[Federal Register: August 12, 2008 (Volume 73, Number 156)]
[Rules and Regulations]
[Page 46987-47026]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12au08-14]
[[Page 46987]]
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Part II
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for the Devils River Minnow; Final Rule
[[Page 46988]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS-R2-ES-2008-0018; 92210-1117-0000-B4]
RIN 1018-AV25
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Devils River Minnow
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate
critical habitat for the Devils River minnow (Dionda diaboli) under the
Endangered Species Act of 1973, as amended (Act). In total,
approximately 26.5 stream kilometers (km) (16.5 stream miles (mi)) are
within the boundaries of the critical habitat designation. The critical
habitat is located in streams in Val Verde and Kinney Counties, Texas.
DATES: This final rule becomes effective on September 11, 2008.
ADDRESSES: This final rule and the final economic analysis are
available on the Internet at http://www.regulations.gov and http://
www.fws.gov/southwest/es/AustinTexas/. Supporting documentation we used
in preparing this final rule will be available for public inspection,
by appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Austin Ecological Services Field Office, 10711 Burnet
Road, Suite 200, Austin, TX 78758; telephone 512-490-0057; facsimile
512-490-0974.
FOR FURTHER INFORMATION CONTACT: Adam Zerrenner, Field Supervisor,
Austin Ecological Services Field Office (see ADDRESSES section).
Persons who use a telecommunications device for the deaf (TDD) may call
the Federal Information Relay Service (FIRS) at 800-877-8339, 7 days a
week and 24 hours a day.
SUPPLEMENTARY INFORMATION:
Background
It is our intent to discuss only those topics directly relevant to
the designation of critical habitat in this final rule. For more
information on the Devils River minnow, refer to the proposed critical
habitat rule published in the Federal Register on July 31, 2007 (72 FR
41679), the final listing rule published in the Federal Register on
October 20, 1999 (64 FR 56596), or the 2005 Devils River Minnow
Recovery Plan available online at www.fws.gov/endangered/. More
detailed information on Devils River minnow biology and ecology that is
directly relevant to the designation of critical habitat is discussed
under the Primary Constituent Elements section below.
Previous Federal Actions
The Devils River minnow was listed as threatened on October 20,
1999 (64 FR 56596). Critical habitat was not designated for this
species at the time of listing (64 FR 56606). On October 5, 2005, the
Forest Guardians, Center for Biological Diversity, and Save Our Springs
Alliance filed suit against the Service for failure to designate
critical habitat for this species (Forest Guardians et al. v. Hall
2005). On June 28, 2006, a settlement was reached that requires the
Service to re-evaluate our original prudency determination. The
settlement stipulated that, if prudent, a proposed rule would be
submitted to the Federal Register for publication on or before July 31,
2007, and a final rule by July 31, 2008. On July 31, 2007, we published
a proposed rule to designate critical habitat for the Devils River
minnow (72 FR 41679). We solicited data and comments from the public on
the proposed rule. The comment period opened on July 31, 2007, and
closed on October 1, 2007. On February 7, 2008, we published a notice
announcing the availability of the draft economic analysis, a public
hearing, and the reopening of the public comment period (73 FR 7237). A
public hearing was held in Del Rio on February 27, 2008. This comment
period closed on March 10, 2008. For more information on previous
Federal actions concerning the Devils River minnow, refer to the final
listing rule published in the Federal Register on October 20, 1999 (64
FR 56596).
Summary of Comments and Recommendations
We requested comments from the public on the proposed designation
of critical habitat for the Devils River minnow during two comment
periods. The first comment period associated with the publication of
the proposed rule (72 FR 41679) opened on July 31, 2007, and closed on
October 1, 2007. We also requested comments on the proposed critical
habitat designation and associated draft economic analysis during a
comment period that opened February 7, 2008, and closed on March 10,
2008 (73 FR 7237). We held a public hearing in Del Rio on February 27,
2008; about 65 individuals were present. We contacted appropriate
Federal, State, and local agencies; scientific organizations; and other
interested parties and invited them to comment on the proposed rule
and/or draft economic analysis during these two comment periods.
During the first comment period, we received five comments directly
addressing the proposed critical habitat designation. During the second
comment period, we received 19 written comments (one was received
between the first and second comment periods) and 10 verbal comments
made at the public hearing addressing the proposed critical habitat
designation or the draft economic analysis. We received no comments
from the State of Texas or other Federal agencies beyond those provided
by individuals as part of the peer review process. All substantive
information provided during both public comment periods has been either
incorporated directly into this final determination or addressed below.
Peer Review
In accordance with our policy published on July 1, 1994 (59 FR
34270), we solicited expert opinions from seven knowledgeable
individuals with scientific expertise that included familiarity with
the species, the geographic region in which the species occurs, and
conservation biology principles. During the first comment period, we
received a response from all seven peer reviewers from which we
requested comments.
We reviewed all comments received from the public and the peer
reviewers for substantive issues and new information regarding the
designation of critical habitat for Devils River minnow, and we address
them in the following summary.
Peer Reviewer Comments
(1) Comment: The rule should summarize the efforts to locate
additional Devils River minnow habitats in other nearby streams and
discuss the potential that additional habitats exist.
Our Response: This information is available in the Range discussion
in the ``Criteria Used To Identify Critical Habitat'' section below.
There have been efforts to locate the Devils River minnow outside of
its known range, although those efforts have been limited by
opportunity and access to some private lands. The rule states that
while there could be additional stream segments within the known range
that may be found to be occupied during future surveys, the best
available information at this time supports only five stream segments
(Devils River, San Felipe Creek, Sycamore Creek, Pinto Creek, and Las
Moras Creek) known to be or to have been occupied by Devils River
minnow in the United States.
[[Page 46989]]
(2) Comment: The primary constituent elements (PCEs) should more
explicitly and strongly address the need for spring-fed baseflow,
perhaps under PCE 5 or as its own PCE. It may be appropriate to include
the language noting a percentage of normal (i.e., average) monthly
baseflow that should be sustained as a Devils River minnow PCE.
Our Response: Our approach in describing the PCEs is to identify
the physical and biological features that are essential to the
conservation of the species and which may require special management
considerations or protections. In this case the PCEs are the range of
water depths and velocities needed by the species. Maintenance of
spring flows is described in this final rule as the special management
needed to provide the PCEs described, rather than a PCE itself. The
Service does not have sufficient information to identify an estimate of
specific spring flow, or percentages of flow, as required habitat
conditions for the Devils River minnow.
(3) Comment: The proposed rule notes that if groundwater aquifers
are pumped beyond their ability to sustain levels supporting spring
flows these streams will no longer provide habitat for the Devils River
minnow. This is true unless water was pumped into the streams from
wells.
Our Response: PCE 2 is intentionally worded to include ``permanent,
natural flows from groundwater spring and seeps.'' We believe the
maintenance of natural stream flows is the best opportunity to ensure
adequate habitat for the conservation of the Devils River minnow. Water
provided to streams through artificial means, such as groundwater
pumping, could eventually fail due to mechanical or human error and,
therefore, is not a good substitute for natural stream flows. In
addition, pumping water to supply streams is likely counterintuitive to
the need to maintain groundwater levels high enough to sustain natural
spring flows from groundwater aquifers. Stream flows are essential for
the conservation of the species, and assuring a high probability of
survival depends on natural flow conditions.
