[Federal Register Volume 79, Number 149 (Monday, August 4, 2014)]
[Rules and Regulations]
[Pages 45242-45271]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-17694]



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Vol. 79

Monday,

No. 149

August 4, 2014

Part II





 Department of the Interior





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 Fish and Wildlife Service





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50 CFR Part 17





 Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for Sharpnose Shiner and Smalleye Shiner; Final Rule

  Federal Register / Vol. 79 , No. 149 / Monday, August 4, 2014 / Rules 
and Regulations  

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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 Sharpnose Shiner and Smalleye Shiner

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, designate critical 
habitat for the sharpnose shiner (Notropis oxyrhynchus) and smalleye 
shiner (N. buccula) under the Endangered Species 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 critical habitat designation. The effect of this regulation is to 
designate critical habitat for sharpnose shiner and smalleye shiner 
under the Endangered Species Act.

DATES: This rule becomes effective on September 3, 2014.

ADDRESSES: This final rule is available on the Internet at http://www.regulations.gov and http://www.fws.gov/southwest/es/ArlingtonTexas. 
Comments and materials we received, as well as some supporting 
documentation we used in preparing this rule, are available for public 
inspection at http://www.regulations.gov. All of the comments, 
materials, and documentation that we considered in this rulemaking are 
available by appointment, during normal business hours at: 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.
    The coordinates or plot points or both from which the maps are 
generated are included in the administrative record for this critical 
habitat designation and are available at http://www.regulations.gov at 
Docket No. FWS-R2-ES-2013-0008, and at the Arlington, Texas Ecological 
Services Field Office (http://www.fws.gov/southwest/es/ArlingtonTexas) 
(see FOR FURTHER INFORMATION CONTACT). Any additional tools or 
supporting information that we developed for this critical habitat 
designation 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 and at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Debra Bills, 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. If you use a 
telecommunications device for the deaf (TDD), call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. This is a final rule to designate 
critical habitat for the sharpnose shiner and smalleye shiner. Under 
the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.) 
(Act), any species that is determined to be an endangered or threatened 
species 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, the U.S. Fish and 
Wildlife Service (Service), listed the sharpnose shiner and smalleye 
shiner as endangered species. On August 6, 2013, we published in the 
Federal Register a proposed critical habitat designation for sharpnose 
shiner and smalleye shiner (78 FR 47612). Section 4(b)(2) of the Act 
states that the Secretary shall designate 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 critical habitat areas we are designating in this rule 
constitute our current best assessment of the areas that meet the 
definition of critical habitat for sharpnose shiner and smalleye 
shiner. We are designating 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 for the species.
    This rule consists of a final rule to designate critical habitat 
for the sharpnose shiner and smalleye shiner.
    We have prepared an economic analysis of the designation of 
critical habitat. In order to consider economic impacts, we have 
prepared an analysis of the economic impacts of the critical habitat 
designations and related factors. We announced the availability of the 
draft economic analysis (DEA) in the Federal Register on March 4, 2014 
(79 FR 12138), allowing the public to provide comments on our analysis. 
We have incorporated the comments and have completed the final economic 
analysis (FEA) for this final determination.
    Peer review and public comment. We sought comments from independent 
specialists to ensure that our designation is based on scientifically 
sound data and analyses. We obtained opinions from three knowledgeable 
individuals with scientific expertise to review our technical 
assumptions, analysis, and whether or not we had used the best 
available information. These peer reviewers generally concurred with 
our methods and conclusions and provided additional information, 
clarifications, and suggestions to improve this final rule. Information 
we received from peer review is incorporated in this final revised 
designation and the Species Status Assessment (SSA) Report. We also 
considered all comments and information received from the public during 
the comment period.

Previous Federal Actions

    On August 6, 2013 (78 FR 47582; 78 FR 47612), we proposed to list 
the sharpnose shiner and smalleye shiner as endangered species and 
proposed to designate critical habitat under the Act. We held a public 
hearing on September 4, 2013, in Abilene, Texas. On March 4, 2014 (79 
FR 12138), we published a notice of availability that requested 
comments on the draft economic analysis of critical habitat, as well as 
the proposed critical habitat designation. This comment period closed 
on April 3, 2014 (79 FR 12138).
    All previous Federal actions are described in the August 6, 2013, 
proposed rule (78 FR 47612) and the final rule listing the sharpnose 
shiner and smalleye shiner as endangered species under the Act, which 
is published elsewhere in today's Federal Register.

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for the sharpnose shiner and smalleye 
shiner during two comment periods. The first comment

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period associated with the publication of the proposed rules (78 FR 
47612; 78 FR 47582) opened on August 6, 2013, and closed on October 7, 
2013. We also requested comments on the proposed critical habitat 
designation and associated draft economic analysis during a comment 
period that opened March 4, 2014, and closed on April 3, 2014 (79 FR 
12138). We received requests for additional public hearings after we 
held a public hearing on September 4, 2013. We also contacted 
appropriate Federal, State, and local agencies; scientific 
organizations; and other interested parties and invited them to comment 
on the proposed rule and draft economic analysis during these comment 
periods.
    During the first comment period, we received 72 comment letters 
directly addressing the proposed critical habitat designation. During 
the second comment period, we received 34 additional comment letters 
addressing the proposed critical habitat designation or the draft 
economic analysis. During the September 4, 2013, public hearing, nine 
individuals or organizations made comments, although not all 
specifically on the designation of critical habitat for the sharpnose 
shiner or smalleye shiner. All substantive information provided during 
comment periods has either been incorporated directly into this final 
rule, incorporated in the SSA Report, or addressed below. Comments 
received regarding critical habitat are addressed in the following 
summary and incorporated into the final rule as appropriate. Comments 
regarding the SSA Report are incorporated in Appendix B of the SSA 
Report.

Peer Reviewers

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited expert opinions from four knowledgeable 
individuals with scientific expertise that included familiarity with 
the sharpnose and smalleye shiners or their habitats, biological needs, 
threats, general fish biology, and aquatic ecology. We received 
responses from three of the peer reviewers.
    We reviewed all comments received from the peer reviewers for 
substantive issues and new information regarding critical habitat for 
the sharpnose and smalleye shiner. The peer reviewers generally 
concurred with our methods and our assessment of the current status of 
these species. They provided additional information, clarifications, 
and suggestions to improve the SSA Report. Peer reviewer comments were 
all specific to the SSA Report and are addressed in Appendix B of the 
SSA Report. Although changes were made to the SSA Report, generally the 
peer reviewers further supported our science and analysis.

Comments From Federal Agencies

    (1) Comment: The U.S. Department of Agriculture's Natural Resources 
Conservation Service works with landowners on a voluntary basis to 
apply conservation measures, some of which may benefit sharpnose and 
smalleye shiners, and the Natural Resources Conservation Service 
welcomes the opportunity to consult with the Service to determine the 
effects of their actions on the habitat of these two species.
    Our Response: The Service appreciates the work of the Natural 
Resources Conservation Service and looks forward to working with them 
as conservation partners regarding sharpnose and smalleye shiner 
habitat.

