions or when water is being released from upstream impoundments. 
During periods of severe drought, sufficient flow may not be 
maintained. Upland areas adjacent to this subunit are likely encroached 
by saltcedar, although it generally contains the native riparian 
vegetation capable of maintaining river water quality and an adequate 
prey base for both shiner species (PCE 4).
    Habitat features in this subunit are primarily threatened by 
groundwater withdrawal, saltcedar invasion, water quality degradation, 
drought, and impoundment. Flow is normally available in this subunit 
only as a result of water release from White River Lake upstream of 
this subunit. Therefore, the physical or biological features in this 
subunit may require special management considerations or protection to 
minimize impacts from these threats.

Subunit 4: Double Mountain Fork of the Brazos River

    Subunit 4 is 239.8 km (149 mi) long in Stonewall, Haskell, Fisher, 
and Kent Counties. The downstream extent of the Double Mountain Fork of 
the Brazos River Subunit is at the confluence of the Double Mountain 
Fork of the Brazos River and the Salt Fork of the Brazos River where 
they form the Brazos River main stem. The upstream extent of this 
subunit is at the confluence of the South Fork Double Mountain Fork of 
the Brazos River and the North Fork Double Mountain Fork of the Brazos 
River where they form the Double Mountain Fork of the Brazos River.
    Subunit 4 provides an adequate length of unobstructed, sandy 
bottomed river (PCE 1) when considered as part of the contiguous 
critical habitat unit as a whole. This subunit likely contains 
sufficient flow (PCE 2) and water quality (PCE 3) to support sharpnose 
and smalleye shiner survival and reproduction most of the time although 
during periods of severe drought, sufficient flow may not be 
maintained. Upland areas adjacent to this subunit are likely encroached 
by saltcedar, but it generally contains the native riparian vegetation 
capable of maintaining river water quality and an adequate prey base 
for both shiner species (PCE 4).
    Habitat features in this subunit are primarily threatened by 
groundwater withdrawal, saltcedar invasion, water quality degradation, 
drought, and impoundment. The Double Mountain Fork East and West 
Reservoirs, identified as feasible water management strategies by the 
Brazos G Regional Water Planning Group, would occur in this subunit if 
constructed (Service 2013, Chapter 3). Therefore, the physical or 
biological features in this subunit may require special management 
considerations or protection to minimize impacts from these threats.

Subunit 5: North Fork Double Mountain Fork of the Brazos River

    Subunit 5 is 108.6 km (67.5 mi) long in Kent, Garza, and Crosby 
Counties. The downstream extent of the North Fork Double Mountain Fork 
Subunit is at the confluence of the South Fork Double Mountain Fork of 
the Brazos River and the North Fork Double Mountain Fork of the Brazos 
River where they form the Double Mountain Fork of the Brazos River. The 
upstream extent of this subunit is the earthen impoundment near Janes-
Prentice Lake in Crosby County, Texas.
    Subunit 5 provides an adequate length of unobstructed, sandy 
bottomed river (PCE 1) when considered as part of the contiguous 
critical habitat unit as a whole. This subunit likely contains 
sufficient flow (PCE 2) and water quality (PCE 3) to support sharpnose 
and smalleye shiner survival and reproduction much of the time, but 
during periods of severe drought, sufficient flow may not be 
maintained. Upland areas adjacent to this subunit are likely encroached 
by saltcedar, although it generally contains the native riparian 
vegetation capable of maintaining river water quality and an adequate 
prey base for both shiner species (PCE 4).
    Habitat features in this subunit are primarily threatened by 
groundwater withdrawal, saltcedar invasion, water quality degradation, 
drought, and impoundment. Post Reservoir and the North Fork Diversion 
Reservoir, identified as feasible water management strategies by the 
Brazos G Regional Water Planning Group, would occur in this subunit if 
constructed (Service 2013, Chapter 3). Therefore, the physical or 
biological features in this subunit may require special management 
considerations or protection to minimize impacts from these threats.