(4) Comment: The range of stream velocities described in the PCE
(1a) for Devils River minnow (0.3 to 1.3 feet/second (9 to 40 cm/
second)) may not be high enough to reflect conditions that are
typically measured in Las Moras Creek (greater than 3 feet/second),
although baseflow velocities can be in the 1 foot/second range.
Our Response: The water velocities identified as a part of the PCEs
were determined based on observational studies where Devils River
minnows have been collected. There are often much higher velocities in
the streams; however, the best available information indicates that the
velocity range identified in the PCEs reflects the understanding that
the species is most often found in slow to moderate water velocities.
(5) Comment: The PCE (2) for water quality can be challenged in
that not enough data have been measured regarding temperature,
dissolved oxygen, conductivity, and salinity to set those levels. It is
possible that areas with physical and chemical conditions other than
those listed could support the Devils River minnow.
Our Response: We recognize that the PCE for water quality
parameters is based on limited observational data. However, we used the
best available information to determine appropriate water quality
elements. To the extent practicable, PCEs are intended to be
quantifiable and measurable. We purposefully include a broad range of
conditions to recognize that data are not sufficient to identify a more
narrow range of parameters. The ranges provided represent the best
available information.
(6) Comment: There are potential consequences to the species from
increased sedimentation and turbidity, via urban development in the
watershed and the presence of abundant armored catfish (Hypostomus sp.)
(disturbing substrate during feeding and excavation of shelter). These
concerns should be extracted from a list of pollutants, which included
suspended sediments, and identified individually. You should include a
discussion of water clarity under the PCE for water depth and velocity.
Our Response: We agree that turbidity from increased suspended
solids and sedimentation of stream bottoms are important habitat
concerns for Devils River minnow. We have revised the final rule (see
``Water Quality'' section below) to specifically mention this concern.
We did not see a need to modify the language in the PCEs as we believe
that listing suspended sediments as a pollutant is sufficient to
capture these concerns.
(7) Comment: While the aquifers that support the critical habitat
streams are of high quality and free of pollution, the same can't be
said for the water quality of the creeks. Livestock and ranching
activities occur throughout this area except along San Felipe Creek.
Harrel (1978) notes that in the Devils River, larger deep ponds often
contain silt composed of detritus and sheep and goat manure washed in
by rains.
Our Response: There have been water quality concerns expressed for
San Felipe Creek due to the urbanization of the watershed. There also
may have been previous effects from ranching activities on water
quality in the creeks, particularly in the past when sheep and goat
grazing was a more common land use. However, we found no data to
support that water quality is significantly impacted by current
ranching activities (Service 2005, p. 1.7-4).
(8) Comment: The final rule should state that maintaining water
temperatures within acceptable ranges necessitates maintaining adequate
aquifer protection and spring flows to streams.
Our Response: We concur. The final rule was revised to reflect this
comment in the ``Water Quality'' section below. We believe that
management of groundwater aquifers is important to maintaining spring
flows and is interrelated to maintaining water quality conditions,
particularly water temperature in streams.
(9) Comment: The data presented do not support an unequivocal
statement that vegetation must be present for Devils River minnow to be
successful. The Devils River minnow appears to survive in other areas
without vegetation.
Our Response: We recognize that Devils River minnow have been
collected in areas of streams without significant vegetation. However,
the majority of published information on the habitat use of the species
(summarized in the ``Space for Individual and Population Growth, Normal
Behavior, and Cover'' section below) leads us to believe that the best
scientific data available are sufficient to warrant inclusion of
aquatic vegetation as a PCE to provide important cover for the species.
We have clarified our discussion in that section to reflect the fact
that Devils River minnow have also been collected in areas without
aquatic vegetation.
(10) Comment: How can the special management needs identified in
the proposed rule and the recovery plan be implemented without access
through private property to all stream segments and their supporting
watershed?
Our Response: Most of the streams where the Devils River minnow
occurs flow through private lands. The designation of critical habitat
(or the species' status as federally threatened) does not provide a
right for anyone to access private property without landowner
permission. However, through cooperative relationships, the Service and
Texas Parks and Wildlife
[[Page 46990]]
Department (TPWD) have had consistent support from private landowners
to provide access to various streams to further conservation of the
Devils River minnow. We intend to continue to work with private
landowners to seek their voluntary cooperation using incentive-based
programs, such as Partners for Fish and Wildlife, for conserving this
species and other listed species in Texas.
(11) Comment: Discussions regarding nonnative species should
include nonnative plants, such as hydrilla (Hydrilla verticillata),
water hyacinth (Eichhornia spp.), giant river cane (Arundinaria
gigantea), and salt cedar (Tamarix spp.), because they can impact
hydrology and food sources for Devils River minnow.
Our Response: The extent of potential impacts of nonnative plants
to fish such as the Devils River minnow is not well documented.
However, we recognize the concern that nonnative plants could affect
Devils River minnow populations, and we have revised the final rule to
reflect these concerns. We did not include salt cedar as a concern
because we are not aware that it is present, or likely to become
established, in the range of Devils River minnow. It is well
established in nearby drainages on the Pecos River and Rio Grande and
has had ample opportunity to become established in the Devils River and
drainages farther east. We assume that conditions (soil differences and
limited floodplains) are not conducive to salt cedar establishment.
(12) Comment: Another concern related to nonnative species is the
possible predation on Devils River minnow by armored catfish.
Information was provided indicating the armored catfish in aquarium
environments will prey on other fish.
Our Response: We have included this information in the final rule
in the ``Habitat Protected From Disturbance or Representative of the
Historic Geographical and Ecological Distribution of a Species''
section.
(13) Comment: Petroleum exploration and development should be
either added as one additional management consideration for the Devils
River population or be specifically recognized in the discussion of
pollution. While there have fortunately been no known impacts to date,
inappropriate site development and drilling practices associated with
current exploration activities have the potential to seriously impact
water quality of the Devils River and, hence, to degrade this critical
habitat.
Our Response: We agree and the final rule has been updated to
include this information in the ``Special Management'' section.
(14) Comment: Six of the seven peer reviewers commented on our
specific question of whether or not Las Moras Creek and Sycamore Creek
are essential to the conservation of the species and should be included
in the critical habitat designation. Three reviewers expressed specific
support for including Las Moras and Sycamore creeks in the critical
habitat designation for the following reasons: (1) To maintain suitable
habitat within its range because if left undesignated, the PCEs
currently present will fall out of range and potential use for the
recovery of the species will be lost; (2) to protect genetic diversity
within the range of the species; (3) including them may be important
for future recovery efforts, based on metapopulation theory that
unoccupied patches are not less important than occupied ones; (4) not
including them as ecologically significant stream segments would be
possibly detrimental to the species over time; and (5) if the creeks
are determined not to provide essential habitat elements, they could be
removed from the designation later or the habitat could be improved by
future management.
The other three reviewers did not call for the inclusion of Las
Moras and Sycamore creeks in the designation. However, two reviewers
stressed that recovery of the Devils River minnow would include
restoring the species to these streams to maintain genetic diversity
and population redundancy and encouraged us to continue to work on
these efforts. One reviewer stated that Sycamore and Las Moras creeks
do not have the necessary continuous flows required to maintain a
population of the Devils River minnow and would support their inclusion
if there were management options in place to maintain sufficient
residual habitat during droughts.