Comments From States

    Section 4(i) of the Act states, ``the Secretary shall submit to the 
State agency a written justification for his failure to adopt 
regulations consistent with the agency's comments or petition.'' 
Comments received from the State regarding the proposal to designate 
critical habitat for the sharpnose shiner and smalleye shiner are 
addressed below.
    (2) Comment: The Service received one request from a State agency 
and multiple requests from the public for more public hearings in 
addition to the one held September 4, 2013, in Abilene, Texas. Several 
requests contended the Service provided inadequate notification, that 
having a hearing for the proposed listing rule and proposed critical 
habitat rule at the same time did not follow the requirements outlined 
in the Act, and that the meeting was not located close to proposed 
critical habitat.
    Our Response: Section 4(b)(5) of the Act states that the Service 
shall promptly hold one public hearing on the proposed regulation if 
any person files a request for such a hearing within 45 days after the 
date of the publication of the general notices. The Service received a 
request for a public hearing, and one was held on September 4, 2013, in 
Abilene, Texas.
    The notification of the public hearing was clearly stated in both 
the proposed rule to list the sharpnose shiner and smalleye shiner as 
endangered species and in the proposed rule to designate critical 
habitat for these species on August 6, 2013 (78 FR 47582; 78 FR 47612). 
A notification of the public hearing was also published in the Lubbock 
Avalanche on Sunday, August 18th; the Abilene Reporter News on Sunday, 
August 18th; the Waco Tribune Herald on Sunday, August 25th; and the 
Baylor County Banner from August 15th through the 22nd. These 
newspapers have relatively large distributions with one located 
immediately upstream of designated critical habitat, one downstream of 
designated critical habitat, and two having distributions in or around 
designated critical habitat.
    The Service mailed letters, which included information regarding 
the public hearing, to over 100 recipients shortly after the proposed 
rules published on August 6, 2013. Letter recipients included Federal 
agencies, State agencies, city offices, county courthouses, and 
numerous nongovernmental organizations. Service staff also contacted 
approximately 56 local media outlets and posted a news release 
containing the public hearing announcement on both the Arlington, 
Texas, Ecological Services Field Office and Service's Southwest Region 
Web pages.
    The Act does not require the Service to hold multiple public 
hearings in multiple locations. The Act also does not indicate a 
necessary proximity to proposed designated critical habitat within 
which to hold a public hearing. The Service chose Abilene, Texas, 
because it is the largest city centrally located to the proposed 
designated critical habitat that contained a venue of appropriate size 
and with reasonable access by major roads and highways. The Service 
also held the public hearing in the evening to provide adequate time 
for attendees to travel after normal work hours. To provide additional 
opportunity to provide comments, the Service reopened the comment 
period on the proposed rule to designate critical habitat for these 
species for 30 days to coincide with the availability of the draft 
economic analysis of the proposed designation of critical habitat for 
sharpnose and smalleye shiners on March 4, 2014 (79 FR 12138).
    (3) Comment: The 30-m (98-ft) lateral buffer area on each side of 
the stream width at bankfull discharge appears to be arbitrary.
    Our Response: The 30-m (98-ft) lateral buffer strips are based on 
the best scientific information available. Fischer and Fischenich 
(2000, p. 8) suggest a riparian width of 5 to 30 m (16.4 to 98.4 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. Due to a

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lack of dense, grassy vegetation in much of the proposed critical 
habitat, we find that a 30-m (98-ft) buffer is most appropriate to 
maintain proper runoff filtration. Fischer and Fischenich (2000, p. 8) 
suggest a riparian width of 30 to 500 m (98 to 1,640 ft) to provide 
wildlife habitat. However, the riparian zone of the upper Brazos River 
may never have been extensively or diversely vegetated due to the 
aridity of the area (Busby and Schuster 1973, entire), 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 provide 
the water quality and food base required by sharpnose and smalleye 
shiners. This is further explained in the SSA Report in section ``6.E. 
Conserve native Vegetation Adjacent to Occupied Habitat''.
    (4) Comment: Manmade structures and transportation rights-of-way 
(ROWs) should be excluded from the lateral extent of critical habitat 
and mapped in detail.
    Our Response: When determining critical habitat boundaries within 
this final rule, we made every effort to avoid including developed 
areas such as lands covered by buildings, pavement, existing maintained 
transportation rights-of-way within the lateral extent buffers, and 
other structures because such lands lack physical or biological 
features for 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 final rule have been excluded by 
text in the rule and are not designated as critical habitat. Therefore, 
a Federal action involving these lands will 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.
    (5) Comment: Critical habitat designations are not relevant to 
private landowners unless a Federal permit or action affects their 
property. The proposed designation would likely affect the development 
of future water supplies critical to local communities and their 
economic livelihood.
    Our Response: It is accurate that critical habitat designation 
affects private landowners only if there is a Federal nexus. If a 
Federal action may affect a listed species or its critical habitat, the 
responsible Federal agency (action agency) must enter into consultation 
with the Service. 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. Future water supply projects in the upper Brazos River 
basin will likely require Federal funding or permits and will likely 
require consultation regardless of critical habitat designation because 
these species are listed as endangered throughout their range and this 
range is the upper Brazos River (see the final listing rule, published 
elsewhere in today's Federal Register). See Section 7 Consultation 
below in this final rule.
    (6) Comment: Several commenters suggest there may be a discrepancy 
between the Service's proposed listing rule (and the SSA Report) and 
the incremental effects memorandum. The proposed listing rule and SSA 
Report suggest the threat from future impoundments and reservoir 
developments will continue and possibly increase in the future; 
however, the incremental effects memorandum suggests there are no known 
Federal projects certain to occur in proposed critical habitat within 
the next few years, and, given the nature of reservoir permitting, 
design, and construction, it is not reasonable to assume specific 
reservoir projects are probable to occur.
    Our Response: The SSA Report (section 3.A. ``Impoundments'') and 
listing rule both indicate that existing impoundments are currently 
affecting sharpnose and smalleye shiners. Further, additional reservoir 
construction is likely given that there are inadequate water supplies 
to meet future water needs in the upper Brazos River basin. The 
incremental effects memorandum states that the primary threats to the 
species are river fragmentation by fish barriers and alterations of 
flow regime resulting from drought (exacerbated by climate change), 
groundwater withdrawal, reservoir construction, and saltcedar 
encroachment. While it is likely that additional reservoir projects 
will be implemented in the upper Brazos River basin, it is not clear 
when or where these reservoirs will be constructed and it is not 
reasonable to assume that the projects are probable to occur within the 
next few years. The perceived discrepancy between the projection of 
additional impoundments in the listing rule and the SSA Report as 
compared to the economic analysis is based on the different standards 
used in those analyses. For example, the 2012 Texas State Water Plan 
proposes multiple reservoirs in this basin, but the specific locations 
and time of construction are unclear. The SSA Report, therefore, 
considered these unspecified projects as likely threats to the species 
in the foreseeable future.
    In contrast, the economic effects memo is tied to a projection of 
costs to specific projects that may require consultation. Only two 
specific potential reservoirs were identified by a Federal agency in 
the economic analysis process. The U.S. Army Corps of Engineers and the 
City of Lubbock, Texas, identified specific dam and reservoir projects 
in Subunit 1 (the Cedar Creek Reservoir) and Subunit 6 (Lake Alan Henry 
Reservoir). As such, the Service's incremental effects memorandum and 
listing rule are not contradictory. The economic cost associated with 
critical habitat consultation through section 7 of the Act will most 
likely be limited to additional administrative effort to consider 
adverse modification because all proposed critical habitat units are 
considered occupied. Thus, the presence of the shiner would trigger 
section 7 consultation with the Service even if critical habitat was 
not designated.
    (7) Comment: The economic screening analysis significantly 
underestimates the economic impacts of the proposed critical habitat 
designation.
    Our Response: This screening memorandum analyzes whether the 
designation of critical habitat would trigger project modifications to 
avoid adverse modification of critical habitat that would be above and 
beyond any modifications triggered by adverse effects to the species 
itself as an endangered species. As stated in the screening memorandum, 
any activities with a Federal nexus will be subject to section 7 
consultation requirements regardless of critical habitat designation 
because all proposed critical habitat units are occupied by the 
species. Therefore, significant baseline protection exists and 
incremental economic impacts are expected to be limited to 
administrative costs associated with section 7 consultations.
    We considered three primary data sources in this evaluation: (1) 
The historical consultation rate within the counties containing 
proposed shiner critical habitat, (2) information Federal agencies 
provided to the Service regarding specific projects that may require 
future consultation, and (3) public comments. As summarized in Exhibit 
3 of the screening memorandum, extremely low levels of section 7 
consultations have occurred in the past in counties containing proposed 
critical habitat. Further, the