Subunit 6: South Fork Double Mountain Fork of the Brazos River

    Subunit 6 is 11.1 km (6.9 mi) long in Kent and Garza Counties. The 
downstream extent of the South Fork Double Mountain Fork Subunit is at 
the confluence of the South Fork Double Mountain Fork of the Brazos 
River and the North Fork Double Mountain Fork of the Brazos River where 
they form the Double Mountain Fork of the Brazos River. The upstream 
extent of this subunit is immediately downstream of the John T. 
Montford Dam of Lake Alan Henry. Although there is a lack of recent 
records (smalleye shiner last observed in 1992) in this subunit, it is 
contiguous with areas currently occupied by both species, and there are 
no known fish barriers to prevent them from migrating into this area. 
The subunit does not have public access, and there are few 
opportunities to survey for fish in this river segment. However, given 
the information above and the biological similarity between these 
species, we consider this subunit within the geographic range occupied 
by both sharpnose and smalleye shiners.
    Subunit 6 provides an adequate length of unobstructed, sandy 
bottomed river (PCE 1) when considered as part of the contiguous 
critical habitat unit as a whole. This subunit likely contains only 
sufficient flow (PCE 2) and water quality (PCE 3) to support sharpnose 
and smalleye shiner survival and reproduction under wet climatic 
conditions or when water is being actively released from upstream 
impoundments. During periods of severe drought, sufficient flow may not 
be maintained. Upland areas adjacent to this subunit may be encroached 
by

[[Page 47623]]

saltcedar, although it generally contains the native riparian 
vegetation capable of maintaining river water quality and an adequate 
prey base for both shiner species (PCE 4).
    Habitat features in this subunit are primarily threatened by 
drought and impoundment. Flow is normally present in this subunit only 
as a result of water released from Lake Alan Henry. Flow from this 
subunit directly affects surface water volume in the Double Mountain 
Fork of the Brazos River Subunit available for fish use. Therefore, the 
physical or biological features in this subunit may require special 
management considerations or protection to minimize impacts from these 
threats.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action that is likely to 
jeopardize the continued existence of any species proposed to be listed 
under the Act or result in the destruction or adverse modification of 
proposed critical habitat.
    Decisions by the 5th and 9th Circuit Courts of Appeals have 
invalidated our regulatory definition of ``destruction or adverse 
modification'' (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S. 
Fish and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004) and Sierra 
Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442 (5th 
Cir. 2001)), and we do not rely on this regulatory definition when 
analyzing whether an action is likely to destroy or adversely modify 
critical habitat. Under the statutory provisions of the Act, we 
determine destruction or adverse modification on the basis of whether, 
with implementation of the proposed Federal action, the affected 
critical habitat would continue to serve its intended conservation role 
for the species.
    If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with us. Examples of actions that are subject to the 
section 7 consultation process are actions on State, tribal, local, or 
private lands that require a Federal permit (such as a permit from the 
U.S. Army Corps of Engineers under section 404 of the Clean Water Act 
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 
of the Act) or that involve some other Federal action (such as funding 
from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal Emergency Management Agency). Federal 
actions not affecting listed species or critical habitat, and actions 
on State, tribal, local, or private lands that are not federally funded 
or authorized, do not require section 7 consultation.
    As a result of section 7 consultation, we document compliance with 
the requirements of section 7(a)(2) through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect, or 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species and/or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the likelihood of jeopardy and/or destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (at 50 CFR 402.02) as alternative actions identified 
during consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Director's opinion, avoid the likelihood of 
jeopardizing the continued existence of the listed species and/or avoid 
the likelihood of destroying or adversely modifying critical habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where we have 
listed a new species or subsequently designated critical habitat that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action (or the agency's discretionary 
involvement or control is authorized by law). Consequently, Federal 
agencies sometimes may need to request reinitiation of consultation 
with us on actions for which formal consultation has been completed, if 
those actions with discretionary involvement or control may affect 
subsequently listed species or designated critical habitat.

Application of the ``Adverse Modification'' Standard

    The key factor related to the adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would continue to serve its intended 
conservation role for the species. Activities that may destroy or 
adversely modify critical habitat are those that alter the physical or 
biological features to an extent that appreciably reduces the 
conservation value of critical habitat for the sharpnose shiner or 
smalleye shiner. As discussed above, the role of critical habitat is to 
support life-history needs of the species and provide for the 
conservation of the species.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation.
    Activities that may affect critical habitat, when carried out, 
funded, or authorized by a Federal agency, should result in 
consultation for the sharpnose shiner or smalleye shiner. These 
activities include, but are not limited to:
    (1) Activities physically disturbing the riverine habitat upon 
which these shiner species depend, particularly by decreasing surface 
water flows or altering channel morphology. Such activities could 
include, but are not limited to, impoundment, in-stream mining, 
channelization, and dewatering. These activities could result in the 
physical destruction of habitat or the modification of habitat such 
that it no longer supports the reproduction of these species.
    (2) Activities increasing the concentration of pollutants in 
surface water within areas designated as critical habitat. Such 
activities could include, but are not limited to, increases in 
impervious cover in the surface watershed, destruction of the adjacent 
upland areas by land uses incompatible with maintaining a healthy 
riverine system, and release of pollutants into

