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term (e.g., one year, 10 years, and 30 comments and materials by any one of included in the designation that were years)? Please provide suggestions about several methods: occupied at the time of listing that how HHS/CDC could reduce or avoid 1. You may mail or hand-deliver contain the features that are essential for the impact on small entities, and how written comments and information to the conservation of the species and why, those changes would affect the potential Adam Zerrenner, Field Supervisor, U.S. and what areas that were not occupied effectiveness of the rules. Fish and Wildlife Service, Austin at the listing are essential to the Ecological Services Field Office, 10711 conservation of the species and why; References Burnet Road, Suite 200, Austin, TX (3) Information on the status of the 1. Regulations on the importation of dogs 78758. Devils River minnow in Sycamore Creek and cats (42 CFR 71.51): http:// 2. You may send comments by and Las Moras Creek watersheds and a257.g.akamaitech.net/7/257/2422/ electronic mail (e-mail) to information that indicates whether or 05dec20031700/edocket.access.gpo.gov/ _ not these areas should be considered _ fw2 [email protected]. Please see the Public cfr 2003/octqtr/42cfr71.51.htm. essential to the conservation of the 2. Other animal-importation regulations Comments Solicited section below for file format and other information about species; (42 CFR 71.56) and orders: (4) Land use designations and current a. http://edocket.access.gpo.gov/2003/03- electronic filing. 27557.htm 3. You may fax your comments to the or planned activities in the subject areas b. http://www.cdc.gov/ncidod/monkeypox/ attention of Adam Zerrenner at 512– and their possible impacts on proposed animals.htm 490–0974. critical habitat; c. http://www.cdc.gov/flu/avian/outbreaks/ 4. You may go to the Federal (5) Any foreseeable economic, embargo.htm eRulemaking Portal: http:// national security, or other potential d. http://www.cdc.gov/ncidod/sars/ www.regulations.gov. Follow the impacts resulting from the proposed civetembargo.htm instructions for submitting comments. designation and, in particular, any Dated: April 16, 2007. Comments and materials received, as impacts on small entities and Michael Leavitt, well as supporting documentation used information about the benefits of Secretary. in the preparation of this proposed rule, including or excluding any areas that will be available for public inspection, exhibit those impacts; and Editorial Note: This document was by appointment, during normal business (6) Whether our approach to received at the Office of the Federal Register designating critical habitat could be on July 25, 2007. hours at the Austin Ecological Services Field Office, 10711 Burnet Road, Suite improved or modified in any way to [FR Doc. E7–14623 Filed 7–30–07; 8:45 am] 200, Austin, TX 78758; telephone 512– provide for greater public participation BILLING CODE 4163–18–P 490–0057. and understanding, or to assist us in accommodating public concerns and FOR FURTHER INFORMATION CONTACT: comments. Adam Zerrenner, Field Supervisor, You may submit comments and DEPARTMENT OF THE INTERIOR Austin Ecological Services Field Office, materials concerning this proposal by 10711 Burnet Road, Suite 200, Austin, Fish and Wildlife Service one of several methods (see ADDRESSES). TX 78758; telephone 512–490–0057; Please include ‘‘Attn: Devils River facsimile 512–490–0974. Persons who 50 CFR Part 17 minnow’’ in your e-mail subject header use a telecommunications device for the and your name and return address in RIN 1018–AV25 deaf (TDD) may call the Federal the body of your message. If you do not Information Relay Service (FIRS) at receive a confirmation from the system Endangered and Threatened Wildlife 800–877–8339, 7 days a week and 24 that we have received your message, and Plants; Designation of Critical hours a day. contact us directly by calling our Austin Habitat for the Devils River Minnow SUPPLEMENTARY INFORMATION: Ecological Services Field Office at 512– AGENCY: Fish and Wildlife Service, Public Comments Solicited 490–0057. Please note that comments Interior. must be received by the date specified We intend that any final action in the DATES section in order to be ACTION: Proposed rule. resulting from this proposal will be as considered and that the e-mail address accurate and as effective as possible. _ SUMMARY: fw2 [email protected] will be closed out at We, the U.S. Fish and Therefore, comments or suggestions Wildlife Service (Service), propose to the termination of the public comment from the public, other concerned period. designate critical habitat for the Devils governmental agencies, the scientific River minnow (Dionda diaboli) under Before including your address, phone community, industry, or any other number, e-mail address, or other the Endangered Species Act of 1973, as interested party concerning this amended (Act). In total, approximately personal identifying information in your proposed rule are hereby solicited. comment, you should be aware that 73.5 stream kilometers (km) (45.7 stream Comments particularly are sought miles (mi)) are within the boundaries of your entire comment—including your concerning: personal identifying information—may the proposed critical habitat (1) The reasons habitat should or designation. The proposed critical be made publicly available at any time. should not be designated as critical While you can ask us in your comment habitat is located along streams in Val habitat under section 4 of the Act (16 Verde and Kinney Counties, Texas. to withhold your personal identifying U.S.C. 1531 et seq.), including whether information from public review, we DATES: We will accept comments from the benefit of designation would cannot guarantee that we will be able to all interested parties until October 1, outweigh any threats to the species do so. 2007. We must receive requests for caused by designation such that the public hearings, in writing, at the designation of critical habitat is Background address shown in the ADDRESSES section prudent; It is our intent to discuss only those by September 14, 2007. (2) Specific information on the topics directly relevant to the ADDRESSES: If you wish to comment on amount and distribution of Devils River designation of critical habitat in this the proposed rule, you may submit your minnow habitat, what areas should be proposed rule. For more information on

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the Devils River minnow, refer to the United States jurisdiction. As such, measures provided pursuant to the Act final listing rule published in the geographical areas supporting the Devils are no longer necessary. Federal Register on October 20, 1999 River minnow in Mexico are not Critical habitat receives protection (64 FR 56596) or the 2005 Devils River included in the proposed critical habitat under section 7(a)(2) of the Act through Minnow Recovery Plan available online designation. the prohibition against destruction or at http://www.fws.gov/endangered/. The Devils River minnow is found adverse modification of critical habitat More detailed information on Devils only in spring-fed streams (Brune 1981, with regard to actions carried out, River minnow biology and ecology that pp. 274–275, 450–454; Garrett et al. funded, or authorized by a Federal is directly relevant to designation of 1992, p. 259) with shallow to moderate agency. Section 7 of the Act requires critical habitat is discussed under the depths and slow to moderate water consultation on Federal actions that Primary Constituent Elements section velocity over gravel substrates. Within may affect critical habitat. The below. these streams, Devils River minnows are designation of critical habitat does not most often found within or nearby affect land ownership or establish a Description and Taxonomy emergent aquatic plants (Garrett et al. refuge, wilderness, reserve, preserve, or The Devils River minnow (Dionda 2004, p. 437) or near similar structures other conservation area. Such diaboli Hubbs and Brown) is a small created by stream bank vegetation that designation does not allow government fish first collected in 1951 (Hubbs and extends into the water (Lopez- or public access to private lands. Brown 1956, p. 70). The Devils River Fernandez and Winemiller 2005, p. Section 7(a)(2) of the Act is a purely minnow is recognized as a distinct 249). protective measure and does not require species by the American Fisheries implementation of restoration, recovery, Previous Federal Actions Society (Nelson et al. 2004, p. 70). or enhancement measures. Taxonomic validity is based on The Devils River minnow was listed To be included in a critical habitat morphology (Hubbs and Brown 1956, p. as threatened on October 20, 1999 (64 designation, the habitat within the 69), genetic markers (Mayden et al. FR 56596). Critical habitat was not geographical area occupied by the 1992, p. 722), and chromosome designated for this species at the time of species must first have features that are differences (Gold et al. 1992, p. 221). listing (64 FR 56606). On October 5, essential to the conservation of the Adult Devils River minnows reach 2005, the Forest Guardians, Center for species. Critical habitat designations sizes of 25–53 millimeters (mm) (1.0–2.1 Biological Diversity, and Save Our identify, to the extent known using the inches (in)) standard length. The fish Springs Alliance filed suit against the best scientific data available, habitat has a wedge-shaped spot near the tail Service for failure to designate critical areas that provide essential life cycle and a pronounced lateral stripe habitat for this species (Forest needs of the species (i.e., areas on which extending through the eye to the snout Guardians et al. v. Hall 2005). On June are found the primary constituent but without reaching the lower lip. The 28, 2006, a settlement was reached that elements, as defined at 50 CFR species has a narrow head and requires the Service to re-evaluate our 424.12(b)). prominent dark markings on the scale original prudenct determination. The Occupied habitat that contains the pockets of the body above the lateral settlement stipulated that, if prudent, a features essential to the conservation of line, producing a crosshatched proposed rule would be submitted to the species meets the definition of appearance when viewed from above the Federal Register for publication on critical habitat only if the essential (Hubbs and Brown 1956, pp. 69–70). or before July 31, 2007, and a final rule features thereon may require special The species occurs with other minnows, by July 31, 2008. This proposed rule management considerations or such as the closely related manantial complies with the settlement agreement protection. Thus, we do not include roundnose minnow (Dionda argentosa). and with section 4(b)(2) of the Act. For areas where existing management is more information on previous Federal sufficient to conserve the species. (As Distribution and Habitat actions concerning the Devils River discussed below, such areas may also be The Devils River minnow is limited to minnow, refer to the final listing rule excluded from critical habitat pursuant short stretches of spring-fed stream published in the Federal Register on to section 4(b)(2) of the Act.) tributaries of the Rio Grande in October 20, 1999 (64 FR 56598). Unoccupied areas can be designated as southwestern Texas and northeastern critical habitat. However, when the best Mexico (Garrett et al. 1992, p. 259). In Critical Habitat available scientific data do not the United States, the fish has never Critical habitat is defined in section 3 demonstrate that the conservation needs been found outside of five streams in of the Act as (i) the specific areas within of the species require additional areas, Val Verde and Kinney Counties, Texas. the geographical area occupied by a we will not designate critical habitat in The Devils River minnow currently species, at the time it is listed in areas outside the geographical area occurs in stretches of the Devils River, accordance with the Act, on which are occupied by the species. San Felipe Creek, and Pinto Creek. It found those physical or biological Section 4 of the Act requires that we has been extirpated from Las Moras features (I) essential to the conservation designate critical habitat on the basis of Creek and has not been collected from of the species and (II) that may require the best scientific and commercial data Sycamore Creek since 1989 (Garrett et special management considerations or available. Further, the Service’s Policy al. 1992, pp. 261–267; Garrett et al. protection; and (ii) specific areas on Information Standards Under the 2004, p. 435). There is little information outside the geographical area occupied Endangered Species Act, published in available on the status of the Devils by a species at the time it is listed, upon the Federal Register on July 1, 1994 (59 River minnow in Mexico. Historically, it a determination that such areas are FR 34271), and Section 515 of the was known to occur in the Rı´o San essential for the conservation of the Treasury and General Government Carlos and several streams in the Rı´o species. Conservation, as defined under Appropriations Act for Fiscal Year 2001 Salado Drainage, in the State of section 3 of the Act means to use and (P.L. 106–554; H.R. 5658), and the Coahuila. Regulations at 50 CFR the use of all methods and procedures associated Information Quality 424.12(h) state that critical habitat shall that are necessary to bring any Guidelines issued by the Service, not be designated within foreign endangered species or threatened provide criteria, establish procedures, countries or in other areas outside of species to the point at which the and provide guidance to ensure that

