Tuesday, August 12, 2008

Part II

Department of the Interior Fish and Wildlife Service

50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Devils River Minnow; Final Rule

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DEPARTMENT OF THE INTERIOR endangered/. More detailed information the proposed rule and/or draft economic on Devils River minnow biology and analysis during these two comment Fish and Wildlife Service ecology that is directly relevant to the periods. designation of critical habitat is During the first comment period, we 50 CFR Part 17 discussed under the Primary received five comments directly [FWS–R2–ES–2008–0018; 92210–1117– Constituent Elements section below. addressing the proposed critical habitat 0000–B4] designation. During the second Previous Federal Actions comment period, we received 19 written RIN 1018–AV25 The Devils River minnow was listed comments (one was received between as threatened on October 20, 1999 (64 the first and second comment periods) Endangered and Threatened Wildlife FR 56596). Critical habitat was not and 10 verbal comments made at the and Plants; Designation of Critical designated for this species at the time of public hearing addressing the proposed Habitat for the Devils River Minnow listing (64 FR 56606). On October 5, critical habitat designation or the draft AGENCY: Fish and Wildlife Service, 2005, the Forest Guardians, Center for economic analysis. We received no Interior. Biological Diversity, and Save Our comments from the State of Texas or Springs Alliance filed suit against the ACTION: Final rule. other Federal agencies beyond those Service for failure to designate critical provided by individuals as part of the SUMMARY: We, the U.S. Fish and habitat for this species (Forest peer review process. All substantive Wildlife Service (Service), designate Guardians et al. v. Hall 2005). On June information provided during both critical habitat for the Devils River 28, 2006, a settlement was reached that public comment periods has been either minnow (Dionda diaboli) under the requires the Service to re-evaluate our incorporated directly into this final Endangered Species Act of 1973, as original prudency determination. The determination or addressed below. settlement stipulated that, if prudent, a amended (Act). In total, approximately Peer Review 26.5 stream kilometers (km) (16.5 stream proposed rule would be submitted to miles (mi)) are within the boundaries of the Federal Register for publication on In accordance with our policy the critical habitat designation. The or before July 31, 2007, and a final rule published on July 1, 1994 (59 FR critical habitat is located in streams in by July 31, 2008. On July 31, 2007, we 34270), we solicited expert opinions Val Verde and Kinney Counties, Texas. published a proposed rule to designate from seven knowledgeable individuals DATES: This final rule becomes effective critical habitat for the Devils River with scientific expertise that included on September 11, 2008. minnow (72 FR 41679). We solicited familiarity with the species, the data and comments from the public on geographic region in which the species ADDRESSES: This final rule and the final the proposed rule. The comment period occurs, and conservation biology economic analysis are available on the opened on July 31, 2007, and closed on principles. During the first comment Internet at http://www.regulations.gov October 1, 2007. On February 7, 2008, period, we received a response from all and http://www.fws.gov/southwest/es/ we published a notice announcing the seven peer reviewers from which we AustinTexas/. Supporting availability of the draft economic requested comments. documentation we used in preparing analysis, a public hearing, and the We reviewed all comments received this final rule will be available for reopening of the public comment period from the public and the peer reviewers public inspection, by appointment, (73 FR 7237). A public hearing was held for substantive issues and new during normal business hours, at the in Del Rio on February 27, 2008. This information regarding the designation of U.S. Fish and Wildlife Service, Austin comment period closed on March 10, critical habitat for Devils River minnow, Ecological Services Field Office, 10711 2008. For more information on previous and we address them in the following Burnet Road, Suite 200, Austin, TX Federal actions concerning the Devils summary. 78758; telephone 512–490–0057; River minnow, refer to the final listing facsimile 512–490–0974. rule published in the Federal Register Peer Reviewer Comments FOR FURTHER INFORMATION CONTACT: on October 20, 1999 (64 FR 56596). (1) Comment: The rule should Adam Zerrenner, Field Supervisor, summarize the efforts to locate Austin Ecological Services Field Office Summary of Comments and additional Devils River minnow habitats (see ADDRESSES section). Persons who Recommendations in other nearby streams and discuss the use a telecommunications device for the We requested comments from the potential that additional habitats exist. deaf (TDD) may call the Federal public on the proposed designation of Our Response: This information is Information Relay Service (FIRS) at critical habitat for the Devils River available in the Range discussion in the 800–877–8339, 7 days a week and 24 minnow during two comment periods. ‘‘Criteria Used To Identify Critical hours a day. The first comment period associated Habitat’’ section below. There have been SUPPLEMENTARY INFORMATION: with the publication of the proposed efforts to locate the Devils River rule (72 FR 41679) opened on July 31, minnow outside of its known range, Background 2007, and closed on October 1, 2007. although those efforts have been limited It is our intent to discuss only those We also requested comments on the by opportunity and access to some topics directly relevant to the proposed critical habitat designation private lands. The rule states that while designation of critical habitat in this and associated draft economic analysis there could be additional stream final rule. For more information on the during a comment period that opened segments within the known range that Devils River minnow, refer to the February 7, 2008, and closed on March may be found to be occupied during proposed critical habitat rule published 10, 2008 (73 FR 7237). We held a public future surveys, the best available in the Federal Register on July 31, 2007 hearing in Del Rio on February 27, 2008; information at this time supports only (72 FR 41679), the final listing rule about 65 individuals were present. We five stream segments (Devils River, San published in the Federal Register on contacted appropriate Federal, State, Felipe Creek, Sycamore Creek, Pinto October 20, 1999 (64 FR 56596), or the and local agencies; scientific Creek, and Las Moras Creek) known to 2005 Devils River Minnow Recovery organizations; and other interested be or to have been occupied by Devils Plan available online at www.fws.gov/ parties and invited them to comment on River minnow in the United States.

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(2) Comment: The primary constituent studies where Devils River minnows Our Response: There have been water elements (PCEs) should more explicitly have been collected. There are often quality concerns expressed for San and strongly address the need for much higher velocities in the streams; Felipe Creek due to the urbanization of spring-fed baseflow, perhaps under PCE however, the best available information the watershed. There also may have 5 or as its own PCE. It may be indicates that the velocity range been previous effects from ranching appropriate to include the language identified in the PCEs reflects the activities on water quality in the creeks, noting a percentage of normal (i.e., understanding that the species is most particularly in the past when sheep and average) monthly baseflow that should often found in slow to moderate water goat grazing was a more common land be sustained as a Devils River minnow velocities. use. However, we found no data to PCE. (5) Comment: The PCE (2) for water support that water quality is Our Response: Our approach in quality can be challenged in that not significantly impacted by current describing the PCEs is to identify the enough data have been measured ranching activities (Service 2005, p. 1.7– physical and biological features that are regarding temperature, dissolved 4). essential to the conservation of the oxygen, conductivity, and salinity to set (8) Comment: The final rule should species and which may require special those levels. It is possible that areas state that maintaining water management considerations or with physical and chemical conditions temperatures within acceptable ranges protections. In this case the PCEs are the other than those listed could support necessitates maintaining adequate range of water depths and velocities the Devils River minnow. aquifer protection and spring flows to needed by the species. Maintenance of Our Response: We recognize that the streams. spring flows is described in this final PCE for water quality parameters is Our Response: We concur. The final rule as the special management needed based on limited observational data. rule was revised to reflect this comment to provide the PCEs described, rather However, we used the best available in the ‘‘Water Quality’’ section below. than a PCE itself. The Service does not information to determine appropriate We believe that management of have sufficient information to identify water quality elements. To the extent groundwater aquifers is important to an estimate of specific spring flow, or practicable, PCEs are intended to be maintaining spring flows and is percentages of flow, as required habitat quantifiable and measurable. We interrelated to maintaining water quality conditions for the Devils River minnow. purposefully include a broad range of conditions, particularly water (3) Comment: The proposed rule notes conditions to recognize that data are not temperature in streams. that if groundwater aquifers are pumped sufficient to identify a more narrow (9) Comment: The data presented do beyond their ability to sustain levels range of parameters. The ranges not support an unequivocal statement supporting spring flows these streams provided represent the best available that vegetation must be present for will no longer provide habitat for the information. Devils River minnow to be successful. Devils River minnow. This is true (6) Comment: There are potential The Devils River minnow appears to unless water was pumped into the consequences to the species from survive in other areas without streams from wells. increased sedimentation and turbidity, vegetation. Our Response: PCE 2 is intentionally via urban development in the watershed Our Response: We recognize that worded to include ‘‘permanent, natural and the presence of abundant armored Devils River minnow have been flows from groundwater spring and catfish (Hypostomus sp.) (disturbing collected in areas of streams without seeps.’’ We believe the maintenance of substrate during feeding and excavation significant vegetation. However, the natural stream flows is the best of shelter). These concerns should be majority of published information on opportunity to ensure adequate habitat extracted from a list of pollutants, the habitat use of the species for the conservation of the Devils River which included suspended sediments, (summarized in the ‘‘Space for minnow. Water provided to streams and identified individually. You should Individual and Population Growth, through artificial means, such as include a discussion of water clarity Normal Behavior, and Cover’’ section groundwater pumping, could eventually under the PCE for water depth and below) leads us to believe that the best fail due to mechanical or human error velocity. scientific data available are sufficient to and, therefore, is not a good substitute Our Response: We agree that turbidity warrant inclusion of aquatic vegetation for natural stream flows. In addition, from increased suspended solids and as a PCE to provide important cover for pumping water to supply streams is sedimentation of stream bottoms are the species. We have clarified our likely counterintuitive to the need to important habitat concerns for Devils discussion in that section to reflect the maintain groundwater levels high River minnow. We have revised the fact that Devils River minnow have also enough to sustain natural spring flows final rule (see ‘‘Water Quality’’ section been collected in areas without aquatic from groundwater aquifers. Stream below) to specifically mention this vegetation. flows are essential for the conservation concern. We did not see a need to (10) Comment: How can the special of the species, and assuring a high modify the language in the PCEs as we management needs identified in the probability of survival depends on believe that listing suspended sediments proposed rule and the recovery plan be natural flow conditions. as a pollutant is sufficient to capture implemented without access through (4) Comment: The range of stream these concerns. private property to all stream segments velocities described in the PCE (1a) for (7) Comment: While the aquifers that and their supporting watershed? Devils River minnow (0.3 to 1.3 feet/ support the critical habitat streams are Our Response: Most of the streams second (9 to 40 cm/second)) may not be of high quality and free of pollution, the where the Devils River minnow occurs high enough to reflect conditions that same can’t be said for the water quality flow through private lands. The are typically measured in Las Moras of the creeks. Livestock and ranching designation of critical habitat (or the Creek (greater than 3 feet/second), activities occur throughout this area species’ status as federally threatened) although baseflow velocities can be in except along San Felipe Creek. Harrel does not provide a right for anyone to the 1 foot/second range. (1978) notes that in the Devils River, access private property without Our Response: The water velocities larger deep ponds often contain silt landowner permission. However, identified as a part of the PCEs were composed of detritus and sheep and through cooperative relationships, the determined based on observational goat manure washed in by rains. Service and Texas Parks and Wildlife

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Department (TPWD) have had information in the ‘‘Special Sycamore Creek and Las Moras Creek consistent support from private Management’’ section. under section 4(b)(2) of the Act. For the landowners to provide access to various (14) Comment: Six of the seven peer full analysis, see the ‘‘Exclusions Under streams to further conservation of the reviewers commented on our specific Section 4(b)(2) of the Act’’ section Devils River minnow. We intend to question of whether or not Las Moras below. continue to work with private Creek and Sycamore Creek are essential (15) Comment: The rule should landowners to seek their voluntary to the conservation of the species and recognize that, while not included in cooperation using incentive-based should be included in the critical the lateral extent of the critical habitat, programs, such as Partners for Fish and habitat designation. Three reviewers the condition of the riparian buffer Wildlife, for conserving this species and expressed specific support for including beyond the normal wetted channel is other listed species in Texas. Las Moras and Sycamore creeks in the important to the maintenance of water (11) Comment: Discussions regarding critical habitat designation for the quality and low levels of fine nonnative species should include following reasons: (1) To maintain sedimentation. nonnative plants, such as hydrilla suitable habitat within its range because Our Response: We agree that healthy (Hydrilla verticillata), water hyacinth if left undesignated, the PCEs currently riparian areas of native vegetation are (Eichhornia spp.), giant river cane present will fall out of range and important to maintaining the PCEs. For (Arundinaria gigantea), and salt cedar potential use for the recovery of the example, impacts to riparian areas that (Tamarix spp.), because they can impact species will be lost; (2) to protect reduce native vegetation may lead to hydrology and food sources for Devils genetic diversity within the range of the increased runoff of pollutants into the River minnow. species; (3) including them may be stream, thus degrading water quality Our Response: The extent of potential important for future recovery efforts, and indirectly affecting the designated impacts of nonnative plants to fish such based on metapopulation theory that critical habitat. This is further discussed as the Devils River minnow is not well unoccupied patches are not less in the ‘‘Application of the Adverse documented. However, we recognize the important than occupied ones; (4) not Modification Standard’’ section. Unlike concern that nonnative plants could including them as ecologically some other stream fishes, the Devils affect Devils River minnow populations, significant stream segments would be River minnow is not known to be and we have revised the final rule to possibly detrimental to the species over dependent on high flow events or use reflect these concerns. We did not time; and (5) if the creeks are flooded habitats in overbank areas for include salt cedar as a concern because determined not to provide essential reproduction or rearing of young. we are not aware that it is present, or habitat elements, they could be removed Therefore, the floodplain is not known likely to become established, in the from the designation later or the habitat to contain the features essential for the range of Devils River minnow. It is well could be improved by future conservation of the Devils River established in nearby drainages on the management. minnow and is not included in this final Pecos River and Rio Grande and has had The other three reviewers did not call critical habitat designation. See the ample opportunity to become for the inclusion of Las Moras and discussion in ‘‘Criteria Used To Identify established in the Devils River and Sycamore creeks in the designation. Critical Habitat, f. Lateral Extent’’ drainages farther east. We assume that However, two reviewers stressed that section. conditions (soil differences and limited recovery of the Devils River minnow (16) Comment: No studies cited in the floodplains) are not conducive to salt would include restoring the species to proposed rule have shown that the cedar establishment. these streams to maintain genetic Devils River minnow is tied to spring- (12) Comment: Another concern diversity and population redundancy mouth habitat. In fact, several studies related to nonnative species is the and encouraged us to continue to work point out that the species does not use possible predation on Devils River on these efforts. One reviewer stated such habitat but prefers more minnow by armored catfish. Information that Sycamore and Las Moras creeks do downstream areas of the streams away was provided indicating the armored not have the necessary continuous flows from the immediate outfall areas. This catfish in aquarium environments will required to maintain a population of the appears to be true in all three stream prey on other fish. Devils River minnow and would sections chosen for critical habitat. The Our Response: We have included this support their inclusion if there were data do not support the inclusion of the information in the final rule in the management options in place to spring heads in critical habitat. ‘‘Habitat Protected From Disturbance or maintain sufficient residual habitat Our Response: We disagree. While Representative of the Historic during droughts. Devils River minnow can be common in Geographical and Ecological Our Response: In reviewing the areas just a few meters downstream of Distribution of a Species’’ section. comments received on this issue and the spring heads, the best available (13) Comment: Petroleum exploration Recovery Plan for the Devils River information suggests the PCEs and the and development should be either minnow, we determined that Sycamore fish are also found at the beginning of added as one additional management and Las Moras creeks are essential to the the streams in spring heads. Numerous consideration for the Devils River conservation of the Devils River collections have listed the springs population or be specifically recognized minnow. Restoring populations in themselves as locations for collecting in the discussion of pollution. While Sycamore and Las Moras creeks are Devils River minnow (see literature there have fortunately been no known important recovery goals for the species. reviewed in Service 2005, p 1.4.1–1.4.5). impacts to date, inappropriate site For additional discussion of this topic, development and drilling practices including relevant information from the Comments From the Public associated with current exploration Recovery Plan, see the ‘‘Criteria Used To (17) Comment: The statement that the activities have the potential to seriously Identify Critical Habitat’’ section below. Devils River minnow does not occupy impact water quality of the Devils River However, upon further review, we Sycamore Creek is unsubstantiated. and, hence, to degrade this critical determined that the benefits of Opportunities to sample for the species habitat. excluding these two creeks outweigh the are very limited. Our Response: We agree and the final benefits of including them as critical Our Response: We did not intend to rule has been updated to include this habitat. Therefore, we have excluded make a conclusive determination that

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the Devils River minnow does not occur (Micropterus dolomieu) is the only minnow or its habitat (such as a change in Sycamore Creek. For the purpose of significant change in the Devils River in stream flow rates), they are required critical habitat designation, we and has caused many changes in the under section 7 of the Act to consult considered a stream segment to be structure of the fish community. The with the Service. Since we are occupied at the time of listing if Devils Devils River should not be designated as designating final critical habitat in areas River minnow has been found to be critical habitat because the only factor presently occupied by the fish, this present by species experts within the affecting fish populations is being requirement to consult would exist even last 10 years, or where the stream propagated and enhanced by Texas if we were not designating critical segment is directly connected to a Parks and Wildlife Department (TPWD). habitat. segment with documented occupancy Our Response: We do not know the (22) Comment: The proposed rule’s within the last 10 years (see section full extent of specific impacts of the concern for future groundwater ‘‘Criteria Used to Identify Critical smallmouth bass on the Devils River withdrawals is not based on well- Habitat’’ section below). The fish has minnow, but initial research results researched and documented science on not been collected in Sycamore Creek since the listing have not revealed that the connection, if any, between since 1989. We agree that collections are smallmouth bass are an obvious source groundwater withdrawals in Pinto limited and more extensive sampling in of predation on Devils River minnow. Valley and high quality water for the the future may produce additional TPWD manages the smallmouth bass species in Pinto Creek. WaterTexas occurrence information in this fishery in the Devils River but no longer intends to convert groundwater in watershed. stocks the fish in the Devils River or Kinney County historically used for (18) Comment: Stream flow records Amistad Reservoir. It is unknown if a agriculture to municipal use without from the U.S. Geological Survey and change in the management of this increasing the overall amount of water International Boundary and Water fishery would benefit the Devils River pumped. Therefore, the statement in the Commission gauging station show that minnow. proposed critical habitat rule that there Pinto Creek has had ‘‘no flow’’ 59 (20) Comment: Nonnative species, are plans to significantly increase the percent of the time as measured such as the smallmouth bass and amount of groundwater pumped is monthly between 1965 and 1996. Pinto armored catfish, deserve to be protected inaccurate in regard to plans by Creek is an intermittent stream and does even though they are not native. They WaterTexas. should be allowed to thrive for the not supply the permanent, natural flows Our Response: We did not attempt to benefit of the American people, that are a pillar of the critical habitat connect any particular groundwater definition. consistent with the Service’s mission pumping areas, such as Pinto Valley, to Our Response: We recognize that statement. the potential for impact of spring flows portions of Pinto Creek can be Our Response: In the preamble to the intermittent. The location of the stream Act, Congress recognized that in Pinto Creek. Our concerns are gauge was moved to a far upstream endangered and threatened species of consistent with experts in the field, location in 1981 (Ashworth and Stein wildlife and plants ‘‘are of esthetic, such as the statements from studies by 2005, p. 18). Although portions of the ecological, educational, historical, Ashworth and Stein (2005, p. 34): ‘‘Base stream will exhibit no flow during some recreational, and scientific value to the flows of the rivers and streams that flow times of the year, spring flows will Nation and its people.’’ When humans through Kinney and Val Verde Counties continue providing aquatic habitat for introduce species outside of their is [sic] principally generated from the the Devils River minnow at various natural range, they often have numerous springs that occur in the locations downstream. Ashworth and unintended and deleterious effects on headwaters of these surface drainages. Stein (2005, p. 19) found that the Pinto native species. Nonnative species are Sustaining flow in these important Creek is a gaining stream through much one of the primary threats to many rivers and streams is highly dependent of the upper reaches, that is, it increases native species, sometimes contributing on maintaining an appropriate water in volume downstream. A stream gauge to their status as threatened or level in the aquifer systems that feed the at a stationary location does not reflect endangered. In these instances, we place supporting springs. Spring discharge the longitudinal variation in stream a higher value on the conservation of rates can be negatively impacted by flow. We observed this in the summer the native species and often try to nearby wells if the pumping of 2006 when Service biologists visited control the nonnative species to further withdrawals lower the water table in the Pinto Creek and found some reaches of the recovery of the listed species. We aquifer that contributes to the spring. If the creek dry and other locations believe this is consistent with the intent the water-level elevation drops below supported by spring flows. Fish were of the Act. the elevation of the land surface at the concentrated in these spring-fed (21) Comment: Groundwater point of spring discharge the spring will stretches. conservation districts override the ‘‘Rule cease to flow.’’ To account for this variation, PCE 5 of of Capture’’ in groundwater law in The statement in this final critical this critical habitat designation includes Texas. Designating critical habitat is a habitat designation characterizes the areas within stream courses that may be way for the Federal government to gain expected overall trends for groundwater periodically dewatered for short time control over water managed by State or pumping in Kinney County (PWPG periods, during seasonal droughts. local authorities. 2006, pp. 3–13, 4–54) and is not These areas were found to be important Our Response: We recognize that intended to be specific to any particular as connective corridors. The Devils groundwater districts are intended to groundwater development project. River minnow occurs in relatively short allow local management of groundwater (23) Comment: The purpose of the stream segments and, therefore, needs to in place of the rule of capture. Kinney County Groundwater be able to move unimpeded to access Designating critical habitat is not Conservation District (KCGCD) different areas within the stream to intended to supersede surface or Management Plan is to provide complete life history functions and find groundwater management by private, guidance to the KCGCD on how to resources, such as food and cover. local, or State parties. If a Federal manage the groundwater on a (19) Comment: The presence of the agency proposes an action that they sustainable basis and yet beneficially nonnative smallmouth bass determine may affect the Devils River use the groundwater without exploiting