[[Page 47624]]

the surface water or connected groundwater. These activities could 
alter water conditions to levels that are beyond the tolerances of the 
shiner species and result in direct or cumulative adverse effects to 
these individuals and their life cycles.
    (3) Activities depleting the underlying groundwater or otherwise 
diverting water to an extent that decreases or stops the flow of 
surface waters within areas designated as critical habitat. Such 
activities could include, but are not limited to, excessive water 
withdrawals from aquifers and diversion of natural discharge features. 
These activities could dewater habitat or reduce water quality to 
levels that are beyond the tolerances of the sharpnose and smalleye 
shiner, and result in direct or cumulative adverse effects to these 
individuals and their life cycles.
    (4) Activities leading to the introduction, expansion, or increased 
density of an exotic plant or animal species that is detrimental to the 
sharpnose shiner or smalleye shiner or their habitat.

Exemptions

Application of Section 4(a)(3) of the Act

    The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) 
required each military installation that includes land and water 
suitable for the conservation and management of natural resources to 
complete an integrated natural resources management plan (INRMP) by 
November 17, 2001.
    The National Defense Authorization Act for Fiscal Year 2004 (Pub. 
L. 108-136) amended the Act to limit areas eligible for designation as 
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not 
designate as critical habitat any lands or other geographic areas owned 
or controlled by the Department of Defense, or designated for its use, 
that are subject to an integrated natural resources management plan 
prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the 
Secretary determines in writing that such plan provides a benefit to 
the species for which critical habitat is proposed for designation.''
    There are no Department of Defense lands within the proposed 
critical habitat designation for the sharpnose shiner or smalleye 
shiner; therefore we are not exempting any areas under section 
4(a)(3)(B)(i) of the Act.

Exclusions

Application of Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that the Secretary shall 
designate and make revisions to critical habitat on the basis of the 
best available scientific data after taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat. The 
Secretary may exclude an area from critical habitat if he determines 
that the benefits of such exclusion outweigh the benefits of specifying 
such area as part of the critical habitat, unless he determines, based 
on the best scientific data available, that the failure to designate 
such area as critical habitat will result in the extinction of the 
species. In making that determination, the statute on its face, as well 
as the legislative history, are clear that the Secretary has broad 
discretion regarding which factor(s) to use and how much weight to give 
to any factor.
    Under section 4(b)(2) of the Act, we may exclude an area from 
designated critical habitat based on economic impacts, impacts on 
national security, or any other relevant impacts. In considering 
whether to exclude a particular area from the designation, we identify 
the benefits of including the area in the designation, identify the 
benefits of excluding the area from the designation, and evaluate 
whether the benefits of exclusion outweigh the benefits of inclusion. 
If the analysis indicates that the benefits of exclusion outweigh the 
benefits of inclusion, the Secretary may exercise his discretion to 
exclude the area only if such exclusion would not result in the 
extinction of the species.

Exclusions Based on Economic Impacts

    Under section 4(b)(2) of the Act, we consider the economic impacts 
of specifying any particular area as critical habitat. In order to 
consider economic impacts, we are preparing an analysis of the economic 
impacts of the proposed critical habitat designation and related 
factors. Potential land use sectors that may be affected by a sharpnose 
shiner and smalleye shiner critical habitat designation include sectors 
associated with construction or improvement of roads, bridges, 
pipelines, or bank stabilization; residential or commercial 
development; the control of surface waters or removal of groundwater; 
and irrigation water use and management.
    During the development of a final designation, we will consider 
economic impacts, public comments, and other new information, and areas 
may be excluded from the final critical habitat designation under 
section 4(b)(2) of the Act and our implementing regulations at 50 CFR 
424.19.

Exclusions Based on National Security Impacts

    Under section 4(b)(2) of the Act, we consider whether there are 
lands where a national security impact might exist. There are no 
Department of Defense lands within the proposed critical habitat 
designation for the sharpnose shiner or smalleye shiner; therefore, 
currently, there are no areas proposed for exclusion based on impacts 
on national security.