Our Response: In reviewing the comments received on this issue and
the Recovery Plan for the Devils River minnow, we determined that
Sycamore and Las Moras creeks are essential to the conservation of the
Devils River minnow. Restoring populations in Sycamore and Las Moras
creeks are important recovery goals for the species. For additional
discussion of this topic, including relevant information from the
Recovery Plan, see the ``Criteria Used To Identify Critical Habitat''
section below.
However, upon further review, we determined that the benefits of
excluding these two creeks outweigh the benefits of including them as
critical habitat. Therefore, we have excluded Sycamore Creek and Las
Moras Creek under section 4(b)(2) of the Act. For the full analysis,
see the ``Exclusions Under Section 4(b)(2) of the Act'' section below.
(15) Comment: The rule should recognize that, while not included in
the lateral extent of the critical habitat, the condition of the
riparian buffer beyond the normal wetted channel is important to the
maintenance of water quality and low levels of fine sedimentation.
Our Response: We agree that healthy riparian areas of native
vegetation are important to maintaining the PCEs. For example, impacts
to riparian areas that reduce native vegetation may lead to increased
runoff of pollutants into the stream, thus degrading water quality and
indirectly affecting the designated critical habitat. This is further
discussed in the ``Application of the Adverse Modification Standard''
section. Unlike some other stream fishes, the Devils River minnow is
not known to be dependent on high flow events or use flooded habitats
in overbank areas for reproduction or rearing of young. Therefore, the
floodplain is not known to contain the features essential for the
conservation of the Devils River minnow and is not included in this
final critical habitat designation. See the discussion in ``Criteria
Used To Identify Critical Habitat, f. Lateral Extent'' section.
(16) Comment: No studies cited in the proposed rule have shown that
the Devils River minnow is tied to spring-mouth habitat. In fact,
several studies point out that the species does not use such habitat
but prefers more downstream areas of the streams away from the
immediate outfall areas. This appears to be true in all three stream
sections chosen for critical habitat. The data do not support the
inclusion of the spring heads in critical habitat.
Our Response: We disagree. While Devils River minnow can be common
in areas just a few meters downstream of spring heads, the best
available information suggests the PCEs and the fish are also found at
the beginning of the streams in spring heads. Numerous collections have
listed the springs themselves as locations for collecting Devils River
minnow (see literature reviewed in Service 2005, p 1.4.1-1.4.5).
Comments From the Public
(17) Comment: The statement that the Devils River minnow does not
occupy Sycamore Creek is unsubstantiated. Opportunities to sample for
the species are very limited.
Our Response: We did not intend to make a conclusive determination
that
[[Page 46991]]
the Devils River minnow does not occur in Sycamore Creek. For the
purpose of critical habitat designation, we considered a stream segment
to be occupied at the time of listing if Devils River minnow has been
found to be present by species experts within the last 10 years, or
where the stream segment is directly connected to a segment with
documented occupancy within the last 10 years (see section ``Criteria
Used to Identify Critical Habitat'' section below). The fish has not
been collected in Sycamore Creek since 1989. We agree that collections
are limited and more extensive sampling in the future may produce
additional occurrence information in this watershed.
(18) Comment: Stream flow records from the U.S. Geological Survey
and International Boundary and Water Commission gauging station show
that Pinto Creek has had ``no flow'' 59 percent of the time as measured
monthly between 1965 and 1996. Pinto Creek is an intermittent stream
and does not supply the permanent, natural flows that are a pillar of
the critical habitat definition.
Our Response: We recognize that portions of Pinto Creek can be
intermittent. The location of the stream gauge was moved to a far
upstream location in 1981 (Ashworth and Stein 2005, p. 18). Although
portions of the stream will exhibit no flow during some times of the
year, spring flows will continue providing aquatic habitat for the
Devils River minnow at various locations downstream. Ashworth and Stein
(2005, p. 19) found that the Pinto Creek is a gaining stream through
much of the upper reaches, that is, it increases in volume downstream.
A stream gauge at a stationary location does not reflect the
longitudinal variation in stream flow. We observed this in the summer
of 2006 when Service biologists visited Pinto Creek and found some
reaches of the creek dry and other locations supported by spring flows.
Fish were concentrated in these spring-fed stretches.
To account for this variation, PCE 5 of this critical habitat
designation includes areas within stream courses that may be
periodically dewatered for short time periods, during seasonal
droughts. These areas were found to be important as connective
corridors. The Devils River minnow occurs in relatively short stream
segments and, therefore, needs to be able to move unimpeded to access
different areas within the stream to complete life history functions
and find resources, such as food and cover.
(19) Comment: The presence of the nonnative smallmouth bass
(Micropterus dolomieu) is the only significant change in the Devils
River and has caused many changes in the structure of the fish
community. The Devils River should not be designated as critical
habitat because the only factor affecting fish populations is being
propagated and enhanced by Texas Parks and Wildlife Department (TPWD).
Our Response: We do not know the full extent of specific impacts of
the smallmouth bass on the Devils River minnow, but initial research
results since the listing have not revealed that smallmouth bass are an
obvious source of predation on Devils River minnow. TPWD manages the
smallmouth bass fishery in the Devils River but no longer stocks the
fish in the Devils River or Amistad Reservoir. It is unknown if a
change in the management of this fishery would benefit the Devils River
minnow.
(20) Comment: Nonnative species, such as the smallmouth bass and
armored catfish, deserve to be protected even though they are not
native. They should be allowed to thrive for the benefit of the
American people, consistent with the Service's mission statement.
Our Response: In the preamble to the Act, Congress recognized that
endangered and threatened species of wildlife and plants ``are of
esthetic, ecological, educational, historical, recreational, and
scientific value to the Nation and its people.'' When humans introduce
species outside of their natural range, they often have unintended and
deleterious effects on native species. Nonnative species are one of the
primary threats to many native species, sometimes contributing to their
status as threatened or endangered. In these instances, we place a
higher value on the conservation of the native species and often try to
control the nonnative species to further the recovery of the listed
species. We believe this is consistent with the intent of the Act.
(21) Comment: Groundwater conservation districts override the
``Rule of Capture'' in groundwater law in Texas. Designating critical
habitat is a way for the Federal government to gain control over water
managed by State or local authorities.
Our Response: We recognize that groundwater districts are intended
to allow local management of groundwater in place of the rule of
capture. Designating critical habitat is not intended to supersede
surface or groundwater management by private, local, or State parties.
If a Federal agency proposes an action that they determine may affect
the Devils River minnow or its habitat (such as a change in stream flow
rates), they are required under section 7 of the Act to consult with
the Service. Since we are designating final critical habitat in areas
presently occupied by the fish, this requirement to consult would exist
even if we were not designating critical habitat.
(22) Comment: The proposed rule's concern for future groundwater
withdrawals is not based on well-researched and documented science on
the connection, if any, between groundwater withdrawals in Pinto Valley
and high quality water for the species in Pinto Creek. WaterTexas
intends to convert groundwater in Kinney County historically used for
agriculture to municipal use without increasing the overall amount of
water pumped. Therefore, the statement in the proposed critical habitat
rule that there are plans to significantly increase the amount of
groundwater pumped is inaccurate in regard to plans by WaterTexas.