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Service considered the potential for incremental costs to occur outside 
of the section 7 consultation process, including triggering additional 
requirements or project modifications under State laws or regulations, 
and perceptional effects on markets. Based on this information, the 
total incremental impacts are expected to be minimal.
    (8) Comment: The Service's reliance upon human population as an 
indicator of economic activity is unfounded.
    Our Response: The economic screening memorandum states that the 
amount of economic activity generated in the relatively populated Young 
County may be larger than in less populated counties. In general, there 
is greater development pressure and demand for infrastructure in areas 
with higher populations. These activities are more likely to have a 
Federal nexus and are therefore subject to section 7 consultation with 
the Service. While economic activity such as agriculture may occur in 
areas of low human population, these activities are less likely to 
result in section 7 consultation and incremental economic impacts 
because they typically lack a Federal nexus. Further, the Service has 
not relied on human population alone. We also considered (1) the 
historical consultation rate within the counties containing proposed 
shiner critical habitat, (2) information Federal agencies provided to 
the Service regarding specific projects that may require future 
consultation, and (3) public comments.
    (9) Comment: The economic screening analysis of the proposed 
critical habitat designation does not address the obstacles that are 
likely to be incurred at all types of river crossings, including but 
not limited to roads, transmission lines, and pipelines.
    Our Response: Exhibit 3 of the screening memorandum summarizes the 
consultation history in the counties containing proposed critical 
habitat. As this exhibit shows, these projects include water line, 
sewer line, transmission, telecommunication infrastructure, and 
transportation projects. The Service expects that the types of projects 
represented in the consultation history will require consultation in 
the future, even absent critical habitat designation, due to the 
presence of the listed species. As explained in the economic screening 
memorandum, project modifications recommended by the Service during 
section 7 consultation are unlikely to change due to the designation of 
critical habitat for the shiners. Therefore, the incremental cost to 
projects that require consultation with the Service, including river 
crossing projects, is expected to be limited to additional 
administrative costs.
    (10) Comment: The commenter asserts that because the estimated 
value of agricultural production in the 11-county area containing 
proposed critical habitat for the shiners was $344 million in 2012, and 
since this value exceeds $100 million, the Service should conduct a 
quantitative assessment of the proposed critical habitat designation.
    Our Response: The Act requires the Service to designate critical 
habitat on the basis of the best scientific data available after taking 
into consideration, among other factors, the ``economic impact'' of 
specifying any particular area as critical habitat. This economic 
impact of designating critical habitat is different than the economic 
value of agricultural production in the areas proposed as critical 
habitat. While the economic value of agricultural production in the 
proposed critical habitat area is $344 million, this is not the 
economic impact to agricultural production as a result of proposed 
critical habitat. The economic screening memorandum provides 
information on the potential for the proposed critical habitat to 
result in economic impacts exceeding $100 million in a single year. As 
stated in the economic screening memorandum, because all proposed 
critical habitat units are occupied by the species, significant 
baseline protection exists, and incremental economic impacts are 
expected to be limited to administrative costs associated with section 
7 consultations. The Service does not expect economic losses to 
agricultural production due to the designation of critical habitat for 
the species.
    (11) Comment: Two commenters disagree with the economic screening 
memorandum's assumption that agriculture will not be affected by the 
stigma of critical habitat designation, stating that in the worst-case 
scenario businesses will let their land lie fallow in response to the 
regulation.
    Our Response: In general, agricultural activities do not require 
consultation with the Service. Further, a low level of consultation is 
anticipated because critical habitat for these species is in areas that 
are remote. Incremental costs associated with section 7 consultations 
for the shiners are likely limited to administrative costs incurred by 
Federal agencies because all units are considered occupied and project 
modifications to avoid adverse modification are likely to be the same 
as those needed to avoid jeopardy. Furthermore, because current 
agricultural uses are likely to continue unaffected in the future, it 
is unlikely that the agriculture community will perceive that the final 
rule has had an effect on the highest and best use, and therefore 
market value, of designated agricultural parcels.

Public Comments

    (12) Comment: There is no need to restrict cattle or people's 
access to the river by designating critical habitat. This designation 
will require me to travel many more miles between my facilities on 
either side of the river when I can travel much shorter distances now 
by crossing the river when it is dry. If the proposed rule would 
require fencing the river to keep livestock away it would impose a 
financial burden on landowners. If the government takes control of 
landowner groundwater rights it will lead to severe economic impacts to 
these individuals.
    Our Response: 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 restrict cattle or human access, and does not affect water or 
property rights or land ownership or establish a refuge, wilderness, 
reserve, preserve, or other conservation area. A critical habitat 
designation does not allow the government or public to access private 
lands. A critical habitat designation does not require implementation 
of restoration, recovery, or enhancement measures by non-Federal 
landowners.
    The Service welcomes the opportunity to provide technical 
assistance to landowners on a river crossing design that would meet the 
needs of the landowner (structural stability and effectiveness) while 
also allowing for unobstructed water flow and fish passage. The Service 
firmly believes well-designed river crossings would benefit both 
landowners and sharpnose and smalleye shiners.
    (13) Comment: The public should know who has been chosen as peer 
reviewers or have input in choosing who peer reviews the listing rules 
and species status assessment.
    Our Response: Peer reviewer names can be made available to the 
public when their comments are officially submitted and posted on 
www.regulations.gov as with any public commenter. Release of peer 
reviewer names prior to the submission of their review can subject them 
to public and political pressures. The Service relies on peer review to 
provide a thorough and

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expert opinion on the science used to make listing decisions, and the 
process should be guarded against outside influences that could affect 
the subjectivity of that review.
    In selecting peer reviewers we followed the guidelines for Federal 
agencies spelled out in the Office of Management and Budget (OMB) 
``Final Information Quality Bulletin for Peer Review,'' released 
December 16, 2004, and the Service's ``Information Quality Guidelines 
and Peer Review'', revised June 2012. Part of the peer review process 
is to provide information online about how each peer review is to be 
conducted. Prior to publishing the proposed listing and critical 
habitat rules for the shiners, we posted a peer review plan on our Web 
site at http://www.fws.gov/southwest/science/peerreview.html, which 
included information about the process and criteria used for selecting 
peer reviewers.
    (14) Comment: Given the importance of voluntary actions (primarily 
saltcedar control) by farmers and ranchers in the recovery of the 
species, lands managed for farming and ranching should be excluded from 
the designated critical habitat outside of the bankfull river channel. 
Conservation partnerships would be encouraged by such exclusions.
    Our Response: 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 she determines 
that the benefits of such exclusion outweigh the benefits of specifying 
such area as part of the critical habitat, unless she 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 factors to use and how much weight to give 
to any factor. See our response to comment (12) above. Federal cost-
share saltcedar control programs often include benefits to listed 
species as part of their project ranking criteria; thus, the listing 
and designation of critical habitat for these species may facilitate 
participation in these programs.
    (15) Comment: The Service has not presented a clear understanding 
of the population, range, reproductive requirements, and threats to the 
species. As a result it is not possible for the Service to delineate 
areas essential to the conservation of the species and that may require 
special considerations. The Service has not provided any evidence to 
show a stream length of 275 km (171 mi) is necessary for the continued 
existence of sharpnose and smalleye shiners, nor how an expanded 1,002-
km (623-mi) area designated as critical habitat is necessary.
    Our Response: The SSA Report presents the best available scientific 
and commercial data on sharpnose and smalleye shiners, and their 
historical and current range, their reproductive requirements and the 
threats to these species. Section ``2.C.3. Stream Reach Length 
Requirements'' of the SSA Report outlines our reasoning for a minimum 
stream reach length of 171 miles (275 km) to support development of the 
early life-history stages of sharpnose and smalleye shiners. We 
recognize in the SSA Report that stream length requirements may vary 
with flow rates, water temperature, and channel morphology. However, 
modeling of population status and stream reach length indicate that 
extirpation of eight different Great Plains broadcast-spawning minnow 
species occurred in fragments less than 115 km (71 mi; Perkin et al. 
2010, p. 7) and that no extirpations were recorded in reaches greater 
than 275 km (171 mi). The minimum reach for successful reproduction of 
the sharpnose and smalleye shiners may be similar to that of the 
congeneric Arkansas River shiner at approximately 217 km (135 mi) 
(Perkin and Gido 2011, p. 374). However, until more specific 
information is experimentally assessed for sharpnose and smalleye 
shiners, a reach length of greater than 275 km (171 mi) is more 
appropriate for long-term survival of these species considering Perkin 
et al. (2010, p. 7) observed no extirpations of broadcast-spawning 
minnows in river reaches greater than this length. Further, a single 
275-km (171-mi) river segment would not be sufficient in providing the 
redundancy and resiliency required to keep these species viable or to 
provide sufficient recovery and conservation. If the species were 
limited to a single 275-km (171-mi) stretch of river, ongoing threats 
such as drought could more easily lead to catastrophic extinction of 
these species. The designation of critical habitat is informed by the 
information within the SSA Report and delineates the specific areas 
within the geographical area occupied by the species, at the time it is 
listed, on which are found those physical or biological features 
essential to the conservation of the species, and which may require 
special management considerations or protection.
    (16) Comment: Additional studies regarding critical habitat should 
be conducted prior to designation including meso-habitat studies, 
migration studies, fish survival studies in fragmented river reaches, 
reproductive success studies in response to flow conditions, 
groundwater-surface water interaction studies, and saltcedar control 
studies.
    Our Response: The Service agrees that additional data in many of 
these areas would add to the growing body of scientific knowledge of 
these species and the upper Brazos River basin in general. However, the 
Act requires that we designate critical habitat on the basis of the 
best scientific and commercial data available. In addition, we sought 
comments from independent peer reviewers to ensure that our designation 
is based on scientifically sound data, assumptions, and analysis. We 
solicited information from the general public, nongovernmental 
conservation organizations, State and Federal agencies that are 
familiar with the species and their habitats, academic institutions, 
and groups and individuals who might have information that would 
contribute to an update of our knowledge of the species, as well as the 
activities and natural processes that are likely contributing to the 
decline of either species. While some uncertainty will always exist, 
the existing body of literature on sharpnose shiners, smalleye shiners, 
and similar broadcast-spawning minnows provides the best available 
information upon which to make a critical habitat desgination for these 
species. See the SSA Report for more detailed information about these 
species.
    (17) Comment: The Service's argument that incremental section 7 
benefits may accrue if a portion of critical habitat becomes unoccupied 
is unrealistic in riverine habitat because it is highly unlikely that a 
portion of contiguous river segment would become unoccupied by fish 
that move freely throughout the system. None of the other benefits the 
Service claims from critical habitat designation exists and therefore 
critical habitat designation is not prudent.
    Our Response: The primary intended benefit of critical habitat is 
to support the conservation of threatened and endangered species, such 
as the shiners. Although there appear to be no known substantial 
incremental effects to designating critical habitat for