Exclusions Based on Other Relevant Impacts

    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security. We consider a number of factors including whether the 
landowners have developed any HCPs or other management plans for the 
area, or whether there are conservation partnerships that would be 
encouraged by designation of, or exclusion from, critical habitat. In 
addition, we look at Tribal management in recognition of their 
capability to appropriately manage their own resources, and consider 
the government-to-government relationship of the United States with 
Tribal entities. We also consider any social impacts that might occur 
because of the designation.
    When we evaluate the existence of a conservation plan when 
considering the benefits of exclusion, we consider a variety of 
factors, including but not limited to, whether the plan is finalized; 
how it provides for the conservation of the essential physical or 
biological features; whether there is a reasonable expectation that the 
conservation management strategies and actions contained in a 
management plan will be implemented into the future; whether the 
conservation strategies in the plan are likely to be effective; and 
whether the plan contains a monitoring program or adaptive management 
to ensure that the conservation measures are effective and can be 
adapted in the future in response to new information.
    In preparing this proposal, we have determined that there are 
currently no HCPs for the sharpnose shiner or smalleye shiner. The 
proposed designation does not include any tribal lands or trust 
resources. We anticipate no impact on tribal lands, partnerships, or 
HCPs from this proposed critical habitat designation. Accordingly, we 
are not currently considering excluding any areas from the critical 
habitat

[[Page 47625]]

designation based on other relevant impacts.

Required Determinations

Regulatory Planning and Review--Executive Orders 12866 and 13563

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget will 
review all significant rules. The Office of Information and Regulatory 
Affairs has determined that this rule is not significant.
    Executive Order 13563 reaffirms the principles of Executive Order 
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. Executive Order 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 (RFA; 5 U.S.C. 601 et seq.) as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996 (5 U.S.C 801 et seq.), whenever an agency must 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 effects 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 
the agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. The SBREFA amended 
the RFA to require Federal agencies to provide a certification 
statement of the factual basis for certifying that the rule will not 
have a significant economic impact on a substantial number of small 
entities.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include such businesses as manufacturing and mining concerns with fewer 
than 500 employees, wholesale trade entities with fewer than 100 
employees, retail and service businesses with less than $5 million in 
annual sales, general and heavy construction businesses with less than 
$27.5 million in annual business, special trade contractors doing less 
than $11.5 million in annual business, and forestry and logging 
operations with fewer than 500 employees and annual business less than 
$7 million. To determine whether small entities may be affected, we 
will consider the types of activities that might trigger regulatory 
impacts under this designation as well as types of project 
modifications that may result. In general, the term ``significant 
economic impact'' is meant to apply to a typical small business firm's 
business operations.
    Importantly, the incremental impacts of a rule must be both 
significant and substantial to prevent certification of the rule under 
the RFA and to require the preparation of an initial regulatory 
flexibility analysis. If a substantial number of small entities are 
affected by the proposed critical habitat designation, but the per-
entity economic impact is not significant, the Service may certify. 
Likewise, if the per-entity economic impact is likely to be 
significant, but the number of affected entities is not substantial, 
the Service may also certify.
    Under the RFA, as amended, and following recent court decisions, 
Federal agencies are only required to evaluate the potential 
incremental impacts of rulemaking on those entities directly regulated 
by the rulemaking itself, and not the potential impacts to indirectly 
affected entities. The regulatory mechanism through which critical 
habitat protections are realized is section 7 of the Act, which 
requires Federal agencies, in consultation with the Service, to ensure 
that any action authorized, funded, or carried by the Agency is not 
likely to adversely modify critical habitat. Therefore, only Federal 
action agencies are directly subject to the specific regulatory 
requirement (avoiding destruction and adverse modification) imposed by 
critical habitat designation. Under these circumstances, it is our 
position that only Federal action agencies will be directly regulated 
by this designation. Therefore, because Federal agencies are not small 
entities, the Service may certify that the proposed critical habitat 
rule will not have a significant economic impact on a substantial 
number of small entities.
    We acknowledge, however, that in some cases, third-party proponents 
of the action subject to permitting or funding may participate in a 
section 7 consultation, and thus may be indirectly affected. We believe 
it is good policy to assess these impacts if we have sufficient data 
before us to complete the necessary analysis, whether or not this 
analysis is strictly required by the RFA. While this regulation does 
not directly regulate these entities, in our draft economic analysis we 
will conduct a brief evaluation of the potential number of third 
parties participating in consultations on an annual basis in order to 
ensure a more complete examination of the incremental effects of this 
proposed rule in the context of the RFA.
    In conclusion, we believe that, based on our interpretation of 
directly regulated entities under the RFA and relevant case law, this 
designation of critical habitat will only directly regulate Federal 
agencies which are not by definition small business entities. As such, 
we certify that, if promulgated, this designation of critical habitat 
would not have a significant economic impact on a substantial number of 
small business entities. Therefore, an initial regulatory flexibility 
analysis is not required. However, though not necessarily required by 
the RFA, in our draft economic analysis for this proposal we will 
consider and evaluate the potential effects to third parties that may 
be involved with consultations with Federal action agencies related to 
this action.