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decisions made by the Service represent Devils River minnow, and areas physiological requirements; cover or the best scientific data available. They unoccupied at the time of listing that are shelter; sites for breeding, reproduction, require Service biologists to the extent essential to the conservation of the and rearing (or development) of consistent with the Act and with the use Devils River minnow, or both. In offspring; and habitats that are protected of the best scientific data available, to designating critical habitat for the Devils from disturbance or are representative of use primary and original sources of River minnow, we reviewed the relevant the historic geographical and ecological information as the basis for information available, including peer- distributions of a species. recommendations to designate critical reviewed journal articles, unpublished The specific physical and biological habitat. When determining which areas reports, the Devils River Minnow features essential to the conservation of are critical habitat, a primary source of Recovery Plan, the final listing rule, and the Devils River minnow, primary information is generally the listing unpublished materials (such as expert constituent elements (PCEs), are derived package for the species. Additional opinions). In February 2006, we sent from the biological needs of the species information sources include the information requests to a large number as understood from studies of its biology recovery plan for the species, articles in of experts and stakeholders (such as and ecology, including but not limited peer-reviewed journals, conservation private landowners, Texas state to, Edwards et al. (2004), Garrett et al. plans developed by States and counties, government agencies, other Federal (1992), Garrett et al. (2004), Gibson et al. scientific status surveys and studies, agencies, local governments, and (2004), Harrell (1978), Hubbs (2001), biological assessments, or other nongovernmental organizations). Hubbs and Garrett (1990), Lopez- unpublished materials and expert We have also reviewed available Fernandez and Winemiller (2005), opinion or personal knowledge. All information that pertains to the habitat Valdes Cantu and Winemiller (1997), information is used in accordance with requirements of this species. We used a and Winemiller (2003). wide variety of sources of information, the provisions of Section 515 of the Space for Individual and Population such as material included in reports Treasury and General Government Growth, Normal Behavior, and Cover Appropriations Act for Fiscal Year 2001 submitted during section 7 (P.L. 106–554; H.R. 5658) and the consultations; research published in The Devils River minnow is a fish that associated Information Quality peer-reviewed articles and presented in occurs only in aquatic environments of Guidelines issued by the Service. academic theses; research proposals and small to mid-sized streams that are Habitat is often dynamic, and species correspondence from technical experts; tributaries to the Rio Grande. The may move from one area to another over data and reports from other State and species spends its full life cycle within time. Furthermore, we recognize that Federal agencies; unpublished data such streams. The stream environment designation of critical habitat may not as field notes and personal observations provides all of the space necessary to include all of the habitat areas that may from field biologists; and regional allow for individual and population eventually be determined to be Geographic Information System (GIS) growth, food, cover, and normal necessary for the recovery of the coverages, including geodatabases behaviors of the species. Quantitative species. For these reasons, critical provided by partner organizations, such studies of the specific micro-habitats habitat designations do not signal that as the City of Del Rio and The Nature used by any life stages of Devils River habitat outside the designation is Conservancy. minnow in the wild have not been unimportant or may not be required for We are proposing to designate critical conducted. Studies of fish habitat recovery. habitat for the Devils River minnow in within its range have found too few Areas that support populations, but areas that were occupied at the time of individuals of Devils River minnow to are outside the critical habitat listing, and that contain the physical analyze specific habitat associations designation, will continue to be subject and biological features essential to the (Garrett et al. 1992, p. 266; Valdes Cantu to conservation actions implemented conservation of the species arranged in and Winemiller 1997, p. 268; Robertson under section 7(a)(1) of the Act and to the quantity and spatial characteristics and Winemiller 2003, p. 119). However, the regulatory protections afforded by necessary for conservation (see ‘‘Criteria observational studies have been the section 7(a)(2) jeopardy standard, as Used to Identify Critical Habitat’’ conducted throughout its limited range determined on the basis of the best section below). We are also proposing to that qualitatively defined stream available information at the time of the designate critical habitat in areas conditions where Devils River minnows action. Federally funded or permitted unoccupied at the time of listing and have been collected. projects affecting listed species outside determined to be essential to the General habitat descriptions of areas their designated critical habitat areas conservation of the Devils River where Devils River minnow have been may still result in jeopardy findings in minnow. found include the following: ‘‘the area some cases. Similarly, critical habitat where spring runs enter the river’’ Primary Constituent Elements designations made on the basis of the (Hubbs and Garrett 1990, p. 448); best available information at the time of In accordance with section 3(5)(A)(i) ‘‘channels of fast-flowing water over designation will not control the of the Act and regulations at 50 CFR gravel bottoms’’ (Garrett et al. 1992, p. direction and substance of future 424.12, in determining which areas to 259); ‘‘associated with water willow recovery plans, habitat conservation propose as critical habitat, we consider (Justicia americana) and other aquatic plans, or other species conservation those physical and biological features macrophytes over a gravel-cobble planning efforts if new information (primary constituent elements) that are substrate’’ (Garrett et al. 2004, p. 437) available to these planning efforts calls essential to the conservation of the (macrophytes are plants large enough to for a different outcome. species, and within areas occupied by be seen without a microscope); and the species at the time of listing, that ‘‘stream seeps’’ at sites that ‘‘had Methods may require special management abundant riparian vegetation As required by section 4(b) of the Act, considerations and protection. These overhanging the banks’’ (Lopez- we use the best scientific data available include, but are not limited to, space for Fernandez and Winemiller 2005, p. in determining areas occupied at the individual and population growth and 249). We based our determinations of time of listing that contain the features for normal behavior; food, water, air, the PCEs on the physical and biological essential to the conservation of the light, minerals, or other nutritional or features that have been measured in

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streams where Devils River minnow c. Substrates. The Devils River explain the highly variable sampling occur. minnow is most often associated with results assessing abundance of the fish a. Water Depth and Velocity. Flowing substrates (stream bottom) described as (Garrett et al. 2002, p. 478). However, it water within streams is critical to gravel and cobble (Garrett et al. 2004, p. is unknown to what extent Devils River provide living space for the Devils River 436). Lopez-Fernandez and Winemiller minnow may move within occupied minnow. All of the streams where the (2005, p. 248) found the Devils River stream segments because no research on Devils River minnow is found are minnow associated with areas where the movement has been conducted. Linear supported by springs that derive their amounts of fine sediment on stream movement (upstream or downstream) discharge from underground aquifers, bottoms were low (less than 65 percent within streams may be important to either the Edwards Aquifer or the stream bottom coverage) (Winemiller allow fishes to complete life history Edwards-Trinity Aquifer (Brune 1981, 2003, p. 13) and where there was low or functions and adjust to resource pp. 274–277, 449–456; Edwards et al. moderate amounts of substrate abundance, but this linear movement 2004, p. 256; Garrett et al. 1992, p. 261; embeddedness. The term embeddedness may often be underestimated due to Garrett et al. 2004, p. 439; Hubbs and is defined by Sylte and Fischenich limited biological studies (Fausch et al. Garrett 1990, p. 448; Lopez-Fernandez (2003, p. 1) as the degree to which fine 2002, p. 490). The Devils River minnow and Winemiller 2005, p. 249). The sediments surround coarse substrates on occurs in relatively short stream Devils River minnow has been the surface of a streambed. Low levels segments and, therefore, needs to be associated within the stream channel of substrate embeddedness and low able to move within the stream with areas with slow to moderate amounts of fine sediment are physical unimpeded to prevent population velocities between 10 and 40 stream features that provide interstitial fragmentation. spaces where microorganisms grow. centimeters (cm)/second (4 and 16 Food inches (in)/second) (Winemiller 2003, p. These microorganisms are a component The Devils River minnow, like other 13). The Devils River minnow is usually of the diet of the Devils River minnow minnows in the Dionda genus, has a found in areas with shallow to moderate (Lopez-Fernandez and Winemiller 2005, long coiled gut for digesting algae and water depths between about 10 cm (4 in) p. 250). We estimate substrate sizes for plants. Lopez-Fernandez and and 1.5 meters (4.9 feet (ft)) (Garrett et gravel-cobble between 2 and 10 cm (0.8 Winemiller (2005, p. 250) noted that al. 2004, p. 436). Appropriate water and 4 in) in diameter (Cummins 1962, Devils River minnow graze on algae depths and velocities are required p. 495) are important for supporting food sources for the Devils River attached to stream substrates (such as physical features for Devils River gravel, rocks, submerged plants, woody minnows to complete all life history minnow. d. Stream Channel. The Devils River debris) and associated microorganisms. functions. minnow occurs in the waters of stream Thomas (2001, p. 13) observed minnows b. Cover. The presence of vegetative channels that flow out of the Edwards in the Dionda genus (the experiment did structure appears to be particularly Plateau of Texas. The streams contain a not distinguish between Devils River important for the Devils River minnow. variety of mesohabitats for fish that are minnow and the closely related Garrett et al. (2004, p. 437) states that temporally and spatially dynamic manatial roundnose minnow) feeding the species is most often found (Harrell 1978, p. 60–61; Robertson and extensively on filamentous algae associated with emergent or submerged Winemiller 2003, p. 115). Mesohabitat growing on rocks and plants in an vegetation. Lopez-Fernandez and types are stream conditions with artificial stream experiment. The Winemiller (2005, p. 249) also found the different combinations of depth, specific components of the Devils River Devils River minnow associated with velocity, and substrate, such as pools minnow diet have not been investigated, stream banks having riparian vegetation (stream reaches with low velocity and but a study is underway to identify that overhangs into the water column, deep water), riffles (stream reaches with stomach contents of the Devils River presumably providing similar structure moderate velocity and shallow depths minnow in San Felipe Creek (Texas for the fish to use as cover. The and some turbulence due to high Parks and Wildlife Department (TPWD) structure provided by vegetation likely gradient), runs (stream reaches with 2006, p. 1). An abundant aquatic food serves as cover for predator avoidance moderate depths and moderate base is an essential biological feature for by the Devils River minnow and as a velocities and a uniformly, flat stream conservation of Devils River minnow. source of food where algae and other bottom), and backwaters (areas in Water Quality microorganisms may be attached. In streams with little or no velocities along controlled experiments in an artificial stream margins) (Parasiewicz 2001, p. The Devils River minnow occurs in stream setting, minnows in the Dionda 7). These physical conditions in stream spring-fed streams originating from genus (the experiment did not channels are mainly formed by large groundwater. The aquifers that support distinguished between the Devils River flood events that shape the banks and these streams are of high quality, free of minnow and the closely related alter stream beds. Healthy stream pollution and most human-caused manantial roundnose minnow) were ecosystems require intact natural stream impacts (Plateau Water Planning Group found consistently associated with banks (composed of sediments, rocks, (PWPG) 2006, p. 5–9). This region of plants, and, in the presence of a and native vegetation) and stream beds Texas has limited human development predator, sought shelter in plant (dynamically fluctuating from silt, sand, that would compromise water quality of substrate habitat (Thomas 2001, p. 8). gravel, cobble, and bedrock). These the streams where Devils River Also, laboratory observations by Gibson physical features allow natural minnows occur (San Felipe Creek may et al. (2004, p. 42) suggested that ecological processes in stream be an exception, see ‘‘Special spawning only occurred when structure ecosystems to maintain habitat for Management Considerations or was provided in aquaria. Instream Devils River minnow behaviors of Protection’’ below). The watersheds are vegetative structure is an important feeding, breeding, and seeking shelter. largely rural and have been altered to biological feature for the Devils River Devils River minnow may move up some extent by livestock grazing (cattle, minnow to avoid predation and and downstream to use diverse sheep, and goats) for many decades complete other normal behaviors, such mesohabitats during different seasons (Brune 1981, p. 449). As part of state- as feeding and spawning. and life stages, which could partially wide water planning efforts, the TPWD