Our Response: We did not attempt to connect any particular
groundwater pumping areas, such as Pinto Valley, to the potential for
impact of spring flows in Pinto Creek. Our concerns are consistent with
experts in the field, such as the statements from studies by Ashworth
and Stein (2005, p. 34): ``Base flows of the rivers and streams that
flow through Kinney and Val Verde Counties is [sic] principally
generated from the numerous springs that occur in the headwaters of
these surface drainages. Sustaining flow in these important rivers and
streams is highly dependent on maintaining an appropriate water level
in the aquifer systems that feed the supporting springs. Spring
discharge rates can be negatively impacted by nearby wells if the
pumping withdrawals lower the water table in the aquifer that
contributes to the spring. If the water-level elevation drops below the
elevation of the land surface at the point of spring discharge the
spring will cease to flow.''
The statement in this final critical habitat designation
characterizes the expected overall trends for groundwater pumping in
Kinney County (PWPG 2006, pp. 3-13, 4-54) and is not intended to be
specific to any particular groundwater development project.
(23) Comment: The purpose of the Kinney County Groundwater
Conservation District (KCGCD) Management Plan is to provide guidance to
the KCGCD on how to manage the groundwater on a sustainable basis and
yet beneficially use the groundwater without exploiting
[[Page 46992]]
or adversely affecting the natural flow of the intermittent streams.
Our Response: The KCGCD has recently drafted a revised management
plan including an estimate of future groundwater permits. Although the
plan was not approved until after the close of the public comment
period and therefore not considered in its entirety in this final rule,
we recognize that the KCGCD intends to manage groundwater on a
sustainable basis without adversely affecting natural stream flows. We
understand that KCGCD is still collecting scientific information on the
possible effects to stream flows of various permitting levels for the
aquifers in Kinney County. We look forward to the results of the
KCGCD's implementation of their management plan and we intend to work
cooperatively with the District to also collect information on the
relationship of stream flows and aquatic habitat for the Devils River
minnow, as called for in the recovery plan (Service 2005, p. 2.4-4).
(24) Comment: Current land-use activities authorized by the KCGCD
in the form of groundwater permitting will allow such an unwarranted
and unprecedented depletion of the groundwater resource that Pinto
Creek, the sole remaining critical habitat for the Devils River minnow
in Kinney County, will dry up--if not completely, then certainly to the
point of no longer being suitable for the minnow. Any activity that
would further threaten spring flows in Pinto Creek must not be allowed
if the loss of the minnow in that creek is to be avoided.
Our Response: We recognize this concern and we encourage the KCGCD
to carefully consider the impacts on Pinto Creek of future groundwater
use permitting. However, it is important to recognize that designation
of Pinto Creek, or the other areas, as critical habitat for the Devils
River minnow has no regulatory effect on non-Federal actions, such as
permitting by a local groundwater district.
(25) Comment: The KCGCD plans to permit total groundwater
withdrawals that exceed the amount of groundwater available according
to estimates by the Texas Water Development Board. The KCGCD does not
consider impacts to the Devils River minnow, and the KCGCD may have
already sanctioned withdrawals of sufficient amounts of groundwater to
result in direct harm to the proposed critical habitat in Pinto Creek.
Our Response: We understand there are important scientific
uncertainties about the amount of groundwater available for sustained
uses in Kinney County. We recognize that future increases in
groundwater pumping could impact habitats of the Devils River minnow,
and we encourage the KCGCD to consider habitat of the Devils River
minnow and to provide stream flow monitoring efforts to ensure
permitted pumping does not result in loss of stream habitat for Devils
River minnow. However, unless there is a Federal nexus with groundwater
pumping activities and a determination that a specific Federal action
may affect the Devils River minnow, the critical habitat designation
will not affect groundwater pumping.
(26) Comment: A limit on impervious cover within the watersheds of
the designated streams should be included in the section on Special
Management Considerations and Protections. Impervious cover amounts in
excess of 10 to 15 percent within a watershed are known to increase
storm runoff, which in turn causes the erosion of stream beds and the
degradation of water quality as surface pollutants contaminate and warm
the water in a stream.
Our Response: We concur that limiting impervious cover in urban
areas is one method to reduce future pollutant inputs to streams from
contributing watersheds. The final critical habitat designation does
not intend to provide this level of specificity for needed special
management actions. There may be other management that could result in
providing adequate water quality for the Devils River minnow in San
Felipe Creek. This level of land planning is best done by a local
governmental authority, such as a city or county.
(27) Comment: The proposed rule includes brush-clearing in a list
of activities that would significantly increase sediment deposition
within the stream channel. This statement, taken out of context, is
erroneous. Research has shown that brush control can lead to positive
environmental benefits, including increased groundwater recharge.
Our Response: The proposed rule indicated brush control and other
land-use activities could affect Devils River minnow habitat. We have
updated the final rule to more accurately reflect our understanding
that the actual effects of specific activities, such as brush clearing,
must be evaluated on a project-specific basis. The impacts of any
specific activity will depend on the location of the activity, and the
extent to, and manner in, which the activity is carried out.
We have also updated the final economic analysis to include a
Statewide section 7 consultation in 2004 that was completed with the
Natural Resources Conservation Service (NRCS) for brush control actions
funded under the 2002 Farm Bill. In that consultation, we found that,
under most circumstances, brush control within the range of the Devils
River minnow results in beneficial effects by increasing groundwater
recharge and spring flows, as emphasized by this comment.
(28) Comment: Land-use practices in the Devils River Unit have
changed little over the past 50 years and are predominantly agrarian
(agricultural) for livestock ranching and wildlife hunting. Stream flow
and quality are not currently influenced by other outside factors, such
as those from municipal, commercial, or industrial entities, but are
only subject to natural variations. The Nature Conservancy and the
State of Texas own large parcels of land along the river. Barring any
unforeseen events, it does not appear that land use in the region will
change significantly.
Our Response: We agree that land use has changed little in the
Devils River watershed in recent years, and current ranching and
wildlife hunting are not considered a threat to the Devils River minnow
or a concern for its habitat. However, we are concerned that the stream
habitat will be affected in the future by other outside factors. The
primary long-term potential threat of groundwater withdrawal is not
necessarily related to land use. Other land-use considerations include
the potential impacts to water quality from petroleum exploration and
development.
(29) Comment: One commenter stated that the Devils River minnow is
thriving, particularly in the Devils River, under the current voluntary
cooperation of private landowners, TPWD, and the Service. The species
does not now satisfy the definition for an endangered or even
threatened species under the Endangered Species Act (16 U.S.C. 1531 et
seq.). Another commenter thought our action to designate critical
habitat would lead to further action to declare it an endangered
species.
Our Response: We recognize the positive relationships that exist
between our agency, TPWD, and private landowners in working together
for the conservation of the Devils River minnow. We concur that various
monitoring efforts in the Devils River have continued to find the
population persisting, apparently in strong numbers. However, there is
no available information that suggests the species is ``thriving''
across its range. The Act requires designation of critical habitat
[[Page 46993]]
for species listed as either threatened or endangered, if we determine
critical habitat to be prudent and determinable.
As part of a process separate from designating critical habitat,
the Service is now conducting a 5-year review on the status of the
Devils River minnow rangewide to assess whether it is classified
correctly as a threatened species. We requested information to assist
with this review in a Federal Register notice on April 23, 2007 (72 FR
20134). We have not yet completed this review, and we are always open
to receiving new information on the status of this and all listed
species.
