56596 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations

Species Historic range Status When listed Critical Special Scientific name Common name habitat rules

FLOWERING PLANTS

******* Astragalus desereticus ...... Deseret milk-vetch ...... U.S.A. (UT) ...... T 668 NA NA

*******

Dated: September 30, 1999. actions already accomplished under this The species has a narrow head with Jamie Rappaport Clark, Agreement, have reduced the prominent dark markings on scale Director, Fish and Wildlife Service. imminence of the threats to the species pockets above the lateral line that [FR Doc. 99–27187 Filed 10–19–99; 8:45 am] sufficiently to justify a threatened produce a cross-hatched appearance BILLING CODE 4310±55±P designation. This action will implement when viewed from the top (Hubbs and Federal protection provided by the Act Brown 1956). for the Devils River minnow. We Little information is available on life DEPARTMENT OF THE INTERIOR determine that designation of critical history characteristics, feeding patterns, habitat for the Devils River minnow is or reproductive behaviors of this Fish and Wildlife Service not prudent. species. However, based on their EFFECTIVE DATES: The effective date of extended intestinal tract, species of the 50 CFR Part 17 this rule is November 19, 1999. genus Dionda are considered to feed RIN 1018±AE 86 ADDRESSES: The complete file for this primarily on algae. Since Dionda rule is available for inspection, by episcopa, a closely related species, are Endangered and Threatened Wildlife appointment, during normal business broadcast spawners with nonadhesive and Plants; Final Rule To List the hours at the Austin Ecological Services eggs that sink to the substrate (Johnston Devils River Minnow as Threatened Field Office, 10711 Burnet Road, Suite and Page 1992), we believe Devils River AGENCY: Fish and Wildlife Service, 200, Austin, Texas, 78758. minnows are as well. Interior. FOR FURTHER INFORMATION CONTACT: General habitat associations for Devils River minnow have been described as ACTION: Final rule. Nathan Allan, Fish and Wildlife Biologist, at the above address, channels of fast-flowing, spring-fed SUMMARY: We, the U.S. Fish and telephone 512/490–0057, or facsimile waters over gravel substrates (Harrell Wildlife Service, determine the Devils 512/490–0974. 1978). Although the species is closely River minnow (Dionda diaboli) to be a SUPPLEMENTARY INFORMATION: associated with spring systems, it most threatened species under the authority often occurs where spring flow enters a of the Endangered Species Act of 1973, Background stream, rather than in the spring outflow as amended (Act). The Devils River The Devils River minnow (Dionda itself (Hubbs and Garrett 1990). The minnow is a small fish with a known diaboli Hubbs and Brown) is classified species is adapted to the hydrologic distribution limited to three locations in in the Cyprinidae (minnow) family. It variations inherent in desert river Val Verde and Kinney counties, Texas, was first collected from Las Moras systems (Harrell 1978), which are and one drainage in Coahuila, Mexico. Creek, near Brackettville, Texas, on characterized by extended droughts and The species’ range is significantly April 14, 1951. The species was extreme flash floods (USGS 1989). reduced and fragmented due to habitat described by Hubbs and Brown (1956) The Devils River minnow is part of a loss from dam construction, spring from specimens collected in the Devils unique fish fauna in west Texas streams dewatering, and other stream River at Baker’s Crossing (southern-most where a mixture of fishes occur, modifications. The numbers of Devils bridge crossing of State Highway 163) in including Mexican peripherals, local River minnows collected during fish 1951. The species occurs with similar endemics, and widespread North surveys over the past 25 years have minnows, such as the closely related American fishes (Hubbs 1957). About declined; once one of the most abundant manantial roundnose minnow (Dionda half of the native fishes of the fish in the Devils River, the minnow has argentosa) and is also related to the Chihuahuan Desert of Mexico and Texas now become one of the least abundant. more common roundnose minnow are considered by Hubbs as threatened The species’ decline in abundance in (Dionda episcopa). Devils River minnow (1990) and at least four species have the Devils River may be attributed to the is recognized as a distinct species by the been documented to be extinct (Miller et effects of both habitat modification and American Fisheries Society (Robins et al. 1989), primarily due to habitat possibly predation by smallmouth bass al. 1991) based on morphological destruction and introduced species. (Micropterus dolomieu), an introduced characteristics (Hubbs and Brown 1956), The Devils River minnow is native to game fish. genetic markers (Mayden et al. 1992), tributary streams of the Rio Grande in We originally proposed to list the and chromosome differences (Gold et al. Val Verde and Kinney counties, Texas, Devils River minnow as endangered. 1992). and Coahuila, Mexico. The known However, since publication of the The Devils River minnow is a small historical range of the species is based proposed rule, a Conservation fish, with adults reaching sizes of 25–53 on collections from the 1950’s and Agreement (Agreement) for the species millimeters (mm) (1.0–2.1 inches (in.)) 1970’s and includes the Devils River has been signed and specific milestones standard length. The fish has a wedge- from Beaver Lake downstream to near for conservation actions have been shaped caudal (near the tail) spot and its confluence with the Rio Grande; San agreed to by us, the Texas Parks and pronounced lateral stripe with double Felipe Creek from the springs in the Wildlife Department (TPWD), and the dashes extending through the eye to the headwaters to springs in Del Rio; City of Del Rio. We determine that the snout but not reaching the lower lip. Sycamore Creek; Las Moras Creek near

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Brackettville; Rio San Carlos, Mexico; that sustains spring flows within the conservation actions as described in the and the Rio Salado Drainage, Mexico range of the Devils River minnow is the Strategy and the effects of that (Brown 1955; Hubbs and Brown 1956; Edwards-Trinity (Plateau) Aquifer. This implementation on removing threats to Robinson 1959; Harrell 1978; Smith and major aquifer produces the largest the species when making the final Miller 1986; Garrett et al., 1992). number of springs in Texas (Brune listing determination for the Devils Despite numerous collection efforts, the 1975). The contributing and recharge River minnow. Following is a species has never been reported from area for springs on the Devils River and discussion of the conservation actions the mainstem Rio Grande, the Rio San Felipe Creek is suspected to include and implementation that have occurred Conchos drainage, or tributary streams a large area as far north as Sheffield in to date. other than those listed above. The range Pecos County and Eldorado in The ten conservation actions that are of the species prior to 1951 is unknown. Schleicher County, although the included in the Strategy and their A comprehensive assessment of the subsurface hydrogeomorphology implementation status are: distribution of Devils River minnow in (underground water characteristics) of (1) Determine the current status of the Texas was described by Garrett et al. the region is not well-defined (Brune Devils River minnow and monitor (1992). This study documented the 1981). The flow from springs fluctuates changes. This action was initiated in presence of the species in 1989 at two considerably, depending on the amount November 1997, (prior to signing the sites on the Devils River (Baker’s of rainfall, recharge, and water in Agreement) with sampling in the Crossing and Dolan Springs), two sites storage in the aquifer. Conservation of mainstem Devils River and San Felipe on San Felipe Creek, and one site on the quality and quantity of this Creek in Del Rio and continued with Sycamore Creek. None were collected in groundwater supply is essential for the collections from Philips Creek and samples from Las Moras Creek. continued existence of the Devils River Dolan Creek in May, 1998. Garrett et al. (1992) found that Devils minnow. (2) Maintain genetically River minnow was very rare throughout Areas where the Devils River minnow representative, captive populations of its range in 1989 compared to past occurs are mostly in private ownership. Devils River minnow at two fish collections. At 24 sampling locations Exceptions include the Devils River hatchery facilities for reintroduction, within the historical range, a total of State Natural Area located north of and as insurance against extinction. only 7 individuals were collected from Dolan Falls and managed by the TPWD This action has been initiated by the 5 sites. In addition to declines in the (Baxter 1993), and land adjoining TPWD by holding a small number of Devils River minnow populations, portions of San Felipe Creek owned by individuals of Devils River minnow at a Garrett et al. (1992) also observed a the City of Del Rio (population of about hatchery since November 1997. Those general shift in community structure 38,000). One important private holding individuals produced an unassisted toward fishes that tend to occupy quiet is the Dolan Falls Preserve, in the reproductive effort in March 1999, in an water or pool habitat, conditions that middle portion of the Devils River, artificial stream, indicating that captive are often limited in flowing spring runs. owned by The Nature Conservancy propagation is likely readily The authors hypothesized that this shift (Baxter 1993). Primary land uses within accomplished. We agreed to assist in was the result of reduced stream flows the watersheds supporting Devils River this action by providing an additional from drought, exacerbated by human minnow are cattle, sheep, and goat location to develop captive propagation modification of stream habitats, ranching. Generally, these areas are very techniques for the species. We have especially in Sycamore and Las Moras remote with little human development secured funding for our San Marcos creeks. beyond that necessary to support National Fish Hatchery and Technology The most recent information from ranching operations. Center to initiate this action in the very collections in 1997 and 1998 confirm The Devils River minnow is currently near future. the existence of Devils River minnow in listed as a threatened species by the (3) Reintroduce Devils River only three locations in Texas—two sites State of Texas, the Texas Organization minnows, reared in captive populations, in small streams tributary to the Devils for Endangered Species (Hubbs et al. in order to reestablish populations in River (Phillips Creek and Dolan Creek) 1991), and the Endangered Species nature. This action has not yet been and one site in San Felipe Creek in Del Committee of the American Fisheries implemented and depends on a number Rio. Society (Williams et al. 1989). The of other actions being completed before We are unaware of any published Devils River minnow is listed as an reintroductions can be initiated. information on the status of the Devils endangered species in Mexico (NOM– (4) Continue and enhance protection River minnow in Mexico. A review of ECOL–059). of the San Felipe Creek watershed. This museum records indicates that the The Agreement for Devils River action by the City of Del Rio to protect species may now occur in only one minnow was signed by the Service, the San Felipe Creek has not yet been locality in Mexico. Populations there TPWD (in cooperation with local implemented. The City has committed appear to be very depressed (S. landowners), and the City of Del Rio on to a concept of conservation of the Contreras-Balderas, University of Nuevo September 2, 1998, to expedite natural environment in any future Leon, in litt. 1997) and face significant conservation measures needed to ensure development plans within the riparian threats from industrial and agricultural the continued existence of the species. zone of the creek (Beth Eby, City development (Contreras and Lozano Preliminary drafts of the Agreement Manager, City of Del Rio, in litt. 1997). 1994). were made available to local This action will be an ongoing effort by The region of Texas where the Devils landowners for comment and a draft the City for protection of this population River minnow occurs is semi-arid, version was also distributed at a public of Devils River minnow. receiving an average of about 46 hearing on the proposal to list the (5) Provide technical assistance to centimeters (cm) (18 in.) of rainfall species. The Agreement includes a landowners on riparian protection and annually. Spring-fed streams of west Conservation Strategy (Strategy) to management. Not yet initiated. Texas flow southerly through rocky, describe the specific procedures (6) Review live bait harvest and limestone soils and shrubby vegetation required for conservation of the Devils selling practices in the Devils River area characteristic of the more arid western River minnow. We carefully considered to develop methods and take reaches of the Hill Country. The aquifer the implementation to date of the appropriate actions (for example,