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proposed that all five streams within the habitats contain the following water Sites for Breeding, Reproduction, and range of the Devils River minnow chemistry: dissolved oxygen levels are Rearing of Offspring (Devils River, San Felipe Creek, greater than 5.0 mg/l (milligrams per The specific sites and habitat Sycamore Creek, Pinto Creek, and Las liter) (Hubbs 2001, p. 312; Winemiller associated with Devils River minnow Moras Creek) be considered 2003, p. 13; Gibson et al. 2004, p. 44); breeding and reproduction have not ‘‘ecologically significant stream pH ranges between 7.0 and 8.2 (Garrett been documented in the wild. However, segments’’ for their biological function, et al. 2004, p. 440; Hubbs 2001, p. 312; Gibson et al. (2004) studied preferred hydrological function, exceptional Winemiller 2003, p. 13); conductivity is conditions for spawning by Devils River aquatic life, and high aesthetic value less than 0.7 mS/cm (microseimens per minnow in a laboratory setting. Gibson (El-Hage and Moulton 2001, pp. 28–36, centimeter) and salinity is less than 1 et al. (2004, pp. 45–46) documented that 45–49). ppt (part per thousand) (Hubbs 2001, p. the species is a broadcast spawner (they No specific studies have been 312; Winemiller 2003, p. 13; Garrett et release eggs and sperm into the open conducted to determine water quality water), over unprepared substrates (they preferences or tolerances for Devils al. 2004, p. 440; Gibson et al. 2004, p. don’t build nests), and males display River minnow. However, because the 45); and ammonia levels are less than some territorial behavior. Broadcast species now occurs in only three 0.4 mg/l (Hubbs 2001, p. 312; Garrett et streams, observations of water quality al. 2004, p. 440). Streams with water spawning is the most common conditions in these streams are used to chemistry within the observed ranges reproductive method in minnows evaluate the needed water quality are essential physical features to (Johnston 1999, p. 22; Johnston and parameters for critical habitat. In provide habitat for normal behaviors of Page 1992, p. 604). Fertilized eggs of addition, laboratory studies by Gibson et Devils River minnow. Devils River minnow were slightly al. (2004, pp. 44–46) and Gibson and adhesive (or became more adhesive with Garrett et al. (2004, pp. 439–440) time) and tended to stick to gravels just Fries (2005, pp. 299–303) have also highlighted the conservation provided useful information for the below the surface of the substrate implications of water quality when (Gibson et al. 2004, p. 46). The eggs can water quality conditions in captivity for describing the distribution of Devils Devils River minnow. hatch less than one week after River minnow in Pinto Creek. The deposition (Gibson 2007, p. 1). There a. Water temperature. Water species is abundant in upstream temperatures from groundwater was little seasonality in spawning portions of the creek and is abruptly discharge at these springs are periods observed (Gibson et al. 2004, p. absent at and downstream from the considered constant (Hubbs 2001, p. 45–46), which is consistent with a 324). However, water temperatures Highway 90 Bridge crossing. A different species that lives in a relatively stable downstream from springs vary daily and aquifer (Austin Chalk) feeds the lower temperature environment, such as seasonally (Hubbs 2001, p. 324). Water portion of the creek (Ashworth and spring-fed streams with low seasonal temperatures have been measured in Stein 2005, p. 19), which results in temperature variations. Based on this these stream segments to range from changes in water quality (lower information, it is likely the species can about 17 °C (degrees Celsius) to 29 °C measurements of water temperature, pH, spawn during most of the year. This is (63 °F (degrees Fahrenheit) to 85 °F). ammonia, and salinity). Garrett et al. supported by Garrett et al. (2004, p. Temperatures in the Devils River ranged (2004, p. 439) found that the change in 437), who observed distinct breeding from 17 °C to 27 °C (63 °F to 81 °F) water quality also coincided with the coloration of Devils River minnow (blue (Lopez-Fernandez and Winemiller 2005, occurrence of different fish species that sheen on the head and yellow tint on p. 248; Hubbs 2001, p. 312). were more tolerant of lower values for body) in Pinto Creek in December 2001, Measurements in San Felipe Creek have these water quality parameters. and Winemiller (2003, p. 16), who ° ° ° ranged from 19 C to 24 C (66 F to 75 c. Pollution. The Devils River minnow found juveniles from early spring to late ° F) (Hubbs 2001, p. 311; Winemiller occurs only in habitats that are generally fall in San Felipe Creek. a. Substrate. Gibson and Fries (2005, 2003, p. 13). Gibson and Fries (2005, p. free of human-caused pollution. Garrett p. 299) found that Devils River minnow 296) had successful spawning by Devils et al. (1992, pp. 266–267) suspected that preferred gravel for spawning substrate, River minnows at temperatures from the addition of chlorine to Las Moras ° ° ° ° with size ranging mostly from 2 to 3 cm about 18 C to 24 C (64 F to 75 F). Creek for the maintenance of a in diameter (0.8 to 1.2 in). Gravel and Higher water temperatures are rare in recreational swimming pool may have Devils River minnow habitat, but rock substrates are required physical played a role in the extirpation of Devils temperatures up to 29 °C (84 °F) were features for spawning (depositing, River minnow from that system. recorded in Pinto Creek (Garrett et al. incubating, and hatching) of Devils Unnatural addition of pollutants such as 2004, p. 437). This stream segment has River minnow eggs. the lowest flow of those known to copper, arsenic, mercury, and cadmium; b. Cover. In laboratory experiments, contain the Devils River minnow, human and animal waste products; Devils River minnow spawned in tanks resulting in higher temperatures. pesticides; suspended sediments; with live potted plants (Vallisnaria spp. Maintaining water temperatures within petroleum compounds and gasoline or and Justicia spp.); however, eggs were an acceptable range in small streams is diesel fuels will alter habitat functions never found on the plants or other parts an essential physical feature for the and threaten the continued existence of of the tank (Gibson et al. 2004, pp. 42, Devils River minnow to allow for Devils River minnow. Fish, particularly 43, 46). The plants apparently served as survival and reproduction. herbivores and bottom-feeders, such as cover for the fish and allowed favorable b. Water chemistry. Researchers have the Devils River minnow, are conditions for spawning to occur. This noted the need for high-quality water in susceptible to the detrimental effects of condition is supported by observations habitats supporting the Devils River aquatic pollutants (Buzan 1997, p. 4). in the wild that associate Devils River minnow (Garrett 2003, p. 155). Field Areas with waters free of pollution are minnow with aquatic habitats where studies at sites where Devils River essential physical features to allow vegetative structure is present. This minnow have been collected in normal behaviors and growth of the vegetative structure is a biological conjunction with water quality Devils River minnow and to maintain feature that is important for measurements have documented that healthy populations of its food sources. reproduction of Devils River minnow.

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Habitat Protected From Disturbance or due to competition for food (Lopez- dewatered but that serve as connective Representative of the Historic Fernandez and Winemiller 2005, p. corridors between occupied or Geographical and Ecological 250). The persistence of Devils River seasonally occupied habitat and through Distribution of a Species minnow in its natural range of habitats which the species may move when the a. Nonnative species. The is dependent on areas that are devoid of habitat is wetted are important physical introduction and spread of nonnative harmful nonnative aquatic species or features of Devils River minnow habitat. Flooding is also a large part of the species have been identified as major where nonnative aquatic species are at natural hydrology of streams within the factors in the continuing decline of levels that allow healthy populations of range of Devils River minnow. Large native fishes throughout North America the Devils River minnow. The absence floods have been shown to alter fish (Moyle et al. 1986, pp. 415–416) and of harmful nonnative species is an community structure and fish habitat particularly in the southwestern United essential biological feature for use in the Devils River (Harrell 1978, p. States (Miller 1961, p. 397; Miller 1977, conservation of the Devils River minnow. 67) and in San Felipe Creek (Garrett and pp. 376–377). Williams et al. (1989, p. b. Hydrology. Natural stream flow Edwards 2003, p. 787; Winemiller 2003, 1) concluded that nonnative species regimes (both quantity and timing) are p. 12). Pearsons et al. (1992, p. 427) were a causal factor in 68 percent of the vital components to maintain ecological states that ‘‘Flooding is one of the most fish extinctions in North America in the integrity in stream ecosystems (Poff et important abiotic factors that structure last 100 years. For 70 percent of those al. 1997, p. 769; Resh et al. 1988, pp. biotic assemblages in streams.’’ Floods fish still extant, but considered to be 443–444). Aquatic organisms, like the provide flushing flows that remove fine endangered or threatened, introduced Devils River minnow, have specific sediments from gravel and provide nonnative species are a primary cause of adaptations to use the environmental spawning substrates for species like the the decline (Lassuy 1995, p. 392). conditions provided by natural flowing Devils River minnow (Instream Flow Nonnative species have been referenced systems and the highly variable stream Council 2002, p. 103; Poff et al. 1997, as a cause of decline in native Texas flow patterns (Lytle and Poff 2004, p. p. 775). Flooding is the physical fishes as well (Anderson et al. 1995, p. 94). As with other streams in the arid mechanism that shapes stream channels 319; Hubbs 1990, p. 89; Hubbs et al. southwestern United States, streams by a process known as scour and fill, 1991, p. 2). where the Devils River minnow occurs where some areas are scoured of fine Aquatic nonnative species are can have large fluctuations in stream sediments while fine sediments are introduced and spread into new areas flow levels. In Texas, streams are redeposited in other areas (Gordon et al. through a variety of mechanisms, characterized by high variation between 1992, pp. 304–305; Poff et al. 1997, pp. intentional and accidental, authorized large flood flows and extended period of 771–772). This dynamic process is and unauthorized. Mechanisms for low flows (Jones 1991, p. 513). Base fundamental to maintaining habitat nonnative fish dispersal in Texas flows in streams containing Devils River diversity in streams that ensure healthy include sport fish stocking (intentional minnow are generally maintained by ecosystem function (Lytle and Poff and inadvertent, non-target species), constant spring flows (Ashworth and 2004, pp. 96–99; Poff et al. 1997, pp. aquaculture escapes, aquarium releases, Stein 2005, p. 4), but in periods of 774–777). Allowing natural stream and bait bucket releases (release of fish drought, especially in combination with flows, particularly during flood events, used as bait by anglers) (Howells 2001, groundwater withdrawals, portions of is an essential physical feature to p. 1). stream segments can be periodically maintain stream habitats for Devils Within the range of the Devils River dewatered. The occurrence of River minnow. minnow, nonnative aquatic species of intermittent stream segments within the potential concern include: armored (or range of the Devils River minnow is Primary Constituent Elements for the suckermouth) catfish (Hypostomus sp.) most common in Pinto Creek (Ashworth Devils River Minnow in San Felipe Creek (Lopez-Fernandez and Stein 2005, Figure 13; Uliana 2005, Under the Act and its implementing and Winemiller 2005, pp. 246–251); p. 4; Allan 2006, p. 1). regulations, we are required to identify smallmouth bass (Micropterus Although portions of stream segments the physical and biological features dolomieu) in the Devils River (Thomas included in this proposed designation (PCEs) within the geographical area 2001, p. 1); African cichlid may experience short periods of low or occupied by the species, which may (Oreochromis aureus) in San Felipe no flows (causing dry sections of require special management Creek (Lopez-Fernandez and Winemiller stream), they are still important because considerations or protections. 2005, p. 249) and Devils River (Garrett the Devils River minnow is adapted to Based on the above needs and our et al. 1992, p. 266); Asian snail stream systems with some fluctuating current knowledge of the life history, (Melanoides tuberculata) and associated water levels. Fish cannot persist in biology, and ecology of the species, we parasites (McDermott 2000, pp. 13–14); dewatered areas (Hubbs 1990, p. 89). have determined that the Devils River and Asian bivalve mollusk (Corbicula However, Devils River minnows will minnow’s PCEs are: sp.) (Winemiller 2003, p. 25) in San use dewatered areas that are 1. Streams characterized by: Felipe Creek. Effects from nonnative subsequently wetted as connective a. Areas with slow to moderate water species can include predation, corridors between occupied or velocities between 10 and 40 cm/second competition for resources, altering of seasonally occupied habitat. Fausch et (4 and 16 in/second) in shallow to habitat, changing of fish assemblages al. (2002, p. 490) notes in a review of moderate water depths between (combinations of species), or movement of fishes related to approximately 10 cm (4 in) and 1.5 m transmission of harmful diseases or metapopulation dynamics that, ‘‘Even (4.9 ft), near vegetative structure, such parasites (Aquatic Nuisance Species small fishes may move long distances to as emergent or submerged vegetation or Task Force 1994, pp. 51–59; Baxter et al. repopulate rewetted habitats.’’ stream bank riparian vegetation that 2004, p. 2656; Howells 2001, pp. 17–18; Preventing habitat fragmentation of fish overhangs into the water column; Light and Marchetti 2007, pp. 442–444; populations is important in reducing b. Gravel and cobble substrates Moyle et al. 1986, pp. 416–418). Studies extinction risks in rare species (Fagan ranging in size between 2 and 10 cm have found effects from the armored 2002, p. 3255). Areas within stream (0.8 and 4 in) with low or moderate catfish in San Felipe Creek, most likely courses that may be periodically amounts of fine sediment (less than 65