[[Page 45247]]

sharpnose and smalleye shiners, there are several potential benefits 
including: (1) Ensuring consultation under section 7 of the Act occurs 
by drawing attention to the occupied range of the species; (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.
    Portions of the occupied upper Brazos River basin where critical 
habitat has been designated periodically dry out during arid summer 
months. During these dry periods sections of critical habitat may be 
completely dry and therefore be temporarily unoccupied. The designation 
of critical habitat will help ensure Federal agencies consult on 
projects during dry seasons when fish may be temporarily absent. The 
Service would consider these dry areas occupied for the purpose of 
consultation although fish may not be physically present at all times. 
This process is similar to how the Service has historically treated 
seasonal habitat for migratory birds and other animals.
    (18) Comment: The designation of critical habitat is taking our 
property.
    Our Response: Designation of critical habitat does not affect land 
ownership, or establish any closures, or restrictions on use of or 
access to the designated areas. Critical habitat designation also does 
not establish specific land management standards or prescriptions, 
although Federal agencies are prohibited from carrying out, funding, or 
authorizing actions that would destroy or adversely modify critical 
habitat. The promulgation of a regulation, such as a designation of 
critical habitat under the Act, does not take private property, unless 
the regulation on its face denies the property owner all economically 
beneficial or productive use of their land. The Service has concluded 
that the designation of critical habitat does not rise to the level of 
a taking of private property. A critical habitat designation only 
affects private property where there is a proposed action that would be 
authorized, funded, or carried out by a Federal agency. See our 
response to comment 12 above. Further, programs are available to 
private landowners for managing habitat for listed species, as well as 
permits that can be obtained to protect private landowners from the 
take prohibition when such taking is incidental to, and not the purpose 
of, the carrying out of an otherwise lawful activity. Private 
landowners may contact their local Service field office to obtain 
information about these programs and permits.
    (19) Comment: In the incremental effects memorandum the Service 
discounted groundwater withdrawals, reasoning that a majority of 
private landowner withdrawals are unlikely to reach the level of take 
or adverse modification of critical habitat. However, the proposed 
listing rule indicates groundwater withdrawal is a threat to the 
species.
    Our Response: As stated in the proposed rule, the incremental 
effects memorandum, and the SSA Report, groundwater withdrawal is 
identified as a primary threat to these species. The language in the 
incremental effects memo referenced by the commenter is specific to 
project proponents that are likely to pursue HCPs under section 10 
after the designation of critical habitat. In the incremental effects 
memorandum we acknowledge that private landowners may withdraw 
groundwater for personal use; however, it is unlikely that a majority 
of those cases would reach the level of take or adverse modification of 
critical habitat, and therefore a section 10 permit would not be 
required. This language is specific to private actions that may need a 
section 10 permit. The scale of groundwater withdrawal for crop 
irrigation and city or regional water use is greater than that for 
individual private wells. Further, larger scale groundwater withdrawals 
close to the river or active springs may reach the level of take or 
adverse modification of critical habitat, and, therefore, a section 10 
permit would be appropriate. The magnitude and location of groundwater 
withdrawal will be important factors in determining the potential for 
impact to the shiner species and the need for a section 10 permit. As 
such, the Service's incremental effects memorandum and listing rule are 
not contradictory. For more information on the effects of groundwater 
withdrawal on sharpnose and smalleye shiners, see section ``3.B. 
Groundwater Withdrawal'' of the SSA Report.
    (20) Comment: The proposed critical habitat designation fails to 
provide information sufficient to analyze the designation in accordance 
with the statute because the Service has yet to evaluate the economic 
impacts of the critical habitat designation. Consequently, critical 
habitat is not determinable.
    Our Response: The Service has conducted an analysis of the economic 
impacts of the critical habitat designations and related factors. We 
announced the availability of the draft economic analysis in the 
Federal Register on March 4, 2014 (79 FR 12138), allowing the public to 
provide comments on our analysis. We have incorporated the comments and 
have completed the final economic analysis for this final 
determination.
    (21) Comment: The Service should gather additional data and conduct 
a quantitative analysis of economic impacts. The assumptive 
determinations stated in the draft economic analysis were not supported 
by adequate factual basis.
    Our Response: Section 4(b)(2) of the Act requires the Service to 
use the best available scientific data, after taking into 
consideration, among other factors, the economic impacts of specifying 
any particular areas as critical habitat. To prepare the economic 
impacts screening memo, we relied on: (1) The proposed rule and 
associated geographic information systems (GIS) data layers; (2) our 
incremental effects memorandum; (3) the results of our outreach efforts 
to other Federal agencies concerning the likely effects of critical 
habitat; and (4) public comments submitted on the proposed rule. We 
considered three primary data sources in our evaluation of the 
magnitude of administrative costs: (1) The historical consultation rate 
within the counties containing proposed shiner critical habitat, (2) 
information Federal agencies provided to the Service regarding specific 
projects that may require future consultation, and (3) public comments. 
When data was sufficient to provide quantification of impacts or 
benefits, we provided this information. See Section 3 ``Section 7 Costs 
of the Critical Habitat Rule'' of the screening memo for additional 
information.
    (22) Comment: Based on past experience in the region with the Rio 
Grande silvery minnow (Hybognathus amarus), the designation of critical 
habitat for the shiners is likely to result in significant costs 
associated with litigation surrounding the designation of critical 
habitat. As a result, the section 7 costs reported in the screening 
analysis are drastically understated.
    Our Response: The Service's current understanding of the 
requirements under the Regulatory Flexibility Act, as amended, and 
following recent court decisions, is that Federal agencies are required 
to evaluate the potential incremental impacts of rulemaking only on 
those entities directly regulated by the rulemaking itself, and 
therefore, not required to evaluate the potential impacts to indirectly 
regulated 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

[[Page 45248]]