(30) Comment: The voluntary conservation agreement signed by the
Service and TPWD in 1998 is working, and the Devils River Association
renews our commitment to help with this agreement. Voluntary efforts on
the Devils River have increased Devils River minnow habitat. The
Service should continue this healthy voluntary cooperation. Designating
critical habitat would terribly and irreparably damage the trust that
we have gained over the last few years.
Our Response: We appreciate and strongly support the voluntary
cooperation that has been provided in the past by landowners along the
Devils River. The conservation of this species depends on the
cooperative efforts of private landowners and others. Although the 1998
conservation agreement has not been renewed or maintained as a formal
conservation effort following the initial 5-year commitment, it has
served as a foundation for cooperative efforts that, in part, resulted
in the designation of the Devils River minnow as threatened rather than
endangered. After conducting an analysis under section 4(b)(2) of the
Act, we concluded that the benefits of excluding the Devils River Unit
from the final designation (including maintaining non-Federal
partnerships) outweigh the benefits of inclusion (see ``Exclusions
under Section 4(b)(2)'' section).
(31) Comment: Private landowners and ranchers along the Devils
River serve to maintain wide open spaces and ecosystem processes.
Restrictions on private landowners from critical habitat designation
could affect landowners' livelihoods and result in land fragmentation
and a cascading effect along the Devils River. This could result in the
selling of smaller land parcels and cause the end of one of the most
pristine ecosystems in the State.
Our Response: We agree that maintaining large ranches intact is
likely a beneficial situation for the Devils River minnow habitat.
However, we do not foresee private landowner restrictions resulting
from the final designation of critical habitat and do not believe that
these concerns are likely to be realized. These widely held perceptions
by landowners in the Devils River Unit, however, could result in anti-
conservation incentives because furthering Devils River minnow
conservation is seen as a risk to future economic opportunities or loss
of private property rights. See our response to Comment 30 above.
(32) Comment: The restrictions on landowners in the Devils River
area will unduly burden landowners. Critical habitat will also impact
whether or not you can use machinery for pushing cedar, constructing
roads, clearing brush, grazing livestock excessively, and using off-
road vehicles.
Our Response: These activities are identified in the proposed and
final rules as actions that could affect critical habitat, if they were
carried out, funded, or permitted by a Federal agency and if they
resulted in specific effects to the critical habitat area. The final
critical habitat designation itself does not restrict landowners along
the Devils River or elsewhere from carrying out these activities. See
our response to Comment 27 for additional discussion of brush clearing.
(33) Comment: Will critical habitat designation affect: (1) The
right of the City of Del Rio to take water from San Felipe Springs or
other groundwater sources; (2) the right of private landowners to take
and use groundwater on their lands; (3) City, County, or State
construction projects involving building or maintaining streets,
highways, and other public facilities; (4) repair and maintenance
activities on State Highway 163 in Val Verde County or the county road
from State Highway 163 to F.M. 1024; (5) the rights of landowners to
use and operate their lands for otherwise lawful purposes? What
activities on non-Federal, public, or private lands will be affected by
critical habitat designation? What impact will critical habitat
designation have on Laughlin Air Force Base?
Response: Critical habitat only affects activities where Federal
agencies are involved and consultation under section 7 of the Act is
necessary. Critical habitat designation has no impact on private
actions on private lands. Critical habitat does not create a
requirement for specific land protection by non-Federal parties. The
Devils River minnow occurs in streams primarily on non-Federal lands
with little to no Federal agency involvement. Therefore, final critical
habitat designation is not expected to change most ongoing or planned
activities.
The legal protections of critical habitat only apply during
interagency consultation by Federal agencies under section 7 of the
Act. Activities that are funded, permitted, or carried out by a Federal
agency (such as a permit from the U.S. Army Corps of Engineers under
section 404 of the Clean Water Act) on private or public lands that may
affect a listed species or critical habitat undergo additional review
for consideration of the listed species. Through an interagency
consultation process, the Service advises Federal agencies whether the
proposed actions would likely jeopardize the continued existence of the
species or adversely modify its critical habitat. Results of these
additional reviews rarely interfere with the ability of private or
public entities to carry out otherwise lawful activities such as those
described in this comment.
We have only designated critical habitat in areas where the species
occurs. In these areas, Federal agencies already have a responsibility
for interagency consultation for actions that may affect the species. A
review of the consultation history as part of the economic analysis
(documented in Appendix A of the economic analysis) concluded that
there have been very few consultations since the species was listed in
1999. To date, there has been no interagency consultation with Laughlin
Air Force Base regarding the Devils River minnow.
(34) Comment: I am concerned that by designating the San Felipe
Creek as critical habitat, the people will suffer and not be able to
use the creek as the City of Del Rio would like. The Devils River
minnow should not dictate how the City of Del Rio uses San Felipe
Creek, but you should work to eradicate river cane and the armored
catfish to help the population of the fish grow.
Our Response: People in Del Rio will continue to be able to use San
Felipe Creek even though it has been designated as critical habitat.
The conservation of the Devils River minnow has not limited the use of
San Felipe Creek, and use is not likely to change with critical
habitat. We will continue our ongoing cooperative efforts with the City
of Del Rio to work on controlling exotic river cane and armored
catfish, and on other conservation efforts.
(35) Comment: There is suspicion that the Devils River minnow
population in Pinto Creek was artificially introduced by private
landowners and others at the headwaters of Pinto Creek.
[[Page 46994]]
Our Response: We have no information to indicate that the Devils
River minnow in Pinto Creek is not a natural population. The reason for
the recent discovery of Devils River minnow in Pinto Creek is because
there was no prior sampling in upstream areas where the species occurs
(Garrett et al. 2004, p. 439). In addition, recent genetic studies of
the Devils River minnow have found that the population in Pinto Creek
is significantly different from the population in the Devils River
(Conway et al. 2007, p. 9), suggesting that it is a natural population.
(36) Comment: Many listed species in Texas and nationally do not
have critical habitat designated. The Service has already had a final
ruling that stated it would not be prudent to designate critical
habitat for the Devils River minnow because it would not benefit the
species (final listing rule in 1999, 64 FR 56606). As stated in the
Service's July 26, 2005, letter to the Forest Guardians, critical
habitat is not needed for the Devils River minnow.
Our Response: We agree that designation of critical habitat is not
likely to provide many benefits for the Devils River minnow since the
designated area is likely to have few Federal actions that affect the
species. However, the Act requires that we designate critical habitat
following a specific methodology. The lawsuit brought by Forest
Guardians (now WildEarth Guardians) and others necessitated that we
reconsider the designation of critical habitat, resulting in this final
rule. The reasoning that we used in 1999 to determine that the
designation of critical habitat was not prudent was subsequently
determined in other court cases not to be a valid justification.
(37) Comment: All areas included in the proposed rule should be
designated as critical habitat. The adequacy of existing or future
conservation plans is not sufficient to warrant any exclusions of
critical habitat.
Our Response: We are excluding the Devils River Unit and Sycamore
and Las Moras creeks from the critical habitat designation for Devils
River minnow. After conducting analyses under section 4(b)(2) of the
Act, we concluded that the benefits of excluding the Devils River Unit
and Sycamore and Las Moras creeks from the final designation (including
maintaining non-Federal partnerships) outweigh the benefits of
inclusion (see ``Exclusions under Section 4(b)(2)'' section).