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percent stream bottom coverage) and area considered to be essential for the 2004, p. 9). The rule of capture low or moderate amounts of substrate conservation of the Devils River essentially provides that groundwater is embeddedness; and minnow (Pinto Creek). For additional a privately owned resource and, absent c. Pool, riffle, run, and backwater information regarding the threats to the malice or willful waste, landowners components free of artificial instream Devils River minnow and the needed have the right to take all the water they structures that would prevent management strategies to address those can capture under their land without movement of fish upstream or threats, see the Devils River Minnow liability to neighboring landowners, downstream. Recovery Plan (Service 2005, pp. 1.7– even if in so doing they deprive their 2. High-quality water provided by 1—1.7–7; 1.8–1—1.8–4; 2.5–1—2.5–5). neighbors of the water’s use (Holladay permanent, natural flows from The following special management 2006, p. 2; Potter 2004, p. 1). groundwater spring and seeps needs apply to all three stream Local groundwater conservation characterized by: segments, Devils River, San Felipe districts are the method for groundwater a. Temperature ranging between 17 °C Creek, and Pinto Creek, and will be management in Texas (Caroom and and 29 °C (63 °F and 84 °F); further discussed for each stream Maxwell 2004, pp. 41–42; Holladay b. Dissolved oxygen levels greater segment in the Proposed Critical Habitat 2006, p. 3). Most districts are created by than 5.0 mg/l; Designation below. action of the Texas Legislature (Lesikar c. Neutral pH ranging between 7.0 and a. Groundwater management. The et al. 2002, p. 13). The regulations 8.2; waters that produce all three stream adopted by local groundwater d. Conductivity less than 0.7 mS/cm segments issue from springs that are conservation districts vary across the and salinity less than 1 ppt; supported by underground aquifers, State and often reflect local decisions e. Ammonia levels less than 0.4 mg/ generally some portion of the Edwards based on regional preferences, geologic l; and Trinity Aquifer (Ashworth and Stein limitations, and the needs of citizens f. No or minimal pollutant levels for 2005, pp.16–33; Barker and Ardis 1996, (Holladay 2006, p. 3). The Kinney copper, arsenic, mercury, and cadmium; pp. B5–B6; Brune 1981, pp. 274–277, County Groundwater Conservation human and animal waste products; 449–456; Green et al. 2006, pp. 28–29; District is a local authority with some pesticides; fertilizers; suspended LBG-Guyton Associates 2001, pp. 5–6; regulatory control over the pumping and sediments; petroleum compounds and PWPG 2006, pp. 3–5, 3–6, 3–30). use of groundwater resources in Kinney gasoline or diesel fuels. Regional groundwater flow in this area County (Brock and Sanger 2003, p. 42– 3. Abundant aquatic food base is generally from north to south 44). Currently, there is no groundwater consisting of algae attached to stream (Ashworth and Stein 2005, Figure 8). district in Val Verde County. It is not substrates and other associated This aquifer is currently pumped to known whether groundwater districts, microorganisms. provide water for human uses including such as the one in Kinney County, will 4. Aquatic stream habitat either agricultural, municipal, and industrial limit groundwater use and exportation devoid of nonnative aquatic species (Ashworth and Stein 2005, p.1; Green et to allow for conservation of surface (including fish, plants, and al. 2006, pp. 28–29; LBG-Guyton water flows for environmental needs invertebrates) or in which such Associates 2001, pp. 22–27; PWPG (Brock and Sanger 2003, p. 42–44; nonnative aquatic species are at levels 2006, pp. 3–14, 3–15). Some parts of Caroom and Maxwell 2004, p. 47–48; that allow for healthy populations of this aquifer have already experienced Marbury and Kelly 2005, p. 9). The Devils River minnows. large water level declines due to a regional water plan for this area 5. Areas within stream courses that combination of pumping withdrawals recognizes that groundwater needs to be may be periodically dewatered for short and regional drought (Barker and Ardis managed for the benefit of spring flows time periods, during seasonal droughts, 1996, p. B50). There are a number of (PWPG 2006, p. 3–30) and that but otherwise serve as connective preliminary project plans to groundwater use should be limited so corridors between occupied or significantly increase the amount of that ‘‘base flows of rivers and streams seasonally occupied areas through groundwater pumped in this area to are not significantly affected beyond a which the species moves when the area export it to other metropolitan centers level that would be anticipated due to is wetted. (HDR Engineering Inc. 2001, p. 1–1; naturally occurring conditions’’ This proposed designation is designed Khorzad 2002, p. 19; PWPG 2006, pp. 4– (Ashworth and Stein 2005, p. 34; PWPG for the conservation of PCEs necessary 54). If the aquifers are pumped beyond 2006, p. 3–8). Special management to support the life history functions that their ability to sustain levels that efforts are needed across the range of the were the basis for the proposal and the support spring flows, these streams will Devils River minnow to ensure that areas containing those PCEs. Because no longer provide habitat for the Devils aquifers are used in a manner that will not all life history functions require all River minnow (Ashworth and Stein sustain spring flows and provide water the PCEs, not all proposed critical 2005, p.34; Edwards et al. 2004, p. 256; as an essential physical feature for the habitat will contain all the PCEs. Garrett et al. 2004, pp. 439–440). Flow species. reductions can have indirect effects on b. Nonnative species. Controlling Special Management Considerations or fishes by impacting thermal regimes existing nonnative species and Protections because higher water flow buffers preventing the release of new nonnative When designating critical habitat, we against temperature oscillations (Hubbs species are special management actions assess whether the occupied areas 1990, p. 89). needed across the range of the Devils contain the features essential to the Groundwater pumping that could River minnow. The best tool for conservation of the species that may affect stream flows within the Devils preventing new releases is education of require special management River minnow’s range is subject to the public on the problems associated considerations or protections. We limited management control. State with nonnative species (Aquatic provide a summary discussion below of agencies do not control groundwater. Nuisance Species Task Force 1994, pp. the special management needs for the Groundwater resources in Texas are 16–17). Current nonnative species stream segments we have identified as under the ‘‘Rule of Capture,’’ and issues have been cited for possible occupied at the time of listing (Devils groundwater use is not regulated by any impacts to the Devils River (smallmouth River and San Felipe Creek) and the State agency (Holladay 2006, p. 2; Potter bass) and San Felipe Creek (armored

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catfish) (Lopez-Fernandez and San Felipe Creek has been altered by upstream reaches of these streams, and Winemiller 2005, p. 247; Thomas 2001, diversion dams, bridges, and armoring connectivity would require movement p. 1; Robertson and Winemiller 2001, p. of stream banks (replacing native through downstream reaches, through 220). The armored catfish may already vegetation and soils with rock or the Rio Grande, and back upstream be impacting Devils River minnows in concrete). Special management is through uninhabited reaches. The San Felipe Creek through competition needed in all three occupied streams to Devils River minnow has not been for common food resources of attached protect the integrity of the stream documented in the Rio Grande, or any algae and associated microorganisms channels for the conservation of Devils other of its tributaries in the United (Lopez-Fernandez and Winemiller 2005, River minnow habitat. States in modern times (Contreras- p. 250). Hoover et al. (2004, pp. 6–7) Balderas et al. 2002, pp. 228–240; Criteria Used To Identify Critical suggest that nonnative catfishes in the Edwards et al. 2002, p. 123; Garrett et Habitat family Loricaridae, like armored catfish, al. 1992, pp. 261–265; Hoagstrom 2003, will impact stream systems and native We are proposing to designate critical p. 95; Hubbs 1957, p. 93; Hubbs 1990, fishes by competing for food with other habitat for the Devils River minnow in p. 90; Hubbs et al. 1991, p. 18; Trevin˜ o- herbivores, changing plant areas that were occupied at the time of Robinson 1959, p. 255). These stream communities, bank erosion due to listing and contain sufficient PCEs to reaches are considered unsuitable burrowing in stream banks for support life history functions essential habitat (Garrett et al. 1992, p. 261) spawning, and incidentally ingesting for the conservation of the species, because the aquatic habitat is very fish eggs. Problem nonnative species which may require special management different (larger volume, higher have not been documented in Pinto considerations or protection. Critical suspended sediments, different suite of Creek. Please see the above discussion habitat is also being proposed for areas native fishes) than the streams where in ‘‘Habitat Protected From Disturbance not considered occupied at the time of the Devils River minnow is found. The or Representative of the Historic listing, but subsequently discovered to presence of Amistad Reservoir and Dam Geographical and Ecological be occupied and essential for the has further isolated the Devils River Distribution of a Species’’ for additional conservation of the Devils River stream segment from the other stream discussion of nonnative species. minnow. segments. While some exchange of c. Pollution. Special management Critical habitat is designated based on individuals could have occurred across actions are needed to prevent point and sufficient PCEs being present to support a geologic time scale, any natural nonpoint sources of pollution entering the life processes of the species. Some exchange of individual Devils River in the stream systems where the Devils areas contain all PCEs and support minnows between currently occupied River minnow occurs. Devils River and multiple life processes. Some areas stream segments in modern times is Pinto Creek are generally free of threats contain only a portion of the PCEs unlikely because of habitat changes in from obvious sources of pollution. San necessary to support the particular use the Rio Grande, nonnative species, and Felipe Creek is in an urban environment of that habitat. potential instream barriers. where threats from human-caused a. Range. We evaluated the Lack of access to private property can pollution are substantial. Potential for geographical range of the Devils River limit opportunities to sample for the spill or discharge of toxic materials is an minnow, as described in the Recovery presence of Devils River minnow (such inherent threat in urban environments. Plan (Service 2005, p. 1.4.1.1.4.5). There as occurred on Pinto Creek, see Garrett In addition, there are little to few are five stream segments in the United et al. (2004), p. 436) and may limit our current controls in the City of Del Rio States (all in Texas) that have ever been ability to accurately determine the full to minimize the pollutants that will run known to have been occupied by the range of the species. However, we do off into the creek during rainfall events Devils River minnow: (1) The Devils not expect any additional streams from streets, parking lots, roof tops, and River (Val Verde County) from Beaver outside of the geographical range of the maintained lawns from private yards Lake downstream to near the confluence species to be occupied. There could be and the golf course (Winemiller 2003, p. with the Rio Grande; (2) San Felipe additional stream segments within the 27). All of these surfaces will contribute Creek (Val Verde County) from the known range that may be found to be pollutants (for example, fertilizers, headsprings on the Lowe Ranch to occupied during future surveys, but the pesticides, herbicides, petroleum downstream of the City of Del Rio; (3) best available information at this time products) to the creek and potentially Sycamore Creek (Val Verde/Kinney supports only these five stream impact biological functions of the Devils county boundary), only documented segments known to be or to have been River minnow. In addition, trash is from the Highway 277 Bridge crossing; occupied by Devils River minnow in the often dumped into or near the creek and (4) Pinto Creek (Kinney County) from United States. can be a source of pollutants. Special Pinto Springs downstream to 0.5 stream b. Occupancy. For the purpose of this management by the City of Del Rio is km (0.3 stream mi) upstream of the critical habitat designation, we consider needed (City of Del Rio 2006, p. 13) to Highway 90 Bridge crossing; and (5) Las a stream segment to be occupied if institute best management practices for Moras Creek (Kinney County), only Devils River minnow has been found to controlling pollution sources that enter documented from the Las Moras Spring be present by species experts within the the creek and maintain the water quality in the City of Brackettville. last 10 years, or where the stream at a level necessary to support Devils Each of these five stream segments segment is directly connected to a River minnow. has (or formerly had) isolated segment with documented occupancy d. Stream channel alterations. The populations of Devils River minnow within the last 10 years (see Proposed stream channels in the three streams separated by long distances, unsuitable Critical Habitat Designation for where Devils River minnow occurs habitat, and/or large dams that prevent additional occupancy information). The should be maintained in natural fish movements. Although each of these life expectancy of Devils River minnow conditions, free of instream obstructions streams is a tributary to the Rio Grande, is assumed to be about 3 years, although to fish movement and with intact stream we do not expect any contemporary individuals have lived 5 years in banks of native vegetation. Devils River exchange of individuals between these captivity (Gibson 2006, p. 1). Ten years and Pinto Creek are generally free of stream segments. The Devils River is estimated to represent a time period stream channel alterations; however, minnow is generally associated with that provides for at least three