Energy Supply, Distribution, or Use--Executive Order 13211

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. We do not expect the designation of this proposed 
critical habitat to significantly affect energy supplies, distribution, 
or use. Oil and gas pipelines crossing the proposed critical habitat 
can be buried under the river channel and the contours of the channel 
bed returned to their natural state. Also, the minimal and 
unpredictable flows of the upper Brazos River are not well suited for 
hydroelectric power generation. Therefore, this action is not a 
significant energy action, and no Statement of Energy Effects is 
required. However, we will further evaluate this issue as we conduct 
our economic analysis, and

[[Page 47626]]

review and revise this assessment as warranted.

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.), we make the following findings:
    (1) This rule would not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support Enforcement. ``Federal 
private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (2) We do not believe that this rule would significantly or 
uniquely affect small governments. The lands adjacent to the river 
channel being proposed for critical habitat designation are primarily 
owned by private landowners, which do not fit the definition of ``small 
governmental jurisdiction.'' Therefore, a Small Government Agency Plan 
is not required. However, we will further evaluate this issue as we 
conduct our economic analysis, and review and revise this assessment as 
warranted.

Takings--Executive Order 12630

    In accordance with Executive Order 12630 (Government Actions and 
Interference with Constitutionally Protected Private Property Rights), 
we are analyzing the potential takings implications of designating 
critical habitat for the sharpnose shiner and smalleye shiner in a 
takings implications assessment. The best information currently 
available indicates that this designation of critical habitat for the 
sharpnose shiner and smalleye shiner does not pose significant takings 
implications. However, we will further evaluate this issue as we 
conduct our economic analysis, and complete a takings implications 
assessment before issuing a final determination.

Federalism--Executive Order 13132

    In accordance with Executive Order 13132 (Federalism), this 
proposed rule does not have significant Federalism effects. A 
federalism summary impact statement is not required. In keeping with 
Department of the Interior and Department of Commerce policy, we 
requested information from, and coordinated development of, this 
proposed critical habitat designation with appropriate State resource 
agencies. The designation of critical habitat in geographic areas 
currently occupied by the sharpnose shiner and smalleye shiner imposes 
no additional restrictions to those in place as a result of the listing 
of the species and, therefore, has little incremental impact on State 
and local governments and their activities. The designation may have 
some benefit to these governments because the areas that contain the 
physical or biological features essential to the conservation of the 
species are more clearly defined, and the elements of the features of 
the habitat necessary to the conservation of the species are 
specifically identified. This information does not alter where and what 
federally sponsored activities may occur. However, it may assist local 
governments in long-range planning (rather than having them wait for 
case-by-case section 7 consultations to occur).
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) would be required. While non-Federal 
entities that receive Federal funding, assistance, or permits, or that 
otherwise require approval or authorization from a Federal agency for 
an action, may be indirectly impacted by the designation of critical 
habitat, the legally binding duty to avoid destruction or adverse 
modification of critical habitat rests squarely on the Federal agency.

Civil Justice Reform--Executive Order 12988

    In accordance with Executive Order 12988 (Civil Justice Reform), 
the Office of the Solicitor has determined that the rule does not 
unduly burden the judicial system and that it meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. We have proposed designating 
critical habitat in accordance with the provisions of the Act. To 
assist the public in understanding the habitat needs of the species, 
the proposed rule identifies the elements of physical or biological 
features essential to the conservation of the species. The areas of 
proposed critical habitat are presented on maps, and the rule provides 
several options for the interested public to obtain more detailed 
location information, if desired.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or 
reporting requirements on State or local governments, individuals, 
businesses, or organizations. An agency may not conduct or sponsor, and 
a person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.

[[Page 47627]]

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses pursuant to NEPA (42 U.S.C. 4321 et seq.) in 
connection with designating critical habitat under the Act. We 
published a notice outlining our reasons for this determination in the 
Federal Register on October 25, 1983 (48 FR 49244). This position was 
upheld by the U.S. Court of Appeals for the Ninth Circuit (Douglas 
County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 
1042 (1996)).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination With Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
tribes in developing programs for healthy ecosystems, to acknowledge 
that tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to tribes.
    We determined there are no tribal lands that meet our criteria for 
critical habitat. Therefore, we are not proposing to designate critical 
habitat for sharpnose or smalleye shiners on tribal lands.