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or adversely affecting the natural flow of County. We recognize that future Statewide section 7 consultation in 2004 the intermittent streams. increases in groundwater pumping that was completed with the Natural Our Response: The KCGCD has could impact habitats of the Devils Resources Conservation Service (NRCS) recently drafted a revised management River minnow, and we encourage the for brush control actions funded under plan including an estimate of future KCGCD to consider habitat of the Devils the 2002 Farm Bill. In that consultation, groundwater permits. Although the plan River minnow and to provide stream we found that, under most was not approved until after the close of flow monitoring efforts to ensure circumstances, brush control within the the public comment period and permitted pumping does not result in range of the Devils River minnow therefore not considered in its entirety loss of stream habitat for Devils River results in beneficial effects by increasing in this final rule, we recognize that the minnow. However, unless there is a groundwater recharge and spring flows, KCGCD intends to manage groundwater Federal nexus with groundwater as emphasized by this comment. on a sustainable basis without adversely pumping activities and a determination (28) Comment: Land-use practices in affecting natural stream flows. We that a specific Federal action may affect the Devils River Unit have changed little understand that KCGCD is still the Devils River minnow, the critical over the past 50 years and are collecting scientific information on the habitat designation will not affect predominantly agrarian (agricultural) for possible effects to stream flows of groundwater pumping. livestock ranching and wildlife hunting. various permitting levels for the aquifers (26) Comment: A limit on impervious Stream flow and quality are not in Kinney County. We look forward to cover within the watersheds of the currently influenced by other outside the results of the KCGCD’s designated streams should be included factors, such as those from municipal, implementation of their management in the section on Special Management commercial, or industrial entities, but plan and we intend to work Considerations and Protections. are only subject to natural variations. cooperatively with the District to also Impervious cover amounts in excess of The Nature Conservancy and the State collect information on the relationship 10 to 15 percent within a watershed are of Texas own large parcels of land along of stream flows and aquatic habitat for known to increase storm runoff, which the river. Barring any unforeseen events, the Devils River minnow, as called for in turn causes the erosion of stream it does not appear that land use in the in the recovery plan (Service 2005, p. beds and the degradation of water region will change significantly. 2.4–4). quality as surface pollutants Our Response: We agree that land use (24) Comment: Current land-use contaminate and warm the water in a has changed little in the Devils River activities authorized by the KCGCD in stream. watershed in recent years, and current the form of groundwater permitting will Our Response: We concur that ranching and wildlife hunting are not allow such an unwarranted and limiting impervious cover in urban considered a threat to the Devils River unprecedented depletion of the areas is one method to reduce future minnow or a concern for its habitat. groundwater resource that Pinto Creek, pollutant inputs to streams from However, we are concerned that the the sole remaining critical habitat for contributing watersheds. The final stream habitat will be affected in the the Devils River minnow in Kinney critical habitat designation does not future by other outside factors. The County, will dry up—if not completely, intend to provide this level of primary long-term potential threat of then certainly to the point of no longer specificity for needed special groundwater withdrawal is not being suitable for the minnow. Any management actions. There may be necessarily related to land use. Other activity that would further threaten other management that could result in land-use considerations include the spring flows in Pinto Creek must not be providing adequate water quality for the potential impacts to water quality from allowed if the loss of the minnow in that Devils River minnow in San Felipe petroleum exploration and creek is to be avoided. Creek. This level of land planning is development. Our Response: We recognize this best done by a local governmental (29) Comment: One commenter stated concern and we encourage the KCGCD authority, such as a city or county. that the Devils River minnow is to carefully consider the impacts on (27) Comment: The proposed rule thriving, particularly in the Devils Pinto Creek of future groundwater use includes brush-clearing in a list of River, under the current voluntary permitting. However, it is important to activities that would significantly cooperation of private landowners, recognize that designation of Pinto increase sediment deposition within the TPWD, and the Service. The species Creek, or the other areas, as critical stream channel. This statement, taken does not now satisfy the definition for habitat for the Devils River minnow has out of context, is erroneous. Research an endangered or even threatened no regulatory effect on non-Federal has shown that brush control can lead species under the Endangered Species actions, such as permitting by a local to positive environmental benefits, Act (16 U.S.C. 1531 et seq.). Another groundwater district. including increased groundwater commenter thought our action to (25) Comment: The KCGCD plans to recharge. designate critical habitat would lead to permit total groundwater withdrawals Our Response: The proposed rule further action to declare it an that exceed the amount of groundwater indicated brush control and other land- endangered species. available according to estimates by the use activities could affect Devils River Our Response: We recognize the Texas Water Development Board. The minnow habitat. We have updated the positive relationships that exist between KCGCD does not consider impacts to the final rule to more accurately reflect our our agency, TPWD, and private Devils River minnow, and the KCGCD understanding that the actual effects of landowners in working together for the may have already sanctioned specific activities, such as brush conservation of the Devils River withdrawals of sufficient amounts of clearing, must be evaluated on a project- minnow. We concur that various groundwater to result in direct harm to specific basis. The impacts of any monitoring efforts in the Devils River the proposed critical habitat in Pinto specific activity will depend on the have continued to find the population Creek. location of the activity, and the extent persisting, apparently in strong Our Response: We understand there to, and manner in, which the activity is numbers. However, there is no available are important scientific uncertainties carried out. information that suggests the species is about the amount of groundwater We have also updated the final ‘‘thriving’’ across its range. The Act available for sustained uses in Kinney economic analysis to include a requires designation of critical habitat

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for species listed as either threatened or we do not foresee private landowner expected to change most ongoing or endangered, if we determine critical restrictions resulting from the final planned activities. habitat to be prudent and determinable. designation of critical habitat and do not The legal protections of critical As part of a process separate from believe that these concerns are likely to habitat only apply during interagency designating critical habitat, the Service be realized. These widely held consultation by Federal agencies under is now conducting a 5-year review on perceptions by landowners in the Devils section 7 of the Act. Activities that are the status of the Devils River minnow River Unit, however, could result in funded, permitted, or carried out by a rangewide to assess whether it is anti-conservation incentives because Federal agency (such as a permit from classified correctly as a threatened furthering Devils River minnow the U.S. Army Corps of Engineers under species. We requested information to conservation is seen as a risk to future section 404 of the Clean Water Act) on assist with this review in a Federal economic opportunities or loss of private or public lands that may affect Register notice on April 23, 2007 (72 FR private property rights. See our response a listed species or critical habitat 20134). We have not yet completed this to Comment 30 above. undergo additional review for review, and we are always open to (32) Comment: The restrictions on consideration of the listed species. receiving new information on the status landowners in the Devils River area will Through an interagency consultation of this and all listed species. unduly burden landowners. Critical process, the Service advises Federal (30) Comment: The voluntary habitat will also impact whether or not agencies whether the proposed actions conservation agreement signed by the you can use machinery for pushing would likely jeopardize the continued Service and TPWD in 1998 is working, cedar, constructing roads, clearing existence of the species or adversely and the Devils River Association renews brush, grazing livestock excessively, and modify its critical habitat. Results of our commitment to help with this using off-road vehicles. these additional reviews rarely interfere agreement. Voluntary efforts on the Our Response: These activities are with the ability of private or public Devils River have increased Devils River identified in the proposed and final entities to carry out otherwise lawful minnow habitat. The Service should rules as actions that could affect critical activities such as those described in this continue this healthy voluntary habitat, if they were carried out, funded, comment. cooperation. Designating critical habitat or permitted by a Federal agency and if We have only designated critical would terribly and irreparably damage they resulted in specific effects to the habitat in areas where the species the trust that we have gained over the critical habitat area. The final critical occurs. In these areas, Federal agencies last few years. Our Response: We appreciate and habitat designation itself does not already have a responsibility for strongly support the voluntary restrict landowners along the Devils interagency consultation for actions that cooperation that has been provided in River or elsewhere from carrying out may affect the species. A review of the the past by landowners along the Devils these activities. See our response to consultation history as part of the River. The conservation of this species Comment 27 for additional discussion economic analysis (documented in depends on the cooperative efforts of of brush clearing. Appendix A of the economic analysis) private landowners and others. (33) Comment: Will critical habitat concluded that there have been very few Although the 1998 conservation designation affect: (1) The right of the consultations since the species was agreement has not been renewed or City of Del Rio to take water from San listed in 1999. To date, there has been maintained as a formal conservation Felipe Springs or other groundwater no interagency consultation with effort following the initial 5-year sources; (2) the right of private Laughlin Air Force Base regarding the commitment, it has served as a landowners to take and use groundwater Devils River minnow. foundation for cooperative efforts that, on their lands; (3) City, County, or State (34) Comment: I am concerned that by in part, resulted in the designation of construction projects involving building designating the San Felipe Creek as the Devils River minnow as threatened or maintaining streets, highways, and critical habitat, the people will suffer rather than endangered. After other public facilities; (4) repair and and not be able to use the creek as the conducting an analysis under section maintenance activities on State City of Del Rio would like. The Devils 4(b)(2) of the Act, we concluded that the Highway 163 in Val Verde County or the River minnow should not dictate how benefits of excluding the Devils River county road from State Highway 163 to the City of Del Rio uses San Felipe Unit from the final designation F.M. 1024; (5) the rights of landowners Creek, but you should work to eradicate (including maintaining non-Federal to use and operate their lands for river cane and the armored catfish to partnerships) outweigh the benefits of otherwise lawful purposes? What help the population of the fish grow. inclusion (see ‘‘Exclusions under activities on non-Federal, public, or Our Response: People in Del Rio will Section 4(b)(2)’’ section). private lands will be affected by critical continue to be able to use San Felipe (31) Comment: Private landowners habitat designation? What impact will Creek even though it has been and ranchers along the Devils River critical habitat designation have on designated as critical habitat. The serve to maintain wide open spaces and Laughlin Air Force Base? conservation of the Devils River ecosystem processes. Restrictions on Response: Critical habitat only affects minnow has not limited the use of San private landowners from critical habitat activities where Federal agencies are Felipe Creek, and use is not likely to designation could affect landowners’ involved and consultation under section change with critical habitat. We will livelihoods and result in land 7 of the Act is necessary. Critical habitat continue our ongoing cooperative efforts fragmentation and a cascading effect designation has no impact on private with the City of Del Rio to work on along the Devils River. This could result actions on private lands. Critical habitat controlling exotic river cane and in the selling of smaller land parcels does not create a requirement for armored catfish, and on other and cause the end of one of the most specific land protection by non-Federal conservation efforts. pristine ecosystems in the State. parties. The Devils River minnow (35) Comment: There is suspicion that Our Response: We agree that occurs in streams primarily on non- the Devils River minnow population in maintaining large ranches intact is Federal lands with little to no Federal Pinto Creek was artificially introduced likely a beneficial situation for the agency involvement. Therefore, final by private landowners and others at the Devils River minnow habitat. However, critical habitat designation is not headwaters of Pinto Creek.

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Our Response: We have no the creek. The KCGCD does not have the consultations in areas designated as information to indicate that the Devils scientific evidence to assure that Las critical habitat for the Devils River River minnow in Pinto Creek is not a Moras Creek will not go dry if minnow. Rather, current and forecast natural population. The reason for the groundwater is transported to San conservation measures for the species recent discovery of Devils River Antonio. are a result of the listing of the Devils minnow in Pinto Creek is because there Our Response: We are not proposing River minnow as a threatened species. was no prior sampling in upstream areas to reintroduce Devils River minnow to The additional cost of consulting for where the species occurs (Garrett et al. Las Moras Creek with this final critical adverse modification above the cost of 2004, p. 439). In addition, recent genetic habitat rule. Instead we are designating consulting for jeopardy, in the amount studies of the Devils River minnow have critical habitat for the species in of $64,000 (undiscounted) over 20 years, found that the population in Pinto Creek portions of Pinto Creek and San Felipe are quantified as incremental post- is significantly different from the Creek. We have determined not to designation impacts in the population in the Devils River (Conway designate Las Moras Creek as critical administrative costs appendix of the et al. 2007, p. 9), suggesting that it is a habitat. The concerns raised in this economic analysis. natural population. comment will need to be addressed in (40) Comment: The critical habitat (36) Comment: Many listed species in future cooperative plans to restore the proposal and the DEA fail to fully Texas and nationally do not have Devils River minnow to Las Moras address the threat of climate change to critical habitat designated. The Service Creek. the Devils River minnow, despite the has already had a final ruling that stated fact that its southwestern aquatic habitat Comments Related to the Economic it would not be prudent to designate is in extreme peril from the climate Analysis critical habitat for the Devils River crisis. minnow because it would not benefit (39) Comment: The draft economic Our Response: At this time, climate the species (final listing rule in 1999, 64 analysis (DEA) maintains that section 7 change has not been identified as an FR 56606). As stated in the Service’s consultations under the jeopardy impact needing special management in July 26, 2005, letter to the Forest standard and the adverse modification the Devils River minnow critical habitat, Guardians, critical habitat is not needed standard are not likely to have as projections of specific impacts of for the Devils River minnow. significantly different outcomes. This is climate change in this area are not Our Response: We agree that not accurate, as the jeopardy standard currently available. As such, no designation of critical habitat is not does not protect unoccupied habitat. conservation measures are expected in likely to provide many benefits for the Moreover, destruction of occupied the reasonably foreseeable future that Devils River minnow since the habitat may not meet the jeopardy would directly address the threat of designated area is likely to have few standard if the Service determines that climate change to the Devils River Federal actions that affect the species. the destruction of a single population minnow. Thus, the economic analysis However, the Act requires that we will not cause the species to go extinct does not quantify impacts associated designate critical habitat following a or thwart its recovery. Alternatively, with conservation measures for the specific methodology. The lawsuit within critical habitat, the destruction of Devils River minnow related to global brought by Forest Guardians (now a single population or a portion thereof climate change. WildEarth Guardians) and others would certainly violate the Act’s (41) Comment: The potential impacts necessitated that we reconsider the prohibition of adverse modification. of future groundwater development for designation of critical habitat, resulting Our Response: It is true that it would municipal use should not be ignored in in this final rule. The reasoning that we be inappropriate to conclude that the economic analysis. With the used in 1999 to determine that the consultations under the jeopardy and potential groundwater yields that could designation of critical habitat was not adverse modification standards would be produced for municipal use, it is prudent was subsequently determined not differ for unoccupied critical recommended that the parameters used in other court cases not to be a valid habitat; however, we have not included in performing the economic analysis be justification. unoccupied areas in this final critical reexamined and revised to reflect the (37) Comment: All areas included in habitat designation (see ‘‘Criteria Used potential future impacts of pumping for the proposed rule should be designated to Identify Critical Habitat’’ section municipal use. If these factors are as critical habitat. The adequacy of below). Additionally, we recognize that ignored, it is conceivable that future existing or future conservation plans is the jeopardy and adverse modification limitations could impose unreasonable not sufficient to warrant any exclusions standards are not equivalent and that it restrictions on groundwater of critical habitat. is possible in a general sense that a development in the region, in turn Our Response: We are excluding the project may be determined to adversely resulting in significant economic Devils River Unit and Sycamore and Las modify critical habitat while also not impacts. Moras creeks from the critical habitat resulting in jeopardy. However, the Our Response: Section 3.2 of the final designation for Devils River minnow. specific situation for the Devils River economic analysis (FEA) recognizes that After conducting analyses under section minnow does not present this case. For any limitations on available future 4(b)(2) of the Act, we concluded that the two of the units, no projects with a groundwater resource options for San benefits of excluding the Devils River Federal nexus are anticipated, and for Antonio or other municipalities wishing Unit and Sycamore and Las Moras the third unit, the projects expected to export water from the critical habitat creeks from the final designation would generally be minor and not area would result in potentially (including maintaining non-Federal expected to affect an entire unit. substantial economic impacts on partnerships) outweigh the benefits of Therefore, projects in the third unit municipal users, presumably in terms of inclusion (see ‘‘Exclusions under would not likely result in adverse increased water prices occurring if Section 4(b)(2)’’ section). modification or jeopardy. Based on supply is constrained, or as more costly (38) Comment: Las Moras Creek is not discussions among stakeholders, options for water development are the place to reintroduce Devils River affected Federal agencies, and the undertaken. However, due to the minnow. Flooding in the city of Service, no new conservation measures uncertainties with regard to linking Brackettville often causes pollution in are expected to occur as a result of specific groundwater withdrawals to

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impacts on Devils River minnow state funding for a groundwater project. Felipe Creek and the San Felipe Country habitat, future Federal involvement in In this case, the specific project must be Club Management Plan, should not be potential water extraction projects, and included in the GMA’s regional water included in the economic baseline any potential changes to those projects plan. The total groundwater allotments calculation in the EA. Due to the that could be requested by the Service permitted by the GMA must not exceed voluntary nature of these plans, the as part of a consultation, the FEA is its managed available groundwater water quality protection measures unable to quantify potential economic level.’’ described are not guaranteed to occur. impacts of Devils River minnow (43) Comment: WaterTexas’ ongoing As such, these voluntary measures conservation measures related to such water exportation project is too might lower the perceived benefit to groundwater extraction activities. The preliminary to know for certain whether designating critical habitat by analysis does recognize that potential consultation with the Federal guaranteeing conservation, which, in negative impacts on both the water government above and beyond the U.S. reality, may or may not occur. suppliers and the end water users could Army Corps of Engineers (for Section Our Response: The FEA examines the occur should restrictions on water use 404 permits under the Clean Water Act) impacts of restricting or modifying be undertaken on behalf of the Devils will be necessary. With respect to specific land uses or activities for the River minnow. The analysis also points WaterTexas’ planned water exportation benefit of the species and its habitat out that there have not been any project, WaterTexas does not see the within the areas considered for critical consultations related to groundwater KCGCD’s management plan revision habitat designation. The analysis extraction and its effects on the Devils currently underway as any sort of employs ‘‘without critical habitat’’ and River minnow to date. barrier to the commencement or further ‘‘with critical habitat’’ scenarios. The (42) Comment: In Section 3.1 of the development of their current project. ‘‘without critical habitat’’ scenario DEA, the quotation attributed to the Our Response: Section 3.2 of the FEA represents the baseline for the analysis, document, ‘‘Texas Water Law,’’ Texas has now been clarified to state that the considering protections already Water Resource Education, Texas A&M WaterTexas project is too preliminary to accorded the Devils River minnow, University, is not completely accurate know for certain whether or not voluntary or otherwise. The City of Del with respect to Texas Law. While the so- consultation with the Federal Rio’s Management Plan for San Felipe called ‘‘Rule of Capture’’ continues to be government, other than the U.S. Army Creek and the San Felipe Country Club the underlying basis of groundwater law Corps of Engineers for a section 404 Management Plan were both developed in Texas, groundwater districts, and permit, will be necessary. A statement in 2003 following a Conservation now, more importantly, Groundwater has also been added to the FEA Agreement for the Devils River minnow Management Areas (GMAs) play a major clarifying that ‘‘currently, WaterTexas between the Service, TPWD, and the and superseding role in groundwater does not expect the forthcoming KCGCD City of Del Rio in 1998, prior to the planning and management. In management plan to affect their ongoing species’ listing. Thus, the costs of particular, House Bill 1763 from the groundwater exportation project.’’ developing these plans, and those 79th Regular Session of the Texas (44) Comment: In section 3.2 conservation measures listed in the Legislature created GMAs that now paragraph 86, the DEA states that management plans that have already cover all of Texas, and together with ‘‘supplementing San Antonio’s water occurred or are planned to occur in the groundwater districts, GMAs override in supply would, among other things, ease near future are included in the baseline. many respects the effects of the ‘‘Rule of water-related threats to other listed Impacts related to conservation Capture’’ as known and practiced in the species within the Edwards Aquifer.’’ measures discussed in the management past. WaterTexas wishes to correct any plans that are not anticipated to occur Our Response: Section 3.1 of the FEA perception that they believe their in the foreseeable future are not has been revised following receipt of planned water exportation project will quantified in the analysis. this comment. This section now states assist in directly reviving or rescuing (46) Comment: The DEA failed to the following: ‘‘Generally, groundwater any endangered species in any other consider the entirety of potential effects in Texas is governed by the ‘rule of area of Texas. of all Federal nexuses and ensuing capture,’ that is, groundwater is the Our Response: Section 3.2 of the FEA regulatory actions on small businesses, private property of the owner of the has been revised to clarify that one in particular, private landowners and overlying land. However, a number of water company believes that its project ranchers along the Devils River Unit. state-mandated groundwater may help to ease water-related threats to Pursuant to the 2002 Farm Bill, there are conservation districts (GCDs) have the other species in the Edwards Aquifer. at least two NRCS programs that provide ability to regulate the spacing and The section now states: ‘‘Grass Valley assistance to landowners to control production of groundwater wells. Each Water LP is proposing to export 22,000 brush. The proposed rule lists brush- GCD falls within a larger Groundwater acre-feet annually to San Antonio from clearing as an ‘‘action that would Management Area (GMA). Currently, 16 a 22,000-acre ranch in eastern Kinney significantly increase sediment GMAs exist in Texas spanning the County. The project would draw water deposition within the stream channel.’’ state’s major and minor aquifers. In from the Edwards Balcones Fault Zone, Potential brush-clearing consultations 2005, the Texas State Legislature which according to the company, does may delay actual brush-clearing to a required that all GCDs in a given GMA not affect Las Moras Springs. Grass point where landowners may miss the meet annually to determine a future Valley Water LP has already invested a opportunity to carry out planned brush desired groundwater condition for their significant amount of resources into the control activities for an entire year. respective GMA. Based on the desired project and believes that supplementing Our Response: Section 2 of the FEA future condition specified by a given San Antonio’s water supply could, now clarifies that threats to water GMA, the Texas Water Development among other positive effects, ease water- quality in Devils River minnow critical Board (TWDB) determines a managed related threats to other listed species habitat may include sedimentation due available groundwater level for the within the Edwards Aquifer.’’ to grazing, brush-clearing, road GMA. Lands outside of GCDs are not (45) Comment: Voluntary construction, channel alteration, off- subject to groundwater pumping conservation plans, such as the City of road vehicle use, and other watershed regulations unless a landowner seeks Del Rio’s Management Plan for San activities in the rural Devils River,

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Sycamore Creek, and Pinto Creek units. areas, it appears unlikely that critical believes that the direct benefits of the Section 2 of the FEA also includes a habitat designation for the Devils River Proposed Rule are best expressed in discussion of the concern that private minnow will result in long-term stigma biological terms that can be weighed brush-clearing activities conducted effects for property owners abutting against the expected cost impacts of the using funds from NRCS could be designated stream segments. Unless a rulemaking.’’ Thus, the Service utilizes delayed to a point where landowners landowner receives Federal assistance cost estimates from the economic may miss the opportunity to carry out or needs a Federal permit to carry out analysis as one factor against which those activities for an entire year. The property management actions, no nexus biological benefits are compared during analysis examines a 2004 formal exists that would compel a Federal the 4(b)(2) weighing process. The consultation between the Service and action agency to consider requiring Service agrees that, to the extent that the NRCS regarding activities associated conservation measures for the species. additional social benefits such as with implementation of the 2002 Farm For ongoing private land-use activities, improving water quality, eliminating Bill conservation programs and their such a nexus is expected to be rare. non-native species, and preserving/ effects on listed species in western Further, recent land-use trends in maintaining ecosystem services result Texas. This consultation, which focused critical habitat areas are a transition from conservation measures for the on brush management treatment from ranching and agricultural uses to Devils River minnow, these practices targeting control of honey recreation and conservation-based land improvements could also benefit human mesquite (Prosopis glandulosa), salt uses. In these cases, any perceptions communities. In this case, the DEA cedar, Ashe juniper (Juniperus ashei), that development activities may be predicts that the incremental costs and redberry juniper (J. coahuilensis) limited in those areas could in fact resulting from the proposed rule are concluded that the proposed brush- increase the attractiveness of property in solely administrative in nature. As the clearing activities would benefit the those areas. In either case, as the public commenter points out, no new Devils River minnow by increasing the becomes aware of the true regulatory conservation measures are anticipated base flow of the Devils River if the burden imposed by critical habitat, any to result from the designation. brush-control activities were part of impact of the designation on property brush management practices intended to values would be expected to decrease. Summary of Changes From the improve the quality and quantity of (48) Comment: The economic analysis Proposed Rule water, improve range conditions, and states that it measures net economic In preparing the final critical habitat improve the value of wildlife habitat. costs, but it does not quantify benefits. designation for the Devils River Thus, all brush removal activities Therefore, the Service cannot estimate minnow, we reviewed and considered receiving funding from the NRCS under the ‘‘net’’ impacts of critical habitat. comments from the public and peer the 2002 Farm Bill remained unaltered Consequently, they cannot reviewers on the July 31, 2007, as a result of that consultation. The appropriately invoke section 4(b)(2) of proposed designation of critical habitat analysis concludes that few, if any, the Act to exclude areas from its final (72 FR 41679) and on the draft impacts on brush-clearing activities, critical habitat designation for the economic analysis, made available on even when supported by NRCS funds, Devils River minnow. The commenter February 7, 2008 (73 FR 7237). As a appear likely to result from Devils River also states that benefits derived from result of comments received, we made minnow conservation activities. conservation measures such as the following changes to our proposed (47) Comment: Several commenters improving water quality, eliminating designation: requested that stigma effects be non-native species, and preserving/ (1) We updated the Required addressed in the economic analysis. maintaining ecosystem services also Determinations sections to incorporate One commenter stated that he believes benefit human communities and have updated analyses from the FEA. this effect could significantly decrease been captured in economic literature (2) We have excluded 47.0 stream km and lower the land value of the land and should be considered in the DEA. (29.2 stream mi) of stream within the along the Devils River. The number The commenter notes that the costs of Devils River Unit (Unit 1) proposed as could be anywhere from 2 to 10 million these conservation measures are critical habitat for Devils River minnow dollars of land devaluation impacts. attributed to baseline protections. from the final designation (see the Our Response: Section 1.3.2 of the Our Response: Where sufficient ‘‘Exclusions under Section 4(b)(2) of the FEA has been revised and expanded to information is available, the FEA Act’’ section of this final rule for further respond to concerns over stigma effects attempts to recognize and measure the details). related to the designation. The analysis net economic costs of species (3) We determined, based upon the recognizes that, in some cases, public conservation efforts imposed on comments received and consistent with perception of critical habitat designation regulated entities and the regional the recovery plan, that Sycamore and may result in limitations of private economy as a result of critical habitat Las Moras creeks are essential to the property uses above and beyond those designation. That is, it attempts to conservation of the Devils River associated with anticipated project measure costs imposed on landowners minnow. We are excluding these areas modifications and uncertainty related to or other users of the resource net of any from critical habitat (see the regulatory actions. Public attitudes offsetting gains experienced by these ‘‘Exclusions under Section 4(b)(2) of the regarding the limits or restrictions of individuals associated with these Act’’ section of this final rule for further critical habitat can cause real economic conservation efforts. details). effects to property owners, regardless of The analysis does not attempt to whether such limits are actually assign a monetary value to broader Critical Habitat imposed. To the extent that potential social benefits that may result from Critical habitat is defined in section 3 stigma effects on real estate markets are species conservation. The primary of the Act as: probable and identifiable, these impacts purpose of the rulemaking is the (1) The specific areas within the are considered indirect, incremental potential to enhance conservation of the geographical area occupied by a species, impacts of the designation. species. As stated in the FEA, and as at the time it is listed in accordance The FEA finds that, in the case of the quoted in the comment, ‘‘rather than with the Act, on which are found those Devils River minnow critical habitat rely on economic measures, the Service physical or biological features