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generations and should allow for an Creek (Garrett et al. 1992, p. 265) and Sycamore Creek and Las Moras Creek’s adequate time to detect occupancy. 1955 for Las Moras Creek (Garrett et al. inclusion in the final critical habitat Most stream segments have not been 1992, p. 266; Hubbs and Brown 1956, designation. We may consider including surveyed with a high degree of pp. 70–71). Although recent Sycamore Creek and Las Moras Creek in frequency, and this species can be publications continue to list Sycamore our critical habitat designation if we difficult to detect, as even multiple Creek as a stream where Devils River receive additional information during samples within a short time in the same minnow may still occur (Garrett et al. the public comment period that leads to location by the same researcher can 2004, p. 435; Lopez-Fernandez and a determination that these stream yield different results (Garrett et al. Winemiller, p. 247), we have a high segments are essential to the 2002, p. 478). We have assessed the degree of uncertainty as to the status of conservation of Devils River minnow. occupancy of stream segments based on the fish in Sycamore Creek. Collections At the time of listing in 1999, the best survey information available. in 1999 and 2002 from the area of last previous fish surveys in Pinto Creek c. Areas occupied at the time of known occurrence (in 1989) did not were limited to the locations of public listing. At the time the Devils River yield Devils River minnow (G. Garrett, access at highway bridge crossings and minnow was listed as a threatened TPWD, unpublished data 2002). In did not find the species present (Garrett species, it was only confirmed to occur addition, Garrett et al. (1992) surveyed et al. 1992, p. 260). In 2001, fish surveys at two sites on the Devils River (small portions of Mud Creek (a tributary to in upstream areas of Pinto Creek tributaries) and in San Felipe Creek in Sycamore Creek) in 1989 but found no discovered the previously unknown Del Rio, Texas (64 FR 56597). This Devils River minnow. Additional population of Devils River minnow species is reasonably expected to move surveys are needed to determine the (Garrett et al. 2004, p. 436–439). The throughout connected stream reaches, current status of the fish in the species has been confirmed to occur based on past and recent collection Sycamore Creek watershed. Devils River from just upstream of the Highway 90 records from these streams (Garrett et al. minnow has not been collected from Las Bridge crossing upstream to the origin of 2002, p. 478). Therefore, we determine Moras Creek since the 1950s and is Pinto Creek at Pinto Springs (Garrett et there are two stream segments that were believed to be extirpated from the Las al. 2004, p. 438–439). Since this stream occupied at the time of listing: (1) Devils Moras Creek drainage. This conclusion segment is isolated from other occupied River from Pecan Springs to is based on the absence of the species areas, this stream segment was likely downstream of Dolan Falls (Garrett in sampling efforts from the late 1970s occupied at the time of listing, but 2006a, p. 4; Garrett 2007, p. 1); and (2) to 2002 (Smith and Miller 1986; Hubbs appropriate surveys had not been San Felipe Creek from the Head Spring et al. 1991; Garrett et al. 1992; G. conducted to verify it. We find that the to downstream through the City of Del Garrett, unpublished data 2002). Pinto Creek stream segment is essential Rio (Garrett 2006b, p. 1; Garrett 2007, Restoring Devils River minnow to to the conservation of the Devils River p.1). The full extent of both stream Sycamore Creek and Las Moras Creek minnow because preliminary analysis segments is considered occupied, as may be important to achieve recovery have shown significant genetic variation surveys in the last 10 years have goals for the species and optimize the between Devils River minnow confirmed the species presence in the chances of long-term species populations in Pinto Creek and the streams and the unit consists of conservation (Service 2005, pp. 2.1–1— Devils River (Service 2006, p. 15). Also contiguous habitat that allows fish 2.2–3). Recovery criteria for Devils River Pinto Creek provides the best source of movement throughout the stream. minnow include having stable or Devils River minnows (due to proximity d. Primary constituent elements. We increasing populations in both and habitat similarity) to implement are proposing to designate the stream Sycamore Creek and Las Moras Creek, if possible future recovery actions if segments that were occupied at the time reestablishment in Las Moras Creek is reestablishing the species into nearby of listing and contain sufficient PCEs to scientifically feasible. However, the Las Moras Creek proves feasible (Garrett support life history functions essential feasibility of restoring populations in et al. 2004, p. 440). for the conservation of the species. Both these areas is uncertain and the recovery f. Lateral Extent. The areas designated of the stream segments occupied at the plan advises additional assessment and as critical habitat are designed to time of listing (Devils River and San landowner willingness will be necessary provide sufficient areas for breeding, Felipe Creek) contain sufficient PCEs to in both areas before restoration could non-breeding adults and rearing of support life history functions essential occur. Therefore, based on the lack of juvenile Devils River minnow. In for the conservation of the Devils River information regarding the species status general, the PCEs of critical habitat for minnow. in Sycamore Creek, uncertainty of the Devils River minnow include the spring e. Areas not occupied at time of potential for restoration in either stream heads and the wetted channel during listing. Section 3(5)(A)(ii) of the Act segment, and the absence of data to average flow conditions of the stream allows for critical habitat to be demonstrate that the streams possess the segments. The Devils River minnow designated in areas outside the PCEs, for the purposes of critical habitat evolved in streams maintained by geographical area occupied by the designation, we have not included consistent flows from groundwater species at the time it is listed if those Sycamore Creek and Las Moras Creek in springs that varied little seasonally. areas are essential for the conservation the proposed critical habitat Episodic floods, sometimes very large of the species. Three stream segments designation. floods, are important for maintenance of historically occupied by Devils River Due to the importance of these stream the natural stream channel and fish minnow but not considered occupied at segments to the recovery of Devils River communities (Harrell 1978, p. 67; the time of listing include Sycamore minnow, we solicit additional Valdes Cantu and Winemiller 1997, pp. Creek, Pinto Creek, and Las Moras information and comments from 276–277); however, the streams do not Creek. interested parties on the distribution of have a regular seasonal pattern of Sycamore Creek and Las Moras Creek Devils River minnow, specifically in the flooding. As a result, the life history of are not currently occupied by the Devils Sycamore Creek and Las Moras Creek the Devils River minnow is not River minnow. The last known watersheds. Information received, as dependent on high flow events and the occurrence of the species in these well as supporting documentation will inundation of overbank areas. Therefore, stream segments was 1989 for Sycamore be used in the consideration of the floodplain is not known to contain

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the features essential for the species’ stream flows just fill the stream to its TABLE 1.—PROPOSED CRITICAL HABI- conservation and is not included in the banks before water spills out onto the TAT UNITS FOR THE DEVILS RIVER proposed critical habitat designation. adjacent floodplain. The scale of the MINNOW We propose that this critical habitat critical habitat maps prepared under the designation include a lateral extent that parameters for publication within the Total stream is limited to the normal wetted channel Code of Federal Regulations may not Critical habitat unit * km (stream mi) of the streams proposed for inclusion. reflect the exclusion of developed areas For the purposes of this proposal, the such as buildings, paved areas, and wetted channel is considered the width 1. Devils River Unit (includes other structures that lack PCEs for the of the stream channel at bankfull stage. Philips and Dolan creeks) 47.0 (29.2) Devils River minnow. Any such 2. San Felipe Creek Unit (in- Bankfull stage is the height when stream cludes outflow of East and flows just fill the stream to its banks structures and the land under them inside critical habitat boundaries shown West springs) ...... 9.0 (5.6) before water spills out onto the adjacent 3. Pinto Creek Unit ...... 17.5 (10.9) floodplain (Gordon et al. 1992, pp. 305– on the maps of this proposed rule are 307). The stream discharge that reaches not proposed for designation as critical Total ...... 73.5 (45.7) habitat. Therefore, Federal actions bankfull stage occurs 1 or 2 days each * The stream beds of all three units being year and has a recurrence interval that limited to these areas would not trigger proposed for critical habitat are considered averages 1.5 years (Leopold 1994, pp. section 7 consultation, unless they affect public, and owned by the state of Texas. 129–141). This lateral extent will the species or PCEs in adjacent critical The proposed critical habitat encompass the immediate streamside habitat. designation for Devils River minnow vegetation that can extend into the includes a total of 73.5 stream km (45.7 water column and provide vegetative Proposed Critical Habitat Designation stream mi). Below, we provide brief structure, one of the PCEs. We are proposing three units as descriptions of the three units, and Summary. We are proposing to critical habitat for the Devils River designate critical habitat in areas that reasons why each meets the definition minnow. The three units are: (1) Devils we have determined were occupied at of critical habitat for the Devils River River Unit; (2) San Felipe Creek Unit; the time of listing, and that contain minnow. and (3) Pinto Creek Unit. All three areas sufficient PCEs to support life history Unit 1: Devils River Unit functions essential for the conservation are currently occupied by the Devils of the species. Stream segments are River minnow and constitute our best Proposed Unit 1 consists of proposed for designation based on assessment of areas that meet the approximately 43.6 stream km (27.1 sufficient PCEs being present to support definition of critical habitat for the stream mi) of the Devils River; 1.1 the life processes of the species. Some species. stream km (0.7 stream mi) of Phillips stream segments contain all PCEs and Creek; and 2.3 stream km (1.4 stream The proposed critical habitat areas mi) of Dolan Creek. Phillips Creek and support multiple life processes. Some include the stream channels up to stream segments contain only a portion Dolan Creek are small tributaries to the bankfull width within the identified Devils River that contain PCEs and are of the PCEs necessary to support the stream reaches. The stream beds of particular use of that habitat. For stream occupied by the Devils River minnow. perennial streams and navigable waters The proposed upstream boundary on segments that were not occupied at the (stream beds of at least 30 ft wide) in time of listing, we evaluated whether the Devils River is at Pecan Springs. The Texas are generally owned by the State, those areas were essential to the proposed downstream boundary on the in trust for the public, while the lands conservation of the Devils River Devils River is 3.6 stream km (2.2 minnow. alongside the streams can be privately stream mi) below Dolan Falls. Phillips We find that two stream segments owned (Riddell 1997, p. 7). We presume Creek is included from the confluence were occupied at the time of listing and that the stream beds for all three stream with the Devils River to a point 1.1 contain sufficient PCEs to support life segments being proposed for critical stream km (0.7 stream mi) upstream. history functions essential for the habitat are considered public. Dolan Creek is included from the conservation of the species: (1) Devils All distances reported in this proposal confluence with the Devils River 2.3 River from Pecan Springs to are estimated stream lengths calculated stream km (1.4 stream mi) upstream to downstream of Dolan Falls, including using geographic information system Dolan Springs. Including all three streams, the total distance in the short stretches of two tributaries, computer software (ArcGIS) proposed critical habitat in the Devils Phillips Creek and Dolan Creek, and (2) approximating the stream channel River Unit is approximately 47.0 stream San Felipe Creek from the headsprings (reported in stream km and stream mi). downstream through the City of Del Rio, km (29.2 stream mi). For specific Stream channel lines were based on the include the outflow channels of East coordinates of the boundaries for National Hydrography Dataset and 7.5’ and West Sandia springs. We find that proposed critical habitat designation, topographic quadrangle maps obtained a third stream segment, Pinto Creek please reference the unit descriptions in from Pinto Springs downstream to the from the U.S. Geological Survey. We the Proposed Regulation Promulgation Highway 90 Bridge crossing, was not made some minor adjustments using the section below. known to be occupied at the time of 2004 National Agriculture Imagery The Devils River minnow was listing, but was subsequently discovered Program digital orthophotos obtained originally described from this unit in to be occupied and is now considered from the Texas Natural Resources the 1950s (Hubbs and Brown 1956, p. to be essential for the conservation of Information System. The approximate 70) and it has been continually the Devils River minnow for the reasons length of each stream segment for each occupied ever since (Harrell 1978, pp. discussed above. proposed critical habitat unit is shown 64, 67; Garrett et al. 1992, p. 261, Within this proposed rule, the critical in Table 1. Service 2005, Appendix A). The Devils habitat boundary is limited to bankfull River minnow occupied this unit at the width of the stream segments proposed time of listing, though at only a few for inclusion, at the height in which locations. Subsequent surveys by TPWD