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.

References Cited

    A complete list of references cited in this rulemaking is available 
on the Internet at http://www.regulations.gov under Docket No. FWS-R2-
ES-2013-0008 in the June 2013 version of the Status Assessment Report 
for the Sharpnose Shiner and Smalleye Shiner (Service 2013), 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--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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.  17.95, amend paragraph (e) by adding entries for 
``Sharpnose Shiner (Notropis oxyrhynchus)'' and ``Smalleye Shiner 
(Notropis buccula)'' in the same alphabetical order that the species 
appear in the table at Sec.  17.11(h), to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (e) Fishes.
* * * * *
    Sharpnose Shiner (Notropis oxyrhynchus)

    (1) Critical habitat units are depicted for Baylor, Crosby, Fisher, 
Garza, Haskell, Kent, King, Knox, Stonewall, Throckmorton, and Young 
Counties, Texas, on the maps below.
    (2) Critical habitat includes the bankfull width of the river 
channel within the identified river segments indicated on the maps 
below, and includes a lateral distance of 30 meters (98 feet) on each 
side of the stream width at bankfull discharge. Bankfull discharge is 
the flow at which water begins to leave the channel and move into the 
floodplain, and generally occurs every 1 to 2 years.
    (3) Within these areas, the primary constituent elements of the 
physical or biological features essential to the conservation of the 
sharpnose shiner consist of a riverine system with habitat to support 
all life-history stages of the sharpnose shiner, which includes:
    (i) Unobstructed, sandy-bottomed river segments greater than 275 
kilometers (171 miles) in length.
    (ii) Flowing water of greater than 2.61 cubic meters per second 
(m\3\s-1) (92 cubic feet per second (cfs)) averaged over the 
shiner spawning season (April through September).
    (iii) Water of sufficient quality to support survival and 
reproduction, characterized by:
    (A) Temperatures generally less than 39.2 [deg]C 
(102.6[emsp14][deg]F);
    (B) Dissolved oxygen concentrations generally greater than 2.66 
milligrams per liter (mg/L);
    (C) Salinities generally less than 15 parts per thousand (ppt) (25 
millisiemens per centimeter (mS/cm)); and
    (D) Sufficiently low petroleum and other pollutant concentrations 
such that mortality does not occur.
    (iv) Native riparian vegetation capable of maintaining river water 
quality, providing a terrestrial prey base, and maintaining a healthy 
riparian ecosystem.
    (4) Critical habitat does not include manmade structures (such as 
buildings, railroads, roads, and other paved areas) and the land on 
which they are located existing within the legal boundaries on the 
effective date of this rule.
    (5) Critical habitat map units. Data layers defining map units were 
created using the USGS National Hydrography Dataset's flowline data in 
ArcMap (Environmental Systems Research Institute, Inc.), a computer 
geographic information system program. The 30-m (98-ft) lateral extent 
adjacent to each segment's active channel is not displayed in the 
included figures because it is not appropriate at these map scales. 
Segments were mapped using the NAD 1983 UTM Zone 14 projection. 
Endpoints of stream segments for each critical habitat subunit are 
reported as latitude, longitude in decimal degrees. The maps

[[Page 47628]]

in this entry, as modified by any accompanying regulatory text, 
establish the boundaries of the critical habitat designation. The 
coordinates or plot points or both on which each map is based are 
available to the public at the Service's Internet site (http://www.fws.gov/southwest/es/ArlingtonTexas/), at http://www.regulations.gov at Docket No. FWS-R2-ES-2013-0008, and at the 
Arlington, Texas, Ecological Services Field Office. You may obtain 
field office location information by contacting one of the Service 
regional offices, the addresses of which are listed at 50 CFR 2.2.
    (6) Index map of critical habitat for the sharpnose shiner and 
smalleye shiner follows:
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[GRAPHIC] [TIFF OMITTED] TP06AU13.000


[[Page 47629]]


    (7) Subunit 1: Upper Brazos River Main Stem from approximately 15 
river km (9.3 miles) upstream of the eastern border of Young County 
where it intersects the upper portion of Possum Kingdom Lake 
(32.974302, -98.509880) upstream to the confluence of the Double 
Mountain Fork of the Brazos River and the Salt Fork of the Brazos River 
where they form the Brazos River main stem (33.268404, -100.010209); 
Baylor, King, Knox, Stonewall, Throckmorton, and Young Counties, Texas. 
Map of Upper Brazos River Main Stem Subunit follows:
[GRAPHIC] [TIFF OMITTED] TP06AU13.001