carried out by the Agency is not likely to destroy or adversely modify 
critical habitat. Therefore, under section 7, only Federal action 
agencies are directly subject to the specific regulatory requirement 
(avoiding destruction and adverse modification) imposed by critical 
habitat designation. Consequently, it is our position that only Federal 
action agencies will be directly regulated by this designation.
    The evaluation of the impacts of a given rulemaking such as 
critical habitat is based on the direct and indirect impacts that are 
probable or reasonably likely to occur. These generally include direct 
impacts to Federal action agencies consulting with the Service on 
actions that they undertake that may affect critical habitat. Indirect 
effects generally include impacts associated with project 
modifications, delays, and conservation recommendations that a project 
proponent may incur as a result of the designation. The impact analysis 
does not and should not evaluate the potential costs associated with 
third-party litigation that could result from the rulemaking or project 
as that litigation is too speculative. This assertion is further 
supported by the fact that, based on our history of designating 
critical habitat for more than 650 federally listed species across the 
nation, we have found that proportionately very few designations have 
been litigated or resulted in third-party litigation on projects. As a 
consequence, we disagree with the commenter that our impact analysis 
should evaluate potential litigation costs that could result from a 
designation as a cost of the designation itself.
    (23) Comment: The economic screening analysis ignores the 
dependence and interconnection that many State and local governments 
and private businesses have with federally funded actions, even if they 
do not directly receive Federal funding. The commenter asserts that 
effects on non-federally funded entities of critical habitat are real 
and should have been considered in the analysis.
    Our Response: The Service's current understanding of the 
requirements under the Regulatory Flexibility Act, and following recent 
court decisions, is that Federal agencies are required to evaluate the 
potential incremental impacts of a rulemaking only on directly 
regulated entities, and therefore, not required to evaluate the 
potential impacts to indirectly regulated entities. See our response to 
comment (22) above and Regulatory Flexibility Act (5 U.S.C. 601 et 
seq.) section, below. Further, as stated in the economic screening 
memorandum, incremental impacts are expected to be limited to the 
administrative cost of section 7 consultation to consider adverse 
modification during the consultation process because all proposed units 
are considered occupied. Therefore, entities that are not involved in 
section 7 consultations (i.e., those entities not proposing activity 
affecting the shiners and those entities lacking a Federal nexus) are 
unlikely to experience impacts related to the designation of critical 
habitat.
    (24) Comment: The economic screening analysis does not appear to 
consider the upstream or downstream impacts of the regulation on the 
portions of the Brazos River included in the 11 counties that are part 
of the critical habitat area.
    Our Response: Projects upstream and downstream of proposed critical 
habitat that have a Federal nexus and may affect the shiners will be 
required to consult with the Service regardless of whether critical 
habitat is designated. As stated in the economic screening memorandum, 
incremental impacts are expected to be limited to the administrative 
cost of section 7 consultation. Therefore, although we are unaware of 
any such planned projects at this time, any incremental impacts are 
expected to be minor.
    (25) Comment: The economic screening analysis does not adequately 
analyze the economic impacts of the proposed critical habitat 
designations on oil and gas development.
    Our Response: While oil and gas exploration and development may 
occur in the counties containing proposed critical habitat, we project 
that these activities are unlikely to result in section 7 consultation 
because these activities do not have an identified Federal nexus. 
Additionally, as all proposed critical habitat units are occupied, any 
impacts associated with oil and gas projects with a Federal nexus would 
result from the presence of the species and not from the designation of 
critical habitat. Therefore, the incremental cost to projects that 
necessitate consultation with the Service is expected to be limited to 
additional administrative costs.
    (26) Comment: The commenters assert that the listing of the shiners 
as endangered will decrease future access to water, which will have a 
negative economic impact on property values, small businesses, farms, 
and ranches in the region.
    Our Response: The Act requires the Service to make a determination 
of whether any species is an endangered or threatened species solely on 
the basis of the best scientific and commercial data available. The Act 
does not allow the Service to consider the economic or other impacts of 
``listing''. However, section 4(b)(2) of the Act requires the Service 
to consider economic impacts prior to finalizing a ``critical habitat 
designation''. Consequently, the economic screening memorandum focuses 
on the incremental impacts of the proposed designation of critical 
habitat for the shiners, not the listing of the species as endangered. 
Changes in water access due to the listing of the species are 
considered baseline impacts. Baseline impacts are those that would 
occur due to the listing of the species, these are not the focus of the 
economic analysis. Impacts above the baseline resulting from the 
designation of critical habitat are incremental impacts. These 
incremental impacts are analysized in the economic screening 
memorandum. Designation of critical habitat for the species is not 
expected to decrease access to water. Therefore, the economic screening 
memorandum does not forecast costs associated with such decreases.
    (27) Comment: The commenter provides clarification on water 
management projects considered in the economic analysis. In particular, 
the commenter notes that the Cedar Ridge Reservoir was mistakenly 
called the Cedar Creek Reservoir, Lake Alan Henry was completed in 
1993, and the Post Reservoir project should be included in the economic 
analysis.
    Our Response: We recognize the correction to the name of the Cedar 
Ridge Reservoir. This correction does not change the economic impacts 
estimated in the screening memorandum. In regards to the completion 
date of Lake Alan Henry, the economic screening analysis includes costs 
associated with possible consultation on continuing water management 
activities at Lake Alan Henry, not on the creation of this reservoir. 
The Service recognizes that a number of water planning projects 
outlined in the 2012 State Water Plan, including the Post Reservoir 
project, may occur within areas designated as proposed critical habitat 
for the shiners. However, while it is likely that additional reservoir 
projects will be implemented in the upper Brazos River basin, it is not 
clear when or where these reservoirs will be constructed, and, 
therefore, they were not included in the economic analysis. However, 
the entirety of proposed critical habitat is considered occupied by the 
species, and project modifications necessary to avoid a jeopardy 
determination will likely be sufficient to avoid adverse modification. 
Therefore, incremental impacts

[[Page 45249]]

associated with such water management actions are likely to be limited 
to administrative costs of consultation.
    (28) Comment: The economic screening analysis did not conduct a 
rigorous analysis of the perceived effect that the proposed critical 
habitat will have on investment and development in the region.
    Our Response: The commenter does not specify what type of 
investment or development. However, the proposed critical habitat for 
the shiners is located in remote, sparsely populated areas where 
development pressure is low and perceptional effects related to the 
value of land are likely to be minimal. In the process of developing 
the proposed rule, the Service requested information from Federal 
agencies that may have activities within the proposed designation 
regarding ongoing and planned activities. No investment or development 
projects were identified, with the exception of two reservoirs. 
Further, the economic cost of implementing the rule through section 7 
of the Act will most likely be limited to additional administrative 
effort to consider adverse modification. This finding is based on the 
fact that the proposed designation occurs in extremely remote areas 
supporting little economic activity, and all proposed units are 
considered occupied; thus, the presence of the shiner, when the listing 
is finalized, provides significant baseline protection.
    (29) Comment: The commenter claims that the Service has identified 
only marginal benefit to the species from the designation of the 
proposed area as critical habitat, and, therefore, the Service should 
not designate critical habitat.
    Our Response: Section 4(a)(3) of the Act requires that, to the 
maximum extent prudent and determinable, the Secretary designate 
critical habitat at the time the species is listed. Because the Service 
has found that the designation of critical habitat for these species is 
both prudent and determinable, we are required to do so. Consequently, 
we are not able to forego the process of designating critical habitat 
when doing so is prudent and critical habitat is determinable. See also 
our response to comment (17) where we discuss the anticipated 
conservation benefits of the designation of critical habitat.
    (30) Comment: The commenter states that the shiners would gain 
additional benefits from the designation of critical habitat, 
including: The ecological value of protecting the Brazos River basin 
habitat; increasing public awareness of the rare species and other 
wildlife; greater protection of freshwater resources; and protection of 
the natural heritage of the State of Texas.
    Our Response: We agree that the designation will increase public 
awareness of the shiners.
    (31) Comment: Two commenters state that, rather than categorically 
determining it does not need to prepare a regulatory flexibility 
analysis for critical habitat determinations, the Service must evaluate 
whether the impact of the proposed critical habitat on small entities 
is significant and, if so, must prepare a regulatory flexibility 
analysis.
    Our Response: Under the Regulatory Flexibility Act, no regulatory 
flexibility analysis is required if the head of an agency certifies the 
rule will not have a significant economic impact on a substantial 
number of small entities. The Small Business Regulatory Enforcement 
Fairness Act amended the Regulatory Flexibility Act 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. The incremental impacts of a 
rule must be both significant and substantial to prevent certification 
of the rule under the Regulatory Flexibility Act 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. The 
discussion (below) in the Regulatory Flexibility Act (5 U.S.C. 601 et 
seq.) of this final rule explains our rationale.

Summary of Changes From Proposed Rule

    Only minor changes and clarifications were made to this final rule 
designating critical habitat based on comments received. The SSA Report 
was updated, clarified, and expanded based on several peer review and 
public comments. However, these changes did not modify our assessment 
of the critical habitat designation.

Critical Habitat

Background

    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 
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

[[Page 45250]]

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 or 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 
geographical 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 and commercial 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. 
Additional information sources may include the recovery plan for the 
species, 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 continue to 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 insure 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 still 
result in jeopardy findings in some cases. These protections and 
conservation tools will continue to 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.