VerDate 12-OCT-99 13:14 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR2.XXX pfrm03 PsN: 20OCR2 56598 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations regulation, education) to prevent the springs. In addition, implementation of We included the Devils River minnow further establishment of exotic aquatic conservation measures in San Felipe as a category 2 candidate species in species within the historical range of Creek in Del Rio (such as a finalized notices of review published December Devils River minnow. Not yet initiated. policy by the City of Del Rio for 30, 1982 (47 FR 38454), September 18, (7) Document the abundance and preservation of the San Felipe Creek 1985 (50 FR 37958), and January 6, 1989 ranges of exotic fish in the Devils River, watershed, development of a San Felipe (54 FR 554). Category 2 taxa were those and San Felipe, Las Moras, and Creek floodplain restoration plan, that we believed may be eligible for Sycamore creeks. Not yet initiated. completion of a water conservation threatened or endangered status, but for (8) Obtain and analyze changes in plan, and completion of a management which the available biological flow data for the Devils River, and San plan for the golf course) will be information in our possession was Felipe, Las Moras, and Sycamore creeks. completed to reduce threats to the insufficient to support listing the Not yet initiated. species there. species. However, new information (9) With progeny of the captive (6) Improve the status of the Devils obtained in 1989 (and later published as population, use a simulated River minnow in the Devils River. This Garrett et al. 1992) provided a basis for environment to determine ecological will be accomplished by establishing including the Devils River minnow as a and life history requirements of the additional locations of Devils River category 1 candidate in notices of Devils River minnow. The TPWD has minnow, with population sizes at least review published November 21, 1991 initiated this action through the equal to historical levels (such as (56 FR 58804), and November 15, 1994 purchase and construction of the similar to those found by H.L. Harrell in (59 FR 58982). Category 1 taxa were facilities necessary to do experiments on the 1970’s). This will include further those for which we had substantial the ecology of the species. Preliminary threat assessment and addressing biological information on hand to experiments have been initiated. potential limiting factors in this system, support proposing to list the species as (10) Determine predator/prey particularly the effects of smallmouth threatened or endangered. interactions between smallmouth bass bass and changes in stream flows. and the Devils River minnow through As announced in a notice published We concur with many of the public field studies. This action will depend in in the February 28, 1996, Federal comments that supported this part on the completion of a current Register (61 FR 7596), the designation of cooperative approach. This listing does study by Texas A&M University and multiple categories of candidates was not preclude continuation of implementation of laboratory discontinued, and only species for cooperative efforts between parties to experiments discussed in action number which we have sufficient information to the Agreement or continuing efforts to 9, above. support listing are now recognized as In February 1999, we requested implement the Conservation Strategy. candidates. The Devils River minnow confirmation from the TPWD and the As stated in the introduction of the remained a candidate species in notices City of Del Rio of their commitment to Agreement, we believe that full of review published February 28, 1996 implementation of the Agreement, and implementation of the Strategy may (61 FR 7596), and September 19, 1997 clarified some specific milestones for ultimately reduce the threats to the (62 FR 49398). accomplishing the goals of the Devils River minnow and allow a future review of the species’ status. This could On March 27, 1998, we published a Agreement. The TPWD and the City proposed rule to list the Devils River concurred in writing to implement key result in a future delisting if threats are removed and the status of the species minnow as endangered and invited components of the Agreement within public comment (63 FR 14885). On May the next 2 years. The milestones agreed significantly improves such that recovery has occurred. 14, 1998, we published a notice of to by the three parties include: public hearing on the proposal (63 FR (1) Have healthy, genetically Previous Federal Action 26764), and a public hearing was representative captive stocks of Devils On August 15, 1978, we published a subsequently held in Del Rio, Texas, on River minnow in at least two facilities. May 28, 1998. On October 13, 1998, we Each facility should maintain two proposed rule (43 FR 36117) to list the Devils River minnow as a threatened published a notice reopening the separate stocks, one from the Devils comment period on the proposed rule River and one from San Felipe Creek. species and to designate its critical habitat. On March 6, 1979, we for an additional 30 days and (2) Conduct the first annual announcing the availability of new population monitoring for the Devils published a notice (44 FR 12382) to withdraw the critical habitat portion of information and the Conservation River minnow throughout its historical Agreement (63 FR 54660). range in the U.S. the proposal to meet the new critical (3) Conduct the first annual habitat requirements set forth in the The processing of this final rule monitoring for the Devils River minnow Endangered Species Act Amendments conforms with our current listing throughout its historical range and of 1978 (Public Law 95–632, 92 Stat. priority guidance published in the potential habitats in Mexico. 3751). We reproposed the designation of Federal Register on May 8, 1998 (63 FR (4) Conduct the second annual critical habitat for the Devils River 25503). The guidance calls for giving population monitoring for the Devils minnow on May 16, 1980 (45 FR 32348). highest priority to handling emergency River minnow throughout its historical A notice of public hearing was situations (Tier 1) and second highest range in the U.S. published on July 9, 1980 (45 FR priority to resolving the listing status of (5) Improve the status of the Devils 46141), and the public hearing was held outstanding proposed listings, resolving River minnow in San Felipe Creek at on July 23, 1980, in Del Rio, Texas. The the conservation status of candidate Del Rio and restore Devils River 1978 amendments to the Act also species, processing petitions, and minnow populations in the headwater required that all proposals over two delisting or reclassifications (Tier 2). springs area. This will be indicated by years old be withdrawn. We withdrew The guidance assigns the lowest priority maintaining stable population sizes of the listing and critical habitat proposals (Tier 3) to processing proposed or final Devils River minnow at Del Rio and on September 30, 1980 (45 FR 64853), designations of critical habitat. restoring population sizes at least equal because the 2-year time limit on the Processing of this final rule is a Tier 2 to those historically in the headwater proposed listing had expired. action.