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(a) Essential to the conservation of the may require special management scientific information at the time of the species and considerations or protection. agency action. Federally funded or (b) Which may require special Under the Act, we can designate permitted projects affecting listed management consideration or critical habitat in areas outside the species outside their designated critical protections; and geographical area occupied by the habitat areas may require consultation (2) Specific areas outside the species at the time it is listed only when under section 7 of the Act and may still geographical area occupied by a species we determine that the best available result in jeopardy findings in some at the time it is listed, upon a scientific data demonstrate that the cases. Similarly, critical habitat determination that such areas are designation of that area is essential to designations made on the basis of the essential for the conservation of the the conservation needs of the species. best available information at the time of species. Section 4 of the Act requires that we designation will not control the Conservation, as defined under designate critical habitat on the basis of direction and substance of future section 3 of the Act, means the use of the best scientific and commercial data recovery plans, habitat conservation all methods and procedures that are available. Further, our Policy on plans (HCPs), or other species necessary to bring any endangered or Information Standards Under the conservation planning efforts if threatened species to the point at which Endangered Species Act (published in information available at the time of the measures provided under the Act the Federal Register on July 1, 1994 (59 these planning efforts calls for a are no longer necessary. FR 34271)), the Information Quality Act different outcome. (section 515 of the Treasury and General Critical habitat receives protection Government Appropriations Act for Primary Constituent Elements under section 7 of the Act through the Fiscal Year 2001 (Pub. L. 106–554; H.R. prohibition against Federal agencies In accordance with section 3(5)(A)(i) 5658)), and our associated Information carrying out, funding, or authorizing the of the Act and regulations at 50 CFR Quality Guidelines provide criteria, destruction or adverse modification of 424.12, in determining which areas establish procedures, and provide critical habitat. Section 7(a)(2) of the Act occupied by the species at the time of guidance to ensure that our decisions requires consultation on Federal actions listing to designate as critical habitat, are based on the best scientific data that may affect critical habitat. The we consider those physical and available. They require our biologists, to designation of critical habitat does not biological features essential to the the extent consistent with the Act and conservation of the species that may affect land ownership or establish a with the use of the best scientific data refuge, wilderness, reserve, preserve, or require special management available, to use primary and original considerations or protection. We other conservation area. Such sources of information as the basis for designation does not allow the consider the physical or biological recommendations to designate critical features to be the PCEs laid out in the government or public to access private habitat. lands. Such designation does not appropriate quantity and spatial When determining which areas arrangement for the conservation of the require implementation of restoration, should be designated as critical habitat, recovery, or enhancement measures by species. The PCEs include, but are not our primary source of information is limited to: private landowners. Where a landowner generally the information developed requests Federal agency funding or (1) Space for individual and during the listing process for the population growth and for normal authorization for an action that may species. Additional information sources affect a listed species or critical habitat, behavior; may include the recovery plan for the (2) Food, water, air, light, minerals, or the consultation requirements of section species, articles in peer-reviewed other nutritional or physiological 7(a)(2) would apply, but even in the journals, conservation plans developed requirements; event of a destruction or adverse by States and counties, scientific status (3) Cover or shelter; modification finding, the landowner’s surveys and studies, biological (4) Sites for breeding, reproduction, obligation is not to restore or recover the assessments, or other unpublished and rearing (or development) of species, but to implement reasonable materials and expert opinion or offspring; and and prudent alternatives to avoid personal knowledge. (5) Habitats that are protected from destruction or adverse modification of Habitat is often dynamic, and species disturbance or are representative of the critical habitat. may move from one area to another over historic, geographical, and ecological For inclusion in a critical habitat time. Furthermore, we recognize that distributions of a species. designation, the habitat within the designation of critical habitat may not We derive the specific primary geographical area occupied by the include all of the habitat areas that we constituent elements required by the species at the time of listing must may eventually determine, based on Devils River minnow from the biological contain the physical and biological scientific data not now available to the needs of the species as understood from features essential to the conservation of Service, are necessary for the recovery studies of its biology and ecology, the species. Critical habitat designations of the species. For these reasons, a including but not limited to, Edwards et identify, to the extent known using the critical habitat designation does not al. (2004), Garrett et al. (1992), Garrett best scientific data available, habitat signal that habitat outside the et al. (2004), Gibson et al. (2004), Harrell areas that provide essential life cycle designated area is unimportant or may (1978), Hubbs (2001), Hubbs and Garrett needs of the species (i.e., areas on which not promote the recovery of the species. (1990), Lopez-Fernandez and are found the primary constituent Areas that support populations, but Winemiller (2005), Valdes Cantu and elements (PCEs) laid out in the are outside the critical habitat Winemiller (1997), and Winemiller appropriate quantity and spatial designation, will continue to be subject (2003). arrangement for the conservation of the to conservation actions we implement species). under section 7(a)(1) of the Act. They Space for Individual and Population Occupied habitat that contains the are also subject to the regulatory Growth, Normal Behavior, and Cover features essential to the conservation of protections afforded by the section The Devils River minnow is a fish that the species meets the definition of 7(a)(2) jeopardy standard, as determined occurs only in aquatic environments of critical habitat only if those features on the basis of the best available small to mid-sized streams that are

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tributaries of the Rio Grande in south found in areas with shallow to moderate These microorganisms are a component Texas and northern Mexico. The species water depths between about 10 cm (4 in) of the diet of the Devils River minnow spends its full life cycle within streams. and 1.5 meters (m) (4.9 feet (ft)) (Garrett (Lopez-Fernandez and Winemiller 2005, The stream environment provides all of et al. 2004, p. 436). Appropriate water p. 250). We estimate substrate sizes for the space necessary to allow for depths and velocities are required gravel-cobble between 2 and 10 cm (0.8 individual and population growth, food, physical features for Devils River and 4 in) in diameter (Cummins 1962, cover, and normal behaviors of the minnows to complete all life history p. 495) are important for supporting species. Studies of the specific micro- functions. food sources for the Devils River habitats used by any life stages of Devils b. Cover. The presence of vegetative minnow. River minnow in the wild have not been structure appears to be particularly d. Stream Channel. The Devils River conducted. Studies of fish habitat important for the Devils River minnow. minnow occurs in the waters of stream within its range have found too few Garrett et al. (2004, p. 437) states that channels that flow out of the Edwards individuals of Devils River minnow to the species is most often found Plateau of Texas. The streams contain a analyze specific habitat associations associated with emergent or submerged variety of mesohabitats for fish that are (Garrett et al. 1992, p. 266; Valdes Cantu vegetation. Although some sites where temporally and spatially dynamic and Winemiller 1997, p. 268; Robertson Lopez-Fernandez and Winemiller (2005, (Harrell 1978, p. 60–61; Robertson and and Winemiller 2003, p. 119). However, p. 249) found Devils River minnow had Winemiller 2003, p. 115). Mesohabitat observational studies have been little or no aquatic vegetation, they often types are stream conditions with conducted throughout its limited range found the Devils River minnow different combinations of depth, that generally defined stream conditions associated with stream banks having velocity, and substrate, such as pools where Devils River minnows have been riparian vegetation that overhangs into (stream reaches with low velocity and collected. the water column, presumably deep water), riffles (stream reaches with General habitat descriptions of areas providing similar structure for the fish moderate velocity and shallow depths where Devils River minnow have been to use as cover. The structure provided and some turbulence due to high found include the following: ‘‘the area by vegetation likely serves as cover for gradient), runs (stream reaches with where spring runs enter the river’’ predator avoidance by the Devils River moderate depths, moderate velocities, (Hubbs and Garrett 1990, p. 448); minnow and as a source of food where and a uniformly flat stream bottom), and ‘‘channels of fast-flowing water over algae and other microorganisms may be backwaters (areas in streams with little gravel bottoms’’ (Garrett et al. 1992, p. attached. In controlled experiments in or no velocities along stream margins) 259); ‘‘associated with water willow an artificial stream setting, minnows in (Parasiewicz 2001, p. 7). These physical (Justicia americana) and other aquatic the Dionda genus (the experiment did conditions in stream channels are macrophytes over a gravel-cobble not distinguish between the Devils River mainly formed by large flood events that substrate’’ (Garrett et al. 2004, p. 437) minnow and the closely related shape the banks and alter stream beds. (macrophytes are plants large enough to manantial roundnose minnow) were Healthy stream ecosystems require be seen without a microscope); and found consistently associated with intact natural stream banks (including ‘‘stream seeps’’ at sites that ‘‘had plants, and, in the presence of a rocks and native vegetation) and stream abundant riparian vegetation predator, sought shelter in plant beds (dynamically fluctuating from silt, overhanging the banks’’ (Lopez- substrate habitat (Thomas 2001, p. 8). sand, gravel, cobble, and bedrock). Fernandez and Winemiller 2005, p. Also, laboratory observations by Gibson These physical features allow natural 249). Stream seeps are specific sites et al. (2004, p. 42) suggested that ecological processes in stream along the stream where small amounts spawning only occurred when structure ecosystems, such as nutrient cycling, of water enter the stream from the was provided in aquaria. Instream aquatic species reproduction and ground. They are small springs, but may vegetative structure is an important rearing of young, predator-prey be less defined and more temporal. We biological feature for the Devils River interactions, and maintenance of habitat based our determinations of the PCEs on minnow to avoid predation and for Devils River minnow behaviors of the physical and biological features that complete other normal behaviors, such feeding, breeding, and seeking shelter. have been measured in streams where as feeding and spawning. Devils River minnow may move up Devils River minnow occur. c. Substrates. The Devils River and downstream to use diverse a. Water Depth and Velocity. Flowing minnow is most often associated with mesohabitats during different seasons water within streams is critical to substrates (stream bottom) described as and life stages, which could partially provide living space for the Devils River gravel and cobble (Garrett et al. 2004, p. explain the highly variable sampling minnow. All of the streams where the 436). Lopez-Fernandez and Winemiller results assessing abundance of the fish Devils River minnow is found are (2005, p. 248) found the Devils River (Garrett et al. 2002, p. 478). However, it supported by springs that derive their minnow associated with areas where the is unknown to what extent Devils River discharge from underground aquifers, amounts of fine sediment on stream minnow may move within occupied either the Edwards Aquifer or the bottoms were low (less than 65 percent stream segments because no research on Edwards-Trinity Aquifer (Brune 1981, stream bottom coverage) (Winemiller movement has been conducted. Linear pp. 274–277, 449–456; Edwards et al. 2003, p. 13) and where there was low or movement (upstream or downstream) 2004, p. 256; Garrett et al. 1992, p. 261; moderate amounts of substrate within streams may be important to Garrett et al. 2004, p. 439; Hubbs and embeddedness. The term embeddedness allow fishes to complete life history Garrett 1990, p. 448; Lopez-Fernandez is defined by Sylte and Fischenich functions and adjust to resource and Winemiller 2005, p. 249). The (2003, p. 1) as the degree to which fine abundance, but this linear movement Devils River minnow has been sediments surround coarse substrates on may often be underestimated due to associated within the stream channel the surface of a streambed. Low levels limited biological studies (Fausch et al. with areas with slow to moderate of substrate embeddedness and low 2002, p. 490). The Devils River minnow velocities between 10 and 40 amounts of fine sediment are physical occurs in relatively short stream centimeters (cm)/second (4 and 16 stream features that provide interstitial segments and, therefore, needs to be inches (in)/second) (Winemiller 2003, p. spaces within cobble and gravel able to move within the stream 13). The Devils River minnow is usually substrates where microorganisms grow. unimpeded to access different areas

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within the stream to complete life parameters for critical habitat. In et al. 2004, p. 440; Hubbs 2001, p. 312; history functions and find resources, addition, laboratory studies by Gibson et Winemiller 2003, p. 13); conductivity is such as food and cover. al. (2004, pp. 44–46) and Gibson and less than 0.7 mS/cm (microseimens per Fries (2005, pp. 299–203) have also centimeter) and salinity is less than 1 Food provided useful information for the ppt (part per thousand) (Hubbs 2001, p. The Devils River minnow, like other water quality conditions in captivity for 312; Winemiller 2003, p. 13; Garrett et minnows in the Dionda genus, has a Devils River minnow, as described in al. 2004, p. 440; Gibson et al. 2004, p. long coiled gut for digesting algae and the following discussion. 45); and ammonia levels are less than other plant material. Lopez-Fernandez a. Water temperature. Water 0.4 mg/l (Hubbs 2001, p. 312; Garrett et and Winemiller (2005, p. 250) noted temperatures from groundwater al. 2004, p. 440). Streams with water that Devils River minnows graze on discharge at these springs are chemistry within the observed ranges algae attached to stream substrates (such considered constant (Hubbs 2001, p. are essential physical features to as gravel, rocks, submerged plants, and 324). However, water temperatures provide habitat for normal behaviors of woody debris) and associated downstream from springs vary daily and Devils River minnow. microorganisms. Thomas (2001, p. 13) seasonally (Hubbs 2001, p. 324). Water Garrett et al. (2004, pp. 439–440) observed minnows in the Dionda genus temperatures have been measured in highlighted the conservation (the experiment did not distinguish these stream segments where Devils implications of water quality when between Devils River minnow and the River minnow are found to range from describing the distribution of Devils closely related manantial roundnose about 17 °C (degrees Celsius) to 29 °C River minnow in Pinto Creek. The minnow) feeding extensively on (63 °F (degrees Fahrenheit) to 84 °F). species is abundant in upstream filamentous algae growing on plants and Temperatures in the Devils River ranged portions of the creek and is abruptly rocks in an artificial stream experiment. from 17 °C to 27 °C (63 °F to 81 °F) absent at and downstream from the The specific components of the Devils (Lopez-Fernandez and Winemiller 2005, Highway 90 Bridge crossing. A different River minnow diet have not been p. 248; Hubbs 2001, p. 312). aquifer (Austin Chalk) feeds the lower investigated, but a study is underway to Measurements in San Felipe Creek have portion of the creek (Ashworth and identify stomach contents of the Devils ranged from 19 °C to 24 °C (66 °F to 75 Stein 2005, p. 19), which results in River minnow in San Felipe Creek °F) (Hubbs 2001, p. 311; Winemiller changes in water quality (different (TPWD 2006, p. 1). An abundant aquatic 2003, p. 13). Gibson and Fries (2005, p. measurements of water temperature, pH, food base of algae and other aquatic 296) had successful spawning by Devils ammonia, and salinity). Garrett et al. microorganisms attached to stream River minnow in laboratory settings at (2004, p. 439) found that the change in substrates is an essential biological temperatures from about 18 °C to 24 °C water quality also coincided with the feature for conservation of Devils River (64 °F to 75 °F). Higher water occurrence of different fish species that minnow. temperatures are rare in Devils River were more tolerant of these changes in Water Quality minnow habitat, but temperatures up to water quality parameters. 29 °C (84 °F) were recorded in Pinto c. Pollution. The Devils River minnow The Devils River minnow occurs in Creek (Garrett et al. 2004, p. 437). Pinto occurs only in habitats that are generally spring-fed streams originating from Creek generally has the lowest seasonal free of human-caused pollution. Garrett groundwater. The aquifers that support discharge rates (in other words, lower et al. (1992, pp. 266–267) suspected that these streams are of high quality and are flows) of the streams known to contain the addition of chlorine to Las Moras free of pollution and most human- the Devils River minnow, resulting in Creek for the maintenance of a caused impacts (Plateau Water Planning higher seasonal temperatures. Lower recreational swimming pool may have Group (PWPG) 2006, pp. 5–9). This discharges during the summer can result played a role in the extirpation of Devils region of Texas has limited human in areas of shallow water with high River minnow from that system. development that would compromise levels of solar heat input leading to high Unnatural addition of pollutants such as water quality of the streams where water temperatures. Maintaining water chlorine, copper, arsenic, mercury, and Devils River minnows occur. San Felipe temperatures within an acceptable range cadmium; human and animal waste Creek may be an exception; see ‘‘Special in small streams is an essential physical products; pesticides; suspended Management Considerations or feature for the Devils River minnow to sediments; and petroleum compounds Protection’’ below. The watersheds are allow for survival and reproduction. and gasoline or diesel fuels will alter largely rural and were altered in the past Maintaining water temperatures within habitat functions and threaten the to some extent by livestock grazing these ranges is interdependent on continued existence of Devils River (cattle, sheep, and goats) for many maintaining adequate spring flows to minnow. Fish, particularly herbivores decades (Brune 1981, p. 449), which streams from groundwater aquifers, and bottom-feeders, such as the Devils may have caused some degradation in which generally discharge stable cooler River minnow, are most likely affected water quality. In recent years, land water (Mathews 2007, p. 2). by aquatic pollutants because their food management has shifted away from b. Water chemistry. Researchers have source (algae and other sheep and goat grazing toward cattle noted the need for high-quality water in macroinvertebrates) can be particularly grazing and recreational uses, such as habitats supporting the Devils River susceptible to pollutant impacts (Buzan hunting, that can promote maintenance minnow (Garrett 2003, p. 155). Field 1997, p. 4). Because Devils River of healthier grasslands (McCormick studies at sites where Devils River minnow occurs in spring-fed waters that 2008, p. 33). minnow have been collected in are generally free of sedimentation, No specific studies have been conjunction with water quality protection from increased turbidity from conducted to determine water quality measurements have documented that suspended sediments or increased preferences or tolerances for Devils habitats contain the following water sedimentation from runoff are important River minnow. However, because the chemistry: dissolved oxygen levels are to maintain suitable habitat (Robertson species now occurs in only three greater than 5.0 mg/l (milligrams per 2007, pp. 2–3). Areas with waters free streams, observations of water quality liter) (Hubbs 2001, p. 312; Winemiller of pollution are essential physical conditions in these streams are used to 2003, p. 13; Gibson et al. 2004, p. 44); features to allow normal behaviors and evaluate the needed water quality pH ranges between 7.0 and 8.2 (Garrett growth of the Devils River minnow and

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to maintain healthy populations of its structure is a biological feature that is Baxter et al. 2004, p. 2656; Howells food sources. important for reproduction of Devils 2001, pp. 17–18; Light and Marchetti River minnow. 2007, pp. 442–444; Moyle et al. 1986, Sites for Breeding, Reproduction, and pp. 416–418). Studies have suggested Rearing of Offspring Habitat Protected From Disturbance or effects on the Devils River minnow from Representative of the Historic The specific sites and habitat the armored catfish in San Felipe Creek, Geographical and Ecological associated with Devils River minnow most likely due to competition for food Distribution of a Species breeding and reproduction have not (Lopez-Fernandez and Winemiller 2005, been documented in the wild. However, a. Nonnative Species. The p. 250). Armored catfish may also be Gibson et al. (2004) studied preferred introduction and spread of nonnative piscivorous and directly prey on Devils conditions for spawning by Devils River species have been identified as major River minnow (Wiersema 2007, pp. 5– minnow in a laboratory setting. Gibson factors in the continuing decline of 6). Nonnative aquatic and riparian et al. (2004, pp. 45–46) documented that native fishes throughout North America plants, such as hydrilla, water hyacinth, the species is a broadcast spawner (they (Moyle et al. 1986, pp. 415–416) and and giant river cane, also represent release eggs and sperm into the open particularly in the southwestern United concerns for Devils River minnow from water), over unprepared substrates (they States (Miller 1961, p. 397; Miller 1977, altering habitat conditions, food don’t build nests), and males display pp. 376–377). Williams et al. (1989, p. sources, and stream hydrology some territorial behavior. Broadcast 1) concluded that nonnative species (Mathews 2007, p. 2). spawning is the most common were a causal factor in 68 percent of the The absence of impacts from harmful reproductive method in minnows fish extinctions in North America in the nonnative species is an essential (Johnston 1999, p. 22; Johnston and last 100 years. For 70 percent of those biological feature for the conservation of Page 1992, p. 604). Fertilized eggs of fish still extant, but considered to be the Devils River minnow. The Devils River minnow were slightly endangered or threatened, introduced persistence of Devils River minnow in adhesive (or became more adhesive with nonnative species are a primary cause of its natural habitat depends on either time) and tended to stick to gravels just the decline (Lassuy 1995, p. 392). having areas devoid of harmful below the surface of the substrate Nonnative species have been referenced nonnative aquatic species or having (Gibson et al. 2004, p. 46). The eggs can as a cause of decline in native Texas areas where nonnative aquatic species hatch less than one week after fishes as well (Anderson et al. 1995, p. are present, but with sufficiently low deposition (Gibson 2007, p. 1). There 319; Hubbs 1990, p. 89; Hubbs et al. levels of impacts to allow for healthy was little seasonality in spawning 1991, p. 2). populations of the Devils River minnow. periods observed (Gibson et al. 2004, p. Aquatic nonnative species are b. Hydrology. Natural stream flow 45–46), which is consistent with a introduced and spread into new areas regimes (both quantity and timing) are species that lives in a relatively stable through a variety of mechanisms, vital components to maintaining temperature environment, such as intentional and accidental, authorized ecological integrity in stream spring-fed streams with low seasonal and unauthorized. Mechanisms for ecosystems (Poff et al. 1997, p. 769; temperature variations. Based on this nonnative fish dispersal in Texas Resh et al. 1988, pp. 443–444). Aquatic information, it is likely the species can include sport fish stocking (intentional organisms, like the Devils River spawn during most of the year. This is and inadvertent, non-target species), minnow, have specific adaptations to supported by Garrett et al. (2004, p. aquaculture escapes, aquarium releases, use the environmental conditions 437), who observed distinct breeding and bait bucket releases (release of fish provided by natural flowing systems coloration of Devils River minnow (blue used as bait by anglers) (Howells 2001, and the highly variable stream flow sheen on the head and yellow tint on p. 1). patterns (Lytle and Poff 2004, p. 94). As body) in Pinto Creek in December 2001, Within the range of the Devils River with other streams in the arid and Winemiller (2003, p. 16), who minnow, nonnative aquatic species of southwestern United States, streams found juveniles from early spring to late potential concern include: armored (or where the Devils River minnow occurs fall in San Felipe Creek. suckermouth) catfish (Hypostomus sp.) can have large fluctuations in stream a. Substrate. Gibson and Fries (2005, in San Felipe Creek (Lopez-Fernandez flow levels. In Texas, streams are p. 299) found that Devils River minnow and Winemiller 2005, pp. 246–251); characterized by high variation between preferred gravel for spawning substrate, smallmouth bass (Thomas 2001, p. 1), large flood flows (occurring irregularly with size ranging mostly from 2 to 3 cm carp (Cyprinus carpio), goldfish from rainfall events) and extended (0.8 to 1.2 in) in diameter. Gravel and (Carassius auratus), and redbreast period of low flows (Jones 1991, p. 513). rock substrates are required physical sunfish (Lepomis auritus) (Edwards Base flows in streams containing Devils features for spawning (depositing, 2007, p. 1) in the Devils River; African River minnow are generally maintained incubating, and hatching) of Devils cichlid (Oreochromis aureus) in San by constant spring flows (Ashworth and River minnow eggs. Felipe Creek (Lopez-Fernandez and Stein 2005, p. 4), but in periods of b. Cover. In laboratory experiments, Winemiller 2005, p. 249) and Devils drought, especially in combination with Devils River minnow did not spawn in River (Garrett et al. 1992, p. 266); Asian groundwater withdrawals, portions of tanks until live potted plants snail (Melanoides tuberculata) and stream segments can be periodically (Vallisnaria spp. and Justicia spp.) were associated parasites (McDermott 2000, dewatered. The occurrence of added; however, eggs were never found pp. 13–14) in San Felipe Creek; and intermittent stream segments within the on the plants or other parts of the tank Asian bivalve mollusk (Corbicula sp.) range of the Devils River minnow is (Gibson et al. 2004, pp. 42, 43, 46). The (Winemiller 2003, p. 25) in San Felipe most common in Pinto Creek (Ashworth plants apparently served as cover for the Creek. Effects from nonnative species and Stein 2005, Figure 13; Uliana 2005, fish and allowed favorable conditions can include predation, competition for p. 4; Allan 2006, p. 1). for spawning to occur. This condition is resources, altering of habitat, changing Although portions of stream segments supported by observations in the wild of fish assemblages (combinations of included in this designation may that associates Devils River minnow species), or transmission of harmful experience short periods of low or no with aquatic habitats where vegetative diseases or parasites (Aquatic Nuisance flows (causing dry sections of stream), structure is present. This vegetative Species Task Force 1994, pp. 51–59; they are still important because the