(38) Comment: Las Moras Creek is not the place to reintroduce
Devils River minnow. Flooding in the city of Brackettville often causes
pollution in the creek. The KCGCD does not have the scientific evidence
to assure that Las Moras Creek will not go dry if groundwater is
transported to San Antonio.
Our Response: We are not proposing to reintroduce Devils River
minnow to Las Moras Creek with this final critical habitat rule.
Instead we are designating critical habitat for the species in portions
of Pinto Creek and San Felipe Creek. We have determined not to
designate Las Moras Creek as critical habitat. The concerns raised in
this comment will need to be addressed in future cooperative plans to
restore the Devils River minnow to Las Moras Creek.
Comments Related to the Economic Analysis
(39) Comment: The draft economic analysis (DEA) maintains that
section 7 consultations under the jeopardy standard and the adverse
modification standard are not likely to have significantly different
outcomes. This is not accurate, as the jeopardy standard does not
protect unoccupied habitat. Moreover, destruction of occupied habitat
may not meet the jeopardy standard if the Service determines that the
destruction of a single population will not cause the species to go
extinct or thwart its recovery. Alternatively, within critical habitat,
the destruction of a single population or a portion thereof would
certainly violate the Act's prohibition of adverse modification.
Our Response: It is true that it would be inappropriate to conclude
that consultations under the jeopardy and adverse modification
standards would not differ for unoccupied critical habitat; however, we
have not included unoccupied areas in this final critical habitat
designation (see ``Criteria Used to Identify Critical Habitat'' section
below). Additionally, we recognize that the jeopardy and adverse
modification standards are not equivalent and that it is possible in a
general sense that a project may be determined to adversely modify
critical habitat while also not resulting in jeopardy. However, the
specific situation for the Devils River minnow does not present this
case. For two of the units, no projects with a Federal nexus are
anticipated, and for the third unit, the projects expected would
generally be minor and not expected to affect an entire unit.
Therefore, projects in the third unit would not likely result in
adverse modification or jeopardy. Based on discussions among
stakeholders, affected Federal agencies, and the Service, no new
conservation measures are expected to occur as a result of
consultations in areas designated as critical habitat for the Devils
River minnow. Rather, current and forecast conservation measures for
the species are a result of the listing of the Devils River minnow as a
threatened species. The additional cost of consulting for adverse
modification above the cost of consulting for jeopardy, in the amount
of $64,000 (undiscounted) over 20 years, are quantified as incremental
post-designation impacts in the administrative costs appendix of the
economic analysis.
(40) Comment: The critical habitat proposal and the DEA fail to
fully address the threat of climate change to the Devils River minnow,
despite the fact that its southwestern aquatic habitat is in extreme
peril from the climate crisis.
Our Response: At this time, climate change has not been identified
as an impact needing special management in the Devils River minnow
critical habitat, as projections of specific impacts of climate change
in this area are not currently available. As such, no conservation
measures are expected in the reasonably foreseeable future that would
directly address the threat of climate change to the Devils River
minnow. Thus, the economic analysis does not quantify impacts
associated with conservation measures for the Devils River minnow
related to global climate change.
(41) Comment: The potential impacts of future groundwater
development for municipal use should not be ignored in the economic
analysis. With the potential groundwater yields that could be produced
for municipal use, it is recommended that the parameters used in
performing the economic analysis be reexamined and revised to reflect
the potential future impacts of pumping for municipal use. If these
factors are ignored, it is conceivable that future limitations could
impose unreasonable restrictions on groundwater development in the
region, in turn resulting in significant economic impacts.
Our Response: Section 3.2 of the final economic analysis (FEA)
recognizes that any limitations on available future groundwater
resource options for San Antonio or other municipalities wishing to
export water from the critical habitat area would result in potentially
substantial economic impacts on municipal users, presumably in terms of
increased water prices occurring if supply is constrained, or as more
costly options for water development are undertaken. However, due to
the uncertainties with regard to linking specific groundwater
withdrawals to
[[Page 46995]]
impacts on Devils River minnow habitat, future Federal involvement in
potential water extraction projects, and any potential changes to those
projects that could be requested by the Service as part of a
consultation, the FEA is unable to quantify potential economic impacts
of Devils River minnow conservation measures related to such
groundwater extraction activities. The analysis does recognize that
potential negative impacts on both the water suppliers and the end
water users could occur should restrictions on water use be undertaken
on behalf of the Devils River minnow. The analysis also points out that
there have not been any consultations related to groundwater extraction
and its effects on the Devils River minnow to date.
(42) Comment: In Section 3.1 of the DEA, the quotation attributed
to the document, ``Texas Water Law,'' Texas Water Resource Education,
Texas A&M University, is not completely accurate with respect to Texas
Law. While the so-called ``Rule of Capture'' continues to be the
underlying basis of groundwater law in Texas, groundwater districts,
and now, more importantly, Groundwater Management Areas (GMAs) play a
major and superseding role in groundwater planning and management. In
particular, House Bill 1763 from the 79th Regular Session of the Texas
Legislature created GMAs that now cover all of Texas, and together with
groundwater districts, GMAs override in many respects the effects of
the ``Rule of Capture'' as known and practiced in the past.
Our Response: Section 3.1 of the FEA has been revised following
receipt of this comment. This section now states the following:
``Generally, groundwater in Texas is governed by the `rule of capture,'
that is, groundwater is the private property of the owner of the
overlying land. However, a number of state-mandated groundwater
conservation districts (GCDs) have the ability to regulate the spacing
and production of groundwater wells. Each GCD falls within a larger
Groundwater Management Area (GMA). Currently, 16 GMAs exist in Texas
spanning the state's major and minor aquifers. In 2005, the Texas State
Legislature required that all GCDs in a given GMA meet annually to
determine a future desired groundwater condition for their respective
GMA. Based on the desired future condition specified by a given GMA,
the Texas Water Development Board (TWDB) determines a managed available
groundwater level for the GMA. Lands outside of GCDs are not subject to
groundwater pumping regulations unless a landowner seeks state funding
for a groundwater project. In this case, the specific project must be
included in the GMA's regional water plan. The total groundwater
allotments permitted by the GMA must not exceed its managed available
groundwater level.''
(43) Comment: WaterTexas' ongoing water exportation project is too
preliminary to know for certain whether consultation with the Federal
government above and beyond the U.S. Army Corps of Engineers (for
Section 404 permits under the Clean Water Act) will be necessary. With
respect to WaterTexas' planned water exportation project, WaterTexas
does not see the KCGCD's management plan revision currently underway as
any sort of barrier to the commencement or further development of their
current project.
Our Response: Section 3.2 of the FEA has now been clarified to
state that the WaterTexas project is too preliminary to know for
certain whether or not consultation with the Federal government, other
than the U.S. Army Corps of Engineers for a section 404 permit, will be
necessary. A statement has also been added to the FEA clarifying that
``currently, WaterTexas does not expect the forthcoming KCGCD
management plan to affect their ongoing groundwater exportation
project.''
(44) Comment: In section 3.2 paragraph 86, the DEA states that
``supplementing San Antonio's water supply would, among other things,
ease water-related threats to other listed species within the Edwards
Aquifer.'' WaterTexas wishes to correct any perception that they
believe their planned water exportation project will assist in directly
reviving or rescuing any endangered species in any other area of Texas.