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Summary of Comments and Conservation Agreement. The comments Agreement will be useful in facilitating Recommendations and our responses are as follows: and expediting the recovery of the Comment 1: There is a need for more Devils River minnow. In the March 27, 1998, proposed rule information on the Devils River minnow Comment 3: Some commenters (63 FR 14885), the May 14, 1998, public before a decision is made. The requested the listing decision be hearing notice (63 FR 26764), and the distribution and abundance of the fish delayed to allow the Conservation October 13, 1998, notice reopening the is likely larger than reported in the Agreement time to be implemented. comment period (63 FR 54660), we proposal, both in the U.S. and Mexico. Service Response: We are required by requested all interested parties to Service Response: We agree that more section 4 of the Act to publish a final submit factual reports or information can be learned about the Devils River decision within one year of a proposed that might contribute to the minnow and its conservation with rule. We took into account those actions development of a final rule. The original additional research. The Conservation of the Conservation Agreement that public comment period extended 120 Agreement has additional research and have been implemented to date and the days from the date of the proposal and monitoring as key components for benefits expected from actions that will closed on July 27, 1998. The comment benefitting the species (see the be implemented in the near future. We period was reopened for an additional ‘‘Background’’ section of this final rule). determined that, within the statutory 30 days on October 13, 1998, and closed However, we must base the listing time frames mandated by the Act, listing on November 12, 1998. The second decision on the best information the Devils River minnow as threatened comment period was reopened to accept available at this time. With the current at this time is the best course of action. comments on the proposal after the data, we conclude that the fish has Comment 4: Several commenters original comment period closed. declined over a significant portion of its stated a strong desire to not incur Updated information on the distribution range. Therefore, based on the best additional Federal regulations over land and abundance of the species was available information, threatened status and water use that would limit private provided by the TPWD (G. Graham, for the Devils River minnow is property rights. TPWD, in litt. 1998). In addition, a warranted. Service Response: We do not foresee Conservation Agreement for the Devils Comment 2: Numerous commenters substantial impacts on private property River minnow among us, the TPWD, requested that we accept the rights through the Devils River minnow. and the City of Del Rio was signed on Conservation Agreement among the Fish In the ‘‘Available Conservation September 2, 1998. and Wildlife Service, TPWD, and the Measures’’ section of this final rule, we We contacted numerous Federal and City of Del Rio in lieu of listing the have outlined some private activities State agencies, county and municipal minnow. Many believed this is a better that likely will and likely will not result governments, scientific organizations, approach to management of the Devils in take of the species under the and private individuals to request River minnow. prohibitions of section 9 of the Act. We comments on the proposal. Newspaper Service Response: We agree that are interested in working with notices inviting public comment and cooperative, voluntary efforts to landowners to develop cooperative announcing the public hearing were conserve this species that remove or solutions to species conservation that published between May 3 and May 12, reduce threats that preclude the need to avoid or minimize the need for list would be preferable to Federal 1998, in the Sanderson Times, Del Rio regulatory burdens on landowners. listing. However, full implementation of News Herald, Odessa American, San Comment 5: Local and state the conservation strategy activities that Angelo Standard Times, Midland governmental agencies could manage the agreement calls for has not occurred. Reporter-Telegram, Devils River News, the Devils River minnow better than the We signed the Conservation Agreement and the Ozona Stockman. Federal government. so that conservation efforts could be Service Response: Listing the species The public hearing was held in Del quickly put in place to reduce the risks by the Federal government does not Rio on May 28, 1998. About 50 people to the species’ survival. We have preclude State and local management of attended, and 18 made oral statements. considered the extent to which the the species. On the contrary, we We also received 13 written comments conservation actions outlined in the encourage State and local involvement from the public and agency officials Conservation Agreement have been in recovery of endangered species. We during both comment periods. Four of implemented and are likely to reduce believe that local actions are crucial to the oral comments at the public hearing threats to the species, particularly in the long-term conservation of this species. were the same or similar to written near-term, in making this listing We believe a cooperative approach by comments submitted by the same determination. We strongly support the all parties will provide an even greater parties. One person submitted two efforts of State and local agencies taking benefit to the species, and we offer any comment letters. Therefore, comments active roles in the conservation of the support where possible and needed. were received from 26 separate Devils River minnow, and we believe Comment 6: No significant commenters on the proposal. the Agreement and actions outlined in groundwater pumping has occurred in The following summary addresses the it have the potential to benefit the the watershed since the 1960’s. written and oral comments received. species. The actions already Service Response: We took this These comments comprise a range of accomplished in the Conservation comment into consideration in this final issues regarding the proposal. Because Agreement, as well as the agreed-upon rule (see discussion in the ‘‘Summary of multiple respondents offered similar schedule for implementing the Factors Affecting the Species’’ section) comments in some cases, those remaining actions, were considered in and have modified the discussion of this comments were combined. Of those the decision to list as threatened. We topic. Because of the lack of information commenters stating a position, 11 believe that the conservation agreement on groundwater withdrawals, we do not clearly indicated opposition to the is an important conservation tool. Even have substantial information showing listing and another 8 implied that they though full implementation has not the level of pumping in and around the were opposed. Seven commenters did occurred and we determined that threats Devils River watershed. This prevents not clearly state a position. Ten to the species still exist such that listing any correlation of streamflow with commenters expressed support for the is still warranted, the Conservation groundwater withdrawals. However,

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Harrell collected Devils River minnow to historical Comment 7: There have not been any Devils River minnow in Beaver Lake. locations because some habitat changes changes in stream flows in the Devils Voucher specimens are deposited in the are not reversible. We do believe the River, and no data exist that suggest Strecker Museum, Baylor University. Devils River minnow can be protected otherwise. In addition, there has never The 1973 sample contains 14 specimens from extinction through conservation of been permanent stream flow in the and the 1974 sample contains 13 the remaining ecosystems upon which reach from Beaver Lake to Pecan specimens of Devils River minnow. the species depends. The past habitat Springs. Comment 10: The actual abundance of destruction only serves to heighten the Service Response: The information Devils River minnow is higher than need for protection and enhancement of used in evaluating historical stream reported in the proposed rule. The suitable habitats remaining for the flow on the Devils River is from gage recent collections of Devils River Devils River minnow. records collected by the International minnow from Phillips Creek and Dolan Comment 13: The Natural Resources Boundary and Water Commission at the Creek show they are plentiful. Conservation Service (NRCS) requested Service Response: The new gage near Del Rio (1900–1957), the gage we remove their agency from the list of information on the presence of the at Pafford Crossing (1960–1997), and the Federal agencies that may have actions Devils River minnow in Phillips and gage near Juno (1925–1973). We did not that require consultation under section Dolan creeks is included in this final locate any specific studies or analysis of 7 of the Act. The NRCS indicated that rule. The number of fish in Phillips hydrology on the Devils River. none of their programs adversely Creek taken in May 1998, indicated a We reevaluated all existing and new affected the minnow, but served to good population at this site at the time benefit the minnow by improving information concerning the presence of the collections were made. The permanent flow between Pecan Springs habitat. collections at Dolan Creek are important Service Response: We support the and Beaver Lake on the Devils River. because the only other collection of the NRCS in assisting landowners with The ‘‘Summary of Factors Affecting the species from this site was one specimen ranching practices that may benefit Species’’ section of this rule reflects the in 1989 (Garrett et al. 1992). The two Devils River minnow habitat. However, available information. One task locations in the Devils River drainage we left the NRCS as a potential agency included in the Conservation Agreement are less than 20 river-km (13 river-mi) for consultations because the Act is an analysis of the hydrology of the apart and are not sufficient to alleviate mandates that any Federal action that Devils River and other streams the concern for the status of the species may affect a listed species, even if that supporting Devils River minnow to in the Devils River or other portions of effect is beneficial, requires consultation determine if stream flows have declined its range. The most recent information with us under section 7 of the Act. We over time. can only confirm three locations of the included language in this final rule (see Comment 8: No changes in grazing species throughout its historical range Available Conservation Measures, practices have occurred in recent times. in the U.S. (these two in the Devils below) to explain the requirements of Instead, the land is actually in better River and one at Del Rio in San Felipe Federal agencies under section 7(a)(1) of condition today than in previous times Creek). Although population numbers the Act. and the only changes have been an are important, the determination to list Comment 14: The proposed rule does increase in the amount of cedar and a species is based on the five factors not indicate the Devils River minnow is mesquite. outlined in section 4 of the Act and bred or hunted for commercial Service Response: We took this summarized in this final rule under the purposes, or that it moves in interstate comment into consideration in this final ‘‘Summary of Factors Affecting the commerce. Therefore, the Service lacks rule (see discussion in the ‘‘Summary of Species’’ section. authority under the Act pursuant to the Factors Affecting the Species’’ section) Comment 11: Devils River minnows Commerce Clause of Article 1, section 8 and have modified the discussion of this are rare in the Devils River because of of the United States Constitution to topic. The proposed rule did not state the introduction of smallmouth bass by regulate the Devils River minnow. that land use practices, such as grazing, TPWD. Service Response: A recent decision were known to be a major threat to the Service Response: We agree that in the United States Court of Appeals Devils River minnow. Instead we cited predation by smallmouth bass could be for the District of Columbia Circuit Brune’s (1981) statement that some land a significant factor in the decline of (National Association of Homebuilders use practices, such as overgrazing, that Devils River minnow in the Devils v. Babbitt, 130 F. 3d 1041, D.C. Cir. result in the loss of native rangeland River. Identification of the significance 1997) makes it clear in its application of grasses on the watershed, could lead to of this threat is one of the actions the test used in the United States increased runoff and decreased included in the Conservation Agreement Supreme Court case, United States v. groundwater recharge. (Conservation Action #8). Lopez, 514 U.S. 549 (1995), that We do not have specific evidence that Comment 12: It is illogical to expect regulation of species limited to one land use practices are a significant the Devils River minnow population in State under the Act is within Congress’ reason for the current decline in the the Devils River to be reestablished to commerce clause power. On June 22, species’ distribution and abundance. 1950-levels under today’s vastly 1998, the Supreme Court declined to However, Brune (1981) stated that if changed circumstances, such as accept an appeal of this case (118 S. Ct. upland areas are poorly managed, one Amistad Dam. 2340 1998). Therefore, our application long-term effect is an increased rate of Service Response: Destruction of the of the Act to Devils River minnow, a rainfall runoff and decreased rates of species’ habitat, such as what resulted fish endemic to only two counties in the recharge to the groundwater. from Amistad Dam, is one of the five State of Texas, is constitutional. We