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have established current occupancy of stream mi) downstream of the Academy Head Springs downstream to the City of this entire unit (Service 2005, Appendix Street Bridge crossing. The proposed Del Rio. Within the city limits, the City A). The proposed upstream boundary of unit includes the outflow channels of owns various tracts of land along the critical habitat represents the beginning two springs San Felipe Springs West stream. Some of these areas are of the permanent flow of the river (De and San Felipe Springs East. These developed as public use parks and La Cruz 2004, p. 1). The proposed channels are included in the proposed others have been recently obtained downstream boundary, 3.6 stream km critical habitat from their spring origin through a buyout program from the (2.2 stream mi) downstream of Dolan downstream to the confluence with San Federal Emergency Management Agency Falls, represents the downstream extent Felipe Creek. Including all three following damages from the 1998 flood of collections of the Devils River streams, the total distance in the (City of Del Rio 2006, pp. 5–6). Most of minnow by TPWD (Garrett 2007, p. 1). proposed critical habitat in the San the City-owned property along the river The Devils River Unit contains one or Felipe Creek Unit is approximately 9.0 appears to be on the east bank of the more of the PCEs essential for stream km (5.6 stream mi). For specific creek, while the west bank is primarily conservation of the Devils River coordinates of the boundaries for private-owned residences. The San minnow. Special management in the proposed critical habitat designation, Felipe Springs East and West and their Devils River Unit may be needed to please reference the unit descriptions in immediate outflow channels are on a control groundwater pumping to ensure the Proposed Regulation Promulgation golf course, privately owned by the San spring flows are maintained and to section below. Felipe Country Club. In all, we estimate prevent the introduction of nonnative San Felipe Creek was occupied by the that the City of Del Rio owns about 1.1 species. See additional discussion above Devils River minnow at the time of stream km (0.7 stream mi) along both in the Special Management listing and is still occupied (Hubbs and banks of the creek and spring outflow Considerations or Protections section. Brown 1956, p. 70; Garrett et al. 1992, channels, mainly located downstream of Areas proposed as critical habitat for pp. 261, 265; Service 2005, Appendix A; the Highway 90 Bridge. Through the Devils River minnow do not include Lopez-Fernandez and Winemiller 2005, remainder of the City, we estimated the lands adjacent to the stream channels. p. 249). Although limited survey data is City owns about 2.2 stream km (1.4 However, land ownership adjacent to available, we consider the entire unit stream mi) along the east bank of San the streams in the Devils River Unit is occupied as the habitat is contiguous, Felipe Creek in parcels fragmented by primarily private. Private ownership of allowing fish to move throughout the private holdings. These private and city- the area includes The Nature unit (Garrett 2006b, p. 1). The proposed owned lands are not included in the Conservancy’s 1,943–ha (4,800–ac) boundaries of critical habitat include all proposed critical habitat designation. Dolan Falls Preserve, which also areas where TPWD has collected Devils includes river frontage on the Devils River minnow within the San Felipe Unit 3: Pinto Creek Unit River and Dolan Creek. The Nature Creek Unit (Garrett 2007, p. 1). Proposed Unit 3 consists of Conservancy has owned this area since The San Felipe Creek Unit contains approximately 17.5 stream km (10.9 1991 (The Nature Conservancy 2004, 9). one or more of the PCEs essential for stream mi) on Pinto Creek. The The Nature Conservancy also holds conservation of the Devils River proposed upstream boundary is Pinto conservation easements on about 66,800 minnow. There are several unnatural ha (about 165,000 ac) of private land barriers to fish movement that may Springs. The proposed downstream along the Devils River or in the Devils currently segment the reaches within boundary is 100 m (330 ft) upstream of River watershed (McWilliams 2006, p. the City of Del Rio. Portions of the the Highway 90 Bridge crossing of Pinto 1). The only public land adjacent to the stream banks in the City have been Creek. For specific coordinates of the streams of this unit is the State-owned significantly altered by arming with boundaries for proposed critical habitat Devils River State Natural Area concrete and the invasion of an exotic designation, please reference the unit (DRSNA) managed by the TPWD. cane (Arundo donax). However, much descriptions in the Proposed Regulation Proposed critical habitat within the of the riparian area remains a functional Promulgation section below. DRSNA includes about 1.6 stream km part of the stream ecosystem, Pinto Creek was not considered (1.0 stream mi) along the east bank of contributing to the physical and occupied by Devils River minnow at the the Devils River and about 1.9 stream biological features of Devils River time of listing; however, Devils River km (1.17 stream mi) along both banks of minnow habitat. Water quality in San minnows were documented in 2001 in a portion of Dolan Creek. Yet, these Felipe Creek has been a concern due to upstream reaches of the creek where adjacent public lands are not included the urban environment through which fish surveys had not been previously in the proposed critical habitat much of the creek flows. Potential for conducted (Garrett et al. 2004, p. 437). designation. spill or discharge of toxic materials is an The Pinto Creek Unit is essential for the inherent threat in urban environments conservation of the Devils River Unit 2: San Felipe Creek Unit (City of Del Rio 2006, p. 13). The threats minnow because fish from this stream Proposed Unit 2 consists of to the San Felipe Creek Unit that require show significant genetic variation from approximately 7.9 stream km (4.9 special management include the other populations (Service 2006, p. 15). stream mi) on San Felipe Creek; 0.8 potential for large-scale groundwater Because of it’s proximity to Las Moras stream km (0.5 stream mi) of the outflow withdrawal and exportation that would Creek and the genetic variation from the of San Felipe Springs West; and 0.3 impact spring flows, pollution from more western population, fish from stream km (0.2 stream mi) of the outflow urban runoff, nonnative vegetation on Pinto Creek would be the likely source of San Felipe Springs East. The stream banks, other nonnative species population for possible future proposed upstream boundary on San (such as the armored catfish), and reintroduction into formerly occupied Felipe Creek is the Head Springs located potential new nonnative species areas (Garrett et al. 2004, p. 440). The about 1.1 stream km (0.7 stream mi) introductions into the stream. proposed boundaries of critical habitat upstream of the Jap Lowe Bridge Land ownership adjacent to the represent all the areas within Pinto crossing. The proposed downstream streams banks being proposed as critical Creek where Devils River minnow has boundary on San Felipe Creek is in the habitat within the San Felipe Creek Unit been collected (Garrett et al. 2004, p. City of Del Rio 0.8 stream km (0.5 includes private ranch lands from the 437–438).

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Further, the Pinto Creek Unit contains The primary utility of the conference the project, if any are identifiable. one or more of the PCEs essential for procedures is to allow a Federal agency ‘‘Reasonable and prudent alternatives’’ conservation of the Devils River to maximize its opportunity to are defined at 50 CFR 402.02 as minnow. The main threat to the Pinto adequately consider species proposed alternative actions identified during Creek Unit that requires special for listing and proposed critical habitat consultation that can be implemented in management is the potential for large- and to avoid potential delays in a manner consistent with the intended scale groundwater withdrawal and implementing their proposed action purpose of the action, that can be exportation that would significantly because of the section 7(a)(2) implemented consistent with the scope impact spring flows. While nonnative compliance process, should we list of the Federal agency’s legal authority species are not currently known to be a those species or designate critical and jurisdiction, that are economically problem in Pinto Creek, preventing habitat. We may conduct conferences and technologically feasible, and that nonnative species from being either informally or formally. We would, in the Director’s opinion, avoid introduced into the stream is an typically use informal conferences as a jeopardizing the continued existence of additional threat needing special means of providing advisory the listed species or destroying or management. Land ownership adjacent conservation recommendations to assist adversely modifying critical habitat. to the Pinto Creek unit is all private the agency in eliminating conflicts that Reasonable and prudent alternatives can ranches; however, these private lands the proposed action may cause. We vary from slight project modifications to are not included in the proposed critical typically use formal conferences when extensive redesign or relocation of the habitat designation. we or the Federal agency believes the project. Costs associated with proposed action is likely to jeopardize implementing a reasonable and prudent Effects of Critical Habitat Designation the continued existence of the species alternative are similarly variable. Section 7 Consultation proposed for listing or adversely modify Regulations at 50 CFR 402.16 require proposed critical habitat. Federal agencies to reinitiate Section 7(a)(2) of the Act requires We generally provide the results of an consultation on previously reviewed Federal agencies, including the Service, informal conference in a conference actions in instances where we have to ensure that actions they fund, report, while we provide the results of listed a new species or subsequently authorize, or carry out are not likely to a formal conference in a conference designated critical habitat that may be destroy or adversely modify critical opinion. We typically prepare affected and the Federal agency has habitat. Decisions by the 5th and 9th conference opinions on proposed retained discretionary involvement or Circuit Court of Appeals have species or critical habitat in accordance control over the action (or the agency’s invalidated our definition of with procedures contained at 50 CFR discretionary involvement or control is ‘‘destruction or adverse modification’’ 402.14, as if the proposed species were authorized by law). Consequently, some (50 CFR 402.02) (see Gifford Pinchot already listed or the proposed critical Federal agencies may request Task Force v. U.S. Fish and Wildlife habitat was already designated. We may reinitiation of consultation with us on Service, 378 F.3d 1059 (9th Cir. 2004) adopt the conference opinion as the actions for which formal consultation and Sierra Club v. U.S. Fish and biological opinion when the species is has been completed, if those actions Wildlife Service et al., 245 F.3d 434, listed or the critical habitat is may affect subsequently listed species 442F (5th Cir. 2001)), and we do not rely designated, if no substantial new or designated critical habitat. on this regulatory definition when information or changes in the action Federal activities that may affect the analyzing whether an action is likely to alter the content of the opinion (see 50 Devils River minnow or its designated destroy or adversely modify critical CFR 402.10(d)). critical habitat will require section 7 habitat. Under current national policy If a species is listed or critical habitat consultation under the Act. Activities and the statutory provisions of the Act, is designated, section 7(a)(2) of the Act on State, Tribal, local, or private lands requires Federal agencies to ensure that requiring a Federal permit (such as a we determine destruction or adverse activities they authorize, fund, or carry permit from the U.S. Army Corps of modification is determined on the basis out are not likely to jeopardize the Engineers under section 404 of the of whether, with implementation of the continued existence of the species or to Clean Water Act (33 U.S.C. 1251 et seq.) proposed Federal action, the affected destroy or adversely modify its critical or a permit under section 10(a)(1)(B) of critical habitat would remain functional habitat. If a Federal action may affect a the Act from the Service) or involving (or retain the current ability for the PCEs listed species or its critical habitat, the some other Federal action (such as to be functionally established) to serve responsible Federal agency (action funding from the Federal Highway its intended conservation role for the agency) must enter into consultation Administration, Federal Aviation species. with us. As a result of this consultation, Administration, or the Federal Section 7(a)(4) of the Act requires we document compliance with the Emergency Management Agency) are Federal agencies to confer with the requirements of section 7(a)(2) through also subject to the section 7 consultation Service on any action that is likely to our issuance of: (1) A concurrence letter process. Federal actions not affecting jeopardize the continued existence of a for Federal actions that may affect, but listed species or critical habitat, and species proposed for listing or result in are not likely to adversely affect, listed actions on State, Tribal, local or private destruction or adverse modification of species or critical habitat; or (2) a lands that are not federally funded, proposed critical habitat. This is a biological opinion for Federal actions authorized, or permitted, do not require procedural requirement only, as any that may affect, and are likely to section 7 consultations. conservation recommendations in a adversely affect, listed species or critical There are no Federal lands in the conference report or opinion are strictly habitat. areas being proposed for critical habitat advisory. However, once a species When we issue a biological opinion for Devils River minnow. Laughlin Air proposed for listing becomes listed, or concluding that a project is likely to Force Base is located east of the City of proposed critical habitat is designated jeopardize the continued existence of a Del Rio and obtains its municipal water as final, the full prohibitions of section listed species or destroy or adversely from the City (which ultimately is 7(a)(2) apply to any discretionary modify critical habitat, we also provide withdrawn from the two San Felipe Federal action. reasonable and prudent alternatives to Springs). The Amistad National

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Recreation Area, located around current levels), water diversions from (5) Actions that would significantly Amistad Reservoir, is owned by the streams, and stream impoundments. alter channel shape or geometry. Such National Park Service and includes the These activities could reduce the activities could include, but are not downstream portions of the Devils amount of available habitat and space limited to, channelization, River, but is not included in the for normal behaviors of Devils River impoundment, armoring stream banks, proposed critical habitat designation. minnow, alter water quality as an road and bridge construction, mining, Since the Devils River minnow was indirect effect of reduced flows, alter the dredging, and destruction of riparian listed in 1999, two section 7 mesohabitat (pools, riffles, and runs) vegetation. These activities may alter consultations have occurred, both of conditions necessary for Devils River the natural pattern of available which were associated with San Felipe minnow life history functions, and alter mesohabitats (pools, riffles, and runs). Creek. One informal consultation was fish community dynamics to These actions can reduce the amount of completed in 2001 with the unnaturally favor species other than the habitat available for Devils River Environmental Protection Agency for Devils River minnow. minnow to complete its normal life funding through the Texas Water (2) Actions that would reduce native cycle and can give other species, Development Board to the City of Del aquatic vegetation or native vegetation especially nonnative species, Rio to upgrade the City’s water along stream banks. These activities competitive advantages. These actions treatment and distribution facilities. The could include, but are not limited to, can also lead to increased sedimentation other (formal) consultation was channelization of the stream, armoring and degradation in water quality to completed in 2006 with the Federal stream banks (replacing native levels that are beyond the tolerances of Highway Administration, through the vegetation and soils with rock or the fish or their food sources. Texas Department of Transportation, to concrete), dredging the stream bottom, replace the Beddell Avenue Bridge over introducing nonnative plants that would Exclusions San Felipe Creek. Based on this replace native vegetation, or introducing Application of Section 4(b)(2) of the Act consultation history, we anticipate few herbivorous nonnative species. Loss of future Federal actions within the area aquatic vegetation would eliminate an Section 4(b)(2) of the Act states that proposed for critical habitat for Devils important structural component of critical habitat shall be designated, and River minnow. Devils River minnow habitat and could revised, on the basis of the best reduce the amount of available habitat available scientific data after taking into Application of the ‘‘Adverse for reproduction, growth, and feeding. consideration the economic impact, Modification’’ Standard for Actions (3) Actions that would significantly national security impact, and any other Involving Effects to the Critical Habitat alter water quality or introduce relevant impact, of specifying any of the Devils River Minnow pollutants into streams. Such activities particular area as critical habitat. The For the reasons described in the could include, but are not limited to, Secretary may exclude an area from Director’s December 9, 2004 release of chemicals, biological critical habitat if he determines that the memorandum, the key factor related to pollutants, or heated effluents (liquid benefits of such exclusion outweigh the the adverse modification determination waste products) into the surface water benefits of specifying such area as part is whether, with implementation of the or connected groundwater at a point of the critical habitat, unless he proposed Federal action, the affected source or by dispersed release (non- determines, based on the best scientific critical habitat would continue to serve point source). Sources of pollutants also data available, that the failure to its intended conservation role for the include, but are not limited to, storm designate such area as critical habitat species, or would retain its current water runoff from urban development will result in the extinction of the ability for the PCEs to be functionally without adequate storm water controls; species. In making that determination, established. Activities that may destroy spill of hazardous chemicals into the the Congressional record is clear that or adversely modify critical habitat are creek or groundwater; or groundwater the Secretary is afforded broad those that alter the PCEs to an extent contamination by improperly drilled or discretion regarding which factor(s) to that appreciably reduces the maintained oil or gas wells. These use and how much weight to give to any conservation value of critical habitat for activities could alter water conditions factor. the Devils River minnow is appreciably that are beyond the tolerances of the Under section 4(b)(2) of the Act, in reduced. Devils River minnow or their food considering whether to exclude a Section 4(b)(8) of the Act requires us source and could result in direct or particular area from the designation, we to briefly evaluate and describe, in any cumulative adverse effects to these must identify the benefits of including proposed or final regulation that individuals and their life cycles. the area in the designation, identify the designates critical habitat, those (4) Actions that would significantly benefits of excluding the area from the activities involving a Federal action that increase sediment deposition within the designation, and then determine may destroy or adversely modify such stream channel. Such activities could whether the benefits of exclusion habitat, or that may be affected by such include, but are not limited to, excessive outweigh the benefits of inclusion. If an designation. sedimentation from livestock grazing, exclusion is contemplated, then we Activities that, when carried out, road construction, channel alteration, must determine whether excluding the funded, or authorized by a Federal brush clearing, off-road vehicle use, and area would result in the extinction of agency, may affect critical habitat and other watershed and floodplain the species. In the following sections, therefore would result in consultation disturbances. These activities could we address a number of general issues for the Devils River minnow include, eliminate or reduce the habitat that are relevant to the exclusions we but are not limited to: necessary for the reproduction of Devils considered. In addition, the Service is (1) Actions that would alter the River minnow and could reduce the conducting an economic analysis of the natural flow regime, particularly the availability of food sources by affecting impacts of the proposed critical habitat reduction of spring flows. These light penetration into the water column, designation and related factors, which activities could include, but are not filling in of stream beds with silt, or will be available for public review and limited to, excessive groundwater increasing the embeddedness of stream comment when it is complete. Based on pumping (significantly greater than bottoms that reduces algae availability. public comment on that document, the