    (8) Subunit 2: Salt Fork of the Brazos River from its confluence 
with the Double Mountain Fork of the Brazos River (33.268404, -
100.010209) upstream to the McDonald Road crossing (33.356258, -
101.345890); Garza, Kent, and Stonewall Counties, Texas. Map of Salt 
Fork of the Brazos River Subunit follows:

[[Page 47630]]

[GRAPHIC] [TIFF OMITTED] TP06AU13.002

    (9) Subunit 3: White River from its confluence with the Salt Fork 
of the Brazos River (33.241172, -100.936181) upstream to the White 
River Lake impoundment (33.457240, -101.084546); Crosby, Garza, and 
Kent Counties, Texas. Map of White River Subunit follows:

[[Page 47631]]

[GRAPHIC] [TIFF OMITTED] TP06AU13.003

    (10) Subunit 4: Double Mountain Fork of the Brazos River from its 
confluence with the Salt Fork of the Brazos River (33.268404, -
100.010209) upstream to the confluence of the South Fork Double 
Mountain Fork of the Brazos River and the North Fork Double Mountain 
Fork of the Brazos River where they form the Double Mountain Fork of 
the Brazos River (33.100269, -100.999803); Fisher, Haskell, Kent, and 
Stonewall Counties, Texas. Map of Double Mountain Fork of the Brazos 
River Subunit follows:

[[Page 47632]]

[GRAPHIC] [TIFF OMITTED] TP06AU13.004

    (11) Subunit 5: North Fork Double Mountain Fork of the Brazos River 
from its confluence with the South Fork Double Mountain Fork of the 
Brazos River (33.100269, -100.999803) upstream to the earthen 
impoundment near Janes-Prentice Lake (33.431515, -101.479610); Crosby, 
Garza, and Kent Counties, Texas. Map of North Fork Double Mountain Fork 
of the Brazos River Subunit follows:

[[Page 47633]]

[GRAPHIC] [TIFF OMITTED] TP06AU13.005

    (12) Subunit 6: South Fork Double Mountain Fork of the Brazos River 
from its confluence with the North Fork Double Mountain Fork of the 
Brazos River (33.100269, -100.999803) upstream to the John T. Montford 
Dam of Lake Alan Henry (33.065008, -101.039780); Garza and Kent 
Counties, Texas. Map of South Fork Double Mountain Fork of the Brazos 
River Subunit follows:

[[Page 47634]]

[GRAPHIC] [TIFF OMITTED] TP06AU13.006


Smalleye Shiner (Notropis buccula)

    (1) Critical habitat units are depicted for Baylor, Crosby, Fisher, 
Garza, Haskell, Kent, King, Knox, Stonewall, Throckmorton, and Young 
Counties, Texas, on the maps.
    (2) Critical habitat includes the bankfull width of the river 
channel within the identified river segments indicated on the maps, and 
includes a lateral distance of 30 meters (98 feet) on each side of the 
stream width at bankfull discharge. Bankfull discharge is the flow at 
which water begins to leave the channel and move into the floodplain 
and generally occurs every 1 to 2 years.
    (3) Within these areas, the primary constituent elements of the 
physical or biological features essential to the conservation of the 
smalleye shiner consist of a riverine system with habitat to support 
all life-history stages of the smalleye shiner, which includes:
    (i) Unobstructed, sandy-bottomed river segments greater than 275 
kilometers (171 miles) in length.
    (ii) Flowing water of greater than 6.43 cubic meters per second 
(m\3\s-1) (227 cubic feet per second (cfs)) averaged over 
the shiner spawning season (April through September).
    (iii) Water of sufficient quality to support survival and 
reproduction, characterized by:
    (A) Temperatures generally less than 40.6 [deg]C 
(105.1[emsp14][deg]F);
    (B) Dissolved oxygen concentrations generally greater than 2.11 
milligrams per liter (mg/L);
    (C) Salinities generally less than 18 parts per thousand (ppt) (30 
millisiemens per centimeter (mS/cm)); and

[[Page 47635]]