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Also, the construction of the the constitutionality of the Act itself reviewer pointed out the lack of dam created a physical barrier to fish that were discussed in National intensive surveys to determine the exact movement that permanently separated Association of Homebuilders v. Babbitt, status of the species as a weakness in the Devils River population of the the past, current, and potentially future the available information. However, we species from others, such as the use of Devils River minnow habitat for believe that sufficient surveys have been population in San Felipe Creek. agriculture and livestock production, conducted to demonstrate a significant Habitat for the species may be affected residential development and roads and range reduction for the Devils River by inconsistent spring flows in the highways are activities that affect minnow. upstream portion of the Devils River, interstate commerce. The specimens of especially between Pecan Springs and this species in museums around the Summary of Factors Affecting the Species Beaver Lake (about 26 km, 16 mi). The country directly traveled via the only discharge records in this portion of channels of interstate commerce, as well After a thorough review and the river are from a gage near Juno, as the scientists and others who have consideration of all information located downstream of Pecan Springs traveled interstate to study or observe available, we determine that the Devils (International Boundary and Water the species. Finally, international River minnow should be classified as a Commission, unpublished data, in litt., commerce between the U.S. and threatened species. Procedures found at 1997) that was discontinued in 1973 Mexico, where the species also occurs, section 4(a)(1) of the Act (16 U.S.C. 1531 and has no records from 1949 to 1963. may impact Devils River minnow et seq.) and regulations implementing The available data from this gage show habitat and is also under the authority the listing provisions of the Act (50 CFR an average base flow (based on the of Federal regulation. part 424) were followed. A species may monthly median discharge) in the range Comment 15: The Service is be determined to be an endangered or of about 1,982 to 2,832 liters per second intentionally making untrue, threatened species due to one or more (lps) (70 to 100 cubic feet per second nonscientific statements to serve a of the five factors described in section (cfs)) from 1925 to 1949 and a range of political agenda to list the Devils River 4(a)(1). These factors and their about 991 to 1982 lps (35 to 70 cfs) from minnow. application to the Devils River minnow 1963 to 1973. Service Response: In both the (Dionda diaboli) are as follows: proposed rule and this final rule we We based our assessment of the conducted an objective evaluation of the A. The Present or Threatened uppermost portion of the river on scientific evidence available to reach a Destruction, Modification, or published observational data. One of the decision on whether the Devils River Curtailment of its Habitat or Range earliest descriptions of the Devils River is from Taylor (1904) who stated the minnow warrants listing under the Act. Devils River Where additional information was river ‘‘rises’’ at Pecan Springs. It is submitted to us, we have considered The Devils River is the largest unclear from this account whether there that new information as well. The segment of the historical documented was any flow upstream of this spring information upon which this decision is range of the Devils River minnow. The system. However, Brune (1975 and based has been peer reviewed by Devils River from Beaver Lake to its 1981) clearly states that the river once independent experts outside the confluence with the Rio Grande is about flowed from Beaver Lake, as did other Service, as required by our 1994 Peer 127 river-km (79 river-mi) long. At least springs downstream from Beaver Lake Review Policy (see discussion below). one-quarter of the total length of the such as Juno, Headwater, Stein, and San Devils River, from Big Satan Canyon to Pedro springs, but has dried in recent Peer Review the Rio Grande, has been permanently times. Brune (1975 and 1981) supports Service policy (59 FR 34270; July 1, lost as potential habitat due to this by—(1) referencing an observation 1994) requires that we solicit review of inundation behind Amistad Dam. from 1916 that described the Beaver listing actions from a minimum of three One of the most significant losses of Lake area as a beautiful stream; (2) independent experts. We sent copies of Devils River minnow habitat occurred providing flow data from Beaver Lake in the proposed rule, supporting primary in the lower portion of the Devils River 1925 at 45 lps (1.59 cfs) and in 1939 at literature, and other information to five with the impoundment of Amistad 0.38 lps (0.01 cfs); and, (3) recording no independent specialists who have Reservoir in 1968. The river surface flow from these springs in 1971 extensive knowledge in the biology and downstream of Big Satan Canyon is and 1976. ecology of Devils River minnow or other often inundated by Amistad Reservoir Harrell (1978) collected Devils River native fishes. Four of these specialists and the river can be affected farther minnow from the Beaver Lake area in are currently employed at universities upstream when the reservoir level is 1973 and 1974 (specimens in Strecker conducting research on fishes and one high. Backwaters from Amistad Dam Museum, Baylor University). This reviewer is a retired fishery biologist have inundated the natural stream indicates that there was sufficient from a state agency, currently serving as habitats, transforming the area from a surface flow in the area during those Executive Secretary of a scientific river to a lake environment. The area is years to support populations of the fish. society specializing in native fishes of no longer suitable for most native fishes, However, Harrell (1978) states that the southwestern U.S. Four peer including Devils River minnow. during the study period in 1974–75, reviewers responded to our request. Before construction of Amistad Dam, Pecan Springs was the uppermost All four reviewers indicated the two smaller dams (Devils Lake and Wall flowing surface water connected to the proposal was consistent with the Lake) were built in about the 1920’s in river. Harrell (1978) further states that information available in the scientific the lower portion of the stream. the upper portion of the Devils River literature. Three of the reviewers However, Devils River minnows were (Beaver Lake to Baker’s Crossing) has indicated that the proposal to list the collected in 1953 and 1954 in the spring intermittent flow characterized by

VerDate 12-OCT-99 13:14 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR2.XXX pfrm03 PsN: 20OCR2 56602 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations numerous rapids (citing Belisle and naturally and has been referred to as one after the proposed rule from additional Josselet 1975). of the most pristine rivers in Texas. surveys in 1998 found populations of The available information indicates Because of groundwater reservoirs that Devils River minnow in Phillips Creek that the flow of the Devils River support the remaining spring systems, and Dolan Creek (Gary Graham, TPWD, upstream of Pecan Springs is the river maintains a substantial in litt. 1998). Phillips Creek is a very intermittent and is connected to perennial flow in the range of 200 to 400 small intermittent tributary to the Devils downstream surface flows only during cfs at the inflow to Amistad Reservoir River that enters from the east, south of wetter climatic conditions. The Devils (unpublished data, International Baker’s Crossing. No previous River minnow has been documented in Boundary and Water Commission, in collections are recorded from Phillips these areas in the past and, therefore, litt. 1997). Creek. Sampling in May 1998, resulted this reach is considered potential When spring flows become seasonally in the collection of about 142 habitat for the species. This habitat is intermittent, fish populations are unable individuals, or about 10 percent of the likely also naturally intermittent and to use the stream to fulfill their life fishes collected, and was fourth most may not have been continuously history requirements. Declines in base abundant of the eleven species occupied by the fish during recent time. flow of streams also affect fish collected. Despite numerous collection Observations in 1954 and 1955 populations by reducing the total efforts in Dolan Creek, only one suggested a significant increase in available habitat and thereby individual had previously been irrigation farming from groundwater intensifying competitive and predatory collected in this tributary to the Devils wells in the area of Juno and the interactions. For Devils River minnow, River. Sampling in May 1998, resulted headwaters of the Devils River (Dietz decreased stream flows could lead to a in the collection of about 12 1955). The result reported by Dietz population decline due to exclusion individuals. (1955) was the lowering of the from preferred habitats and increased The Conservation Agreement and groundwater to a level causing the mortality from predation. subsequent commitments were designed Devils River to cease flowing for a The eighth action listed in the to monitor and improve populations of number of miles below Baker’s Crossing. Conservation Strategy of the Agreement Devils River minnow in the Devils The upper portion of the Devils River is requires the analysis of past changes in River. By September 2000, we will likely the most susceptible to declines flows throughout the range of the Devils establish more (than the two currently in groundwater levels. River minnow. These studies will known) locations of Devils River Brune (1981) states that agricultural determine the potential effects of flows minnow in the Devils River with land use practices (specifically the on habitat for Devils River minnow. population sizes at least equal to decline of grasses from livestock Using relative abundance as an historical levels (such as that found by grazing) both within and north of the indicator, the Devils River minnow has H.L. Harrell in the 1970’s). Threats will watershed of the Devils River may affect decreased in abundance in the Devils be assessed and potential limiting aquifer levels and account for a lack of River over time. The Devils River factors in this system addressed, permanent flows from the northern- minnow was the fifth most abundant particularly the effects of smallmouth most springs. Brune (1981) explains that species of 18 species collected in 1953 bass and changes in stream flows. the natural layer of organic mulch that at Baker’s Crossing (Brown 1955); the formerly functioned as a topsoil capable sixth most abundant of 23 species in the San Felipe Creek of absorbing rainfall has been lost and river in 1974 (Harrell 1978); and one of San Felipe Creek constitutes the replaced with barer soils that enhance the least abundant of 16 species in 1989 second largest segment of remaining runoff and limit recharge. (Garrett et al. 1992). Recent information habitat for Devils River minnow in Another cumulative factor may be the from Cantu and Winemiller (1997) Texas. Brune (1981) lists San Felipe expansion of Ashe juniper (Juniperus indicates that the species was still Springs (including ten separate spring ashei) and Redberry juniper (Juniperus present in the Devils River at the sources) as one of the four largest pinchotti), both commonly referred to as confluence with Dolan Falls in 1994, springs in Texas. Devils River minnow cedar. These two species have become but only in low numbers (thirteenth previously occurred in two areas on this abundant on the rangeland watersheds most abundant of 27 species). The four stream. The upper area is associated of the Devils River due to a number of collections by Cantu and Winemiller with a series of springs, Head and Lowe natural and human factors (Smiens et al. (1997) were extensive surveys over 1 springs, several miles upstream of the 1997). The overabundance of juniper year at the one site near Dolan Falls. City of Del Rio, and the lower area is has been cited as a factor that could Even with this increased effort, only 28 associated with two large springs in Del affect rangeland hydrology (Thurow and individuals of Devils River minnow, out Rio. Hester 1997). However, definitive data of 4,470 total fish, were documented. No In 1979, Devils River minnow made are not available to show that removal voucher specimens were maintained to up about 2 percent of all collections of juniper will produce increased verify these collections. (total of 3,458 fish), and was the seventh groundwater levels in Texas. Studies of The decline in abundance within the most abundant of 16 species in the juniper removal in other states have not Devils River can best be documented upper portion of San Felipe Creek. In resulted in significant yields to from collections at the site at Baker’s 1989, no Devils River minnow were groundwater or stream flows (Thurow Crossing. Over 60 individuals were collected from this site (Garrett et al. and Hester 1997). collected there in 1953, only one was 1992). No known collections have been Any decline of permanent discharge collected in 1989, and none were made in this area since 1989. This area from springs is a significant threat to collected in 1997. of San Felipe Creek (upstream of Del Devils River minnow in the Devils No Devils River minnow were Rio) is privately owned and no River. This threat can be the result of collected in November 1997, by the information is available to discern why drought and/or human activities that TPWD from several locations on the the populations of Devils River minnow withdraw groundwater or significantly Devils River from Pecan Springs in this area have significantly declined. reduce recharge. The downstream downstream to Finegan Springs, just Garrett et al. (1992) stated that reduced portion of the Devils River below above Dolan Falls (Gary Garrett, TPWD, flow from these springs may have Baker’s Crossing continues to flow in litt. 1997). New information received contributed to the reduction in