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proposed designation itself, and the maintaining or enhancing the condition County Groundwater Conservation information in the final economic and beauty of riparian gallery District exists for the management of analysis, additional areas beyond those woodlands (The Nature Conservancy groundwater resources in Kinney identified in this assessment may be 2004, p. 6). Rivers, streams, and springs County. This District passed its initial excluded from critical habitat by the are recognized as viable conservation rules in 2002 (and modified them in Secretary under the provisions of elements whose function can likely be 2003) and is continuing to support section 4(b)(2) of the Act. This is sustained within natural variations, as groundwater research to determine provided for in the Act and in our long as large-scale groundwater mining aquifer boundaries and groundwater implementing regulations at 50 CFR does not occur (The Nature Conservancy availability in Kinney County. 424.19. 2004, pp. 18–19). The Nature Under section 4(b)(2) of the Act, we Conservancy owns about 1,943 ha (4) Watershed management planning. must consider all relevant impacts, (4,800 ac) and holds conservation TPWD has initiated development of a including economic ones. The Service easements on about 66,800 ha (about stakeholder-lead watershed considers a number of factors in its 165,000 ac) of private land in the Devils management plan for the range of the section 4(b)(2) analysis. For example, River watershed (McWilliams 2006, p. Devils River minnow in Val Verde and the Service considers whether there are 1). Kinney Counties. The intent of the plan lands owned or managed by the (2) Management plans by the City of is to protect, enhance, or restore Department of Defense (DOD) where Del Rio and the San Felipe Creek essential habitat throughout the range of there might be a national security Country Club. In 2003, the City of Del the federally threatened Devils River impact. We also consider whether the Rio and the San Felipe Creek Country minnow and other species of concern in landowners have developed any Club each signed management plans for this area, and will define actions that conservation plans for the area, or the protection of San Felipe Creek will result in maintaining or increasing whether there are conservation (Service 2005, Appendix C). The populations of these fishes. The plan partnerships that would be encouraged mission of the City’s plan is to ‘‘preserve has not yet been completed. by an area being designated as, or and conserve the natural and cultural excluded from critical habitat. We look resources of the San Felipe Creek for the Economics at any Tribal issues, and consider the use and enjoyment of the present and An analysis of the economic impacts government-to-government relationship future generations of Del Rio citizens of proposing critical habitat for the of the United States with Tribal entities. and visitors.’’ Proposed actions include: Devils River minnow is being prepared. We also consider any social or economic converting lands obtained along the We will announce the availability of the impacts that might occur because of the creek following the 1998 flood into draft economic analysis as soon as it is designation. In this instance, we have passive parks; minimizing use of completed, at which time we will seek determined that the lands within the pesticides and fertilizers on City-owned proposed designation of critical habitat lands along the creek; discouraging public review and comment. At that for Devils River minnow are not owned commercial development along the time, copies of the draft economic or managed by the Department of creek; preserving the natural water flow analysis will be available for Defense, and the proposed designation to the greatest extent possible; downloading from the Internet at http:// does not include any Tribal lands or preserving stream banks in a natural www.fws.gov/southwest/es/Library/, or trust resources. state with buffer zones of native by contacting the Austin Ecological At this time, we are not proposing any vegetation; public education; litter Services Field Office directly (see areas for exclusion from the final critical removal; and removal of nonnative ADDRESSES). habitat designation under section 4(b)(2) plants, such as the river cane. The City Peer Review of the Act; however, there are several has recently drafted a San Felipe Creek ongoing conservation efforts related to Master Plan (City of Del Rio, 2006, p.1) In accordance with our joint policy habitat maintenance for the Devils River and intends to complete development of published in the Federal Register on minnow (for example, see Garrett 2003, the plan in 2007. July 1, 1994 (59 FR 34270), we will seek pp. 155–158; Karges 2003, pp. 147–148). The Management Plan for San Felipe the expert opinions of at least three Discussed below are conservation efforts Country Club in Del Rio included appropriate and independent specialists and management plans that we may objectives ‘‘to use environmentally regarding this proposed rule. The consider in our analysis of the benefits sensitive techniques for managing and purpose of such review is to ensure that of inclusion and benefits of exclusion maintaining a high quality golf course our critical habitat designation is based for certain proposed units from the final for the benefit of users while also on scientifically sound data, designation of critical habitat. promoting natural diversity, and to assumptions, and analyses. We will protect and enhance the quality of San Ongoing Conservation Efforts for send copies of this proposed rule to Felipe Creek and San Felipe Springs for these peer reviewers immediately Consideration Under Section 4(b)(2) of the benefit of the Devils River minnow following publication in the Federal the Act and the entire creek and riparian Register. We will invite these peer (1) Conservation Area Plan and ecosystem.’’ Management actions reviewers to comment during the public Conservation Easements by The Nature included establishing no-mow buffer comment period on the specific Conservancy in the Devils River zones, using environmentally sensitive assumptions and conclusions regarding watershed. The Nature Conservancy has pest management solutions through an the proposed designation of critical a very active conservation program in Integrated Pest Management Program, habitat. the Devils River watershed (Karges using fertilizers judiciously; removing 2003, pp. 147–148). The Nature noxious vegetation, maintaining out of We will consider all comments and Conservancy has developed a play areas as native habitat, using information received during the Conservation Area Plan for the Devils irrigation water wisely, and retaining comment period on this proposed rule River with goals of the plan including runoff from parking lots. during preparation of a final rulemaking balancing the relative abundance of (3) Kinney County Groundwater determination. Accordingly, the final native and nonnative fish species and Conservation District. The Kinney decision may differ from this proposal.

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Public Hearings Federal Register, the Office of proposed or final rule, it must prepare The Act provides for one or more Management and Budget (OMB) has not and make available for public comment public hearings on this proposal, if formally reviewed this rule. We are a regulatory flexibility analysis that requested. Under section 4(b)(5)(e) of preparing a draft economic analysis of describes the effects of the rule on small the Act, requests for public hearings this proposed action, which will be entities (small businesses, small must be made in writing at least 45 days available for public comment, to organizations, and small government following the publication of the determine the economic consequences jurisdictions). However, no regulatory proposed rule. We will schedule public of designating the specific area as flexibility analysis is required if the hearings on this proposal, if any are critical habitat. This economic analysis head of the agency certifies the rule will requested, and announce the dates, also will be used to determine not have a significant economic impact times, and places of those hearings in compliance with Executive Order on a substantial number of small the Federal Register and local 12866, Regulatory Flexibility Act, Small entities. The SBREFA amended the newspapers at least 15 days prior to the Business Regulatory Enforcement Regulatory Flexibility Act (RFA) to first hearing. Fairness Act, Executive Order 12630, require Federal agencies to provide a Persons needing reasonable Executive Order 13211, and Executive statement of the factual basis for accommodations to attend and Order 12875. certifying that the rule will not have a participate in the public hearings Further, Executive Order 12866 significant economic impact on a should contact Adam Zerrenner, Field directs Federal Agencies promulgating substantial number of small entities. regulations to evaluate regulatory At this time, the Service lacks the Supervisor, Austin Ecological Services alternatives (Office of Management and available economic information Field Office at (512) 490–0057 as soon Budget, Circular A–4, September 17, necessary to provide an adequate factual as possible. To allow sufficient time to 2003). Pursuant to Circular A–4, once it basis for the required RFA finding. process requests, please call no later has been determined that the Federal Therefore, the RFA finding is deferred than one week before the hearing date. regulatory action is appropriate, then until we complete the draft economic Information regarding the proposal is the agency will need to consider analysis under section 4(b)(2) of the Act available in alternative formats upon alternative regulatory approaches. Since and Executive Order 12866. This draft request. the determination of critical habitat is a economic analysis will provide the Clarity of the Rule statutory requirement under the Act, we required factual basis for the RFA Executive Order 12866 (Regulatory must then evaluate alternative finding. Upon completion of the draft Planning and Review) requires each regulatory approaches, where feasible, economic analysis, the Service will agency to write regulations and notices when promulgating a designation of publish a notice of availability of the that are easy to understand. We invite critical habitat. draft economic analysis of the proposed In developing our designations of your comments on how to make this designation and reopen the public critical habitat, we consider economic proposed rule easier to understand, comment period for the proposed impacts, impacts to national security, including answers to questions such as designation. The Service will include and other relevant impacts under the following: (1) Are the requirements with the notice of availability, as section 4(b)(2) of the Act. Based on the in the proposed rule clearly stated? (2) appropriate, an initial regulatory discretion allowable under this Does the proposed rule contain flexibility analysis or a certification that provision, we may exclude any technical jargon that interferes with the the rule will not have a significant particular area from the designation of economic impact on a substantial clarity? (3) Does the format of the critical habitat provided that the number of small entities accompanied proposed rule (grouping and order of benefits of such exclusion outweigh the by the factual basis for that the sections, use of headings, benefits of specifying the area as critical determination. The Service has paragraphing, and so forth) aid or habitat and that such exclusion would concluded that deferring the RFA reduce its clarity? (4) Is the description not result in the extinction of the finding until completion of the draft of the notice in the SUPPLEMENTARY species. As such, we believe that the economic analysis is necessary to meet INFORMATION section of the preamble evaluation of the inclusion or exclusion the purposes and requirements of the helpful in understanding the proposed of particular areas, or combination RFA. Deferring the RFA finding in this rule? (5) What else could we do to make thereof, in a designation constitutes our manner will ensure that the Service this proposed rule easier to understand? Send a copy of any comments on how regulatory alternative analysis. makes a sufficiently informed The availability of the draft economic we could make this proposed rule easier determination based on adequate analysis will be announced in the to understand to: Office of Regulatory economic information and provides the Federal Register and in local Affairs, Department of the Interior, necessary opportunity for public newspapers so that it is available for Room 7229, 1849 C Street, NW., comment. public review and comments. The draft Washington, DC 20240. You may e-mail economic analysis can be obtained from Unfunded Mandates Reform Act (2 your comments to this address: our Web site at http://www.fws.gov/ U.S.C. 1501 et seq.) [email protected]. southwest/es/Library/, or by contacting In accordance with the Unfunded Required Determinations the Austin Ecological Services Field Mandates Reform Act (2 U.S.C. 1501), Office directly (see ADDRESSES). the Service makes the following Regulatory Planning and Review findings: In accordance with Executive Order Regulatory Flexibility Act (5 U.S.C. 601 (a) This rule would not produce a 12866, this document is a significant et seq.) Federal mandate. In general, a Federal rule in that it may raise novel legal and Under the Regulatory Flexibility Act mandate is a provision in legislation, policy issues, but it is not anticipated to (5 U.S.C. 601 et seq., as amended by the statute, or regulation that would impose have an annual effect on the economy Small Business Regulatory Enforcement an enforceable duty upon State, local, or of $100 million or more or affect the Fairness Act (SBREFA) of 1996), Tribal governments, or the private sector economy in a material way. Due to the whenever an agency is required to and includes both ‘‘Federal tight timeline for publication in the publish a notice of rulemaking for any intergovernmental mandates’’ and