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Devils River minnow is adapted to conservation of the species and which but otherwise serve as connective stream systems with some fluctuating may require special management corridors between occupied or water levels. Fish cannot persist in considerations or protections. The seasonally occupied areas through dewatered areas (Hubbs 1990, p. 89). physical and biological features are which the species moves when the area However, Devils River minnows will those primary constituent elements is wetted. use dewatered areas that are (PCEs) laid out in a specific spatial This final designation is designed for subsequently wetted as connective arrangement and quantity to be essential the conservation of PCEs necessary to corridors between occupied or to the conservation of the species. support the life history functions that seasonally occupied habitat. Fausch et Based on the above needs and our were the basis for the designation and al. (2002, p. 490) notes in a review of current knowledge of the life history, the areas containing those PCEs in the movement of fishes related to biology, and ecology of the species, we appropriate quantity and spatial metapopulation dynamics that, ‘‘Even have determined that the Devils River arrangement. Because not all life history small fishes may move long distances to minnow’s PCEs are: functions require all the PCEs, not all repopulate rewetted habitats.’’ (1) Streams characterized by: critical habitat will contain all the PCEs. a. Areas with slow to moderate water Preventing habitat fragmentation of fish Special Management Considerations or populations is important in reducing velocities between 10 and 40 cm/second Protections extinction risks in rare species (Fagan (4 and 16 in/second) in shallow to 2002, p. 3255). Areas within stream moderate water depths between When designating critical habitat, we courses that may be periodically approximately 10 cm (4 in) and 1.5 m assess whether the areas occupied by dewatered but that serve as connective (4.9 ft), near vegetative structure, such the species at the time of listing contain corridors between occupied or as emergent or submerged vegetation or the physical and biological features that seasonally occupied habitat and through stream bank riparian vegetation that are essential to the conservation of the which the species may move when the overhangs into the water column; species and that may require special habitat is wetted are important physical b. Gravel and cobble substrates management considerations or features of Devils River minnow habitat. ranging in diameter between 2 and 10 protections. We provide a summary Flooding is also a large part of the cm (0.8 and 4 in) with low or moderate discussion below of the special natural hydrology of streams within the amounts of fine sediment (less than 65 management needs for the Devils River, range of Devils River minnow. Large percent stream bottom coverage) and San Felipe Creek, and Pinto Creek floods have been shown to alter fish low or moderate amounts of substrate stream segments. For additional community structure and fish habitat embeddedness; and information regarding the threats to the use in the Devils River (Harrell 1978, p. c. Pool, riffle, run, and backwater Devils River minnow and the needed 67) and in San Felipe Creek (Garrett and components free of artificial instream management strategies to address those Edwards 2003, p. 787; Winemiller 2003, structures that would prevent threats, see the Devils River Minnow p. 12). Pearsons et al. (1992, pp. 427) movement of fish upstream or Recovery Plan (Service 2005, pp. 1.7–1– state that ‘‘Flooding is one of the most downstream. 1.7–7; 1.8–1–1.8–4; 2.5–1–2.5–5). important abiotic factors that structure (2) High-quality water provided by The following special management biotic assemblages in streams.’’ Floods permanent, natural flows from needs apply to all three stream provide flushing flows that remove fine groundwater springs and seeps segments, Devils River, San Felipe sediments from gravel and provide characterized by: Creek, and Pinto Creek, and will be spawning substrates for species like the a. Temperature ranging between 17 °C further discussed for each stream Devils River minnow (Instream Flow and 29 °C (63 °F and 84 °F); segment in the ‘‘Critical Habitat Council 2002, p. 103; Poff et al. 1997, b. Dissolved oxygen levels greater Designation’’ section below. p. 775). Flooding is the physical than 5.0 mg/l; a. Groundwater Management. The mechanism that shapes stream channels c. Neutral pH ranging between 7.0 and waters that produce all three stream by a process known as scour and fill, 8.2; segments issue from springs that are where some areas are scoured of fine d. Conductivity less than 0.7 mS/cm supported by underground aquifers, sediments while fine sediments are and salinity less than 1 ppt; generally some portion of the Edwards- redeposited in other areas (Gordon et al. e. Ammonia levels less than 0.4 mg/ Trinity Aquifer or the Edwards Aquifer 1992, pp. 304–305; Poff et al. 1997, pp. l; and (Ashworth and Stein 2005, pp. 16–33; 771–772). This dynamic process is f. No or minimal pollutant levels for Barker and Ardis 1996, pp. B5-B6; fundamental to maintaining habitat copper, arsenic, mercury, and cadmium; Brune 1981, pp. 274–277, 449–456; diversity in streams that ensure healthy human and animal waste products; Green et al. 2006, pp. 28–29; LBG- ecosystem function (Lytle and Poff pesticides; fertilizers; suspended Guyton Associates 2001, pp. 5–6; PWPG 2004, pp. 96–99; Poff et al. 1997, pp. sediments; and petroleum compounds 2006, pp. 3–5, 3–6, 3–30; USGS 2007, 774–777). Allowing natural stream and gasoline or diesel fuels. p.2). Regional groundwater flow in this flows, particularly during flood events, (3) Abundant aquatic food base area is generally from north to south is an essential physical process to consisting of algae; attached to stream (Ashworth and Stein 2005, Figure 8). maintain stream habitats for Devils substrates; and other microorganisms These aquifers are currently pumped to River minnow. associated with stream substrates. provide water for human uses including (4) Aquatic stream habitat either agricultural, municipal, and industrial Primary Constituent Elements for the devoid of nonnative aquatic species (Ashworth and Stein 2005, p. 1; Green Devils River Minnow (including fish, plants, and et al. 2006, pp. 28–29; LBG-Guyton Within the geographical area we know invertebrates) or in which such Associates 2001, pp. 22–27; PWPG to be occupied by the Devils River nonnative aquatic species are at levels 2006, pp. 3–14, 3–15). Some parts of minnow, we must identify the physical that allow for healthy populations of these aquifers have already experienced and biological features within the Devils River minnows. large water level declines due to a geographical area occupied by the (5) Areas within stream courses that combination of pumping withdrawals Devils River minnow at the time of may be periodically dewatered for short and regional drought (Barker and Ardis listing that are essential to the time periods, during seasonal droughts, 1996, p. B50). There are a number of

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preliminary project plans to project must be included in the p. 1; Robertson and Winemiller 2001, p. significantly increase the amount of groundwater management area’s 220). The armored catfish may already groundwater pumped in this area to regional water plan. The total be impacting Devils River minnows in export it to other metropolitan centers groundwater allotments permitted by San Felipe Creek through competition (HDR Engineering Inc. 2001, p. 1–1; the groundwater management area must for common food resources of attached Khorzad 2002, p. 19; PWPG 2006, pp. 4– not exceed its managed available algae and associated microorganisms 54). If the aquifers are pumped beyond groundwater level. Val Verde is (Lopez-Fernandez and Winemiller 2005, their ability to sustain levels that Groundwater Management Area 7 and p. 250). Hoover et al. (2004, pp. 6–7) support spring flows, these streams will Kinney County is within Groundwater suggest that nonnative catfishes in the no longer provide habitat for the Devils Management Areas 7 and 10. family Loricariidae, such as armored River minnow (Ashworth and Stein Currently, there is no groundwater catfish, will impact stream systems and 2005, p.34; Edwards et al. 2004, p. 256; district in Val Verde County. Absent a native fishes by competing for food with Garrett et al. 2004, pp. 439–440). Flow local groundwater district, groundwater other herbivores, changing plant reductions can have indirect effects on resources in Texas are generally under communities, causing bank erosion due fishes by impacting thermal regimes the ‘‘Rule of Capture,’’ (Holladay 2006, to burrowing in stream banks for because higher water volumes buffers p. 2; Potter 2004, p. 9) or subject to the spawning, incidentally ingesting fish against temperature oscillations (Hubbs groundwater management area plans. eggs, and directly preying on native 1990, p. 89). The rule of capture essentially provides fishes (Wiersma 2007, p. 5). Groundwater pumping that could that groundwater is a privately owned Problematic, nonnative species have not affect stream flows within the Devils resource and, absent malice or willful been documented in Pinto Creek. River minnow’s range is subject to local waste, landowners have the right to take c. Pollution. Special management management control. State or Federal all the water they can capture under actions are needed to prevent point and agencies do not control groundwater. their land (Holladay 2006, p. 2; Potter nonpoint sources of pollution entering Local groundwater conservation 2004, p. 1). The regional water plan the stream systems where the Devils districts and groundwater management adopted by the Plateau Regional Water River minnow occurs. Devils River and areas are the method for groundwater Planning Group for this area recognizes Pinto Creek are generally free of threats management in Texas and essentially that groundwater needs to be managed from obvious sources of pollution. San replace the rule of capture where they for the benefit of spring flows (PWPG Felipe Creek is in an urban environment exist (Caroom and Maxwell 2004, pp. 2006, p. 3–30) and that groundwater use where threats from human-caused 41–42; Holladay 2006, p. 3). Most should be limited so that ‘‘base flows of pollution are substantial. Potential for districts are created by action of the rivers and streams are not significantly spill or discharge of toxic materials is an Texas Legislature (Lesikar et al. 2002, p. affected beyond a level that would be inherent threat in urban environments. 13). The regulations adopted by local anticipated due to naturally occurring In addition, there are little to few groundwater conservation districts vary conditions’’ (Ashworth and Stein 2005, current controls in the City of Del Rio across the State and often reflect local p. 34; PWPG 2006, p. 3–8). The Plateau to minimize the pollutants that will run decisions based on regional preferences, Regional Water Plan is a non-regulatory off into the creek during rainfall events geologic limitations, and the needs of water planning document for a 6-county from streets, parking lots, roof tops, and citizens (Holladay 2006, p. 3). The area (including both Val Verde and maintained lawns from private yards KCGCD is a local authority with some Kinney counties) that maps out how to and the golf course (Winemiller 2003, p. regulatory control over the pumping and conserve water supplies, meet future 27). All of these surfaces will contribute use of groundwater resources in Kinney water supply needs, and respond to pollutants (for example, fertilizers, County (Brock and Sanger 2003, p. 42– future droughts. pesticides, herbicides, petroleum 44). The KCGCD intends to manage the Special management efforts are products) to the creek and potentially groundwater in Kinney County on a needed across the range of the Devils impact biological functions of the Devils sustainable basis and yet beneficially River minnow to ensure that aquifers River minnow. In addition, trash is use the groundwater without exploiting are used in a manner that will sustain often dumped into or near the creek and or adversely affecting the natural flow of spring flows and provide water as an can be a source of pollutants (City of Del the intermittent streams, such as Pinto essential physical feature for the Rio 2006, p. 11). Special management by Creek. Additional scientific information species. We would like to work the City of Del Rio is needed (City of Del is needed on the geology and hydrology cooperatively with landowners, Rio 2006, p. 13) to institute best in Kinney County to increase the conservation districts, and others to management practices for controlling knowledge on the relationships of assist in accomplishing these pollution sources that enter the creek groundwater and stream flows. management needs. and maintain the water quality at a level The 16 groundwater management b. Nonnative Species. Controlling necessary to support Devils River areas in Texas include all of the state’s existing nonnative species and minnow. major and minor aquifers. Each GMA is preventing the release of new nonnative Special management actions may be required to determine a future desired species are special management actions needed to ensure appropriate best groundwater condition for their needed across the range of the Devils management practices are used in the aquifers. Based on the desired future River minnow. The best tool for exploration and development of condition specified, the Texas Water preventing new releases is education of petroleum resources in the watersheds Development Board determines a the public on the problems associated of the Devils River minnow, particularly managed available groundwater level for with nonnative species (Aquatic the Devils River (Smith 2007, p. 1). This the groundwater management area. Nuisance Species Task Force 1994, pp. will ensure that site development and Lands outside of a groundwater 16–17). Current nonnative species drilling practices do not impact conservation district, such as Val Verde issues have been cited for possible groundwater or surface water quality in County, are not subject to groundwater impacts to the Devils River (smallmouth habitats of the Devils River minnow. pumping regulations unless a bass) and San Felipe Creek (armored d. Stream Channel Alterations. The landowner seeks State funding for a catfish) (Lopez-Fernandez and stream channels in the three streams groundwater project. In this case, the Winemiller 2005, p. 247; Thomas 2001, where Devils River minnow occurs

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should be maintained in natural streams is a tributary of the Rio Grande, Designation’’ section for additional conditions, free of instream obstructions we do not expect any contemporary occupancy information). The life to fish movement and with intact stream exchange of individuals between these expectancy of Devils River minnow is banks of native vegetation. Devils River stream segments. The Devils River assumed to be about 3 years, although and Pinto Creek are generally free of minnow is generally associated with individuals have lived 5 years in stream channel alterations; however, upstream reaches of these streams, and captivity (Gibson 2007, p. 1). This San Felipe Creek has been altered by connectivity would require movement represents new information compared to diversion dams, bridges, and armoring through downstream reaches, through the estimate of 2 years life expectancy of stream banks (replacing native the Rio Grande, and back upstream from the recovery plan (Service 2005 p. vegetation and soils with rock or through uninhabited reaches. The 2.2–3). Ten years is estimated to concrete). Special management is Devils River minnow has not been represent a time period that provides for needed in all three occupied streams to documented in the Rio Grande, or any at least three generations. We believe protect the integrity of the stream other of its tributaries in the United that a time period that provides for at channels for the maintenance of the States in modern times (Contreras- least three generations allows adequate PCEs. Balderas et al. 2002, pp. 228–240; time to detect occupancy because the Edwards et al. 2002, p. 123; Garrett et Criteria Used To Identify Critical time period would encompass potential al. 1992, pp. 261–265; Hoagstrom 2003, Habitat fluctuations in species abundance p. 95; Hubbs 1957, p. 93; Hubbs 1990, associated with seasonal or annual We are designating critical habitat for p. 90; Hubbs et al. 1991, p. 18; Trevin˜ o- changes. Based on our biological the Devils River minnow in areas that Robinson 1959, p. 255). The mainstem expertise, it is reasonable to assume that were occupied by the species at the time Rio Grande is considered unsuitable combining life expectancy with of listing and that contain PCEs in the habitat (Garrett et al. 1992, p. 261) environmental factors that may occur in quantity and spatial arrangement to because the aquatic habitat is very a 10-year period will provide us with an support life history functions essential different (larger volume, higher indication of habitat occupancy. We for the conservation of the species. We suspended sediments, different suite of expect a variety of environmental are also designating critical habitat in native fishes) than the streams where factors such as floods, droughts, and areas not considered to be occupied at the Devils River minnow is found. The average precipitation and hydrologic the time of listing, but were presence of Amistad Reservoir and Dam conditions would be experienced over a subsequently discovered to be occupied has further isolated the Devils River 10-year period. Most stream segments and are essential for the conservation of stream segment from the other stream have not been surveyed with a high the Devils River minnow. segments. While some exchange of degree of frequency, and this species Critical habitat is designated based on individuals could have occurred across sufficient PCEs being present to support can be difficult to detect, as even a geologic time scale, any natural multiple samples within a short time in the life processes of the species. Some exchange of individual Devils River areas contain all PCEs and support the same location by the same minnows between currently occupied researcher can yield different results multiple life processes. Some areas streams in modern times is unlikely contain only a portion of the PCEs (Garrett et al. 2002, p. 478). If Devils because of habitat changes in the Rio River minnow are not documented in a necessary to support the particular use Grande, nonnative species, and of that habitat. 10-year period, which would encompass potential instream barriers. at least 3 generations and variable a. Range. We evaluated the Lack of access to private property can environmental conditions that could geographical range of the Devils River limit opportunities to sample for the influence fish abundance and detect minnow, as described in the Recovery presence of Devils River minnow (such ability, we will consider that stream not Plan (Service 2005, p. 1.4.1–1.4.5). as occurred on Pinto Creek, see Garrett occupied. There are five stream segments in the et al. 2004, p. 436) and may limit our United States (all in Texas) that have ability to accurately determine the full c. Areas Occupied at the Time of ever been known to have been occupied range of the species. However, we do Listing. At the time the Devils River by the Devils River minnow: (1) The not expect any additional streams minnow was listed as a threatened Devils River (Val Verde County) from outside of the known historical range of species, it was only confirmed to occur Beaver Lake downstream to near the the species to be occupied. There could at two sites on the Devils River (small confluence with the Rio Grande; (2) San be additional stream segments within tributaries) and in San Felipe Creek in Felipe Creek (Val Verde County) from the known range that may be found to the City of Del Rio, Texas (64 FR 56597). the headsprings on the Lowe Ranch to be occupied during future surveys, but This species is reasonably expected to downstream of the City of Del Rio; (3) the best available information at this move throughout connected stream Sycamore Creek (Val Verde/Kinney time supports only these five stream reaches, based on past and recent county boundary), only documented segments known to be or to have been collection records from these streams from the Highway 277 Bridge crossing; occupied by Devils River minnow in the (Garrett et al. 2002, p. 478). Therefore, (4) Pinto Creek (Kinney County) from United States. we determine there are two stream Pinto Springs downstream to 0.5 stream b. Occupancy. We have assessed the segments that were occupied at the time km (0.3 stream mi) upstream of the occupancy of streams based on the best of listing: (1) Devils River from Pecan Highway 90 Bridge crossing; and (5) Las survey information available. For the Springs to downstream of Dolan Falls Moras Creek (Kinney County), only purpose of this critical habitat (Garrett 2006a, p. 4; Garrett 2007, p. 1); documented from the Las Moras Spring designation, we consider a stream and (2) San Felipe Creek from the Head in the City of Brackettville. segment to be occupied if Devils River Spring to downstream through the City Each of these five stream segments minnow has been found to be present by of Del Rio (Garrett 2006b, p. 1; Garrett has (or formerly had) isolated species experts within the last 10 years, 2007, p.1). The full extent of both populations of Devils River minnow or where the stream segment is directly stream segments is considered separated by long distances, unsuitable connected to a segment with occupied, as surveys in the last 10 years habitat, or large dams that prevent fish documented occupancy within the last have confirmed the species’ presence in movements. Although each of these 10 years (see the ‘‘Critical Habitat the streams and the unit consists of