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These actions together Del Rio the fish was very rare (less than elevated levels of nitrates, phosphates will provide an opportunity to protect 1 percent of 1,651 fish collected, and the and orthophosphate in San Felipe the existing populations and expand the tenth most abundant of 12 species Creek, indicating potential water quality available habitat for Devils River collected) in 1989 (Garrett et al. 1992). problems. Land uses in the immediate minnow in San Felipe Creek. Data from 1997 suggest that the Devils area of the springs, such as runoff from Sycamore Creek River minnow is common in the San the municipal golf course, may be Felipe Springs and the urban section of contributing to these conditions. Other Sycamore Creek constitutes a the creek (about 50 individuals were threats from catastrophic events such as relatively small portion of the range of collected for captive study) (Gary contaminant spills could adversely the species. There is only one published Garrett, TPWD, in litt. 1997). affect the species. account of Devils River minnow in this The San Felipe Springs are located The stream channel of San Felipe stream from one site, at the State within the City of Del Rio and may be Creek in Del Rio has been modified to Highway 277 crossing near the Rio threatened with future habitat changes a limited extent for bank stabilization Grande River (Garrett et al. 1992). from continued urban development. and public access. In some areas these Harrell (1980) references the species’ Brune (1981) shows data supporting that actions may have limited the available occurrence there from an unpublished the springs have increased their flow habitat for Devils River minnow. collection in the early 1970’s (H. since the filling of Amistad Reservoir. Based on the current abundance of the Harrell, pers. comm. 1997). Garrett et al. The Reservoir is thought to increase Devils River minnow in San Felipe (1992) found only one individual of flows from San Felipe Springs because Creek, it appears that existing practices Devils River minnow at this location. the pool elevation of the reservoir is that could impact the aquatic habitat are Sycamore Creek is an ungaged stream, often higher than that of the spring not yet serious enough to significantly and there is little information available outlet. This situation places hydrostatic reduce the local population. Aquatic on habitat conditions. However, the pressure on San Felipe Springs through habitat conservation measures (such as Devils River minnow in this stream is inundated spring openings within the water use conservation and water evidently very rare and faces increased reservoir (Brune 1981). According to quality protection) in this section of San risk of extirpation because of the Brune (1981), before the reservoir filled, Felipe Creek could help ensure survival apparent small population size. Devils the springs flowed about 2000 lps (about of the species there. River minnow in Sycamore Creek likely 70 cfs). Since the reservoir filled, flows In August 1998, San Felipe Creek face potential threats from drought and at the springs have averaged 135 to 150 experienced a very large flood, with habitat modification (Garrett et al., cfs (unpublished data from International flows estimated at over 100,000 cfs. This 1992). The Conservation Agreement is Boundary and Water Commission, in was the largest estimated peak flow on intended to restore Devils River minnow litt. 1997). Both of these flow averages record (previous high was about 69,500 to Sycamore Creek and/or Las Moras are after withdrawals of water by the cfs). Although the Devils River minnow Creek by September 2000. This effort City of Del Rio for municipal use. is adapted to withstand floods (Harrell will necessitate further assessment of The City of Del Rio draws water 1978), the effects of this event are limiting factors, threat abatement, and directly from San Felipe Springs, which unknown as no collections have been landowner cooperation. are the sole source of the City’s made since the flood. municipal water supply as well as for As part of the Conservation Las Moras Creek Laughlin Air Force Base. During 1995 Agreement, by September 2000, we Las Moras Creek represents the and 1996 the average water use by the agreed to improve the status of the eastern extent of the range of the City varied seasonally from about 8 to Devils River minnow in San Felipe species. Although the populations there 19 million gallons per day (about 12 to Creek by maintaining stable populations may have been restricted to the spring 29 cfs). The expected population growth at Del Rio and restoring Devils River area in Brackettville, the number of fish of Del Rio is projected to be low, 0.5 to minnow in the headwater springs area in historical collections was relatively 1 percent annually (B. Eby, City of Del at levels at least equal to historical large (54 individuals were collected in Rio, pers. comm., 1997). The City is population sizes. In addition, a finalized 1953) (Hubbs and Brown 1956). The currently planning to upgrade their policy by the City of Del Rio for natural spring system in Brackettville water treatment facility and provide a preservation of the San Felipe Creek that supports Las Moras Creek is the maximum of 20 million gallons per day watershed, development of a San Felipe location of the earliest collection of (about 31 cfs) for municipal use (U.S. Creek floodplain restoration plan (as Devils River minnow. The species has Environmental Protection Agency, response to the flood of August 1998), not been collected from these springs Finding of No Significant Impact, in litt. completion of a water conservation since the 1950’s and is believed to be 1998; O.J. Valdez, Malcom Pirnie, Inc., plan, and completion of a management extirpated from that stream, based on pers. comm., 1999). This new treatment plan for the golf course will reduce several sampling efforts in the late plant and associated facilities will threats to the species. 1970’s and 1980’s (Smith and Miller provide some water conservation Other actions that may aid in 1986; Hubbs et al. 1991; Garrett et al. because the existing system of water conserving the Devils River minnow 1992). distribution and storage leaks include reducing per capita water Habitat for the Devils River minnow significantly. With additional water consumption, seeking alternative was lost when the spring was altered by conservation measures in place to sources of water, preserving water damming the outflow and removing reduce per capita water use, the City quality, educating the public on the streambank vegetation to create a could decrease its water consumption importance of the creek, and limiting recreational swimming pool. Garrett et from San Felipe Creek in the future. population density adjacent to the al. (1992) reported that the creek