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 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, geographical, and ecological 
distributions of a species.
Sharpnose Shiner
    We derive the specific physical or biological features essential 
for the sharpnose shiner from studies of this species' habitat, 
ecology, and life history as described in the Critical Habitat section 
of the proposed rule to designate critical habitat published in the 
Federal Register on August 6, 2013 (78 FR 47612), and in the 
information presented below. We have used the best available 
information, as described in the March 2014 SSA Report (Service 2014, 
Chapter 2). To identify the physical and biological needs of the 
sharpnose shiner, we have relied on conditions at currently occupied 
locations where the sharpnose 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 March 
2014 SSA Report (Service 2014, 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 m (1.6 ft) 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 and survival. 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 km (171 mi) is likely required to 
complete the species' life history. Lengths greater

[[Page 45251]]

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 March 2014 SSA Report (Service 2014, 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 
indicates 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 degrees Celsius ([deg]C) (102.6 degrees Fahrenheit 
([deg]F)) only briefly and generally require oxygen concentrations 
above 2.66 milligrams per liter (mg/L) (2.66 parts per million (ppm)). 
Sharpnose shiners experience significant mortality at salinities 
greater than 25 millisiemens per centimeter (mS/cm) (15 parts per 
thousand (ppt)). 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 in maintaining 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 2014, Chapter 6).
    Therefore, based on the information above and additional analysis 
in the March 2014 SSA Report (Service 2014, 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 (before fish reach the free-swimming juvenile 
stage) may drift in the water column for an additional 2 to 3 days 
post-hatching.
    Spawning occurs from April through September asynchronously (fish 
not spawning at the same time) 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 
(m\3\s-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 March 2014 SSA Report (Service 2014, Chapter 2), we identify 
river segments with a minimum mean summer discharge of approximately 
2.61 m\3\s-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 waterways. Consequently, 
fluctuating water levels create circumstances in which the extent of 
the sharpnose shiner's range varies 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 (spring-fed pools, isolated pools, and reservoirs) and 
recolonize normally occupied areas when suitable conditions return.
    Therefore, based on the information above and additional analysis 
in the March 2014 SSA Report (Service 2014, 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 because these unobstructed river segments will allow 
this species to recolonize previously occupied areas following river 
drying. If arid climate fish refugia are separated from one another by 
fish migration barriers recolonization of the currently occupied range 
of the species will not be possible following severe drought.
Smalleye Shiner
    We derive the specific physical or biological features essential 
for the smalleye shiner from studies of this species' habitat, ecology, 
and life history as described in the Critical Habitat section of the 
proposed rule to designate critical habitat published in the Federal 
Register on August 6, 2013 (78 FR 47612), and in the information 
presented below. We have used the best available information, as 
described in the March 2014 SSA Report (Service 2014, Chapter 2). To 
identify the

[[Page 45252]]

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 March 2014 SSA Report (Service 2014, 
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 (1.6 ft) 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 and survival. 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 March 2014 SSA Report (Service 2014, 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 (2.11 ppm). Smalleye shiners experience 
significant mortality at salinities greater than 30 mS/cm (18 ppt). 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 shiner occurs is important as a source of food (terrestrial 
insects) and in maintaining 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 2014, Chapter 6).
    Therefore, based on the information above and additional analysis 
in the March 2014 SSA Report (Service 2014, 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 from April through September asynchronously 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 m\3\s-1 (227 
cfs) is necessary to sustain a population of the smalleye shiner.
    Therefore, based on the information above and additional analysis 
in the March 2014 SSA Report (Service 2014, Chapter 2), we identify 
river segments with a minimum mean summer discharge of approximately 
6.43 m\3\s-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 waterways. 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 (spring-fed pools, isolated pools, and reservoirs) and 
recolonize normally

[[Page 45253]]

occupied areas when suitable conditions return.
    Therefore, based on the information above and additional analysis 
in the March 2014 SSA Report (Service 2014, 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 because these unobstructed river segments will allow 
this species to recolonize previously occupied areas following river 
drying. If arid climate fish refugia are separated from one another by 
fish migration barriers, recolonization of the currently occupied range 
of the species will not be possible following severe drought.
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 
waterways. Consequently, fluctuating water levels create circumstances 
in which the extent of the sharpnose and smalleye shiner's range varies 
over time, and may be periodically contracted or expanded depending on 
water availability.

Primary Constituent Elements for Sharpnose Shiner and Smalleye Shiner

    Under the Act and its implementing regulations, we are required to 
identify the physical or biological features essential to the 
conservation of sharpnose shiner and smalleye shiner in areas occupied 
at the time of listing, focusing on the features' primary constituent 
elements. 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.
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 2014, 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 [deg]F);
    b. Dissolved oxygen concentrations generally greater than 2.66 mg/L 
(2.66 ppm);
    c. Salinities generally less than 25 mS/cm (15 ppt); 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 2014, 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 [deg]F);
    b. Dissolved oxygen concentrations generally greater than 2.11 mg/
L;
    c. Salinities less than 30 mS/cm (18 ppt); 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 Protections

    When designating critical habitat, we assess whether the specific 
areas within the geographical 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

[[Page 45254]]

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 may require special 
management from these threats.
    For sharpnose shiners and smalleye shiners, special management 
considerations or protection may be 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 March 2014 SSA 
Report (Service 2014, 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 rule, 
we rely heavily on the analysis of biological information reviewed in 
the March 2014 SSA Report (Service 2014). In accordance with the Act 
and our implementing regulations at 50 CFR 424.12(b), we review 
available information pertaining to the habitat requirements of the 
species and identify occupied areas at the time of listing that contain 
the features essential to the conservation of the species. If, after 
identifying currently occupied areas, we determine that those areas are 
inadequate to ensure conservation of the species, in accordance with 
the Act and our implementing regulations at 50 CFR 424.12(e) we then 
consider whether designating additional areas--outside those currently 
occupied--are essential for the conservation of the species. We are not 
designating any areas outside the geographical area occupied by the 
species because occupied areas are sufficient for the conservation of 
the species.
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, we defined occupancy to include areas with confirmed persistence 
of both species 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 2014, Chapter 4) 
based on survey results since 2008. We chose to use survey results 
since 2008 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, we defined 
occupancy to include tributaries once known to be historically occupied 
by one or both species that lack sufficient fish sampling but are 
contiguous (i.e., lacking fish migration barriers) with areas in the 
upper Brazos River confirmed to be occupied by 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 to be occupied at 
the time of listing if they were previously occupied by either 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 may require special 
management considerations 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, small number of fish 
released in 2012, and the inability to detect these species in 
subsequent surveys, it is likely they are extirpated from this reach of 
the Brazos River (Service 2014, 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 March 2014 SSA Report (Service 2014, 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 but did not include 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 these rivers. In addition, 
both of these rivers have extensive impoundments such that the 
unfragmented stream length needed for reproduction by these species is 
lacking.

[[Page 45255]]

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 for the necessary habitat conditions for the 
species to be restored.
    The middle Brazos River also lacks the necessary unimpounded river 
length required to support sharpnose and smalleye shiner reproduction 
(Service 2014, Chapter 4). Existing impoundments are expected to exist 
into the future with no apparent potential for their removal. As a 
result, these areas cannot 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 likely to have limited 
importance to the overall viability for both species (Service 2014, 
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 and are unlikely to be restored to contain the 
necessary habitat conditions to support either species. 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 desginated 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 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) on each side of the 
stream is generally sufficient to protect the water quality of adjacent 
streams (Fischer and Fischenich 2000, p. 8). 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 2014, Chapter 6). As such, 
the final critical habitat includes the stream and river segments 
identified below and an area extending 30 m (98 ft) on each side 
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 desginating 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 critical habitat boundaries within this final 
rule, we made every effort to avoid including developed areas such as 
lands covered by buildings, pavement, existing maintained 
transportation rights-of-way within the lateral extent buffers, and 
other structures because such lands lack physical or biological 
features for 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

[[Page 45256]]

inadvertently left inside critical habitat boundaries shown on the maps 
of this final rule have been excluded by text in the rule and are not 
designated as critical habitat. Therefore, a Federal action involving 
these lands will 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.
    The critical habitat designation is defined by the map or maps, as 
modified by any accompanying regulatory text, presented at the end of 
this document in the rule portion. We include more detailed information 
on the boundaries of the critical habitat designation in the preamble 
of this document. 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, on our Internet 
sites http://www.fws.gov/southwest/es/ArlingtonTexas, and at the field 
office responsible for the designation (see FOR FURTHER INFORMATION 
CONTACT above).
    We are designating as critical habitat lands that we have 
determined are occupied at the time of listing and contain sufficient 
physical or biological features to support life-history processes 
essential for the conservation of the species.
    Subunits were designated based on sufficient elements of physical 
or biological features being present to support sharpnose shiner and 
smalleye shiner life processes. Some subunits contained all of the 
identified elements of physical or biological features and supported 
multiple life processes. Some segments contained only some elements of 
the physical or biological features necessary to support the sharpnose 
shiner and smalleye shiner's particular use of that habitat.