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contiguous habitat that allows fish In addition, maintaining a population in minnow. Three peer reviewers movement throughout the stream. Pinto Creek is included in the recovery expressed specific support for including Because no collections had been made criteria (Service 2005, p. 2.1–2) and Las Moras and Sycamore creeks in the in Pinto Creek prior to the time of Pinto Creek provides the best source of critical habitat designation for the listing, we have chosen to treat this Devils River minnows (due to proximity following reasons: (1) To maintain stream as unoccupied for the purposes and habitat similarity) to implement suitable habitat within its range because of this designation (see the description possible future recovery actions if if left undesignated, the PCEs currently of Pinto Creek under ‘‘Areas Not reestablishing the species into nearby present will fall out of range and Occupied at Time of Listing’’ section). Las Moras Creek proves feasible (Garrett potential use for the recovery of the d. Primary Constituent Elements. We et al. 2004, p. 440). As a result of this species will be lost; (2) to protect are proposing to designate the stream finding, it is not necessary to determine genetic diversity within the range of the segments that we have determined to be whether Pinto Creek was occupied at species; (3) including them may be occupied at the time of listing and the time of listing for purposes of this important for future recovery efforts, contain sufficient PCEs to support life particular rule. based on metapopulation theory that history functions essential for the Sycamore Creek and Las Moras Creek. unoccupied patches are not less conservation of the species. Both of the For the purposes of the designation of important than the occupied ones; (4) stream segments occupied at the time of critical habitat, Sycamore Creek and Las not including them as ecologically listing (Devils River and San Felipe Moras Creek are not currently significant stream segments would be Creek) contain sufficient PCEs to considered occupied by the Devils River possibly detrimental to the species over support life history functions essential minnow (that is, they have not been time; and (5) if the creeks are for the conservation of the Devils River collected in either stream in the last 10 determined not to provide essential minnow. years). The last known occurrence of the habitat elements, they could be removed e. Areas Not Occupied at Time of species in these stream segments was from the designation later or the habitat Listing. Section 3(5)(A)(ii) of the Act 1989 for Sycamore Creek (Garrett et al. could be improved by future allows for critical habitat to be 1992, p. 265) and 1955 for Las Moras management. Three peer reviewers did designated in areas outside the Creek (Garrett et al. 1992, p. 266; Hubbs not call for the inclusion of Las Moras geographical area occupied by the and Brown 1956, pp. 70–71). Although and Sycamore creeks in the designation. species at the time it is listed if those recent publications continue to list However, two of those peer reviewers areas are essential for the conservation Sycamore Creek as a stream where stressed that recovery of the Devils of the species. Three stream segments Devils River minnow may still occur River minnow would need to include historically occupied by Devils River (Garrett et al. 2004, p. 435; Lopez- restoring the species to these streams to minnow but not considered occupied at Fernandez and Winemiller 2005, p. maintain genetic diversity and the time of listing are Pinto Creek, 247), we have a high degree of population redundancy and encouraged Sycamore Creek, and Las Moras Creek. uncertainty as to the status of the fish us to continue to work on these efforts. Pinto Creek. At the time of listing in in Sycamore Creek. Surveys in 1999 and Based on these comments and the 1999, previous fish surveys in Pinto 2002 from the area of last known guidance in the Devils River Minnow Creek were limited to the locations of occurrence (in 1989) did not yield Recovery Plan we have determined public access at highway bridge Devils River minnow (Service 2005, these streams are essential for the crossings and did not find the species Appendix A). In addition, Garrett et al. conservation of the species. The present (Garrett et al. 1992, p. 260). In (1992, pp. 265–266) surveyed portions delisting recovery criteria (1) in the 2001, fish surveys were conducted in of Mud Creek (a tributary to Sycamore Recovery Plan states that we have stable upstream areas of Pinto Creek that had Creek) in 1989, but found no Devils or increasing population trends for at not been sampled before; the surveys River minnow. Additional surveys are least 10 years throughout the range of discovered a previously unknown needed to determine the current status the Devils River (middle portion), San population of Devils River minnow of the fish in the Sycamore Creek Felipe Creek, Sycamore Creek, and (Garrett et al. 2004, pp. 436–439). The watershed. Devils River minnow has not Pinto Creek and the species should be species has been confirmed to occur been collected from Las Moras Creek reestablished in Las Moras Creek, if from just upstream of the Highway 90 since the 1950s and is believed to be scientifically feasible (Service 2005, p. Bridge crossing further upstream to the extirpated from the Las Moras Creek iv). We explain in the following origin of Pinto Creek at Pinto Springs drainage. This conclusion is based on discussion our finding that these two (Garrett et al. 2004, pp. 438–439). Since the absence of the species in sampling streams are essential. However, we are this stream segment is isolated from efforts from the late 1970s to 2002 excluding these areas from critical other occupied areas, this stream (Hubbs et al. 1991, p. 18; Garrett et al. habitat because we find the benefits of segment was likely occupied at the time 1992, p. 266; Garrett et al. 2002, p. 479). excluding them outweigh the benefits of of listing, but appropriate surveys had In our proposed critical habitat including them (see the ‘‘Exclusions not been conducted to verify it. We find designation for Devils River minnow we under Section 4(b)(2) of the Act’’ section that the Pinto Creek stream segment is specifically requested information from of this final rule for further details). essential to the conservation of the the public and peer reviewers regarding Because the recovery objectives, Devils River minnow because whether or not Sycamore and Las Moras criteria, and strategy include having preliminary analysis has shown creeks should be considered essential populations of Devils River minnow in significant genetic variation between for the conservation of the Devils River Sycamore Creek and Las Moras Creek (if Devils River minnow populations in minnow (72 FR 41687). Additionally, reestablishment is technologically Pinto Creek and the Devils River these streams were also included in our feasible) (Service 2005, pp. 2.1–1—2.2– (Conway et al. 2007, pp. 9–10). This draft economic analysis. We received 3), we find that these two streams are makes Pinto Creek a unique population several comments, including from essential for the conservation of the of Devils River minnow and an essential multiple peer reviewers, encouraging us Devils River minnow. Restoring Devils unit to maintain overall genetic to include these streams in the critical River minnow to Sycamore Creek and diversity of the species to improve the habitat because of their importance in Las Moras Creek is important to likelihood of persistence in the future. the recovery of the Devils River achieving recovery goals for the species

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and optimizes the chances of long-term that averages 1.5 years (Leopold 1994, Within this final rule, the critical species conservation because these pp. 129–141). The width of the lateral habitat boundary is limited to bankfull creeks are isolated, vulnerable to extent of critical habitat will vary width of the stream segments included threats, and therefore not likely to be depending on the stream geometry; in the designation, at the height in naturally recolonized (Service 2005, p. however, it generally includes the which stream flows just fill the stream 2.2–2). As discussed in the recovery immediate streamside vegetation that to its banks before water spills out onto plan, the feasibility of restoring can extend into the water column and the adjacent floodplain. The scale of the populations in these areas is uncertain provide vegetative structure, one of the critical habitat maps prepared under the and the recovery plan provides no PCEs. parameters for publication within the information as to which specific reaches The critical habitat areas include the Code of Federal Regulations may not of the creeks could support the restored stream channels up to bankfull width reflect the exclusion of developed areas populations. The recovery plan advises within the identified stream reaches. such as bridge pylons, concrete paving, additional assessment to develop an The stream beds of navigable waters and other similar structures that lack effective restoration strategy. (stream beds of at least 30 ft wide) in PCEs for the Devils River minnow. Landowner willingness and cooperation Texas are generally owned by the State, Areas under bridge pylons and concrete will be necessary in both streams before in trust for the public, while the lands paving do not contain PCEs, and we are restoration could occur and will require alongside the streams can be privately excluding them from the boundaries of owned (Kennedy 2007, p. 3; Riddell using tools specifically designed for critical habitat, although the structures 1997, p. 7). We believe that the bulk of restoration efforts, such as Safe Harbor are too small to digitally delete from the stream beds (including the small Agreements and reintroduction as an maps at the scale that we used to experimental population under section portion of the stream beds’ lateral extent delineate the critical habitat boundaries. 10(j) of the Act. that is not under water when streams f. Lateral Extent. The areas designated are not at bankfull stage) for all stream Any such structures and the land under as critical habitat are designed to segments included in the critical habitat them inside critical habitat boundaries provide sufficient areas for breeding and are considered public property, owned shown on the maps of this final rule are non-breeding adults and rearing of by the State, for the purpose of this rule. not designated as critical habitat. Some juvenile Devils River minnow. In Summary. We are designating critical such structures likely exist only within general, the essential physical and habitat in areas that we have determined the San Felipe Creek Unit. Therefore, biological features of critical habitat for were occupied at the time of listing, and Federal actions limited to these areas Devils River minnow include the spring that contain sufficient PCEs to support would not trigger section 7 consultation, heads and the wetted channel during life history functions essential for the unless they affect the species or PCEs in average flow conditions of the stream conservation of the species. Stream adjacent critical habitat. segments. The Devils River minnow segments are designated based on Final Critical Habitat Designation evolved in streams maintained by sufficient PCEs being present to support consistent flows from groundwater the life processes of the species. Some Five areas meet the definition of springs that varied little seasonally. stream segments contain all PCEs and critical habitat for the Devils River Episodic floods, sometimes very large support multiple life processes. Some minnow. The five areas are: (1) Devils floods, are important hydrological stream segments contain only a portion River Unit; (2) San Felipe Creek Unit; processes for maintaining the natural of the PCEs necessary to support the (3) Pinto Creek Unit; (4) Sycamore stream channels and fish communities particular use of that habitat. For stream Creek; and (5) Las Moras Creek. The (Harrell 1978, p. 67; Valdes Cantu and segments that were not occupied at the Devils River, San Felipe Creek, and Winemiller 1997, pp. 276–277). time of listing, we evaluated whether Pinto Creek units are currently occupied However, the streams do not have a those areas were essential to the by the Devils River minnow and all five regular seasonal pattern of flooding. conservation of the Devils River areas constitute our best assessment of Unlike some other stream fishes, the minnow. areas that meet the definition of critical Devils River minnow is not known to be We find that two stream segments habitat for the species. dependent on high flow events or use were occupied at the time of listing and flooded habitats in overbank areas for contain sufficient PCEs to support life All distances reported in this reproduction or rearing of young. history functions essential for the designation are estimated stream lengths Therefore, the floodplain is not known conservation of the species: (1) Devils calculated using geographic information to contain the features essential for the River from Pecan Springs to system computer software (ArcGIS) conservation of the Devils River downstream of Dolan Falls, including approximating the stream channel minnow and is not included in this short stretches of two tributaries, (reported in stream km and stream mi). critical habitat designation. Phillips Creek and Dolan Creek; and (2) Stream channel lines were based on the The critical habitat designation San Felipe Creek from the headsprings National Hydrography Dataset and 7.5’ includes a lateral extent that is limited downstream through the City of Del Rio, topographic quadrangle maps obtained to the normal wetted channel at including the outflow channels of East from the U.S. Geological Survey. We bankfull discharge of the streams and West Sandia springs. We find that made some minor adjustments using the included in this designation. For the a third stream segment, Pinto Creek 2004 National Agriculture Imagery purposes of this designation, the wetted from Pinto Springs downstream to the Program digital orthophotos obtained channel is considered the width of the Highway 90 Bridge crossing, was from the Texas Natural Resources stream channel at bankfull stage. subsequently discovered to be occupied Information System. The approximate Bankfull stage is the water height when after listing and, for purposes of this length of each designated stream stream flows just fill the stream to its rule, is essential for the conservation of segment for each critical habitat unit is banks before water spills out onto the the Devils River minnow for the reasons shown in Table 1. Critical habitat for adjacent floodplain (Gordon et al. 1992, discussed above. We also find that Devils River minnow includes a total of pp. 305–307). The stream discharge that Sycamore Creek and Las Moras Creek 73.5 stream km (45.7 stream mi) that reaches bankfull stage occurs 1 or 2 days are essential for the conservation of the meet the definition of critical habitat for each year and has a recurrence interval Devils River minnow. this species.

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TABLE 1—CRITICAL HABITAT UNITS FOR THE DEVILS RIVER MINNOW

Stream km (stream mi) meeting the Stream km (stream Critical habitat Critical habitat unit * definition of mi) excluded from stream km critical habitat critical habitat (stream mi)

1. Devils River Unit (includes Philips and Dolan Creeks) ...... 47.0 (29.2) 47.0 (29.2) 0 (0) 2. San Felipe Creek Unit (includes outflow of East and West springs) ...... 9.0 (5.6) 0 (0) 9.0 (5.6) 3. Pinto Creek Unit ...... 17.5 (10.9) 0 (0) 17.5 (10.9) 4. Sycamore Creek Unit ...... 4.0 (2.5) 4.0 (2.5) 0 (0) 5. Las Moras Creek Unit ...... 18.8 (11.7) 18.8 (11.7) 0 (0)

Total ...... 96.3 (59.9) 69.8 (43.4) 26.5 (16.5) * The stream beds of the units meeting the definition of critical habitat are considered public and owned by the State of Texas.

Below, we provide brief descriptions the Devils River minnow by TPWD outflow of San Felipe Springs East. The of the Devils River, San Felipe Creek, (Garrett 2007, p. 1). upstream boundary on San Felipe Creek and Pinto Creek, Sycamore Creek, and The Devils River Unit contains one or is the Head Springs located about 1.1 Las Moras Creeks units and reasons why more of the PCEs essential for stream km (0.7 stream mi) upstream of each meets the definition of critical conservation of the Devils River the Jap Lowe Bridge crossing. The habitat for the Devils River minnow. minnow. Special management in the downstream boundary on San Felipe Devils River Unit may be needed to Creek is in the City of Del Rio 0.8 stream Unit 1: Devils River Unit control groundwater pumping to ensure km (0.5 stream mi) downstream of the Unit 1 consists of approximately 43.6 spring flows are maintained and to Academy Street Bridge crossing. The stream km (27.1 stream mi) of the Devils prevent the introduction of nonnative unit includes the outflow channels of River; 1.1 stream km (0.7 stream mi) of species. See additional discussion above San Felipe Springs West and San Felipe Phillips Creek; and 2.3 stream km (1.4 in the ‘‘Special Management Springs East. These channels are stream mi) of Dolan Creek. Phillips Considerations or Protections’’ section. included in the critical habitat unit from Creek and Dolan Creek are small Areas meeting the definition of their spring origin downstream to the tributaries to the Devils River that critical habitat for Devils River minnow confluence with San Felipe Creek. contain the PCEs and are occupied by do not include lands adjacent to the Including all three streams, the total the Devils River minnow. The upstream stream channels. However, land distance included in the critical habitat boundary on the Devils River is at, and ownership adjacent to the streams in the in the San Felipe Creek Unit is includes, Pecan Springs. The Devils River Unit is primarily private. approximately 9.0 stream km (5.6 downstream boundary on the Devils Private ownership of the area includes stream mi). For specific coordinates of River is 3.6 stream km (2.2 stream mi) The Nature Conservancy’s 1,943-ha the boundaries for the critical habitat below Dolan Falls. Phillips Creek is (4,800-ac) Dolan Falls Preserve, which designation, please reference to the unit included in this unit from the also includes river frontage on the descriptions in the Regulation confluence with the Devils River to a Devils River and Dolan Creek. The Promulgation section below. San Felipe Creek was occupied by the point 1.1 stream km (0.7 stream mi) Nature Conservancy has owned this area Devils River minnow at the time of upstream. Dolan Creek is included from since 1991 (The Nature Conservancy 2004, p. 9). The Nature Conservancy listing and is still occupied (Hubbs and the confluence with the Devils River 2.3 Brown 1956, p. 70; Garrett et al. 1992, stream km (1.4 stream mi) upstream to also holds conservation easements on about 66,800 ha (about 165,000 ac) of pp. 261, 265; Service 2005, Appendix A; Dolan Springs. Including all three Lopez-Fernandez and Winemiller 2005, streams, the total distance in the Devils private land along the Devils River or in the Devils River watershed (McWilliams p. 249). Although limited survey data River Unit is approximately 47.0 stream are available, we consider the entire km (29.2 stream mi). 2006, p. 1). The only public land adjacent to the streams of this unit is the unit occupied because the habitat is The Devils River minnow was State-owned Devils River State Natural contiguous, allowing fish to move in the originally described from this unit in Area (DRSNA) managed by the TPWD. upstream portions of the unit (Garrett the 1950s (Hubbs and Brown 1956, p. The portion of this unit within the 2006b, p. 1). The boundaries of critical 70), and it has been continually DRSNA includes about 1.6 stream km habitat include all areas where TPWD occupied ever since (Harrell 1978, pp. (1.0 stream mi) along the east bank of has collected Devils River minnow 64, 67; Garrett et al. 1992, p. 261; the Devils River and about 1.9 stream within the San Felipe Creek Unit Service 2005, Appendix A). The Devils km (1.17 stream mi) along both banks of (Garrett 2007, p. 1). River minnow occupied this unit at the a portion of Dolan Creek. The San Felipe Creek Unit contains time of listing; at that time, the fish had As described below, we are excluding one or more of the PCEs essential for been collected from only a few the Devils River Unit from the critical conservation of the Devils River locations. Subsequent surveys by TPWD habitat designation for Devils River minnow. There are several unnatural have established current occupancy of minnow (see the ‘‘Exclusions Under barriers to fish movement that may this entire unit (Service 2005, Appendix Section 4(b)(2)’’ section). currently segment the reaches within A). The upstream boundary of critical the City of Del Rio. Portions of the habitat represents the beginning of the Unit 2: San Felipe Creek Unit stream banks in the City of Del Rio have permanent flow of the river (De La Cruz Unit 2 consists of approximately 7.9 been significantly altered by arming 2004, p. 1). The downstream boundary, stream km (4.9 stream mi) on San Felipe with concrete and the invasion of an 3.6 stream km (2.2 stream mi) Creek, 0.8 stream km (0.5 stream mi) of exotic cane (Arundo donax). However, downstream of Dolan Falls, represents the outflow of San Felipe Springs West, much of the riparian area remains a the downstream extent of collections of and 0.3 stream km (0.2 stream mi) of the functional part of the stream ecosystem,

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contributing to the physical (for the Regulation Promulgation section Sycamore Creek was not considered example, stream bank stabilization and below. occupied by Devils River minnow at the water runoff filtration) and biological Pinto Creek was not considered time of listing. Sycamore Creek is (for example, invertebrate communities occupied by Devils River minnow at the essential for the conservation of the using riparian vegetations and input of time of listing; however, Devils River Devils River minnow because it is nutrient material from riparian minnows were documented in 2001 in identified as a necessary population to vegetation) features of Devils River upstream reaches of the creek where achieve recovery (Service 2005, p. 2.1– minnow habitat. Water quality in San fish surveys had not been previously 2). The main threat to Sycamore Creek Felipe Creek has been a concern due to conducted (Garrett et al. 2004, pp. 437). that requires special management is the the urban environment through which The Pinto Creek Unit is essential for the potential for large-scale groundwater much of the creek flows. Potential for conservation of the Devils River withdrawal that, in combination with spill or discharge of toxic materials is an minnow because fish from this stream natural hydrological variation, could inherent threat in urban environments show significant genetic variation from significantly impact spring flows. While (City of Del Rio 2006, p. 13). The threats other populations (Service 2006, p. 15). nonnative species are not currently to the San Felipe Creek Unit that require Because of its proximity to Las Moras known to be a problem in Sycamore special management include the Creek and the genetic variation from the Creek, preventing nonnative species potential for large-scale groundwater more western population, fish from from being introduced into the stream is withdrawal and exportation that would Pinto Creek would be the likely source an additional threat needing special impact spring flows, surface water population for possible future management. Land ownership adjacent diversion, pollution from urban runoff, reintroduction into formerly occupied to Sycamore Creek is all private. nonnative vegetation on stream banks, areas (Garrett et al. 2004, p. 440). Unit 5: Las Moras Creek other nonnative species (such as the The boundaries of critical habitat armored catfish), and potential new represent all the areas within Pinto The only confirmed habitat for Devils nonnative species’ introductions into Creek where Devils River minnow has River minnow in Las Moras Creek is at the stream. been collected (Garrett et al. 2004, p. the headwater spring on the grounds of Land ownership adjacent to the 437–438). Further, the Pinto Creek Unit Fort Clark in Brackettville based on streams areas being designated as contains one or more of the PCEs collections in the 1950s (Garrett et al. critical habitat within the San Felipe essential for conservation of the Devils 1992, p. 266; Brune 1981, p. 275). Based Creek Unit includes private ranch lands on this information and the longitudinal from the Head Springs downstream to River minnow. The main threat to the Pinto Creek Unit that requires special distribution of the fish in Pinto Creek the City of Del Rio. Within the city and San Felipe Creek, we estimate that limits, the City owns various tracts of management is the potential for large- scale groundwater withdrawal that, in the critical habitat extends land along the stream. Some of these approximately 18.8 stream km (about areas are developed as public use parks combination with nature hydrological variation, could significantly impact 11.7 stream mi) downstream from Las and others have been recently obtained Moras Spring to the Standard Pacific through a buyout program from the spring flows. While nonnative species are not currently known to be a problem Railroad bridge crossing. Federal Emergency Management Agency Las Moras Creek was not considered following damages from the 1998 flood in Pinto Creek, preventing nonnative species from being introduced into the occupied by Devils River minnow at the (City of Del Rio 2006, pp. 5–6). Most of time of listing. Las Moras Creek is the City-owned property along the creek stream is an additional threat needing special management. Land ownership essential for the conservation of the appears to be on the east bank of the Devils River minnow because it is creek, while the west bank is primarily adjacent to the Pinto Creek Unit is all private ranches. identified as a necessary population to private-owned residences. The San achieve recovery (Service 2005, p. 2.1– Felipe Springs East and West and their Unit 4: Sycamore Creek 2). The main threat to Las Moras Creek immediate outflow channels are on a that requires special management is the golf course, privately owned by the San The documented habitat for Devils River minnow in Sycamore Creek is at potential for large-scale groundwater Felipe Country Club. In all, we estimate withdrawal that, in combination with that the City of Del Rio owns about 1.1 the U.S. Highway 277 bridge (Garrett et al. 1992, p. 265). Based on this natural hydrological variation, could stream km (0.7 stream mi) along both significantly impact spring flows. banks of the creek and spring outflow information, we have estimated a critical habitat area of 4 stream km Special management is also needed channels, mainly located downstream of within the local watershed to maintain the Highway 90 Bridge. Through the (about 2.5 stream mi) encompassing this site. Garrett et al. (1992, p. 265–266) water quality and stream flows. While remainder of the City of Del Rio, we nonnative species are not currently estimated the City of Del Rio owns recognized that the majority of surface flow in the drainage comes from Mud known to be a problem in Las Moras about 2.2 stream km (1.4 stream mi) Creek, preventing nonnative species along the east bank of San Felipe Creek Creek, an eastern tributary that confluences with Sycamore Creek from being introduced into the stream is in parcels fragmented by private an additional threat needing special holdings. approximately 3 stream km (about 2 stream mi) upstream of the U.S. management. Land ownership adjacent Unit 3: Pinto Creek Unit Highway 277 bridge crossing. The origin to Las Moras Creek includes the Fort Unit 3 consists of approximately 17.5 of the surface flows in Mud Creek is Clark Springs Association in the upper stream km (10.9 stream mi) on Pinto Mud Springs, located about 24 air km portion of the reach and the remainder Creek. The upstream boundary is Pinto (about 15 air mi) north of U.S. Highway is all private. Springs. The downstream boundary is 277 crossing of Sycamore Creek and Effects of Critical Habitat Designation 100 m (330 ft) upstream of the Highway north of the U.S. Highway 90 (Brune 90 Bridge crossing of Pinto Creek. For 1981, p. 276). Despite collection efforts Section 7 Consultation specific coordinates of the boundaries from Mud Creek, Devils River minnow Section 7(a)(2) of the Act requires for the critical habitat designation, has not been documented to occur there Federal agencies, including the Service, please reference the unit descriptions in (Garrett et al. 1992, p. 266). to ensure that actions they fund,