    (D) Sufficiently low petroleum and other pollutant concentrations 
such that mortality does not occur.
    (iv) Native riparian vegetation capable of maintaining river water 
quality, providing a terrestrial prey base, and maintaining a healthy 
riparian ecosystem;
    (4) Critical habitat does not include manmade structures (such as 
buildings, railroads, roads, and other paved areas) and the land on 
which they are located existing within the legal boundaries on the 
effective date of this rule.
    (5) Critical habitat map units. Data layers defining map units were 
created using the USGS National Hydrography Dataset's flowline data in 
ArcMap (Environmental Systems Research Institute, Inc.), a computer 
geographic information system program. The 30-m (98-ft) lateral extent 
adjacent to each segment's active channel is not displayed in the 
figures because it is not appropriate at these map scales. Segments 
were mapped using the NAD 1983 UTM Zone 14 projection. Endpoints of 
stream segments for each critical habitat subunit are reported as 
latitude, longitude in decimal degrees. The maps, as modified by any 
accompanying regulatory text, establish the boundaries of the critical 
habitat designation. The coordinates or plot points or both on which 
each map is based are available to the public at the Service's Internet 
site (http://www.fws.gov/southwest/es/ArlingtonTexas/), at http://www.regulations.gov at Docket No. FWS-R2-ES-2013-0008, and at the 
Arlington, Texas, Ecological Services Field Office. You may obtain 
field office location information by contacting one of the Service 
regional offices, the addresses of which are listed at 50 CFR 2.2.
    (6) Index map of critical habitat units for the smalleye shiner is 
provided at paragraph (6) of the entry for the sharpnose shiner in this 
paragraph (e).
    (7) Subunit 1: Upper Brazos River Main Stem from approximately 15 
river km (9.3 miles) upstream of the eastern border of Young County 
where it intersects the upper portion of Possum Kingdom Lake 
(32.974302, -98.509880) upstream to the confluence of the Double 
Mountain Fork of the Brazos River and the Salt Fork of the Brazos River 
where they form the Brazos River main stem (33.268404, -100.010209); 
Baylor, King, Knox, Stonewall, Throckmorton, and Young Counties, Texas. 
Map of Upper Brazos River Main Stem Subunit is provided at paragraph 
(7) of the entry for the sharpnose shiner in this paragraph (e).
    (8) Subunit 2: Salt Fork of the Brazos River from its confluence 
with the Double Mountain Fork of the Brazos River (33.268404, -
100.010209) upstream to the McDonald Road crossing (33.356258, -
101.345890); Garza, Kent, and Stonewall Counties, Texas. Map of Salt 
Fork of the Brazos River Subunit is provided at paragraph (8) of the 
entry for the sharpnose shiner in this paragraph (e).
    (9) Subunit 3: White River from its confluence with the Salt Fork 
of the Brazos River (33.241172, -100.936181) upstream to the White 
River Lake impoundment (33.457240, -101.084546); Crosby, Garza, and 
Kent Counties, Texas. Map of White River Subunit is provided at 
paragraph (9) of the entry for the sharpnose shiner in this paragraph 
(e).
    (10) Subunit 4: Double Mountain Fork of the Brazos River from its 
confluence with the Salt Fork of the Brazos River (33.268404, -
100.010209) upstream to the confluence of the South Fork Double 
Mountain Fork of the Brazos River and the North Fork Double Mountain 
Fork of the Brazos River where they form the Double Mountain Fork of 
the Brazos River (33.100269, -100.999803); Fisher, Haskell, Kent, and 
Stonewall Counties, Texas. Map of Double Mountain Fork of the Brazos 
River Subunit is provided at paragraph (10) of the entry for the 
sharpnose shiner in this paragraph (e).
    (11) Subunit 5: North Fork Double Mountain Fork of the Brazos River 
from its confluence with the South Fork Double Mountain Fork of the 
Brazos River (33.100269, -100.999803) upstream to the earthen 
impoundment near Janes-Prentice Lake (33.431515, -101.479610); Crosby, 
Garza, and Kent Counties, Texas. Map of North Fork Double Mountain Fork 
of the Brazos River Subunit is provided at paragraph (11) of the entry 
for the sharpnose shiner in this paragraph (e).
    (12) Subunit 6: South Fork Double Mountain Fork of the Brazos River 
from its confluence with the North Fork Double Mountain Fork of the 
Brazos River (33.100269, -100.999803) upstream to the John T. Montford 
Dam of Lake Alan Henry (33.065008, -101.039780); Garza and Kent 
Counties, Texas. Map of South Fork Double Mountain Fork of the Brazos 
River Subunit is provided at paragraph (12) of the entry for the 
sharpnose shiner in this paragraph (e).
* * * * *

    Dated: July 18, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-18212 Filed 8-5-13; 8:45 am]
BILLING CODE 4310-55-P