Final Critical Habitat Designation

    We are designating 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 m (98 ft) on each side. The critical habitat areas 
described below constitute our best assessment at this time of areas 
that meet the definition of critical habitat. Those six subunits are: 
(1) Upper Brazos River main stem, (2) Salt Fork of the Brazos River, 
(3) White River, (4) Double Mountain Fork of the Brazos River, (5) 
North Fork Double Mountain Fork of the Brazos River, and (6) South Fork 
Double Mountain Fork of the Brazos River. Table 1 shows the occupied 
units.

         Table 1--Occupancy of Sharpnose Shiner and Smalleye Shiner by Designated Critical Habitat Units
----------------------------------------------------------------------------------------------------------------
                                                                     Occupied at time of
                     Critical habitat subunit                              listing?         Currently occupied?
----------------------------------------------------------------------------------------------------------------
1. Brazos River Main Stem Subunit.................................                     Y                      Y
2. Salt Fork of the Brazos River Subunit..........................                     Y                      Y
3. White River Subunit............................................                     Y                      Y
4. Double Mountain Fork of the Brazos River Subunit...............                     Y                      Y
5. North Fork Double Mountain Fork of the Brazos River Subunit....                     Y                      Y
6. South Fork Double Mountain Fork of the Brazos River Subunit....                     Y                      Y
----------------------------------------------------------------------------------------------------------------

    The approximate length of each critical habitat unit is shown in 
Table 2.

               Table 2--Designated Critical Habitat Units for Sharpnose Shiner and Smalleye Shiner
                    [Area estimates reflect all land within critical habitat unit boundaries]
----------------------------------------------------------------------------------------------------------------
                                                                                            Length of subunit in
           Critical habitat subunit                       River ownership by type             river kilometers
                                                                                                (river miles)
----------------------------------------------------------------------------------------------------------------
1. Brazos River Main Stem Subunit.............  State.....................................             327 (203)
2. Salt Fork of the Brazos River Subunit......  State.....................................             275 (171)
3. White River Subunit........................  State.....................................               40 (25)
4. Double Mountain Fork of the Brazos River     State.....................................             240 (149)
 Subunit.
5. North Fork Double Mountain Fork of the       State.....................................              109 (68)
 Brazos River Subunit.
6. South Fork Double Mountain Fork of the       State.....................................                11 (7)
 Brazos River Subunit.
                                                                                           ---------------------
    Total.....................................  ..........................................           1,002 (623)
----------------------------------------------------------------------------------------------------------------
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 9 m (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 subunits included in the 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 rule. To 
the best of our knowledge, all adjacent riparian areas are privately 
owned.

Unit Description

    We determined the unit of the upper Brazos River basin and its 
subunits are occupied by both species at the time of listing (Service 
2014, 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

[[Page 45257]]

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 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 river 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 mi) 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 2014, 
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 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 2014, 
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. 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

[[Page 45258]]

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 2014, 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 2014, 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 researchers have 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 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 which 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, 434 (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 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

[[Page 45259]]

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 and 
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 and 
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 and 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 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 a nonnative 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

    Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) 
provides that: ``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 [INRMP] 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 critical habitat designation.

Consideration of Impacts Under 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

[[Page 45260]]

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 she determines that the 
benefits of such exclusion outweigh the benefits of specifying such 
area as part of the critical habitat, unless she 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 factors to use and how much weight to give to any 
factor.

Consideration of 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 prepared an incremental effects 
memorandum (IEM) and screening analysis, which, together with our 
narrative and interpretation of effects, we consider our draft economic 
analysis of the proposed critical habitat designation and related 
factors (IEc 2014a, entire). The analysis, dated January 23, 2014, was 
made available for public review from March 4, 2014, through April 3, 
2014 (79 FR 12138). Following the close of the comment period, we 
reviewed and evaluated all information submitted during the comment 
period that may pertain to our consideration of the probable 
incremental economic impacts of this critical habitat designation. 
Additional information relevant to the probable incremental economic 
impacts of critical habitat designation for the sharpnose shiner and 
smalleye shiner is summarized below and available in the screening 
analysis for the sharpnose shiner and smalleye shiner (IEc 2014b, 
entire), available at http://www.regulations.gov.
    Review of the Service's incremental effects memorandum and 
discussion within the Service identified the following economic 
activities that may affect the shiners and their habitat: (1) Water 
management, including flood control and drought protection operations; 
(2) in-stream projects; (3) transportation activities, including bridge 
construction; (4) oil and natural gas exploration and development; and 
(5) utilities projects, including water and sewer lines. The sharpnose 
shiner and smalleye shiner were not previously listed under the Act; 
therefore, no previous consultation history exists for these shiner 
species. The final economic analysis looks retrospectively at costs 
that may have been incurred since 2007 based on the incidence of 
technical assistances that have historically occurred in or near 
designated critical habitat since that time. As explained in our IEM, 
we believe 2007 presents an accurate starting point to assess the 
trends of section 7 consultation history in the area to be designated 
as critical habitat.
    The economic cost of implementing the rule through section 7 of the 
Act will most likely be limited to additional administrative effort to 
consider adverse modification during consultation because: (1) Project 
modifications requested to avoid adverse modification are likely to be 
the same as those needed to avoid jeopardy in occupied habitat, and (2) 
all critical habitat subunits are considered occupied; thus, the 
presence of the shiners, when the listing is finalized, provides 
significant baseline protection. The additional administrative cost of 
addressing adverse modification during the section 7 consultation 
process ranges from approximately $410 to $5,000 per consultation, 
depending upon the type of consultation. Based on a review of the 
technical assistance history for the shiners, no more than 2 formal 
consultations, 28 informal consultations, and 16 technical assistances 
are expected annually. Thus, the incremental administrative burden 
resulting from critical habitat designation is expected to be less than 
$84,000 per year (in 2013 dollars). Because we use high-end estimates 
of consultations and technical assistances, this estimate is more 
likely to overstate than understate actual incremental costs.
    Due to data availability limitations, we are unable to assign costs 
to specific subunits. Rather, we provide estimates of potential costs 
across the entire proposed critical habitat designation. We note that, 
of the 11 counties where critical habitat is located, Young County 
contains more than one-third of the overall human population. Thus, the 
amount of economic activity generated in this area may be larger than 
in the more remote counties. In addition, the U.S. Army Corps of 
Engineers and the City of Lubbock, TX, identified specific dam and 
reservoir projects that may affect surface flows in Subunit 1 (the 
Cedar Ridge Reservoir) and Subunit 6 (diversions from Lake Alan Henry 
Reservoir for the City of Lubbock's municipal needs).
    In some cases, designation of critical habitat may provide new 
information to project proponents who otherwise would not have 
consulted with the Service, thus resulting in incremental economic 
impacts. We cannot predict where or when these situations may occur, 
but anticipate that consultations of this nature will be infrequent. 
The designation of critical habitat is not expected to trigger 
additional requirements under State or local regulations, nor is the 
designation expected to have perceptional effects on markets. 
Additional section 7 efforts to conserve the species are not predicted 
to result from the designation of critical habitat. Thus, it is 
unlikely that the critical habitat designation will result in cost 
exceeding $100 million in a given year.

Exclusions Based on Economic Impacts

    Our economic analysis did not identify any disproportionate costs 
that are likely to result from the designation. There is no evidence 
that the potential economic benefits of exclusion outweigh the benefits 
of inclusion as critical habitat. Consequently, the Secretary is not 
exercising her discretion to exclude any areas from this designation of 
critical habitat for the sharpnose shiner and smalleye shiner based on 
economic impacts.
    A copy of the IEM and screening analysis with supporting documents 
may be obtained by contacting the Arlington, Texas, Ecological Services 
Field Office (see ADDRESSES) or by downloading from the Internet at 
http://www.regulations.gov or http://www.fws.gov/southwest/es/ArlingtonTexas.

Exclusions Based on National Security Impacts

    Under section 4(b)(2) of the Act, we consider whether a national or 
homeland security impact might exist on potential critical habitat. In 
preparing this final rule, we have determined that no lands within the 
designation of critical habitat for the sharpnose shiner or smalleye 
shiner are owned or managed by the Department of Defense or Department 
of Homeland Security, and, therefore, we anticipate no impact on 
national or homeland security. Consequently, the Secretary is not 
exercising her discretion to exclude any areas from this final 
designation based on impacts on national or homeland security.