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authorize, or carry out are not likely to existence of the listed species or consultation was completed in 2006 jeopardize the continued existence of a destroying or adversely modifying with the Federal Highway listed species or destroy or adversely critical habitat. Administration, through the Texas modify designated critical habitat. Reasonable and prudent alternatives Department of Transportation, to Decisions by the Fifth and Ninth Circuit can vary from slight project replace the Beddell Avenue Bridge over Court of Appeals have invalidated our modifications to extensive redesign or San Felipe Creek in the City of Del Rio. definition of ‘‘destruction or adverse relocation of the project. Costs One substantial informal consultation modification’’ (50 CFR 402.02) (see associated with implementing a was completed in 2001 with the Gifford Pinchot Task Force v. U.S. Fish reasonable and prudent alternative are Environmental Protection Agency for and Wildlife Service, 378 F. 3d 1059 similarly variable. funding through the TWDB to the City (9th Cir 2004) and Sierra Club v. U.S. Regulations at 50 CFR 402.16 require of Del Rio to upgrade the City’s water Fish and Wildlife Service et al., 245 F.3d Federal agencies to reinitiate treatment and distribution facilities. 434, 442F (5th Cir 2001)), and we do not consultation on previously reviewed One programmatic consultation was rely on this regulatory definition when actions in instances where we have completed with NRCS in 2004 analyzing whether an action is likely to listed a new species or subsequently concerning USDA programs for brush destroy or adversely modify critical designated critical habitat that may be management in the western portions of habitat. Under the statutory provisions affected and the Federal agency has Texas. This consultation concluded that of the Act, we determine destruction or retained discretionary involvement or the proposed actions were likely to adverse modification on the basis of control over the action (or such result in benefits to the Devils River whether, with implementation of the discretionary involvement or control is minnow by improving instream flows in proposed Federal action, the affected authorized by law). Consequently, the streams where the species occurs. critical habitat would remain functional Federal agencies may sometimes need to The nature of the proposed brush (or retain the current ability for the PCEs request reinitiation of consultation with clearing was not considered to have to be functionally established) to serve us on actions for which formal adverse affects (such as sedimentation) its intended conservation role for the consultation has been completed, if to Devils River minnow. Seven other species. those actions may affect subsequently informal consultations have occurred in If a species is listed or critical habitat listed species or designated critical the range of the species since its listing is designated, section 7(a)(2) of the Act habitat. in 1999 which only peripherally requires Federal agencies to ensure that Federal activities that may affect the involved Devils River minnow. Since activities they authorize, fund, or carry Devils River minnow or its designated the listing we provided technical out are not likely to jeopardize the critical habitat will require section 7 assistance on five other projects that continued existence of the species or to consultation under the Act. Activities considered Devils River minnow but destroy or adversely modify its critical on State, Tribal, local, or private lands had no effects on the species. Based on habitat. If a Federal action may affect a requiring a Federal permit (such as a this consultation history, we anticipate listed species or its critical habitat, the permit from the U.S. Army Corps of similarly low numbers of future Federal responsible Federal agency (action Engineers under section 404 of the actions within the area designated as agency) must enter into consultation Clean Water Act (33 U.S.C. 1251 et seq.) critical habitat for Devils River minnow. with us. As a result of this consultation, or a permit from us under section 10 of the Act) or involving some other Federal Application of the ‘‘Adverse we document compliance with the Modification’’ Standard requirements of section 7(a)(2) through action (such as funding from the Federal our issuance of: Highway Administration, Federal The key factor related to the adverse (1) A concurrence letter for Federal Aviation Administration, or the Federal modification determination is whether, actions that may affect, but are not Emergency Management Agency) are with implementation of the proposed likely to adversely affect, listed species examples of agency actions that may be Federal action, the affected critical or critical habitat; or subject to the section 7 consultation habitat would continue to serve its (2) A biological opinion for Federal process. Federal actions not affecting intended conservation role for the actions that are likely to adversely affect listed species or critical habitat, and species, or would retain its current listed species or critical habitat. actions on State, Tribal, local or private ability for the PCEs to be functionally When we issue a biological opinion lands that are not federally funded, established. Activities that may destroy concluding that a project is likely to authorized, or carried out, do not or adversely modify critical habitat are jeopardize the continued existence of a require section 7 consultations. those that alter the physical and listed species or destroy or adversely There are no Federal lands in the biological features to an extent that modify critical habitat, we also provide areas we are designating as critical appreciably reduces the conservation reasonable and prudent alternatives to habitat for the Devils River minnow. value of critical habitat for Devils River the project, if any are identifiable. We Laughlin Air Force Base is located east minnow. define ‘‘Reasonable and prudent of the City of Del Rio and obtains its Section 4(b)(8) of the Act requires us alternatives’’ at 50 CFR 402.02 as municipal water from the City of Del to briefly evaluate and describe, in any alternative actions identified during Rio (which ultimately is withdrawn proposed or final regulation that consultation that: from the two San Felipe Springs). The designates critical habitat, activities • Can be implemented in a manner Amistad National Recreation Area, involving a Federal action that may consistent with the intended purpose of located around Amistad Reservoir, is destroy or adversely modify such the action, owned by the National Park Service and habitat, or that may be affected by such • Can be implemented consistent includes the downstream portions of the designation. with the scope of the Federal agency’s Devils River, but is not included in the Activities that, when carried out, legal authority and jurisdiction, critical habitat designation. funded, or authorized by a Federal • Are economically and Since the Devils River minnow was agency, may affect critical habitat and technologically feasible, and listed in 1999, one formal section 7 therefore would result in consultation • Would, in the Director’s opinion, consultation has occurred specifically for the Devils River minnow include, avoid jeopardizing the continued concerning the species. That but are not limited to:

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(1) Actions that would alter the circumstances, these activities could Benefits of Designating Critical Habitat natural flow regime, particularly the eliminate or reduce the habitat The process of designating critical reduction of spring flows. These necessary for the reproduction of Devils habitat as described in the Act requires activities could include, but are not River minnow and could reduce the that the Service identify those lands on limited to, excessive groundwater availability of food sources by affecting which are found the physical or pumping (significantly greater than light penetration into the water column, biological features essential to the current levels), water diversions from filling in of stream beds with silt, or conservation of the species that may streams, and stream impoundments. increasing the embeddedness of stream require special management These activities could reduce the bottoms that reduces algae availability. considerations or protection, and those amount of available habitat and space The effects of any particular activity on areas outside the geographical area for normal behaviors of Devils River Devils River minnow habitat must be occupied by the species at the time of minnow, alter water quality as an evaluated on project-specific basis. The listing that are essential to the indirect effect of reduced flows, alter the conservation of the species. In mesohabitat (pools, riffles, and runs) impacts of any specific activity will identifying those lands, the Service conditions necessary for Devils River depend on the location, extent, and must consider the recovery needs of the minnow life history functions, and alter manner in which the activity is carried species, such that, on the basis of the fish community dynamics to out. best scientific and commercial data unnaturally favor species other than the (5) Actions that would significantly available at the time of designation, the Devils River minnow. alter channel shape or geometry. Such (2) Actions that would reduce native habitat that is identified, if managed, activities could include, but are not could provide for the survival and aquatic vegetation or native vegetation limited to, channelization, along stream banks. These activities recovery of the species. impoundment, armoring stream banks, The identification of those areas that could include, but are not limited to, road and bridge construction, mining, channelization of the stream, armoring are essential for the conservation of the dredging, and destruction of riparian stream banks (replacing native species and can, if managed, provide for vegetation. These activities may alter vegetation and soils with rock or the recovery of a species is beneficial. concrete), dredging the stream bottom, the natural pattern of available The process of proposing and finalizing introducing nonnative plants that would mesohabitats (pools, riffles, and runs). a critical habitat rule provides the replace native vegetation, or introducing These actions can reduce the amount of Service with the opportunity to herbivorous nonnative species. Loss of habitat available for Devils River determine the physical and biological aquatic vegetation would eliminate an minnow to complete its normal life features essential for conservation of the important structural component of cycle and can give other species, species within the geographical area Devils River minnow habitat (important especially nonnative species, occupied by the species at the time of for predator avoidance and spawning competitive advantages. These actions listing, as well as to determine other cues) and could reduce the amount of can also lead to increased sedimentation areas essential to the conservation of the available habitat for reproduction, and degradation in water quality to species. The designation process growth, and feeding. levels that are beyond the tolerances of includes peer review and public (3) Actions that would significantly the fish or their food sources. comment on the identified physical and alter water quality or introduce biological features and areas. This pollutants into streams. Such activities Exclusions process is valuable to land owners and managers in developing conservation could include, but are not limited to, Application of Section 4(b)(2) of the Act release of chemicals, biological management plans for identified areas, pollutants, or heated effluents (liquid Section 4(b)(2) of the Act states that as well as any other occupied habitat or waste products) into the surface water the Secretary must designate and revise suitable habitat that may not have been or connected groundwater at a point critical habitat on the basis of the best included in the Service’s determination source or by dispersed release (non- available scientific data after taking into of essential habitat. point source). Sources of pollutants also consideration the economic impact, The consultation provisions under include, but are not limited to, storm national security impact, and any other section 7(a)(2) of the Act constitute the water runoff from urban development relevant impact of specifying any regulatory benefits of critical habitat. As discussed above, Federal agencies must without adequate storm water controls, particular area as critical habitat. The consult with us on actions that may spill of hazardous chemicals into the Secretary may exclude an area from affect critical habitat and must avoid creek or groundwater, or groundwater critical habitat if he determines that the contamination by improperly drilled or destroying or adversely modifying benefits of such exclusion outweigh the critical habitat. Federal agencies must maintained oil or gas wells. These benefits of specifying such area as part activities could alter water conditions also consult with us on actions that may of the critical habitat, unless he that are beyond the tolerances of the affect a listed species and refrain from determines, based on the best scientific Devils River minnow or their food undertaking actions that are likely to sources and could result in direct or data available, that the failure to jeopardize the continued existence of cumulative adverse effects to these designate such area as critical habitat such species. The analysis of effects to individuals and their life cycles. will result in the extinction of the critical habitat is a separate and (4) Actions that would significantly species. In making that determination, different analysis from that of the effects increase sediment deposition within the the statute on its face, as well as the to the species. Therefore, the difference stream channel. Such activities could legislative history, are clear that the in outcomes of these two analyses include, but are not limited to, excessive Secretary has broad discretion regarding represents the regulatory benefit of sedimentation from livestock grazing, which factor(s) to use and how much critical habitat. For some species, and in road construction, channel alteration, weight to give any factor. In the some locations, the outcome of these brush clearing, off-road vehicle use, and following sections, we address a number analyses will be similar, because effects other watershed and floodplain of general issues that are relevant to the to habitat will often also result in effects disturbances. Under some exclusions we considered. to the species. However, the regulatory

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standard is different, as the jeopardy determination of no destruction or critical habitat serves to educate analysis looks at the action’s impact to adverse modification may contain landowners, State and local survival and recovery of the species and discretionary conservation governments, and the public regarding the adverse modification analysis looks recommendations to minimize adverse the potential conservation value of an at the effects to the designated habitat’s effects to the physical and biological area. This helps focus and promote contribution to conservation of the features essential to the conservation of conservation efforts by other parties by species. This will, in many instances, the species, but it would not suggest the clearly delineating areas of high lead to different results, and different implementation of any reasonable and conservation value for Devils River regulatory requirements. prudent alternative. We suggest minnow. In general, critical habitat For 30 years prior to the Ninth reasonable and prudent alternatives to designation always has educational Circuit’s decision in Gifford Pinchot, the proposed Federal action only when benefits; however, in some cases, it may consistent with the 1986 regulations, we our biological opinion results in an be redundant with other educational essentially combined the jeopardy adverse modification conclusion. effects. For example, HCPs have standard with the standard for As stated above, the designation of significant public input and may largely destruction or adverse modification of critical habitat does not require that any duplicate the educational benefits of a critical habitat when evaluating Federal management or recovery actions take critical habitat designation. Including actions that affected currently occupied place on the lands included in the lands in critical habitat also would critical habitat. However, the court of designation. Even in cases where inform State agencies and local appeals ruled that the two standards are consultation has been initiated under governments about areas that could be distinct and that adverse modification section 7(a)(2) of the Act, the end result conserved under State laws or local evaluations require consideration of of consultation is to avoid jeopardy to ordinances. impacts on species recovery. Thus, the species and/or adverse modification critical habitat designations may of its critical habitat, but not necessarily Recovery Benefits provide greater regulatory benefits to the to manage critical habitat or institute The process of designating critical recovery of a species than would listing recovery actions on critical habitat. habitat as described in the Act requires alone. Conversely, voluntary conservation that the Service identify those lands on There are two limitations to the efforts implemented through which are found the physical or regulatory effect of critical habitat. First, management plans institute proactive biological features essential to the a section 7(a)(2) consultation is required actions over the lands they encompass conservation of the species which may only where there is a Federal nexus (an and are put in place to remove or reduce require special management action authorized, funded, or carried out known threats to a species or its habitat; consideration or protections and by any Federal agency)—if there is no therefore, implementing recovery specific unoccupied areas that are Federal nexus, the critical habitat actions. We believe that in many determined to be essential for the designation of private lands itself does instances the regulatory benefit of conservation of the species. In not restrict any actions that destroy or critical habitat is low when compared to identifying those lands, the Service adversely modify critical habitat. the conservation benefit that can be must consider the recovery needs of the Second, the designation only limits achieved through conservation efforts or species, such that the habitat that is destruction or adverse modification. By management plans. The conservation identified, if managed, could provide for its nature, the prohibition on adverse achieved through implementing Habitat the survival and recovery of the species. modification is designed to ensure that Conservation Plans (HCPs), Safe Harbor Furthermore, once critical habitat has the conservation role and function of Agreements, or experimental been designated, Federal agencies must those areas that contain the physical populations established under section consult with the Service under section and biological features essential to the 10 of the Act or other habitat 7(a)(2) of the Act to ensure that their conservation of the species or of management plans is typically greater actions will not adversely modify unoccupied areas that are essential for than would be achieved through designated critical habitat or jeopardize the conservation of the species are not multiple site-by-site, project-by-project the continued existence of the species. appreciably reduced. Critical habitat section 7 consultations involving As noted in the Ninth Circuit’s Gifford designation alone, however, does not consideration of critical habitat. Pinchot decision, the Court ruled that require private property owners to Management plans commit resources to the jeopardy and adverse modification undertake specific steps toward implement long-term management and standards are distinct, and that adverse recovery of the species. protection to particular habitat for at modification evaluations require Once an agency determines that least one and possibly other listed or consideration of impacts to the recovery consultation under section 7(a)(2) of the sensitive species. Section 7 of species. Thus, through the section Act is necessary, the process may consultations only commit Federal 7(a)(2) consultation process, critical conclude informally when the Service agencies to prevent adverse habitat designations provide recovery concurs in writing that the proposed modification to critical habitat caused benefits to species by ensuring that Federal action is not likely to adversely by the particular project; they do not Federal actions will not destroy or affect critical habitat. However, if the commit Federal agencies to provide adversely modify designated critical Service determines through informal conservation or long-term benefits to habitat. consultation that adverse impacts are areas not affected by the proposed It is beneficial to identify those lands likely to occur, then formal consultation project. Thus, implementation of any that are necessary for the conservation is initiated. Formal consultation HCP or management plan that of the species and that, if managed concludes with a biological opinion incorporates enhancement or recovery appropriately, would further recovery issued by the Service on whether the as the management standard may often measures for the species. The process of proposed Federal action is likely to provide as much or more benefit than a proposing and finalizing a critical result in destruction or adverse consultation for critical habitat habitat rule provides the Service with modification of critical habitat. designation. the opportunity to determine lands For critical habitat, a biological Another benefit of including lands in essential for conservation as well as opinion that concludes in a critical habitat is that designation of identify the physical and biological

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features essential for conservation on Given the distribution of listed 1264–1265; Brook et al. 2003, pp. 1644– those lands. The designation process species with respect to land ownership, 1648). includes peer review and public conservation of listed species in many According to some researchers, the comment on the identified features and parts of the United States is dependent designation of critical habitat on private lands. This process is valuable to upon working partnerships with a wide lands significantly reduces the landowners and managers in developing variety of entities and the voluntary likelihood that landowners will support habitat management plans for identified cooperation of many non-Federal and carry out conservation actions lands, as well as any other occupied landowners (Wilcove and Chen 1998, p. (Main et al. 1999, p. 1263; Bean 2002, habitat or suitable habitat that may not 1407; Crouse et al. 2002, p. 720; James p. 2; Brook et al. 2003, pp. 1644–1648). have been included in the Service’s 2002, p. 271). Building partnerships and The magnitude of this outcome is determination of essential habitat. promoting voluntary cooperation of greatly amplified in situations where However, the designation of critical landowners is essential to our active management measures (such as habitat does not require that any understanding the status of species on reintroduction, fire management, and management or recovery actions take non-Federal lands, and necessary to control of invasive species) are place on the lands included in the implement recovery actions such as necessary for species conservation (Bean designation. Even in cases where reintroducing listed species, habitat 2002, pp. 3–4). The Service believes that consultation has been initiated under restoration, population monitoring, and the judicious exclusion of specific areas section 7(a)(2) of the Act, the end result habitat protection. of non-federally owned lands from of consultation is to avoid jeopardy to Many non-Federal landowners derive critical habitat designations can the species and adverse modification of satisfaction from contributing to contribute to species recovery and its critical habitat, but not specifically to endangered species recovery. We provide a superior level of conservation manage remaining lands or institute promote these private-sector efforts than critical habitat alone. The purpose of designating critical recovery actions on remaining lands. through the Department of the Interior’s habitat is to contribute to the Conversely, management plans institute Cooperative Conservation philosophy. conservation of threatened and proactive actions over the lands they Conservation agreements with non- endangered species and the ecosystems encompass intentionally to remove or Federal landowners (HCPs, safe harbor upon which they depend. The outcome reduce known threats to a species or its agreements, 10(j) experimental of the designation, triggering regulatory habitat and, therefore, implement populations, other conservation requirements for actions funded, recovery actions. We believe that the agreements, easements, and State and conservation of a species and its habitat authorized, or carried out by Federal local regulations) enhance species that could be achieved through the agencies under section 7(a)(2) of the conservation by extending species designation of critical habitat, in some Act, can sometimes be protections beyond those available cases, is less than the conservation that counterproductive to its intended through section 7 consultations. In the could be achieved through the purpose on non-Federal lands. Thus, the past decade, we have encouraged non- implementation of a management plan benefits of excluding areas that may be Federal landowners to enter into that includes species-specific provisions covered by effective partnerships or conservation agreements, based on the and considers enhancement or recovery other conservation commitments can view that we can achieve greater species of listed species as the management often be high. conservation on non-Federal land standard over the same lands. Benefits of Excluding Lands With HCPs Consequently, implementation of an through such partnerships than we can through regulatory methods (61 FR or Other Management Plans From HCP or management plan that considers Critical Habitat enhancement or recovery as the 63854; December 2, 1996). management standard will often provide Many private landowners, however, The benefits of excluding lands with as much or more benefit than a are wary of the possible consequences of approved long-term management plans consultation for critical habitat encouraging endangered species to their from critical habitat designation include designation conducted under the property. Mounting evidence suggests relieving landowners, communities, and standards required by the Ninth Circuit that some regulatory actions by the counties of any additional regulatory in the Gifford Pinchot decision. Federal Government, while well- burden that might be imposed by a intentioned and required by law, can critical habitat designation. Many Conservation Partnerships on Non- (under certain circumstances) have conservation plans provide conservation Federal Lands unintended negative consequences for benefits to unlisted sensitive species. Most federally listed species in the the conservation of species on private Imposing an additional regulatory United States will not recover without lands (Wilcove et al. 1996, pp. 5–6; review as a result of the designation of the cooperation of non-Federal Bean 2002, pp. 2–3; Conner and critical habitat may undermine these landowners. More than 60 percent of the Mathews 2002, pp. 1–2; James 2002, pp. conservation efforts and partnerships in United States is privately owned 270–271; Koch 2002, pp. 2–3; Brook et many areas. Designation of critical (National Wilderness Institute 1995, p. al. 2003, pp. 1639–1643). Many habitat within the boundaries of 2), and at least 80 percent of endangered landowners fear a decline in their management plans that provide or threatened species occur either property value due to real or perceived conservation measures for a species is a partially or solely on private lands restrictions on land-use options where disincentive to entities currently (Crouse et al. 2002, p. 720). Stein et al. threatened or endangered species are developing these plans or contemplating (1995, p. 400) found that only about 12 found. Consequently, harboring them in the future, because one of the percent of listed species were found endangered species is viewed by many incentives for undertaking conservation almost exclusively on Federal lands (90 landowners as a liability. This is greater ease of permitting where listed to 100 percent of their known perception results in anti-conservation species will be affected. Addition of a occurrences restricted to Federal lands) incentives because maintaining habitats new regulatory requirement would and that 50 percent of federally listed that harbor endangered species remove a significant incentive for species are not known to occur on represents a risk to future economic undertaking the time and expense of Federal lands at all. opportunities (Main et al. 1999, pp. management planning.

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A related benefit of excluding lands We also found in this final rule that consultation and possible regulatory within management plans from critical Sycamore Creek and Las Moras Creek benefit of critical habitat. The lack of habitat designation is the unhindered, are essential streams for the section 7 consultations results in very continued ability it gives us to seek new conservation of the Devils River limited regulatory benefits for the partnerships with future plan minnow. However, both streams are designation of critical habitat in the participants, including States, Counties, located exclusively on non-Federal Devils River Unit. local jurisdictions, conservation lands and will require significant We expect there may be some limited organizations, and private landowners, cooperation with private landowners educational benefits associated with the which together can implement and implementation of cooperative designation of critical habitat. However, conservation actions that we would be tools, such as safe harbor agreements most people actively involved in water unable to accomplish otherwise. and experimental populations resource management in these areas Designating lands within approved established under section 10(j) of the likely already know the need for management plan areas as critical Act, to achieve the recovery goals for the conservation of the Devils River habitat would likely have a negative Devils River minnow in these creeks as minnow. Designating critical habitat effect on our ability to establish new outlined in the Recovery Plan. These could provide another opportunity to partnerships to develop these plans, recovery actions would be potentially highlight these areas as important for particularly plans that address precluded if critical habitat were the conservation of the species and landscape-level conservation of species designated on these streams since we provide more specific information on and habitats. By preemptively excluding consider these areas not occupied and the physical and biological features that these lands, we preserve our current landowner cooperation is a necessary define habitat for the species. We expect partnerships and encourage additional step in the restoration and the educational benefits to be especially conservation actions in the future. reestablishment of the Devils River limited in the Devils River Unit, where Furthermore, both HCP and Natural minnow to these two creeks. the few local landowners along the river Community Conservation Plan (NCCP)– Devils River Unit have been engaged in Devils River HCP applications require consultation, minnow issues for the 30 years since the which would review the effects of all Benefits of Inclusion species was initially proposed for listing HCP-covered activities that might The benefits of including lands in and the river proposed for critical adversely impact the species under a critical habitat can be regulatory, habitat designation in 1978. Many of the jeopardy standard, including possibly educational, or to aid in recovery of families involved in Devils River significant habitat modification (see species as generally discussed in the minnow issues in 1978 are still definition of ‘‘harm’’ at 50 CFR 17.3), ‘‘Benefits of Designating Critical involved. We therefore foresee very even without the critical habitat Habitat’’ section above. The following is limited additional education value that designation. In addition, all other our assessment of the estimated benefits the designation would be expected to Federal actions that may affect the listed for inclusion of the Devils River Unit. offer to these landowners. species would still require consultation We expect only minimal regulatory We expect few to no additional under section 7(a)(2) of the Act, and we benefits from the designation of critical benefits to the recovery of the Devils would review these actions for possibly habitat for the Devils River minnow. As River minnow as a result of the significant habitat modification in explained in the final economic analysis designation of critical habitat in the accordance with the definition of harm (FEA) (p. A–1) and the ‘‘Effects of Devils River Unit. The habitat areas are referenced above. Critical Habitat Designation’’ section in outlined and the biological features are The information provided in the this final rule, we have had very few readily defined in the species’ recovery previous section applies to all the section 7 consultations for this species plan. With limited regulatory and following discussions of benefits of since its listing, (one formal educational benefits likely, we foresee inclusion or exclusion of critical habitat. consultation, nine informal no other tangible benefits to further consultations, and five technical Exclusions Under Section 4(b)(2) of the recovery of the species as a result of the assistance events since 1999) and we Act designation of critical habitat. foresee few section 7 consultations in We found that the public comments the next 20 years. Appendix A in the Benefits of Exclusion we received made a compelling case FEA (p. A–5) estimates a total of 2 Non-Federal Partnerships that excluding the Devils River Unit will formal consultations, 21 informal provide for maintenance of positive consultations, and 12 technical The distribution of the Devils River relationships with private landowners assistance events over the next 20 years minnow is largely within private along that stretch of river. These throughout the range of the species. ownership, and, therefore, the relationships are fundamental for This is because there are few, if any, management of its habitat has limited implementing recovery actions for the actions occurring with a Federal nexus influence by Federal agency actions. As Devils River minnow and outweigh the within the range of the species that may a result, partnerships with and among limited benefits that may occur from the affect the species or its habitat. The FEA non-Federal organizations and private designation of critical habitat there. found that no formal section 7 individuals are the key to conserving Maintaining non-Federal partnerships consultations are likely to occur in the the Devils River minnow. The top in the other units in San Felipe Creek Devils River Unit in the next 20 years. priority task in the Devils River Minnow and Pinto Creek are of equal Comments received during the public Recovery Plan, for example, includes importance. However, as explained comment period indicated that oil and ‘‘Seek and maintain the cooperation of below, we believe that designation of gas development in the Devils River landowners’’ (Service 2005, p. 3.3–1). critical habitat in those units does not watershed could adversely affect Devils Therefore, we believe it is important to put our non-Federal partnerships at risk River minnow habitat in the Devils consider the potential benefits that will and, therefore, no additional benefits for River. However, we are not aware of a be realized by preserving our positive the Devils River minnow would be Federal nexus to oil and gas activities relationships with landowners and expected by excluding those units. that would result in a section 7 other non-Federal organizations if we