VerDate 12-OCT-99 13:14 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR2.XXX pfrm03 PsN: 20OCR2 56604 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations smelled of chlorine, indicating that the and surface water withdrawals, as well concern is the threat of predation by swimming pool may be maintained with as air and water pollution. Watersheds smallmouth bass, a game fish chlorination (a toxin to fish). Garrett et in northern Mexico have been heavily introduced to Amistad Reservoir in al. (1992) also indicate that spring flow impacted by land uses and industrial about 1975. The smallmouth bass is has been drastically reduced by drought development (S. Contreras-Balderas, native to eastern North America but has and diversion of water for human University of Nuevo Leon, in litt. 1997). been widely introduced as a sport fish consumption. The springs apparently The Rio Sabinas, in particular, has been to reservoirs and streams outside its ceased flowing in the 1960’s and again noted for decreasing flows; and spring natural range. It is believed smallmouth in the 1980’s (Garrett et al. 1992). This systems within Coahuila have been bass gained access to the upper portions combination of habitat loss and extensively exploited (Contreras and of the Devils River (upstream of Dolan alteration and the resulting water Lozano 1994). Contreras-Balderas (1987) Falls) in the early to mid-1980’s (Gary quality problems appears to be the most considered the Devils River minnow in Garrett, TPWD, pers. comm. 1997). This likely cause for the apparent extirpation danger of extinction, and the species is species is now the dominant predator in of the species from Las Moras Creek. currently listed by the Mexican the fish community of the Devils River. The Conservation Agreement is government as endangered. The TPWD is currently managing the intended to restore Devils River minnow Devils River as a trophy smallmouth Range-Wide to Las Moras Creek and/or Sycamore bass fishery with size and catch limits. Creek by September 2000. This effort Habitat loss and modification The Devils River minnow evolved in will necessitate further assessment of throughout a significant portion of the the presence of native fishes that limiting factors, threat abatement, and range of the Devils River minnow has consume other fishes, such as channel landowner cooperation. resulted in both the fragmentation and catfish (Ictalurus punctatus) and contraction of the range of the species. largemouth bass (Micropterus Mexico The previous occurrences of known salmoides). The Devils River minnow The only known historical locations localities of Devils River minnow in has adapted to persist with these of the Devils River minnow in Mexico Texas can be grouped into nine species. However, smallmouth bass are are in the Rio San Carlos and three geographic areas, primarily associated not native, are aggressive predators, and upper streams of the Rio Salado with spring systems—five areas in the are known to impact other native fish drainage. The Rio San Carlos is a small Devils River (lower Devils River, Dolan communities (Taylor et al. 1984, Moyle tributary of the Rio Grande located 27 Falls, Baker’s Crossing, Pecan Springs, 1994). The Devils River minnow is km (17 mi) south of Ciudad Acuna. Juno to Beaver Lake); two areas in San within the size class of small fishes that Only a few individuals have been Felipe Creek (headwater springs and Del are susceptible to predation by collected from this location, once in Rio); one area in Sycamore Creek; and smallmouth bass. The scarcity of Devils 1968 (University of Michigan Museum one area in Las Moras Creek. River minnow in the Devils River specimens, unpublished data, 1997) and Of these nine areas, the best available (where smallmouth bass are prominent) again in 1974. The species has not been information confirms the existence of and the abundance of Devils River collected from this site since 1974 and Devils River minnow in only Phillips minnow in San Felipe Creek (where its status there is unknown (S. Creek downstream from Baker’s smallmouth bass are not known to Contreras-Balderas, University of Nuevo Crossing, Dolan Creek (about 20 km occur) provides circumstantial evidence Leon, in litt. 1997). away from Phillips Creek), and San of the likely impacts of this introduced The population of Devils River Felipe Creek in Del Rio. The known predator. In addition, the small creeks minnow in the Rio Salado drainage of existence of only three localities, with where the Devils River minnow were northern Mexico represents a critical one in an urban setting, makes the status recently found (Phillips and Dolan portion of the southern-most extent of of the species in the U.S. tenuous. creeks) are also not known to contain the range. The Rio Salado is a tributary However, actions in the Conservation smallmouth bass. The establishment of of the Rio Grande and is geographically Agreement implemented to date, plus smallmouth bass in San Felipe, Phillips, distinct from the tributaries where the future actions to be implemented or Dolan creeks is another potential fish occurs in Texas. Collections of the according to an agreed-upon schedule, threat to Devils River minnow in those species are limited to the Rio Sabinas, leads us to determine that threatened locations. Rio San Juan, and Rio Alamo from about status is appropriate. Although detailed The tenth action in the Conservation 8 km (5 mi) northwest of Muzquiz to information is limited regarding the Strategy includes a determination of the about 12 km (7 mi) west of Nueva Rosita status of the species in Mexico, its legal interactions between smallmouth bass (S. Contreras-Balderas, University of status and degradation of aquatic and Devils River minnow. If results Nuevo Leon, in litt. 1997). Therefore, habitats indicate it is endangered with indicate that smallmouth bass are likely the known range of the species in the extinction in that country. having negative effects on Devils River Rio Salado is about 30 km (20 mi). The minnow populations, actions such as most recent collections of Devils River B. Overutilization for Commercial, localized smallmouth bass removal minnow (31 individuals) from this area Recreational, Scientific, or Educational efforts in conjunction with were in 1994 (S. Contreras-Balderas, Purposes reintroductions of Devils River minnow University of Nuevo Leon, in litt. 1997). Overutilization is not considered a will be considered. Long-term The Conservation Agreement includes significant threat to the Devils River management of smallmouth bass in the the survey of Mexican streams that minnow. However, there is a potential Devils River will be addressed through could potentially contain populations of for impacts should this species be regulations on catch and size limits to Devils River minnow by September harvested as a baitfish (either reduce abundance and modify 2000. The likely condition of aquatic commercially or non-commercially). population structures. habitats in the Rio Salado Drainage in Mexico is extremely poor. Contreras and C. Disease or Predation D. The Inadequacy of Existing Lozano (1994) report that aquatic The Devils River minnow may be Regulatory Mechanisms ecosystems in this region of Mexico face affected by the presence of introduced The Devils River minnow is listed as significant threats due to groundwater fishes within its range. Of special a threatened species by the State of

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Texas. This provides some protection vulnerable to loss from random natural fishes throughout the range of the Devils from collecting, as a permit is required events, including population River minnow. to collect listed species in Texas. fluctuations (Meffe 1986). The The overall decline in abundance of However, there are no State or local Conservation Agreement is intended to Devils River minnow could be the result regulations to protect habitat for the improve population levels and of several cumulative factors. For conservation of the species. In addition, distribution of Devils River minnow example, subtle changes in stream flows no regulations exist to prevent throughout its range to reduce these could produce small shifts in habitat unintentional releases of exotic species threats. use that make the species more by the baitfish industry and anglers. The construction of Amistad Dam has vulnerable to competition and predation Limited State regulations separated the two primary populations by native predators and non-native administered by the TNRCC serve to of Devils River minnow in Texas (Devils smallmouth bass. In addition, long-term protect in-stream flows for surface water River and San Felipe Creek). This drought could have an effect on the rights and water quality for wildlife and population fragmentation could have habitat of the species, particularly when human uses. However, these regulations significant conservation implications combined with impacts of human water were not designed to conserve habitat (Gilpin 1987). Determining and use. This species has adapted to for native fishes and currently no monitoring the genetic structure of the historical natural climatic variations minimum in-stream flows are required different Devils River minnow (such as large floods and prolonged on streams where Devils River minnow populations will be needed to ensure droughts). However, in conjunction occur. the necessary genetic variation within with other threats to the species Surface water rights along the Rio and among populations is not lost (primarily existing habitat loss and Grande in Texas and its U.S. tributaries (Meffe 1986; Minckley et al. 1991). exotic predators), a drought could are administered by the State of Texas. Recent collections in 1997 from San significantly increase the threat of Groundwater withdrawals that could be Felipe Creek revealed for the first time extinction. The use of water supplies for affecting stream flows within the range the presence of armored catfish human needs (municipal or agricultural) of the Devils River minnow are (Hypostomus sp.) (Gary Garrett, TPWD, serves to worsen the effects of drought unregulated. Texas courts have held in litt. 1997). This fish is an exotic on the natural environment. that, with few exceptions, landowners species that has established a breeding We have carefully assessed the best have the right to take all the water that population in the San Antonio River, scientific and commercial information can be captured under their land (rule Texas, and was cited as potentially available regarding the past, present, of capture). Therefore, there is little competing with other Dionda species and future threats faced by this species opportunity to protect groundwater due to its food habitats (Hubbs et al. in determining to make this final rule. reserves within existing regulations. 1978). Although Dionda species are Therefore, based on this evaluation, the State Water Quality Standards, though common in spring runs in Central most appropriate action is to list the primarily concerned with protecting Texas, they are now absent from these Devils River minnow as threatened. The human health, may provide some habitats in the San Antonio River, species currently inhabits a very limited protection to the Devils River minnow implying the potential displacement by range and the best scientific information and its habitat. However, the sensitivity the armored catfish (R.J. Edwards, available indicates a significant decline of Devils River minnow to any University of Texas-Pan American, in in range and abundance of the species. contaminants or water quality changes litt. 1998). This could be a threat to Some new information was received is unknown and could require more Devils River minnow populations in since the proposal that suggested habitat stringent standards than used for human San Felipe Creek. loss in the upper reaches of the Devils health. The classification of the Devils The future release (intentional or River may be less severe than originally River and San Felipe Creek under the unintentional) of other fishes into areas thought. This is because we originally Texas Surface Water Quality Standards inhabited by Devils River minnow is characterized the habitat as historically requires maintenance of existing water another potential threat. Live bait fish a continuous flowing stream, when this quality. Sycamore and Las Moras creeks are commonly discarded into nearby upper reach may always have been are not classified under these standards. waters by anglers, resulting in intermittent; therefore, the habitat may introductions of non-native species. have never been more than marginal. In E. Other Natural or Manmade Factors This situation has occurred in many addition, the discovery of two Affecting Its Continued Existence streams in the southwestern U.S. with additional localities of Devils River Habitat loss throughout the range of considerable impacts to the native fish minnow in tributaries to the Devils the Devils River minnow has reduced community (Moyle 1994). In addition, River provided information that the number of known locations to as few exotic fishes from aquariums could be populations are extant in the Devils as three. The Devils River minnow is introduced into local waters. Currently, River drainage. New information was currently known to be common in only only a small number of introduced also provided showing the presence of two locations, Phillips Creek and San fishes occur within the range of the an additional exotic species in San Felipe Creek in Del Rio. However, Devils River minnow, but the potential Felipe Creek that presents a threat not actions identified in the Conservation for unintentional introductions is high mentioned in the proposed rule. Agreement that have been implemented because of the number of anglers on the The Conservation Agreement to date have reduced the threat of Devils River and the urban setting of involving us, the TPWD, and the City of extinction of the Devils River minnow. San Felipe Creek. Threats to the Del Rio provides commitments to work If Devils River minnow still occurs in populations of Devils River minnow toward the recovery of the species other locations (such as Sycamore from possible introduction and through implementing the 10 actions Creek, headwaters of San Felipe Creek, establishment of non-native fishes described in the Conservation Strategy and the Devils River), the number of fish include diseases, parasites, competition (see ‘‘Background’’ section of this rule). may be too small to constitute viable for food and space, predation, and In addition, we have received populations (Caughley and Gunn 1996). hybridization. The Conservation confirmation from both TPWD and the Small populations can lead to genetic Agreement has provisions for City of Del Rio of their commitment to erosion through inbreeding and are assessment and monitoring of exotic implement certain key actions of the