Exclusions Based on Other Relevant Impacts

    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts resulting from the designation of critical habitat. We consider 
a number of factors, including whether the landowners have developed 
any HCPs or other management plans for the area,

[[Page 45261]]

or whether there are conservation partnerships that would be encouraged 
by designation of, or exclusion from, critical habitat. In addition, we 
look at any tribal issues 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.
    In preparing this final rule, we have determined that there are 
currently no permitted HCPs or other approved management plans for the 
sharpnose shiner or smalleye shiner, and the final designation does not 
include any tribal lands or trust resources. We anticipate no impact on 
tribal lands, partnerships, or HCPs from this critical habitat 
designation. Accordingly, the Secretary is not exercising her 
discretion to exclude any areas from this final 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) will review all significant rules. The Office 
of Information and Regulatory Affairs has determined that this rule is 
not significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this rule in a manner consistent 
with these requirements.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (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 is required 
to publish a notice of rulemaking for any proposed or final rule, it 
must prepare and make available for public comment a regulatory 
flexibility analysis that describes the 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 an 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.
    In this final rule, we are certifying that the critical habitat 
designation for the sharpnose shiner and smalleye shiner will not have 
a significant economic impact on a substantial number of small 
entities. The following discussion explains our rationale.
    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 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 agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts on these small entities are significant, we consider the types 
of activities that might trigger regulatory impacts under this rule, as 
well as the 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.
    The Service's current understanding of the requirements under the 
RFA, as amended, and following recent court decisions, is that Federal 
agencies are required to evaluate the potential incremental impacts of 
rulemaking only on those entities directly regulated by the rulemaking 
itself and, therefore, not required to evaluate the potential impacts 
to indirectly regulated 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 destroy or adversely modify critical habitat. 
Therefore, under section 7 only Federal action agencies are directly 
subject to the specific regulatory requirement (avoiding destruction 
and adverse modification) imposed by critical habitat designation. 
Consequently, it is our position that only Federal action agencies will 
be directly regulated by this designation. There is no requirement 
under RFA to evaluate the potential impacts to entities not directly 
regulated. Moreover, Federal agencies are not small entities. 
Therefore, because no small entities are directly regulated by this 
rulemaking, the Service certifies that, if promulgated, the final 
critical habitat designation will not have a significant economic 
impact on a substantial number of small entities.
    During the development of this final rule we reviewed and evaluated 
all information submitted during the comment period that may pertain to 
our consideration of the probable incremental economic impacts of this 
critical habitat designation. Based on this information, we affirm our 
certification that this final critical habitat designation will not 
have a significant economic impact on a substantial number of small 
entities, and a regulatory flexibility analysis is not required.

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. OMB has provided guidance for implementing this 
Executive Order that outlines nine outcomes that may constitute ``a 
significant adverse effect'' when compared to not taking the regulatory 
action under consideration.
    The economic analysis finds that none of these criteria are 
relevant to this analysis. Thus, based on information in the economic 
analysis, energy-related

[[Page 45262]]

impacts associated with sharpnose shiner and smalleye shiner 
conservation activities within critical habitat are not expected. As 
such, the designation of critical habitat is not expected to 
significantly affect energy supplies, distribution, or use. Therefore, 
this action is not a significant energy action, and no Statement of 
Energy Effects is required.

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 will 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 will significantly or uniquely 
affect small governments because the lands adjacent to the river 
channel designated as critical habitat 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.

Takings--Executive Order 12630

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
designating critical habitat for the sharpnose shiner and smalleye 
shiner in a takings implications assessment. Based on the best 
available information, the takings implications assessment concludes 
that this designation of critical habitat for the sharpnose shiner and 
smalleye shiner does not pose significant takings implications.

Federalism--Executive Order 13132

    In accordance with E.O. 13132 (Federalism), this rule does not have 
significant Federalism effects. A Federalism assessment 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 in Texas. We received comments from 
the Texas Department of Transportation and the Texas Comptroller of 
Public Accounts and have addressed them in the Summary of Comments and 
Recommendations section of the rule. From a federalism perspective, the 
designation of critical habitat directly affects only the 
responsibilities of Federal agencies. The Act imposes no other duties 
with respect to critical habitat, either for States and local 
governments, or for anyone else. As a result, the rule does not have 
substantial direct effects either on the States, or on the relationship 
between the Federal Government and the States, or on the distribution 
of powers and responsibilities among the various levels of government. 
The designation may have some benefit to these governments because the 
areas that contain the features essential to the conservation of the 
species are more clearly defined, and the physical and biological 
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 
these local governments in long-range planning (because these local 
governments no longer have to 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 applicable 
standards set forth in sections 3(a) and 3(b)(2) of the Order. We are 
designating critical habitat in accordance with the provisions of the 
Act. To assist the public in understanding the habitat needs of the 
species, the rule identifies the elements of physical or biological 
features essential to the conservation of the sharpnose shiner and 
smalleye shiner. The designated areas of 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

[[Page 45263]]

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.

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 the National Environmental Policy 
Act (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 that there are no tribal 
lands occupied by the sharpnose shiner or smalleye shiner at the time 
of listing that contain the physical or biological features essential 
to conservation of the species, and no tribal lands unoccupied by the 
sharpnose shiner or smalleye shiner that are essential for the 
conservation of the species. Therefore, we are not designating critical 
habitat for the sharpnose shiner or smalleye shiner on tribal lands.

References Cited

    A complete list of all references cited is available on the 
Internet at http://www.regulations.gov and upon request from the 
Arlington, Texas, Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).

Authors

    The primary authors of this rulemaking 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.

Regulation Promulgation

    Accordingly, we amend part 17, subchapter B of chapter I, title 50 
of the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 1531-1544; 4201-4245; unless 
otherwise noted.


0
2. In Sec.  17.95, amend paragraph (e) by adding entries for 
``Sharpnose Shiner (Notropis oxyrhynchus)'' and ``Smalleye Shiner 
(Notropis buccula)'' in alphabetical order after the entry for ``Pecos 
Bluntnose Shiner (Notropis simus pecosensis)'' 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 [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 
September 3, 2014.
    (5) Critical habitat map units. Data layers defining map units were 
created using the U.S. Geological Survey National Hydrography Dataset's 
flowline data in ArcMap (Environmental Systems Research Institute, 
Inc.), a computer geographic information system program. The 30-meter 
(98-feet) 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 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

[[Page 45264]]

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] TR04AU14.000


[[Page 45265]]


    (7) Subunit 1: Brazos River Main Stem; Baylor, King, Knox, 
Stonewall, Throckmorton, and Young Counties, Texas.
    (i) 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)
    (ii) Note: Map of Subunit 1, Brazos River Main Stem, follows:
    [GRAPHIC] [TIFF OMITTED] TR04AU14.001
    

[[Page 45266]]


    (8) Subunit 2: Salt Fork of the Brazos River; Garza, Kent, and 
Stonewall Counties, Texas.
    (i) 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).
    (ii) Note: Map of Subunit 2, Salt Fork of the Brazos River, 
follows:
[GRAPHIC] [TIFF OMITTED] TR04AU14.002


[[Page 45267]]


    (9) Subunit 3: White River; Crosby, Garza, and Kent Counties, 
Texas.
    (i) 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).
    (ii) Note: Map of Subunit 3, White River, follows:
    [GRAPHIC] [TIFF OMITTED] TR04AU14.003
    

[[Page 45268]]


    (10) Subunit 4: Double Mountain Fork of the Brazos River; Fisher, 
Haskell, Kent, and Stonewall Counties, Texas.
    (i) 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).
    (ii) Note: Map of Subunit 4, Double Mountain Fork of the Brazos 
River, follows:
[GRAPHIC] [TIFF OMITTED] TR04AU14.004


[[Page 45269]]


    (11) Subunit 5: North Fork Double Mountain Fork of the Brazos 
River; Crosby, Garza, and Kent Counties, Texas.
    (i) 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).
    (ii) Note: Map of Subunit 5, North Fork Double Mountain Fork of the 
Brazos River, follows:
[GRAPHIC] [TIFF OMITTED] TR04AU14.005


[[Page 45270]]


    (12) Subunit 6: South Fork Double Mountain Fork of the Brazos 
River; Garza and Kent Counties, Texas.
    (i) 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).
    (ii) Note: Map of Subunit 6, South Fork Double Mountain Fork of the 
Brazos River, follows:
[GRAPHIC] [TIFF OMITTED] TR04AU14.006

BILLING CODE 4310-55-C

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:

[[Page 45271]]

    (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
    (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: 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 21, 2014.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2014-17694 Filed 8-1-14; 8:45 am]
BILLING CODE 4310-55-P