Our Response: Section 3.2 of the FEA has been revised to clarify
that one water company believes that its project may help to ease
water-related threats to other species in the Edwards Aquifer. The
section now states: ``Grass Valley Water LP is proposing to export
22,000 acre-feet annually to San Antonio from a 22,000-acre ranch in
eastern Kinney County. The project would draw water from the Edwards
Balcones Fault Zone, which according to the company, does not affect
Las Moras Springs. Grass Valley Water LP has already invested a
significant amount of resources into the project and believes that
supplementing San Antonio's water supply could, among other positive
effects, ease water-related threats to other listed species within the
Edwards Aquifer.''
(45) Comment: Voluntary conservation plans, such as the City of Del
Rio's Management Plan for San Felipe Creek and the San Felipe Country
Club Management Plan, should not be included in the economic baseline
calculation in the EA. Due to the voluntary nature of these plans, the
water quality protection measures described are not guaranteed to
occur. As such, these voluntary measures might lower the perceived
benefit to designating critical habitat by guaranteeing conservation,
which, in reality, may or may not occur.
Our Response: The FEA examines the impacts of restricting or
modifying specific land uses or activities for the benefit of the
species and its habitat within the areas considered for critical
habitat designation. The analysis employs ``without critical habitat''
and ``with critical habitat'' scenarios. The ``without critical
habitat'' scenario represents the baseline for the analysis,
considering protections already accorded the Devils River minnow,
voluntary or otherwise. The City of Del Rio's Management Plan for San
Felipe Creek and the San Felipe Country Club Management Plan were both
developed in 2003 following a Conservation Agreement for the Devils
River minnow between the Service, TPWD, and the City of Del Rio in
1998, prior to the species' listing. Thus, the costs of developing
these plans, and those conservation measures listed in the management
plans that have already occurred or are planned to occur in the near
future are included in the baseline. Impacts related to conservation
measures discussed in the management plans that are not anticipated to
occur in the foreseeable future are not quantified in the analysis.
(46) Comment: The DEA failed to consider the entirety of potential
effects of all Federal nexuses and ensuing regulatory actions on small
businesses, in particular, private landowners and ranchers along the
Devils River Unit. Pursuant to the 2002 Farm Bill, there are at least
two NRCS programs that provide assistance to landowners to control
brush. The proposed rule lists brush-clearing as an ``action that would
significantly increase sediment deposition within the stream channel.''
Potential brush-clearing consultations may delay actual brush-clearing
to a point where landowners may miss the opportunity to carry out
planned brush control activities for an entire year.
Our Response: Section 2 of the FEA now clarifies that threats to
water quality in Devils River minnow critical habitat may include
sedimentation due to grazing, brush-clearing, road construction,
channel alteration, off-road vehicle use, and other watershed
activities in the rural Devils River,
[[Page 46996]]
Sycamore Creek, and Pinto Creek units. Section 2 of the FEA also
includes a discussion of the concern that private brush-clearing
activities conducted using funds from NRCS could be delayed to a point
where landowners may miss the opportunity to carry out those activities
for an entire year. The analysis examines a 2004 formal consultation
between the Service and the NRCS regarding activities associated with
implementation of the 2002 Farm Bill conservation programs and their
effects on listed species in western Texas. This consultation, which
focused on brush management treatment practices targeting control of
honey mesquite (Prosopis glandulosa), salt cedar, Ashe juniper
(Juniperus ashei), and redberry juniper (J. coahuilensis) concluded
that the proposed brush-clearing activities would benefit the Devils
River minnow by increasing the base flow of the Devils River if the
brush-control activities were part of brush management practices
intended to improve the quality and quantity of water, improve range
conditions, and improve the value of wildlife habitat. Thus, all brush
removal activities receiving funding from the NRCS under the 2002 Farm
Bill remained unaltered as a result of that consultation. The analysis
concludes that few, if any, impacts on brush-clearing activities, even
when supported by NRCS funds, appear likely to result from Devils River
minnow conservation activities.
(47) Comment: Several commenters requested that stigma effects be
addressed in the economic analysis. One commenter stated that he
believes this effect could significantly decrease and lower the land
value of the land along the Devils River. The number could be anywhere
from 2 to 10 million dollars of land devaluation impacts.
Our Response: Section 1.3.2 of the FEA has been revised and
expanded to respond to concerns over stigma effects related to the
designation. The analysis recognizes that, in some cases, public
perception of critical habitat designation may result in limitations of
private property uses above and beyond those associated with
anticipated project modifications and uncertainty related to regulatory
actions. Public attitudes regarding the limits or restrictions of
critical habitat can cause real economic effects to property owners,
regardless of whether such limits are actually imposed. To the extent
that potential stigma effects on real estate markets are probable and
identifiable, these impacts are considered indirect, incremental
impacts of the designation.
The FEA finds that, in the case of the Devils River minnow critical
habitat areas, it appears unlikely that critical habitat designation
for the Devils River minnow will result in long-term stigma effects for
property owners abutting designated stream segments. Unless a landowner
receives Federal assistance or needs a Federal permit to carry out
property management actions, no nexus exists that would compel a
Federal action agency to consider requiring conservation measures for
the species. For ongoing private land-use activities, such a nexus is
expected to be rare. Further, recent land-use trends in critical
habitat areas are a transition from ranching and agricultural uses to
recreation and conservation-based land uses. In these cases, any
perceptions that development activities may be limited in those areas
could in fact increase the attractiveness of property in those areas.
In either case, as the public becomes aware of the true regulatory
burden imposed by critical habitat, any impact of the designation on
property values would be expected to decrease.
(48) Comment: The economic analysis states that it measures net
economic costs, but it does not quantify benefits. Therefore, the
Service cannot estimate the ``net'' impacts of critical habitat.
Consequently, they cannot appropriately invoke section 4(b)(2) of the
Act to exclude areas from its final critical habitat designation for
the Devils River minnow. The commenter also states that benefits
derived from conservation measures such as improving water quality,
eliminating non-native species, and preserving/maintaining ecosystem
services also benefit human communities and have been captured in
economic literature and should be considered in the DEA. The commenter
notes that the costs of these conservation measures are attributed to
baseline protections.
Our Response: Where sufficient information is available, the FEA
attempts to recognize and measure the net economic costs of species
conservation efforts imposed on regulated entities and the regional
economy as a result of critical habitat designation. That is, it
attempts to measure costs imposed on landowners or other users of the
resource net of any offsetting gains experienced by these individuals
associated with these conservation efforts.
The analysis does not attempt to assign a monetary value to broader
social benefits that may result from species conservation. The primary
purpose of the rulemaking is the potential to enhance conservation of
the species. As stated in the FEA, and as quoted in the comment,
``rather than rely on economic measures, the Service believes that the
direct benefits of the Proposed Rule are best expressed in biological
terms that can be weighed against the expected cost impacts of the
rulemaking.'' Thus, the Service utilizes cost estimates from the
economic analysis as one factor against which biological benefits are
compared during the 4(b)(2) weighing process. The Service agrees that,
to the extent that additional social benefits such as improving water
quality, eliminating non-native species, and preserving/maintaining
ecosystem services result from conservation measures for the Devils
River minnow, these improvements could also benefit human communities.
In this case, the DEA predicts that the incremental costs resulting
from the proposed rule are solely administrative in nature. As the
commenter points out, no new conservation measures are anticipated to
result from the designation.