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exclude an area from the final critical Losing landowner trust and conservation than critical habitat habitat designation. cooperation would be a significant designation. The need for strong partnerships on setback to recovery efforts for the Devils Conservation Efforts and Management non-Federal lands for the conservation River minnow on the Devils River. The Plans of the Devils River minnow is of designation of critical habitat could heightened importance in the Devils reduce the likelihood that landowners When performing the required River watershed. The remote, rural area will support and carry out conservation analysis under section 4(b)(2) of the Act is comprised of large private ranches actions needed to implement the to consider any potential exclusions of with very limited influence by public recovery plan. The recovery plan calls areas proposed for critical habitat, we activities. Land management to promote for the following actions: monitor the considered planned or ongoing and conserve healthy watersheds, native status of Devils River minnow; conservation efforts within the Devils riparian areas, and groundwater determine biological and life history River minnow’s range (described in the recharge and sustainable use depends requirements; identify specific habitat proposed rule, 72 FR 41692). We on the voluntary actions of the private requirements; and manage Devils River received no new information during the landowners. minnow habitat (Service 2005, pp. 2.3– public comment periods on the During the second public comment 1—2.4–6). All of these actions require existence of other plans or conservation period, at least 12 individuals (either the cooperation of private landowners. efforts, beyond those discussed below in landowners along the Devils River or One practical aspect of landowner this section. We evaluated these ongoing representatives for those interests) cooperation in this area is the need for conservation efforts based on whether commented negatively about the access to locations on the Devils River excluding one or more critical habitat perceived effects of the designation of to carry out many recovery actions. In units might provide recovery benefits the Devils River Unit as critical habitat. the past, landowners on the Devils River for the Devils River minnow. Each effort They envisioned that the designation have been open to allowing access to provides some opportunity to benefit would restrict landowner activities, lead conduct studies and for monitoring the Devils River minnow. However, we to a change in the status of the Devils efforts by TPWD, the Service, and are not excluding any areas based solely River minnow from threatened to others. This is important on the Devils on these conservation efforts and endangered, and result in a devaluation River because public access is limited to management plans. of land values in the area. only two small areas, one on the Devils The Nature Conservancy has a We do not believe that these concerns River State Natural Area and one at the Conservation Area Plan (CAP) and are likely to be realized. We provide Highway 163 bridge crossing. Past several conservation easements in the specific responses to these comments in efforts for monitoring the Devils River Devils River Watershed. The CAP has the ‘‘Comments and Responses’’ section- minnow populations and habitats significant goals for conserving the that the designation of critical habitat benefited from landowners voluntarily Devils River watershed and its should have little to no effect on permitting access on private property to implementation will provide benefits landowner actions, is not a factor in the collect valuable information. Field for the Devils River minnow. The species’ status as threatened rather than monitoring of the river conditions and Nature Conservancy has limited endangered, and should not result in a fish populations is a vital component to opportunity to implement the stigma effect to decrease land values. the recovery of the Devils River conservation strategies outside of the However, these widely held perceptions minnow. lands under their ownership or by landowners in the Devils River Unit In the past, this non-Federal easement. Implementing the goals of the could result in anti-conservation partnership was under the guidance of CAP will depend on the voluntary incentives because furthering Devils the 1998 Devils River Minnow cooperation of the private landowners River minnow conservation is seen as a Conservation Agreement. The purpose throughout the watershed. risk to future economic opportunities or of this agreement was to expedite We support the past and ongoing loss of private property rights. conservation measures needed to ensure conservation efforts by The Nature In addition, we received specific the continued existence and facilitate Conservancy and encourage their comments from the President of The recovery of the species prior to a final continued work. Without the voluntary Devils River Association (a 164-member listing decision. Although the formal cooperation of neighboring landowners, local landowner organization to agreement expired in 2003 without the local and State agencies, the efforts promote balance between preservation renewal, the landowners along the by The Nature Conservancy provide of the Devils River ecosystem and the Devils River have continued to only minimal benefits for the Devils desire to use the river and respect cooperate with us and TPWD to further River minnow. We believe The Nature private property rights). These the agreement’s conservation goals (this Conservancy will continue to work on comments specifically stated that the was also highlighted in the public conservation efforts with or without the Devils River Unit should be excluded comments we received). Without this designation of critical habitat, and there because the benefits of doing so ongoing non-Federal partnership with are no benefits to The Nature outweighed the benefits of inclusion. private landowners, we expect that Conservancy’s ongoing conservation The comments included a discussion of conservation opportunities for the efforts by designating the Devils River the importance of cooperation with species in the Devils River will be Unit as critical habitat. However, there landowners that has occurred in the greatly reduced. We believe that may be benefits accrued by excluding past. The comment states that this maintaining non-Federal partnerships this unit from critical habitat if it action (designating the Devils River as with local landowners on the Devils increases The Nature Conservancy’s critical habitat) ‘‘significantly decreases River is a substantial benefit of ability to work more successfully with our interest to work cooperatively with excluding the Devils River Unit from private landowners. As discussed above USFWS.’’ The comment goes on to state critical habitat designation and in the ‘‘Benefits of Excluding Lands that, ‘‘This action would terribly and, I outweighs any benefits expected from With HCPs or Other Management Plans am afraid, irreparably damage the trust including this unit in the designation. From Critical Habitat’’ section, that we have all built up over the last We anticipate that exclusion of this unit designating critical habitat in an area few years.’’ is likely to provide a superior level of with existing management plans may

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provide a disincentive for voluntary critical habitat are greater, and include or Las Moras creeks would be minimal cooperation by private landowners. maintaining important non-Federal since the importance of these creeks and Therefore, to maintain landowner partnerships. We find that the benefits the need for further information is relationships, there could be some of excluding this area from critical already highlighted in the recovery plan benefits to excluding the Devils River habitat designation outweigh the and in the rules and economic analysis Unit. benefits of including this area and will associated with this designation. We expect few to no additional Benefits of Exclusion Outweigh the not result in the extinction of the species. benefits to recovery of the Devils River Benefits of Inclusion minnow if critical habitat were In weighing the benefits of including Sycamore Creek and Las Moras Creek designated in Sycamore or Las Moras versus the benefits of excluding the Benefits of Inclusion creeks. With limited regulatory and Devils River Unit, we find that the educational benefits likely, we foresee We expect only minimal regulatory benefits of exclusion of these lands no other tangible benefits to further benefits from the designation of critical outweigh the benefits of inclusion of recovery of the species as a result of the habitat for the Devils River minnow. As these lands in the critical habitat designation of critical habitat in these explained in the FEA (p. A–1) and the designation. This is based on the fact streams. that there are very limited benefits to ‘‘Effects of Critical Habitat Designation’’ inclusion and substantial benefits from section in this final rule, we have had Benefits of Exclusion maintaining non-Federal partnerships very few section 7 consultations for this As stated above and in the recovery by excluding this unit. Therefore, we species since its listing (one formal plan, achieving recovery objectives for find that excluding Devils River Unit is consultation, nine informal the Devils River minnow will include, reasonable under the Secretary’s consultations, and five technical if feasible, restoring populations in discretion for ‘‘other relevant impacts’’ assistance events since 1999) and we Sycamore and Las Moras creeks. We under section 4(b)(2) of the Act. We foresee few section 7 consultations in believe that the best way to achieve believe the loss of non-Federal the next twenty years. Appendix A in these objectives will be to use the partnerships on the Devils River, as the FEA (p. A–5) estimates a total of 2 authorities under section 10(j) of the Act expressed in the public comments we formal consultations, 21 informal to reestablish experimental populations received on the proposed rule, is a consultations, and 12 technical or through safe harbor agreements. We relevant impact. The cooperation of assistance events over the next 20 years believe that section 10(j) of the Act private landowners to provide access to throughout the range of the species. would be an appropriate tool to utilize the river and participate in other This is because there are few, if any, in future restoration efforts. An recovery actions is a vital component to actions occurring with a Federal nexus overview of the process to establish an conservation of the Devils River within the range of the species that may experimental population under section minnow, and this could be lost if we affect the species or its habitat. There 10(j) of the Act is described below. designate critical habitat. In contrast, are no Federal lands within the Alternately, developing voluntary safe the benefits of inclusion are, as noted watersheds of Sycamore or Las Moras harbor agreements under section 10 of above, likely to be minor because of creeks and the FEA found no formal the Act is another tool that would allow very limited opportunities for additional section 7 consultations are likely to restoring these populations in a education and the lack of any Federal occur in the area of Sycamore or Las cooperative effort with local nexus for section 7 consultations Moras creeks in the next 20 years. The landowners. Developing safe harbor specific to Devils River minnow in the absence of expected section 7 agreements, as described below will unit. Recovery of the Devils River consultations suggests there are very require extensive partnerships with minnow is best served by the exclusion limited regulatory benefits for the non-Federal landowners. Either of the Devils River Unit. designation of critical habitat in alternative to accomplish these recovery Sycamore or Las Moras creeks. objectives would benefit from excluding Exclusion Will Not Result in Extinction We expect there may be some limited the areas from critical habitat of the Species educational benefits associated with the designation. We have determined that the designation of critical habitat. However, Section 10(j) of the Act enables us to exclusion of the Devils River Unit that most people actively involved in water designate certain populations of includes 29.2 stream mi (47.0 stream resource management in these areas federally listed species that are released km) from the final designation of critical likely already know the need for into the wild as ‘‘experimental.’’ The habitat will not result in the extinction conservation of the Devils River circumstances under which this of Devils River minnow. As described minnow. Both Sycamore and Las Moras designation can be applied are the above, all of the area we are excluding creeks are highlighted in the Devils following: (1) The population is from critical habitat is occupied by the River Minnow Recovery Plan. The geographically separate from species, and consultations will still streams are located in Kinney County nonexperimental populations of the occur under section 7 of the Act if there where we are already actively working same species (e.g., the population is is a Federal nexus, even in the absence with local officials on conservation reintroduced outside the species’ of their designation as critical habitat. issues for the Devils River minnow. current range but within its probable Application of the jeopardy standard of Designating critical habitat could historic range); and (2) we determine section 7 of the Act also provides provide another opportunity to that the release will further the assurances that the species will not go highlight these areas as important for conservation of the species. Section extinct in the absence of this the conservation of the species and to 10(j) is designed to increase our designation. seek specific information on the flexibility in managing an experimental In summary, the benefits of including physical and biological features that population by allowing us to issue a the Devils River Unit in the critical define habitat for the species in these special rule that provides flexibility in habitat designation for the Devils River creeks. However, as discussed above, we how the experimental population is minnow are few. The benefits of expect the educational benefits of managed. In situations where we have excluding this area from designated designating critical habitat in Sycamore experimental populations, portions of

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the statutory section 9 prohibitions (e.g., reestablishing populations in Sycamore recognizes the need for landowner harm, harass, capture) that apply to all or Las Moras creeks. Use of section 10(j) agreements (Recovery Action 2.1) to endangered species and most threatened is meant to encourage local cooperation document landowner cooperation and a species may no longer apply, and a through management flexibility. commitment to future conservation special rule can be developed that Because critical habitat is often viewed measures to ensure successful contains the specific prohibitions and negatively by the public, as is the case repatriation of the species (Service 2005, exceptions necessary and appropriate to here as discussed elsewhere in this rule p. 2.4–6). Working with landowners in conserve that species. This flexibility (see Non-Federal Partnerships the future through either a establishing allows us to manage the experimental discussion above), we believe it is a section 10(j) experimental population population in a manner that will ensure important and necessary for recovery of or developing one or more safe harbor that current and future land, water, or this species that we have the support of agreements would fulfill the anticipated air uses and activities will not be the public when we develop and recovery actions envisioned in the unnecessarily restricted and that the implement recovery actions. recovery plan. population can be managed for recovery Safe harbor agreements are another Engaging private citizens and local purposes. alternative that provide voluntary landowners in proactive, voluntary When we designate a population as arrangements between us and measures such as restoration through experimental, section 10(j) of the Act cooperating non-Federal landowners. experimental populations or safe harbor requires that we determine whether that This policy’s main purpose is to agreements requires a high level of trust population is either essential or promote voluntary management for and cooperation with Federal agencies. nonessential to the continued existence listed species on non-Federal property We believe it is highly unlikely we will of the species, on the basis of the best while giving assurances to participating develop this level of cooperation if these available information. Nonessential landowners that no additional future streams were designated as critical experimental populations located regulatory restrictions will be imposed. habitat. The strong negative perceptions outside National Wildlife Refuge System The agreements are intended to benefit that are likely to persist if these lands or National Park System lands are endangered and threatened species, by were designated as critical habitat treated, for the purposes of section 7 of creating or restoring habitat for the would prevent us from realizing these the Act, as if they are proposed for species, while giving landowners voluntary opportunities for restoration listing. Thus, for nonessential assurances from additional restrictions. in the near future. Maintaining existing experimental populations, only two As part of a safe harbor agreement, we non-Federal partnerships and creating provisions of section 7 would apply issue an ‘‘enhancement of survival’’ new ones are necessary recovery actions outside National Wildlife Refuge System permit under section 10 of the Act, to to conserve the Devils River minnow. and National Park System lands: section authorize any necessary future We note that Texas Governor Rick Perry 7(a)(1), which requires all Federal incidental take to provide participating submitted a letter to us dated June 27, agencies to use their authorities to landowners with assurances that no 2008, indicating that he believes a conserve listed species, and section additional restrictions would be cooperative method of land, water, and 7(a)(4), which requires Federal agencies imposed as a result of their conservation wildlife management is the best way to to informally confer with us on actions actions. protect property rights and support that are likely to jeopardize the Developing future safe harbor healthy habitats and that critical habitat continued existence of a proposed agreements to facilitate restoration will do little to improve the habitat of species. Section 7(a)(2) of the Act, efforts for Devils River minnow in the Devils River minnow. We believe which requires Federal agencies to Sycamore and Las Moras creeks would this philosophy of cooperation between ensure that their activities are not likely require close cooperation with a number private landowners and the Service is to jeopardize the continued existence of of private or non-Federal landowners. consistent with the information in our a listed species, would not apply except The negative perceptions of landowners analysis and is supported by the on National Wildlife Refuge System and regarding critical habitat, as described comments we received. National Park System lands. above, would most likely forestall any The Devils River Minnow Recovery The flexibility gained by opportunity to engage landowners in Plan also recognizes the need to develop establishment of an experimental Devils River minnow restoration using and implement a reintroduction plan, population through section 10(j) would safe harbor agreements. Excluding these including a captive propagation plan be of little value if a designation of two streams from critical habitat and a genetics management plan critical habitat overlaps it. This is provides better opportunities to work (estimated cost of $100,000 per the because Federal agencies would still be with landowners through safe harbor Recovery Plan) (Service 2005, p. 3.3.–3), required to consult with us on any agreements to further restoration efforts as first steps in our restoration efforts actions that may adversely modify of Devils River minnow. The ability to (Service 2005, pp. 2.4–7—2.4–8). We’ve critical habitat. In effect, the flexibility implement these conservation actions been working to collect the necessary gained from section 10(j) would be provides a clear benefit of excluding information to develop these plans rendered useless by the designation of these streams from critical habitat through research since 2000 with the critical habitat. In fact, section designation. captive stocks of Devils River minnows 10(j)(2)(C)(ii) of the Act states that This voluntary approach is consistent being maintained at our San Marcos critical habitat shall not be designated with the actions identified in the National Fish Hatchery and Technology under the Act for any experimental Recovery Plan necessary to establish Center (Conway et al. 2007; Gibson et al. population determined to be not additional viable populations of Devils 2004; Gibson and Fries, 2005; Service essential to the continued existence of a River minnow within its historic range 2005, p. 1.8–2). These scientific studies species. (Service 2005, pp. 2.4–6—2.4–7). The have provided important baseline We strongly believe that, in order to recovery plan recognizes that, ‘‘Support biological data on the species through facilitate recovery for the Devils River of private landowners will be necessary experiments on captive breeding minnow, we would need the flexibility to plan and implement reestablishment techniques. This information will allow provided for in section 10(j) of the Act of the Devils River minnow’’ (Service us to develop reintroduction plans and to help ensure the success of 2005, p. 2.4–6). The recovery plan also begin seeking funding and landowner

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cooperation to put these recovery tools Devils River minnow and these The stream is located in Kinney County in place to implement restoration opportunities would be lost if critical where we are already working with efforts. habitat were designated. In contrast, the local officials on conservation issues for We have worked with local groups in benefits of inclusion are, as noted above, the Devils River minnow. Designating the past to discuss the opportunities for likely to be minor because of limited critical habitat could provide another restoration of the Devils River minnow opportunities for additional education opportunity to highlight these areas as in Las Moras Creek (Service 2005, p. and the lack of any Federal nexus for important for the conservation of the 1.8–2). The implementation schedule section 7 consultations specific to species and provide more specific from the recovery plan anticipates that Devils River minnow in these two information on the physical and landowner agreements to restore Devils streams. Recovery of the Devils River biological features that define habitat for River minnow to former sites of minnow is best served by the exclusion the species. We expect the educational occurrence would, depending on of the Sycamore Creek and Las Moras benefits of designating critical habitat in availability of funding and cooperation, Creek from critical habitat designation. Pinto Creek would be minimal. occur between years 3 through 6 We considered the Kinney County following the approval of the recovery Exclusion Will Not Result in Extinction Groundwater Conservation District plan in 2005 (Service 2005, p. 3.3–2). of the Species (KCGCD) draft management plan in our The recovery plan estimates the cost of We have determined that the analysis. An updated management plan developing these agreements at $20,000. exclusion of Sycamore Creek and Las by the KCGCD was under development The recovery plan foresees the Moras Creek from the final designation during completion of this final rule, and development and implementation of a of critical habitat will not result in the the final plan was approved after the reintroduction plan would occur in extinction of Devils River minnow. As close of the public comment period. We years 3 through 8 (Service 2005, p. 3.3– described above, we do not consider received comments from the KCGCD 1), at an estimated cost of $200,000. We either of these streams to be currently that the draft management plan would are committed to continue to actively occupied by the Devils River minnow. provide benefits to the Devils River examine the opportunities for The species occurs in three other minnow by managing groundwater on a developing the necessary landowner streams, two of which are being sustainable basis without exploiting or agreements to implement the actions designated as critical habitat. Excluding adversely affecting the natural flow of identified in the Devils River Minnow these two streams will not affect the intermittent streams. We also Recovery Plan. The Service’s lead field conservation efforts ongoing throughout received comments that groundwater office for the Devils River minnow is the currently occupied range of the pumping authorized by the KCGCD will also committed to using their funding species. We do not anticipate any loss result in adverse impact to Devils River through the Partners for Fish and of protection to the species or other minnow habitat in Pinto Creek. The Wildlife Program to work with impacts that would result from KCGCD management plan was not landowners to develop and implement excluding these two streams from the approved until after the public comment stream channel restoration projects if designation of critical habitat. period for this designation and, necessary. At the time of preparation of In summary, the benefits of including therefore, was not considered in its the Recovery Plan, the Service was not Sycamore and Las Moras creeks in the entirety as a basis for possible able to determine the cost of future critical habitat designation for the exclusion. We received comments from restoration projects. Devils River minnow are few. The the KCGCD during the public comment benefits of excluding these streams from period indicating that the future plan Benefits of Exclusion Outweigh the being designated as critical habitat are will likely provide spring flows in Pinto Benefits of Inclusion greater, and include creating important Creek. If so, it will be of great value to In weighing the benefits of including non-Federal partnerships and the conservation of the Devils River versus the benefits of excluding opportunities for restoration of the minnow and its habitat. We fully expect Sycamore and Las Moras creeks, we find populations using tools under section the KCGCD’s plan will be carried out that the benefits of exclusion of these 10 of the Act. We find that the benefits with or without the designation of streams outweigh the benefits of of excluding these two streams from critical habitat for the Devils River inclusion of these streams in the critical critical habitat designation outweigh the minnow and we look forward to habitat designation. This is based on the benefits of including them and will not working with the KCGCD to conserve facts that there are very limited benefits result in the extinction of the species. Devils River minnow habitats in Kinney to inclusion and substantial benefits to Therefore, these two streams are not County. Landowners in the District are exclusion from maintaining non-Federal included in the final critical habitat under the authority of the KCGCD for partnerships and providing designation. pumping permits, and their compliance opportunities for using flexible tools for does not depend on their voluntary Pinto Creek Unit restoration of the species to these cooperation. Therefore, we do not streams. Use of these tools (safe harbor We considered the exclusion of the expect landowner cooperation with the agreements and section 10(j) of the Act) Pinto Creek unit, but based on the KCGCD to be influenced by the would not be possible or effective record before us have elected not to designation of critical habitat or the without landowner cooperation. exercise our discretion under section exclusion from critical habitat, of Pinto Therefore, we find that excluding 4(b)(2) of the Act to exclude this unit. Creek. Sycamore Creek and Las Moras Creek is We expect there may be some limited However, for all the reasons discussed reasonable under the Secretary’s educational benefits associated with the above under the Devils River Unit, discretion for ‘‘other relevant impacts’’ designation of critical habitat. However, ‘‘Benefits of Exclusion,’’ section, under section 4(b)(2) of the Act. We most people actively involved in water maintaining strong non-Federal believe the cooperation of private resource management in these areas partnerships with landowners along landowners to provide access to the likely already know the need for Pinto Creek are important. This unit river and participate in restoration conservation of the Devils River flows only through private lands, and actions under section 10 of the Act is a minnow. Pinto Creek is highlighted in there is only one bridge crossing that vital component to conservation of the the Devils River Minnow Recovery Plan. provides very limited access, so