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Agreement within the first two years of section of this rule). The watersheds in Apart from section 7, the Act provides its signing. However, we can still only the U.S. in which the Devils River no additional protection to lands confirm three localities where the minnow occurs are almost entirely in designated as critical habitat. species remains in the U.S.; habitat loss private ownership, and no significant Designating critical habitat does not has been considerable in the Devils Federal actions affecting the species’ create a park or preserve, and does not River due to Amistad Dam and in Las habitat are likely to occur in the area. require or create a management plan for Moras Creek; and the Conservation Therefore, the designation of critical the areas where the species occurs; does Agreement has not yet been fully habitat would provide little, if any, not establish numerical population implemented. benefit to the species through section 7 goals or prescribe specific management An endangered species is defined of the Act. actions (inside or outside of critical under the Act as one that is in danger In addition, any Federal action that habitat); and does not have a direct of extinction throughout all or a would cause adverse modification of effect on areas not designated as critical significant portion of its range. A critical habitat for the Devils River habitat. A designation of critical habitat threatened species is one that is likely minnow likely would also cause that includes private lands would only to become an endangered species within jeopardy for areas where the species is affect actions where a Federal nexus the foreseeable future throughout all or known to occur. Under section 7, (such as Federal funding, authorization, a significant portion of its range. We actions funded, authorized, and carried or permit) is present and would not have carefully examined the best out by Federal agencies may not confer any substantial conservation scientific and commercial information jeopardize the continued existence of a benefit beyond that already provided available, and determine that threatened species or result in the destruction or through section 7 consultation. status is appropriate for the Devils River adverse modification of critical habitat. Because the Devils River minnow is minnow. To ‘‘jeopardize the continued existence’’ predominantly found in streams flowing of a species is defined as an action that Critical Habitat through private lands, the cooperation appreciably reduces the likelihood of its of private landowners is imperative to Critical habitat is defined in section 3 survival and recovery (50 CFR part 402). conserve the Devils River minnow. of the Act as—(i) The specific areas ‘‘Destruction or adverse modification of Designation of critical habitat on private within the geographical area occupied critical habitat’’ is defined as an lands could result in a detriment to the by a species, at the time it is listed in appreciable reduction in the value of species. The regulatory effect of critical accordance with the Act, on which are critical habitat for the survival and found those physical or biological recovery of a species. Common to both habitat designation is often features (I) essential to the conservation definitions is an appreciable detrimental misunderstood by private landowners, of the species and (II) that may require effect to both the survival and recovery particularly those whose property special management considerations or of a listed species. In biological terms boundaries are included within a protection and; (ii) specific areas and in consultation practice, the general description of critical habitat for outside the geographical area occupied jeopardy standard and the adverse a species. In the past, landowners have by a species at the time it is listed, upon modification standard are virtually mistakenly believed that critical habitat a determination that such areas are identical for areas occupied by the designation would prevent development essential for the conservation of the species. and impose restrictions on the use of species. ‘‘Conservation’’ as defined in For any listed species, an analysis to their private property. In some cases, section 3(3) of the Act means the use of determine jeopardy under section landowners have believed that critical all methods and procedures needed to 7(a)(2) would consider impacts to the habitat designation is an attempt by the bring the species to the point at which species resulting from impacts to government to confiscate their private listing under the Act is no longer habitat. Therefore, an analysis to property. This misconception was necessary. determine jeopardy would include an evident from public comments received Section 4(a)(3) of the Act and analysis closely parallel to an analysis in 1980 on the proposed designation of implementing regulations (50 CFR to determine adverse modification of critical habitat for the Devils River 424.12) require that, to the maximum critical habitat. A Federal action that minnow. Several citizens indicated they extent prudent and determinable, the would adversely modify the species’ strongly believed that by designating Secretary designate critical habitat at the habitat would also jeopardize the critical habitat, the Federal government time the species is determined to be species (and vice versa). Specifically for would have the right to trespass on endangered or threatened. Our the Devils River minnow, any private property, control private land regulations (50 CFR 424.12(a)) state that modification to suitable habitat within management actions, and even take designation of critical habitat is not the species’ range also will substantially ownership of private land for the prudent when one or both of the affect the species. Actions that may species. As a result of this following situations exist—(1) The affect the habitat of the Devils River misunderstanding, fear of critical species is threatened by taking or other minnow include, but are not limited habitat designation has sometimes human activity, and identification of to—(1) Reduction of water flows from reduced private landowner cooperation critical habitat can be expected to springs or streams, (2) Degradation of in efforts to conserve species listed in increase the degree of such threat to the water quality, (3) Alteration of shallow, Texas. For example, fear resulting from species, or (2) such designation of fast-flowing stream areas downstream talk of possible designation of critical critical habitat would not be beneficial from the outflow of springs, and (4) habitat for the golden-cheeked warbler to the species. We find that the Construction of structures that interfere (Dendroica chrysoparia) reduced private designation of critical habitat for the with instream movement of fishes. landowner cooperation in the Devils River minnow is not prudent due Given the imperiled status and narrow management of the species. In addition, to lack of benefit. range of the Devils River minnow, it is in the past landowners have specifically The section 7 prohibitions against likely that any Federal action that denied access to study sites for Devils adverse modification of critical habitat would destroy or adversely modify the River minnow (Hubbs and Garrett 1990, apply to Federal actions only (see the species’ critical habitat would also Garrett et al. 1992) due to fears of ‘‘Available Conservation Measures’’ jeopardize its continued existence. regulation.