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‘‘Federal private sector mandates.’’ million or greater in any year; that is, it contain the features essential to the These terms are defined in 2 U.S.C. is not a ‘‘significant regulatory action’’ conservation of the species are more 658(5)–(7). ‘‘Federal intergovernmental under the Unfunded Mandates Reform clearly defined, and the PCEs of the mandate’’ includes a regulation that Act. We do not anticipate that the habitat necessary to the conservation of ‘‘would impose an enforceable duty designation of critical habitat will the species are specifically identified. upon State, local, or tribal governments’’ impose obligations on State or local While making this definition and with two exceptions. It excludes ‘‘a governments. As such, a Small identification does not alter where and condition of Federal assistance.’’ It also Government Agency Plan is not what federally sponsored activities may excludes ‘‘a duty arising from required. However, we will further occur, it may assist these local participation in a voluntary Federal evaluate this issue as we conduct our governments in long-range planning program,’’ unless the regulation ‘‘relates economic analysis and revise this (rather than have these governments to a then-existing Federal program assessment if appropriate. wait for case-by-case section 7 under which $500,000,000 or more is Executive Order 13211 consultations to occur). provided annually to State, local, and tribal governments under entitlement On May 18, 2001, the President issued Civil Justice Reform authority,’’ if the provision would an Executive Order (E.O. 13211; Actions In accordance with Executive Order ‘‘increase the stringency of conditions of Concerning Regulations That 12988 (Civil Justice Reform), the Office assistance’’ or ‘‘place caps upon, or Significantly Affect Energy Supply, of the Solicitor has determined that the otherwise decrease, the Federal Distribution, or Use) on regulations that rule does not unduly burden the judicial Government’s responsibility to provide significantly affect energy supply, system and meets the requirements of funding,’’ and the State, local, or Tribal distribution, and use. Executive Order sections 3(a) and 3(b)(2) of the Order. governments ‘‘lack authority’’ to adjust 13211 requires agencies to prepare We have proposed designating critical accordingly. At the time of enactment, Statements of Energy Effects when habitat in accordance with the these entitlement programs were: undertaking certain actions. While this provisions of the Act. This proposed Medicaid; AFDC work programs; Child proposed rule to designate critical rule uses standard property descriptions Nutrition; Food Stamps; Social Services habitat for the Devils River minnow is and identifies the PCEs within the Block Grants; Vocational Rehabilitation a significant regulatory action under designated areas to assist the public in State Grants; Foster Care, Adoption Executive Order 12866, it is not understanding the habitat needs of the Assistance, and Independent Living; expected to significantly affect energy Devils River minnow. Family Support Welfare Services; and supplies, distribution, or use. Therefore, Child Support Enforcement. ‘‘Federal this action is not a significant energy Paperwork Reduction Act of 1995 (44 private sector mandate’’ includes a action, and no Statement of Energy U.S.C. 3501 et seq.) regulation that ‘‘would impose an Effects is required. This rule does not contain any new collections of information that require enforceable duty upon the private Takings sector, except (i) a condition of Federal approval by OMB under the Paperwork assistance or (ii) a duty arising from In accordance with Executive Order Reduction Act. This rule will not participation in a voluntary Federal 12630 (‘‘Government Actions and impose recordkeeping or reporting program.’’ Interference with Constitutionally requirements on State or local The designation of critical habitat Protected Private Property Rights’’), we governments, individuals, businesses, or does not impose a legally binding duty have analyzed the potential takings organizations. An agency may not on non-Federal government entities or implications of designating critical conduct or sponsor, and a person is not private parties. Under the Act, the only habitat for the Devils River minnow in required to respond to, a collection of regulatory effect is that Federal agencies a takings implications assessment. The information unless it displays a must ensure that their actions do not takings implications assessment currently valid OMB control number. destroy or adversely modify critical concludes that this designation of habitat under section 7. While non- critical habitat for the Devils River National Environmental Policy Act Federal entities that receive Federal minnow would not pose significant It is our position that, outside the funding, assistance, or permits, or that takings implications. Tenth Circuit, we do not need to prepare environmental analyses as otherwise require approval or Federalism authorization from a Federal agency for defined by the NEPA in connection with an action may be indirectly impacted by In accordance with Executive Order designating critical habitat under the the designation of critical habitat, the 13132 (Federalism), the rule would not Act. We published a notice outlining legally binding duty to avoid have significant Federalism effects. A our reasons for this determination in the destruction or adverse modification of Federalism assessment is not required. Federal Register on October 25, 1983 critical habitat rests squarely on the In keeping with Department of the (48 FR 49244). This assertion was Federal agency. Furthermore, to the Interior and Department of Commerce upheld in the courts of the Ninth Circuit extent that non-Federal entities are policy, we requested information from, (Douglas County v. Babbitt, 48 F.3d indirectly impacted because they and coordinated development of, this 1495 (9th Cir. Ore. 1995), cert. denied receive Federal assistance or participate proposed critical habitat designation 116 S. Ct. 698 (1996)).] in a voluntary Federal aid program, the with appropriate State resource agencies Government-to-Government Unfunded Mandates Reform Act would in Texas. The designation of critical not apply, nor would critical habitat habitat in areas currently occupied by Relationship With Tribes shift the costs of the large entitlement the Devils River minnow imposes no In accordance with the President’s programs listed above on to State additional restrictions to those currently memorandum of April 29, 1994, governments. in place and, therefore, has little ‘‘Government-to-Government Relations (b) We do not believe that this rule incremental impact on State and local with Native American Tribal would significantly or uniquely affect governments and their activities. The Governments’’ (59 FR 22951), Executive small governments because it would not designation may have some benefit to Order 13175, and the Department of produce a Federal mandate of $100 these governments in that the areas that Interior’s manual at 512 DM 2, we

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readily acknowledge our responsibility request from the Field Supervisor, 50 of the Code of Federal Regulations, to communicate meaningfully with Austin Ecological Services Field Office as set forth below: recognized Federal Tribes on a (see ADDRESSES). government-to-government basis. We PART 17—[AMENDED] have determined that there are no tribal Author(s) 1. The authority citation for part 17 lands occupied at the time of listing that The primary author of this package is continues to read as follows: contain the features essential for the the Austin Ecological Services Field conservation of Devils River minnow, Office. Authority: 16 U.S.C. 1361–1407; 16 U.S.C. and no Tribal lands that are unoccupied 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– areas that are essential for the List of Subjects in 50 CFR Part 17 625, 100 Stat. 3500; unless otherwise noted. conservation of the Devils River minnow. Therefore, we are not Endangered and threatened species, 2. In § 17.11(h), revise the entry for proposing to designate critical habitat Exports, Imports, Reporting and ‘‘Minnow, Devils River’’ under for the Devils River minnow on Tribal recordkeeping requirements, ‘‘FISHES’’ to read as follows: Transportation. lands. § 17.11 Endangered and threatened References Cited Proposed Regulation Promulgation wildlife. A complete list of all references cited Accordingly, we propose to amend * * * * * in this rulemaking is available upon part 17, subchapter B of chapter I, title (h) * * *

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

******* FISHES

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

*******

3. In § 17.95(e), add an entry for (C) Pool, riffle, run, and backwater (v) Areas within stream courses that ‘‘Devils River Minnow (Dionda components free of artificial instream may be periodically dewatered for short diaboli)’’ in the same alphabetical order structures that would prevent time periods, during seasonal droughts, that the species appears in the table at movement of fish upstream or but otherwise as connective corridors § 17.11(h) to read as follows: downstream. between occupied or seasonally (ii) High-quality water provided by occupied areas through which the § 17.95 Critical habitat—fish and wildlife. permanent, natural flows from species moves when the area is wetted. * * * * * groundwater spring and seeps (3) Critical habitat does not include (e) Fishes. characterized by: manmade structures (such as buildings, * * * * * (A) Temperature ranging between 17 aqueducts, airports, roads, and other °C and 29 °C (63 °F and 84 °F); paved areas) and the land on which they Devils River Minnow (Dionda diaboli) (B) Dissolved oxygen levels greater are located existing on the effective date (1) Critical habitat units are depicted than 5.0 mg/l; of this rule and not containing one or for Val Verde County and Kinney (C) Neutral pH ranging between 7.0 more of the primary constituent County, Texas, on the maps below. and 8.2; elements. (2) The primary constituent elements (D) Conductivity less than 0.7 mS/cm (4) Critical habitat map units. Data of critical habitat for the Devils River and salinity less than 1 ppt; layers defining map units were created minnow are the following habitat (E) Ammonia levels less than 0.4 mg/ in ArcGIS using the National components: l; and Hydrography Dataset and 7.5’ (i) Streams characterized by: (F) No or minimal pollutant levels for topographic quadrangle maps obtained (A) Areas with slow to moderate copper, arsenic, mercury, and cadmium; from U.S. Geological Survey to water velocities between 10 and 40 cm/ human and animal waste products; approximate stream channels and second (4 and 16 in/second) in shallow pesticides; fertilizers; suspended calculate distances (stream km and to moderate water depths between sediments; petroleum compounds and stream mi). We made some minor approximately 10 cm (4 in) and 1.5 m gasoline or diesel fuels. adjustments to stream channels using (4.9 ft), near vegetative structure, such (iii) An abundant aquatic food base the 2004 National Agriculture Imagery as emergent or submerged vegetation or consisting of algae attached to stream Program digital orthophotos obtained stream bank riparian vegetation that substrates and other associated from the Texas Natural Resources overhangs into the water column; microorganisms. Information System. For each critical (B) Gravel and cobble substrates (iv) An aquatic stream habitat either habitat unit, the upstream and ranging in size between 2 and 10 cm devoid of nonnative aquatic species downstream boundaries are described as (0.8 and 4 in) with low or moderate (including fish, plants, and paired geographic coordinates X, Y amounts of fine sediment (less than 65 invertebrates) or in which such (meters E, meters N, UTM Zone 14, percent stream bottom coverage) and nonnative aquatic species are at levels referenced to North American low or moderate amounts of substrate that allow for healthy populations of Horizontal Datum 1983). Additionally, embeddedness; and Devils River minnows. critical habitat areas include the stream

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channels within the identified stream (5) Note: Overview of critical habitat reaches and areas within these reaches units for the Devils River minnow (Map up to the bankfull width. 1) follows: BILLING CODE 4310–55–P

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(6) Unit 1: Devils River Unit, Val 3327875W). The downstream boundary Devils River to a point 2.3 stream km Verde County, Texas. on the Devils River is 3.6 stream km (2.2 (1.4 stream mi) upstream to Dolan (i) Unit 1 consists of approximately stream mi) below Dolan Falls (UTM Springs (UTM 308084E, 3309223N). 43.6 stream km (27.1 stream mi) of the 306454E, 3304426N). Phillips Creek is Including all three streams, the total Devils River; 1.1 stream km (0.7 stream included from the confluence with the distance in Unit 1 is approximately 47.0 mi) of Phillips Creek; and 2.3 stream km Devils River to a point 1.1 stream km stream km (29.2 stream mi). (1.4 stream mi) of Dolan Creek. The (0.7 stream mi) upstream (UTM upstream boundary on the Devils River 295544E, 3316112N). Dolan Creek is (ii) Note: Map of Unit 1, Devils River is at Pecan Springs (UTM 289432E, included from the confluence with the Unit, (Map 2) follows:

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(7) Unit 2: San Felipe Creek Unit, 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, (Map 3) follows:

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(8) Unit 3: Pinto Creek Unit, 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, (Map 4) follows:

* * * * * Dated: July 19, 2007. Todd Willens, Acting Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 07–3678 Filed 7–30–07; 8:45 am] BILLING CODE 4310–55–C

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