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landowner cooperation here is also vital County and the City of Del Rio) is a (dated December 21, 2007) was made to accomplishing recovery tasks. In the continuing goal for the recovery of the available for public review on February past we have had good relationships species (related to water use 7, 2008 (73 FR 7237). We accepted with the landowners along Pinto Creek, conservation by the City of Del Rio and comments on the draft analysis until and access has been provided upon preventing water pollution in San March 10, 2008. Following the close of request. Based on our current Felipe Creek) and requires ongoing the comment period, a final analysis of relationships with the landowners, efforts to accomplish. Designation of the potential economic effects of the particularly in the most upstream critical habitat could help to elevate the designation was developed taking into reaches, we do not expect that critical awareness to the public of the consideration the public comments and habitat designation in this unit will importance of the conservation of San any new information. likely negatively impact those Felipe Creek. The economic analysis considers the relationships. We received only one We considered the San Felipe Creek potential economic effects of all actions comment from a landowner on Pinto management plans by the City of Del relating to the conservation of Devils Creek. This landowner was concerned Rio and the San Felipe Creek Country River minnow, including costs about the impacts of groundwater Club. These plans, signed in 2003, associated with sections 4, 7, and 10 of pumping on stream flows and did not provide some conservation the Act, as well as those attributable to express any concerns about the opportunities for the Devils River designating critical habitat. It further proposed designation of critical habitat. minnow in San Felipe Creek. However, considers the economic effects of The KCGCD included as a public to date, many of the actions in the plans protective measures taken as a result of comment a resolution opposing the have not been implemented. We have other Federal, State, and local laws that designation of critical habitat because worked with the City of Del Rio to draft aid habitat conservation for Devils River they considered the Pinto Creek a new San Felipe Creek Master Plan, but minnow in areas containing the features population of Devils River minnow this plan was not completed before the essential to the conservation of the introduced and stream flows there close of the comment period, and we do species. The analysis considers both intermittent. They made no comment not know when it will be finalized. economic efficiency and distributional relative to any cooperation or potential Most of the lands along San Felipe effects. In the case of habitat that it would damage any future non- Creek are owned by the City of Del Rio. conservation, efficiency effects generally Federal partnership opportunities. We We do not expect the designation of reflect the ‘‘opportunity costs’’ hope to build a strong partnership with critical habitat to have any bearing on associated with the commitment of the KCGCD in the future to work the management of San Felipe Creek by resources to comply with habitat together to conserve spring flows in the City of Del Rio. We have a good protection measures (such as lost Pinto Creek. While the critical habitat working relationship with the City of economic opportunities associated with designation may be perceived negatively Del Rio, and we expect to continue this restrictions on land use). The economic by the KCGCD, we do not believe it will relationship. We received no indication analysis also addresses how potential impact the long-term conservation from the City of Del Rio that designation economic impacts are likely to be efforts of the KCGCD. The KCGCD stated of critical habitat would impact our distributed, including an assessment of in their resolution that they were relationship. We believe the City of Del any local or regional impacts of habitat committed to maintaining natural flows Rio will continue to work toward conservation and the potential effects of in Pinto Creek. This is part of their completion and implementation of the conservation activities on small entities authority to manage groundwater master plan and conservation efforts for and the energy industry. This pumping through a permitting program. San Felipe Creek whether or not critical information can be used by the We believe the KCGCD will continue to habitat is designated on San Felipe decision-makers to assess whether the strive toward maintaining spring flows Creek. Therefore, we do not believe effects of the designation might unduly whether or not the Pinto Creek Unit is there are any benefits of excluding San burden a particular group or economic included in the designation. Therefore, Felipe Creek Unit based on these sector (see ‘‘Required Determinations’’ excluding the Pinto Creek Unit is not management plans and ongoing section below). Finally, the economic anticipated to provide benefits for conservation efforts. analysis looks retrospectively at costs Devils River minnow through that have been incurred since the date Economic Analysis preventing the loss of non-Federal this species was listed as threatened partnerships in the Pinto Creek Unit. Section 4(b)(2) of the Act requires us (October 20, 1999; 64 FR 56596), and We received no other information to designate critical habitat on the basis considers those costs that may occur in during the comment period that would of the best scientific information the 20 years following designation of indicate there are additional benefits to available and to consider the economic critical habitat (i.e., coextensive costs, excluding the Pinto Creek Unit. and other relevant impacts of 2008–2027). designating a particular area as critical The economic analysis focuses on the San Felipe Creek Unit habitat. Section 4(b)(2) of the Act allows direct and indirect costs of the rule. We considered the exclusion of the the Secretary to exclude areas from However, economic impacts to land-use San Felipe Creek Unit, but based on the critical habitat for economic or other activities can exist in the absence of record before us have elected not to reasons if the Secretary determines that critical habitat. These impacts may exercise our discretion under section the benefits of such exclusion exceed result from, for example, section 7 4(b)(2) of the Act to exclude this unit. the benefits of designating the area as consultations under the jeopardy There are some limited educational critical habitat. However, this exclusion standard, local zoning laws, State and benefits for the designation of the San cannot occur if it will result in the natural resource laws, and enforceable Felipe Creek Unit. Many local officials extinction of the species concerned. management plans and best and agency personnel are already aware Following the publication of the management practices applied by other of the need for conservation of San proposed critical habitat designation, State and Federal agencies. Economic Felipe Creek for the benefit of the Devils we conducted an economic analysis to impacts that result from these types of River minnow. However, educating the estimate the potential economic effects protections are not included in the general public (citizens of Val Verde of the designation. The draft analysis analysis as they are considered to be

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part of the regulatory and policy the economy or adversely affect an small entities are significant, we baseline. economic sector, productivity, jobs, the considered the types of activities that The economic analysis estimates environment, or other units of the might trigger regulatory impacts under potential economic impacts resulting government. this designation as well as types of from the implementation of Devils River (b) Whether the rule will create project modifications that may result. In minnow conservation efforts in three inconsistencies with other Federal general, the term ‘‘significant economic categories: (a) Water quality; (b) agencies’ actions. impact’’ is meant to apply to a typical nonnative species; and (c) Devils River (c) Whether the rule will materially small business firm’s business minnow sampling and monitoring. The affect entitlements, grants, user fees, operations. final economic analysis estimates total loan programs, or the rights and To determine if the rule could pre-designation baseline impacts (8-year obligations of their recipients. significantly affect a substantial number total from 1999 to 2007) to be $388,000, (d) Whether the rule raises novel legal of small entities, we considered the assuming a 3 percent discount rate, and or policy issues. number of small entities affected within $402,000, assuming a 7 percent discount Regulatory Flexibility Act (5 U.S.C. 601 particular types of economic activities rate. Post-designation baseline impacts et seq.) (e.g., residential and commercial over the next 20 years (2008 to 2027) are development and agriculture). We apply estimated to be $406,000, assuming a 3 Under the Regulatory Flexibility Act the ‘‘substantial number’’ test percent discount rate, and $300,000, (RFA) (5 U.S.C. 601 et seq., as amended individually to each industry to assuming a 7 percent discount rate. The by the Small Business Regulatory determine if certification is appropriate. post-designation incremental impacts Enforcement Fairness Act (SBREFA) (5 However, the SBREFA does not (2008 to 2027) are estimated to be U.S.C. 802(2)), whenever an agency explicitly define ‘‘substantial number’’ $47,600, assuming a 3 percent discount must publish a notice of rulemaking for or ‘‘significant economic impact.’’ rate, and $33,600, assuming a 7 percent any proposed or final rule, it must Consequently, to assess whether a discount rate. prepare and make available for public ‘‘substantial number’’ of small entities is We evaluated the potential economic comment a regulatory flexibility affected by this designation, this impact of this designation as identified analysis that describes the effect of the analysis considers the relative number in the economic analysis. Based on this rule on small entities (i.e., small of small entities likely to be impacted in evaluation, we believe that there are no businesses, small organizations, and an area. In some circumstances, disproportionate economic impacts that small governmental jurisdictions). especially with critical habitat warrant exclusion under section 4(b)(2) However, no regulatory flexibility designations of limited extent, we may of the Act at this time. The final analysis is required if the head of an aggregate across all industries and economic analysis is available on the agency certifies the rule will not have a consider whether the total number of Internet at http://www.regulations.gov significant economic impact on a small entities affected is substantial. In and http://www.fws.gov/southwest/es/ substantial number of small entities. estimating the number of small entities AustinTexas/ or upon request from the SBREFA amended RFA to require potentially affected, we also consider Austin Ecological Services Field Office Federal agencies to provide a whether their activities have any (see ADDRESSES section). certification statement of the factual Federal involvement. basis for certifying that the rule will not Designation of critical habitat only Required Determinations have a significant economic impact on affects activities conducted, funded, or In our July 31, 2007, proposed rule a substantial number of small entities. permitted by Federal agencies. Some (72 FR 41679), we indicated that we In this final rule, we are certifying that kinds of activities are unlikely to have would defer our determination of the critical habitat designation for any Federal involvement and so will not compliance with several statutes and Devils River minnow will not have a be affected by critical habitat Executive Orders until the information significant economic impact on a designation. In areas where the species concerning potential economic impacts substantial number of small entities. is present, Federal agencies already are of the designation and potential effects The following discussion explains our required to consult with us under on landowners and stakeholders was rationale. section 7 of the Act on activities they available in the draft economic analysis. According to the Small Business fund, permit, or carry out that may In this final rule, we affirm the Administration (SBA), small entities affect Devils River minnow (see Section information contained in the proposed include small organizations, such as 7 Consultation section). Federal rule concerning Executive Order (E.O.) independent nonprofit organizations, agencies also must consult with us if 13132, E.O. 12988, the Paperwork and small governmental jurisdictions, their activities may affect critical Reduction Act, the National including school boards and city and habitat. Designation of critical habitat, Environmental Policy Act, and the town governments that serve fewer than therefore, could result in an additional President’s memorandum of April 29, 50,000 residents, as well as small economic impact on small entities due 1994, ‘‘Government-to-Government businesses (13 CFR 121.201). Small to the requirement to reinitiate Relations with Native American Tribal businesses include manufacturing and consultation for ongoing Federal Governments’’ (59 FR 22951). mining concerns with fewer than 500 activities (see Application of the employees, wholesale trade entities ‘‘Adverse Modification’’ Standard Regulatory Planning and Review with fewer than 100 employees, retail section). The Office of Management and Budget and service businesses with less than $5 Appendix B of the final economic (OMB) has determined that this rule is million in annual sales, general and analysis (FEA) examined the potential not significant and has not reviewed heavy construction businesses with less for Devils River minnow conservation this rule under Executive Order 12866 than $27.5 million in annual business, efforts to affect small entities. The (E.O. 12866). OMB bases its special trade contractors doing less than analysis was based on the estimated determination upon the following four $11.5 million in annual business, and impacts associated with the proposed criteria: agricultural businesses with annual critical habitat designation. Based on (a) Whether the rule will have an sales less than $750,000. To determine the analysis, the potential for economic annual effect of $100 million or more on if potential economic impacts to these impacts of the designation on small

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entities are expected to be borne on information in the economic regulatory effect is that Federal agencies primarily by the City of Del Rio and analysis, energy-related impacts must ensure that their actions do not other miscellaneous small entities. The associated with Devils River minnow destroy or adversely modify critical identities of these small entities are not conservation activities within critical habitat under section 7. Non-Federal known at this time but are expected to habitat are not expected. As such, the entities that receive Federal funding, include local developers and private designation of critical habitat is not assistance, permits, or otherwise require landowners that may represent third expected to significantly affect energy approval or authorization from a Federal parties in section 7 consultations on the supplies, distribution, or use. Therefore, agency for an action, may be indirectly Devils River minnow in the future. The this action is not a significant energy impacted by the designation of critical City of Del Rio and other miscellaneous action, and no Statement of Energy habitat. However, the legally binding small entities are expected to incur, at Effects is required. duty to avoid destruction or adverse most, combined annualized modification of critical habitat rests Unfunded Mandates Reform Act (2 administrative costs related to squarely on the Federal agency. U.S.C. 1501 et seq.) consultations for adverse modification Furthermore, to the extent that non- of approximately $3,000, assuming a 3 In accordance with the Unfunded Federal entities are indirectly impacted percent discount rate. This estimated Mandates Reform Act (2 U.S.C. 1501), because they receive Federal assistance $3,000 in combined annual the Service makes the following or participate in a voluntary Federal aid administrative costs is not expected to findings: program, the Unfunded Mandates have a significant impact on small (a) This rule will not produce a Reform Act would not apply, nor would entities, including the City of Del Rio. Federal mandate. In general, a Federal critical habitat shift the costs of the large In addition, because the annualized mandate is a provision in legislation, entitlement programs listed above on to post-designation incremental impacts statute, or regulation that would impose State governments. expected for the City of Del Rio and an enforceable duty upon State, local, or (b) We do not believe that this rule other miscellaneous small entities are Tribal governments, or the private sector will significantly or uniquely affect relatively small, no future indirect and includes both ‘‘Federal small governments because it will not impacts associated with post- intergovernmental mandates’’ and produce a Federal mandate of $100 designation incremental impacts are ‘‘Federal private sector mandates.’’ million or greater in any year; that is, it expected for the small businesses and These terms are defined in 2 U.S.C. is not a ‘‘significant regulatory action’’ entities included in this analysis. 658(5)–(7). ‘‘Federal intergovernmental under the Unfunded Mandates Reform mandate’’ includes a regulation that Act. The designation of critical habitat Small Business Regulatory Enforcement ‘‘would impose an enforceable duty imposes no obligations on State or local Fairness Act (5 U.S.C 801 et seq.) upon State, local, or tribal governments’’ governments. By definition, Federal Under SBREFA, this rule is not a with two exceptions. It excludes ‘‘a agencies are not considered small major rule. Our detailed assessment of condition of Federal assistance.’’ It also entities, although the activities they the economic effects of this designation excludes ‘‘a duty arising from fund or permit may be proposed or is described in the economic analysis. participation in a voluntary Federal carried out by small entities. As such, a Based on the effects identified in the program,’’ unless the regulation ‘‘relates Small Government Agency Plan is not economic analysis, we believe that this to a then-existing Federal program required. rule will not have an annual effect on under which $500,000,000 or more is the economy of $100 million or more, provided annually to State, local, and Executive Order 12630—Takings will not cause a major increase in costs tribal governments under entitlement In accordance with E.O. 12630 or prices for consumers, and will not authority,’’ if the provision would (‘‘Government Actions and Interference have significant adverse effects on ‘‘increase the stringency of conditions of with Constitutionally Protected Private competition, employment, investment, assistance’’ or ‘‘place caps upon, or Property Rights’’), we have analyzed the productivity, innovation, or the ability otherwise decrease, the Federal potential takings implications of critical of U.S.-based enterprises to compete Government’s responsibility to provide habitat for the Devils River minnow in with foreign-based enterprises. Refer to funding,’’ and the State, local, or Tribal a takings implications assessment. the final economic analysis for a governments ‘‘lack authority’’ to adjust Critical habitat designation does not discussion of the effects of this accordingly. At the time of enactment, affect landowner actions that do not determination (see ADDRESSES for these entitlement programs were: require Federal funding or permits, nor information on obtaining a copy of the Medicaid; Aid to Families with does it preclude development of habitat final economic analysis). Dependent Children work programs; conservation programs or issuance of Child Nutrition; Food Stamps; Social incidental take permits to permit actions Executive Order 13211—Energy Supply, Services Block Grants; Vocational that do require Federal funding or Distribution, or Use Rehabilitation State Grants; Foster Care, permits to go forward. The takings On May 18, 2001, the President issued Adoption Assistance, and Independent implications assessment concludes that E.O. 13211 on regulations that Living; Family Support Welfare this final designation of critical habitat significantly affect energy supply, Services; and Child Support for Devils River minnow does not pose distribution, or use. E.O. 13211 requires Enforcement. ‘‘Federal private sector significant takings implications for agencies to prepare Statements of mandate’’ includes a regulation that lands within or affected by the Energy Effects when undertaking certain ‘‘would impose an enforceable duty designation. actions. OMB has provided guidance for upon the private sector, except (i) a implementing this E.O. that outlines condition of Federal assistance or (ii) a Federalism nine outcomes that may constitute ‘‘a duty arising from participation in a In accordance with E.O. 13132 significant adverse effect’’ when voluntary Federal program.’’ (Federalism), the final rule does not compared without the regulatory action The designation of critical habitat have significant Federalism effects. A under consideration. The economic does not impose a legally binding duty Federalism assessment is not required. analysis finds that none of these criteria on non-Federal government entities or In keeping with Department of the are relevant to this analysis. Thus, based private parties. Under the Act, the only Interior and Department of Commerce

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policy, we requested information from, approval by OMB under the Paperwork minnow. Therefore, we are not and coordinated development of, this Reduction Act of 1995 (44 U.S.C. 3501 designating critical habitat for the Devils final critical habitat designation with et seq.). This rule will not impose River minnow on Tribal lands. appropriate State resource agencies in recordkeeping or reporting requirements Texas. The designation of critical on State or local governments, References Cited habitat in areas currently occupied by individuals, businesses, or A complete list of all references cited the Devils River minnow is not likely to organizations. An agency may not in this rulemaking is available upon impose any additional restrictions to conduct or sponsor, and a person is not request from the Field Supervisor, those currently in place and, therefore, required to respond to, a collection of has little incremental impact on State information unless it displays a Austin Ecological Services Field Office and local governments and their currently valid OMB control number. (see ADDRESSES). activities. The designation may have National Environmental Policy Act Author(s) some benefit to these governments (NEPA) (42 U.S.C. 4321 et seq.) because the areas that contain the The primary authors of this physical and biological features It is our position that, outside the rulemaking are staff members of the essential to the conservation of the Tenth Circuit, we do not need to Austin Ecological Services Field Office. species are more clearly defined, and prepare environmental analyses as the PCEs of the habitat necessary to the defined by the NEPA in connection with List of Subjects in 50 CFR Part 17 designating critical habitat under the conservation of the species are Endangered and threatened species, specifically identified. This information Act. We published a notice outlining Exports, Imports, Reporting and does not alter where and what federally our reasons for this determination in the recordkeeping requirements, sponsored activities may occur. Federal Register on October 25, 1983 However, it may assist local (48 FR 49244). This assertion was Transportation. governments in long-range planning upheld in the courts of the Ninth Circuit Regulation Promulgation (rather than having them wait for case- (Douglas County v. Babbitt, 48 F.3d by-case section 7 consultation to occur). 1495 (9th Cir. Ore. 1995), cert. denied I Accordingly, we amend part 17, 116 S. Ct. 698 (1996)). Civil Justice Reform subchapter B of chapter I, title 50 of the Government-to-Government Code of Federal Regulations, as set forth In accordance with E.O. 12988 (Civil Relationship With Tribes below: Justice Reform), the Office of the Solicitor has determined that the rule In accordance with the President’s PART 17—[AMENDED] does not unduly burden the judicial memorandum of April 29, 1994, system and that it meets the ‘‘Government-to-Government Relations I 1. The authority citation for part 17 requirements of sections 3(a) and 3(b)(2) with Native American Tribal continues to read as follows: of the Order. We are designating critical Governments’’ (59 FR 22951), Executive habitat in accordance with the Order 13175, and the Department of Authority: 16 U.S.C. 1361–1407; 16 U.S.C. provisions of the Act. This final rule Interior’s manual at 512 DM 2, we 1531–1544; 16 U.S.C. 4201–4245; Public Law uses standard property descriptions and readily acknowledge our responsibility 99–625, 100 Stat. 3500; unless otherwise identifies the physical and biological to communicate meaningfully with noted. features essential to the conservation of recognized Federal Tribes on a I 2. Amend § 17.11(h) by revising the the species within the designated areas government-to-government basis. We to assist the public in understanding the have determined that there are no tribal entry for ‘‘Minnow, Devils River’’ under habitat needs of the Devils River lands occupied at the time of listing that ‘‘FISHES’’ to read as follows: contain the features essential for the minnow. § 17.11 Endangered and threatened conservation of Devils River minnow, wildlife. Paperwork Reduction Act of 1995 and no Tribal lands that are unoccupied This rule does not contain any new areas that are essential for the * * * * * collections of information that require conservation of the Devils River (h) * * *

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

******* FISHES

******* Minnow, Devils River Dionda diaboli ...... U.S.A. (TX), Mexico Entire ...... T 669 17.95(e) NA

*******

I 3. Amend § 17.95(e) by adding an § 17.95 Critical habitat—fish and wildlife. Devils River Minnow (Dionda diaboli) entry for ‘‘Devils River Minnow (Dionda * * * * * (1) Critical habitat units are depicted diaboli)’’ in the same alphabetical order (e) Fishes. that the species appears in the table at for Val Verde County and Kinney § 17.11(h) to read as follows: * * * * * County, Texas, on the maps below. (2) The primary constituent elements of critical habitat for the Devils River

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minnow are the following habitat (D) Conductivity less than 0.7 mS/cm are located existing on the effective date components: and salinity less than 1 ppt; of this rule and not containing one or (i) Streams characterized by: (E) Ammonia levels less than 0.4 mg/ more of the primary constituent (A) Areas with slow to moderate l; and elements. water velocities between 10 and 40 cm/ (F) No or minimal pollutant levels for second (4 and 16 in/second) in shallow (4) Critical habitat map units. Data copper, arsenic, mercury, and cadmium; layers defining map units were created to moderate water depths between human and animal waste products; approximately 10 cm (4 in) and 1.5 m in ArcGIS using the National pesticides; fertilizers; suspended Hydrography Dataset and 7.5’ (4.9 ft), near vegetative structure, such sediments; and petroleum compounds as emergent or submerged vegetation or topographic quadrangle maps obtained and gasoline or diesel fuels. from U.S. Geological Survey to stream bank riparian vegetation that (iii) An abundant aquatic food base overhangs into the water column; approximate stream channels and consisting of algae attached to stream calculate distances (stream km and (B) Gravel and cobble substrates substrates and other microorganisms stream mi). We made some minor ranging in diameter between 2 and 10 associated with stream substrates. adjustments to stream channels using cm (0.8 and 4 in) with low or moderate (iv) Aquatic stream habitat either the 2004 National Agriculture Imagery amounts of fine sediment (less than 65 devoid of nonnative aquatic species percent stream bottom coverage) and Program digital orthophotos obtained (including fish, plants, and low or moderate amounts of substrate from the Texas Natural Resources invertebrates) or in which such embeddedness; and Information System. For each critical nonnative aquatic species are at levels (C) Pool, riffle, run, and backwater habitat unit, the upstream and that allow for healthy populations of components free of artificial instream downstream boundaries are described as Devils River minnows. structures that would prevent paired geographic coordinates X, Y (v) Areas within stream courses that movement of fish upstream or (meters E, meters N, UTM Zone 14, may be periodically dewatered for short downstream. referenced to North American time periods, during seasonal droughts, (ii) High-quality water provided by Horizontal Datum 1983). Additionally, permanent, natural flows from but otherwise serve as connective corridors between occupied or critical habitat areas include the stream groundwater spring and seeps channels within the identified stream characterized by: seasonally occupied areas through which the species moves when the area reaches and areas within these reaches (A) Temperature ranging between 17 up to the bankfull width. °C and 29 °C (63 °F and 84 °F); is wetted. (B) Dissolved oxygen levels greater (3) Critical habitat does not include (5) Note: Index map of critical habitat than 5.0 mg/l; manmade structures (such as buildings, units for the Devils River minnow (C) Neutral pH ranging between 7.0 aqueducts, airports, roads, and other follows: and 8.2; paved areas) and the land on which they BILLING CODE 4310–55–P

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(6) Unit 2: San Felipe Creek, Val 318813E, 3253702N) located about 1.1 West (UTM 317039E, 3250850N) and Verde County, Texas. stream km (0.7 stream mi) upstream of San Felipe Springs East (UTM 317212E, (i) Unit 2 consists of approximately the Jap Lowe Bridge crossing. The 250825N), downstream to the 7.9 stream km (4.9 stream mi) on San downstream boundary on San Felipe confluence with San Felipe Creek. Felipe Creek, 0.8 stream km (0.5 stream Creek is in the City of Del Rio 0.8 stream Including all three streams, the total mi) of the outflow of San Felipe Springs km (0.5 stream mi) downstream of the distance in Unit 2 is approximately 9.0 West, and 0.3 stream km (0.2 stream mi) Academy Street Bridge crossing (UTM stream km (5.6 stream mi). of the outflow of San Felipe Springs 316317E, 3248147N). This unit includes East. The upstream boundary on San the outflow channels from the origin of (ii) Note: Map of Unit 2, San Felipe Felipe Creek is the Head Springs (UTM the two springs, San Felipe Springs Creek Unit, follows:

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(7) Unit 3: Pinto Creek, Kinney Pinto Creek. The upstream boundary is Highway 90 Bridge crossing of Pinto County, Texas. Pinto Springs (UTM 359372E, Creek (UTM 351163E, 3246179N). (i) Unit 3 consists of approximately 3254422N). The downstream boundary (ii) Note: Map of Unit 3, Pinto Creek 17.5 stream km (10.9 stream mi) on is 100 m (330 ft) upstream of the Unit, follows:

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* * * * * Dated: July 29, 2008. Lyle Laverty, Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. E8–17985 Filed 8–11–08; 8:45 am] BILLING CODE 4310–55–C

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