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Critical habitat designation can jeopardy analysis similar to an adverse Elimination System. Other Federal sometimes serve to highlight areas that modification analysis for critical habitat. agencies whose actions could require may be in need of special management We have already provided private consultation include the Department of considerations or protection. However, landowners and State and Federal Defense, NRCS, the Federal Highways in the case of the Devils River minnow agencies with up-to-date information on Administration, and the Department of the TPWD and local landowners are important areas for the Devils River Housing and Urban Development. already aware of the areas in need of minnow and we plan to continue to do In addition, section 7(a)(1) of the Act special management considerations or so. Finally, even if designation of requires all Federal agencies to review protection. Because this species was critical habitat for the Devils River the programs they administer and use previously proposed for listing in 1978, minnow would provide some small, these programs in furtherance of the and critical habitat proposed in 1980 incremental benefit to the species, that purposes of the Act. All Federal (due to amendements to the Act both benefit is outweighed by the possible agencies, in consultation with the proposals were withdrawn on reduction in landowner cooperation that Service, are to carry out programs for September 30, 1980 (45 FR 64853)), the would facilitate the management and the conservation of endangered species public has been aware of the recovery of this species. Based on this and threatened species listed pursuant distribution of the species and need for analysis, we conclude that designation to section 4 of the Act. conservation for over 20 years. Prior to of critical habitat for the Devils River The Act and its implementing and following publication of the 1998 minnow is not prudent. regulations set forth a series of general proposed rule to list the Devils River prohibitions and exceptions that apply Available Conservation Measures minnow (critical habitat was not to all endangered wildlife. The prudent in the 1998 proposal (63 FR Conservation measures provided to prohibitions, codified at 50 CFR 17.31, 14885)), we initiated an extensive species listed as endangered or in part, make it illegal for any person public outreach effort to inform and threatened under the Act include subject to the jurisdiction of the U.S. to educate the general public and recognition, recovery actions, take (includes harass, harm, pursue, interested parties within the range of the requirements for Federal protection, and hunt, shoot, wound, kill, trap, capture, species. We sent out press releases to prohibitions against certain practices. or collect, or to attempt any of these), local newspapers, contacted elected Recognition through listing results in import or export, ship in interstate officials, Federal, State, and county public awareness and conservation commerce in the course of commercial agencies, and interested parties, actions by Federal, State, and local activity, or sell or offer for sale in including private landowners. A public agencies, private organizations, and interstate or foreign commerce any hearing was held in 1998, with over 40 individuals. The Act provides for listed species. It also is illegal to people from the local public in possible land acquisition and possess, sell, deliver, carry, transport, or attendance. The hearing included the cooperation with the States and requires ship any such wildlife that has been sharing of information on areas that recovery actions be carried out for taken illegally. Certain exceptions apply important to the species. In addition, all listed species. to agents of the Service and State over the last two years, TPWD has Section 7(a) of the Act, as amended, conservation agencies. participated in at least three meetings requires Federal agencies to evaluate Permits may be issued to carry out with affected private landowners (more their actions with respect to any species otherwise prohibited activities than 30 individuals in attendance at that is proposed or listed as endangered involving threatened wildlife under each meeting) to inform them of the or threatened and with respect to its certain circumstances. Regulations need for conservation of the species, as critical habitat, if any is being governing permits are described in 50 part of the development of the designated. Regulations implementing CFR 17.22, 17.23, and 17.32. Such Conservation Agreement with the State these interagency cooperation permits are available for scientific and the City of Del Rio. provisions of the Act are codified at 50 purposes, for the enhancement or We have evaluated the potential CFR part 402. Section 7(a)(2) requires propagation or survival of the species, notification and education benefit Federal agencies to ensure that activities or for incidental take in connection with offered by critical habitat designation they authorize, fund, or carry out are not otherwise lawful activities. For and find that, for the Devils River likely to jeopardize the continued threatened species, there are also minnow, there would be no additional existence of such a species or to destroy permits for zoological exhibition, benefit over the outreach associated or adversely modify its critical habitat, educational purposes, or special with the proposal, current outreach for if any has been designated. If a Federal purposes consistent with the purposes this final rule and interagency action may affect a listed species or its of the Act. Information collections coordination processes currently in critical habitat, the responsible Federal associated with these permits are place. Notification and education can be agency must enter into consultation approved under the Paperwork conducted more effectively by working with the Service. Reduction Act, 44 U.S.C. 3501 et seq., directly with landowners and Although few Federal agency actions and assigned Office of Management and communities through the recovery are anticipated, examples of those that Budget clearance number 1018–0094. implementation process and, where a may require consultation as described in For additional information concerning Federal nexus exists, through section 7 the preceding paragraph include U.S. these permits and associated consultation and coordination. Critical Army Corps of Engineers review and requirements, see 50 CFR 17.32. habitat designation for the Devils River approval of activities such as the It is our policy (59 FR 34272) to minnow would provide no additional construction of roads, bridges, and identify to the maximum extent notification or education benefit. dredging projects subject to section 404 practicable at the time a species is listed In summary, we have determined that of the Clean Water Act (33 U.S.C. 1344 those activities that would or would not the designation of critical habitat for the et seq.) and section 10 of the Rivers and constitute a violation of section 9 of the Devils River minnow would not be Harbors Act of 1899 (33 U.S.C. 401 et Act. The intent of this policy is to beneficial to the species. For the Devils seq.) and U.S. Environmental Protection increase public awareness of the effect River minnow, the section 7 Agency authorization of discharges of the listing on proposed and ongoing consultation process will produce a under the National Pollutant Discharge activities within a species’ range. We

VerDate 12-OCT-99 13:14 Oct 19, 1999 Jkt 190000 PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR2.XXX pfrm03 PsN: 20OCR2 56608 Federal Register / Vol. 64, No. 202 / Wednesday, October 20, 1999 / Rules and Regulations believe that, based on the best available into areas that provide access to the defined under the authority of the information, the following actions will aquifer and where such discharge or National Environmental Policy Act of not likely result in a violation of section dumping could affect water quality in 1969, need not be prepared in 9: spring outflows; connection with regulations adopted (1) Normal livestock grazing and other (4) Herbicide, pesticide, or fertilizer pursuant to section 4(a) of the standard ranching practices, such as application in or near the springs and/ Endangered Species Act of 1973, as improving rangeland native grass cover, or stream segments containing the amended. A notice outlining our that do not destroy or degrade Devils species; reasons for this determination was River minnow habitat; (5) Introduction of certain non-native (2) Riparian restoration activities that species (fish, plants, and other) into published in the Federal Register on improve the ecological health of native occupied habitat of the Devils River October 25, 1983 (48 CFR 49244). riparian zones along streams and minnow or areas connected to these References Cited springs, as long as construction habitats; and activities do not impair Devils River (6) Actions that may affect Devils A complete list of all references cited minnow habitat; River minnow and are authorized, herein, as well as others, is available (3) Recreational activities such as funded or carried out by a Federal upon request from the Austin Ecological swimming, canoeing, and fishing, as agency when the action is not Services Field Office (see ADDRESSES long as non-native fish or other exotic conducted in accordance with an section). organisms are not used as bait and incidental take statement issued by us Author: The primary author of this released to the stream, and the activities pursuant to section 7 of the Act. are conducted in such a way as to not In the descriptions of activities above, final rule is Nathan Allan, Fish and damage habitat or negatively affect a violation of section 9 would occur if Wildlife Service (see ADDRESSES water quality; and those activities occur to an extent that section). (4) Actions that may affect Devils would result in ‘‘take’’ of Devils River List of Subjects in 50 CFR Part 17 River minnow and are authorized, minnow. Not all of the activities funded or carried out by a Federal mentioned above will result in violation Endangered and threatened species, agency when the action is conducted in of section 9 of the Act; only those Exports, Imports, Reporting and accordance with an incidental take activities that result in ‘‘take’’ of Devils recordkeeping requirements, statement issued by us pursuant to River minnow would be considered Transportation. section 7 of the Act. violations of section 9. We recognize Activities we believe could that a wide variety of activities would Regulation Promulgation potentially harm the Devils River not harm the species, even if undertaken minnow and result in ‘‘take’’ include, in the vicinity of the species’ habitat. Accordingly, part 17, subchapter B of but are not limited to: Questions regarding whether specific chapter I, title 50 of the Code of Federal (1) Unauthorized collecting or activities would likely constitute a Regulations, is amended as set forth handling of the species; violation of section 9 should be directed below: (2) Any activities that may result in to the Field Supervisor, Austin destruction or significant alteration of Ecological Services Field Office (see PART 17Ð[AMENDED] habitat occupied by Devils River ADDRESSES section). Requests for copies minnow including, but not limited to, of the regulations regarding listed 1. The authority citation for part 17 the discharge of fill material, the wildlife and inquiries about continues to read as follows: diversion or alteration of spring and prohibitions and permits may be Authority: 16 U.S.C. 1361–1407; 16 U.S.C. stream flows or withdrawal of addressed to the U.S. Fish and Wildlife 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– groundwater to the point at which Service, Region 2, Division of 625, 100 Stat. 3500, unless otherwise noted. Devils River minnow are harmed, and Endangered Species, P.O. Box 1306, the alteration of the physical channels Albuquerque, New Mexico 87103–1306 2. Amend section 17.11(h) by adding within the spring runs and stream (telephone 505–248–6920; facsimile the following, in alphabetical order segments occupied by the species; 505–248–6788). under ‘‘FISHES’’ to the List of (3) Discharge or dumping of Endangered and Threatened Wildlife to pollutants such as chemicals, silt, National Environmental Policy Act read as follows: household or industrial waste, or other We have determined that material into the springs or streams Environmental Assessments and § 17.11 Endangered and threatened occupied by Devils River minnow or Environmental Impact Statements, as wildlife.

Species Vertebrate popu- Historic range lation where endan- Status When listed Critical habi- Special Common name Scientific name gered or threatened tat rules

******* FISHES

******* Minnow, Devils River Dionda diaboli ...... U.S.A. (TX), Mexico Entire ...... T 669 NA NA

*******

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Dated: September 30, 1999. Jamie Rappaport Clark, Director, Fish and Wildlife Service. [FR Doc. 99–27188 Filed 10–19–99; 8:45 am] BILLING CODE 4310±55±P

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