Summary of Changes From the Proposed Rule
In preparing the final critical habitat designation for the Devils
River minnow, we reviewed and considered comments from the public and
peer reviewers on the July 31, 2007, proposed designation of critical
habitat (72 FR 41679) and on the draft economic analysis, made
available on February 7, 2008 (73 FR 7237). As a result of comments
received, we made the following changes to our proposed designation:
(1) We updated the Required Determinations sections to incorporate
updated analyses from the FEA.
(2) We have excluded 47.0 stream km (29.2 stream mi) of stream
within the Devils River Unit (Unit 1) proposed as critical habitat for
Devils River minnow from the final designation (see the ``Exclusions
under Section 4(b)(2) of the Act'' section of this final rule for
further details).
(3) We determined, based upon the comments received and consistent
with the recovery plan, that Sycamore and Las Moras creeks are
essential to the conservation of the Devils River minnow. We are
excluding these areas from critical habitat (see the ``Exclusions under
Section 4(b)(2) of the Act'' section of this final rule for further
details).
Critical Habitat
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by a
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
[[Page 46997]]
(a) Essential to the conservation of the species and
(b) Which may require special management consideration or
protections; and
(2) Specific areas outside the geographical area occupied by a
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means the use
of all methods and procedures that are necessary to bring any
endangered or threatened species to the point at which the measures
provided under the Act are no longer necessary.
Critical habitat receives protection under section 7 of the Act
through the prohibition against Federal agencies carrying out, funding,
or authorizing the destruction or adverse modification of critical
habitat. Section 7(a)(2) of the Act requires consultation on Federal
actions that may affect critical habitat. The designation of critical
habitat does not affect land ownership or establish a refuge,
wilderness, reserve, preserve, or other conservation area. Such
designation does not allow the government or public to access private
lands. Such designation does not require implementation of restoration,
recovery, or enhancement measures by private landowners. Where a
landowner requests Federal agency funding or authorization for an
action that may affect a listed species or critical habitat, the
consultation requirements of section 7(a)(2) would apply, but even in
the event of a destruction or adverse modification finding, the
landowner's obligation is not to restore or recover the species, but to
implement reasonable and prudent alternatives to avoid destruction or
adverse modification of critical habitat.
For inclusion in a critical habitat designation, the habitat within
the geographical area occupied by the species at the time of listing
must contain the physical and biological features essential to the
conservation of the species. Critical habitat designations identify, to
the extent known using the best scientific data available, habitat
areas that provide essential life cycle needs of the species (i.e.,
areas on which are found the primary constituent elements (PCEs) laid
out in the appropriate quantity and spatial arrangement for the
conservation of the species).
Occupied habitat that contains the features essential to the
conservation of the species meets the definition of critical habitat
only if those features may require special management considerations or
protection.
Under the Act, we can designate critical habitat in areas outside
the geographical area occupied by the species at the time it is listed
only when we determine that the best available scientific data
demonstrate that the designation of that area is essential to the
conservation needs of the species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific and commercial data available.
Further, our Policy on Information Standards Under the Endangered
Species Act (published in the Federal Register on July 1, 1994 (59 FR
34271)), the Information Quality Act (section 515 of the Treasury and
General Government Appropriations Act for Fiscal Year 2001 (Pub. L.
106-554; H.R. 5658)), and our associated Information Quality Guidelines
provide criteria, establish procedures, and provide guidance to ensure
that our decisions are based on the best scientific data available.
They require our biologists, to the extent consistent with the Act and
with the use of the best scientific data available, to use primary and
original sources of information as the basis for recommendations to
designate critical habitat.
When determining which areas should be designated as critical
habitat, our primary source of information is generally the information
developed during the listing process for the species. Additional
information sources may include the recovery plan for the species,
articles in peer-reviewed journals, conservation plans developed by
States and counties, scientific status surveys and studies, biological
assessments, or other unpublished materials and expert opinion or
personal knowledge.
Habitat is often dynamic, and species may move from one area to
another over time. Furthermore, we recognize that designation of
critical habitat may not include all of the habitat areas that we may
eventually determine, based on scientific data not now available to the
Service, are necessary for the recovery of the species. For these
reasons, a critical habitat designation does not signal that habitat
outside the designated area is unimportant or may not promote the
recovery of the species.
Areas that support populations, but are outside the critical
habitat designation, will continue to be subject to conservation
actions we implement under section 7(a)(1) of the Act. They are also
subject to the regulatory protections afforded by the section 7(a)(2)
jeopardy standard, as determined on the basis of the best available
scientific information at the time of the agency action. Federally
funded or permitted projects affecting listed species outside their
designated critical habitat areas may require consultation under
section 7 of the Act and may still result in jeopardy findings in some
cases. Similarly, critical habitat designations made on the basis of
the best available information at the time of designation will not
control the direction and substance of future recovery plans, habitat
conservation plans (HCPs), or other species conservation planning
efforts if information available at the time of these planning efforts
calls for a different outcome.
Primary Constituent Elements
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12, in determining which areas occupied by the species at
the time of listing to designate as critical habitat, we consider those
physical and biological features essential to the conservation of the
species that may require special management considerations or
protection. We consider the physical or biological features to be the
PCEs laid out in the appropriate quantity and spatial arrangement for
the conservation of the species. The PCEs include, but are not limited
to:
(1) Space for individual and population growth and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, and rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historic, geographical, and ecological
distributions of a species.
We derive the specific primary constituent elements required by the
Devils River minnow from the biological needs of the species as
understood from studies of its biology and ecology, including but not
limited to, Edwards et al. (2004), Garrett et al. (1992), Garrett et
al. (2004), Gibson et al. (2004), Harrell (1978), Hubbs (2001), Hubbs
and Garrett (1990), Lopez-Fernandez and Winemiller (2005), Valdes Cantu
and Winemiller (1997), and Winemiller (2003).
Space for Individual and Population Growth, Normal Behavior, and Cover
The Devils River minnow is a fish that occurs only in aquatic
environments of small to mid-sized streams that are
[[Page 46998]]
tributaries of the Rio Grande in south Texas and northern Mexico. The
species spends its full life cycle within streams. The stream
environment provides all of the space necessary to allow for individual
and population growth, food, cover, and normal behaviors of the
species. Studies of the specific micro-habitats used by any life stages
of Devils River minnow in the wild have not been conducted. Studies of
fish habitat within its range have found too few individuals of Devils
River minnow to analyze specific habitat associations (Garrett et al.
1992, p. 266; Valdes Cantu and Winemiller 1997, p. 268; Robertson and
Winemiller 2003, p. 119). However, observational studies have been
conducted throughout its limited range that generally defined stream
conditions where Devils River minnows have been collected.
General habitat descriptions of areas where Devils River minnow
have been found include the following: ``the area where spring runs
enter the river'' (Hubbs and Garrett 1990, p. 448); ``channels of fast-
flowing water over gravel bottoms'' (Garrett et al. 1992, p. 259);
``associated with water willow (Justicia americana) and other aquatic
macrophytes over a gravel-cobble substrate'' (Garrett et al. 2004, p.
437) (macrophytes are plants large enough to be seen without a
microscope); and ``stream seeps'' at sites that ``had abundant riparian
vegetation overhanging the banks'' (Lopez-Fernandez and Winemiller
2005, p. 249). Stream seeps are specific sites along the stream where
small amounts of water enter the stream from the ground. They are small
springs, but may be less defined and more temporal. We based our
determinations of the PCEs on the physical and biological features that
have been measured in streams where Devils River minnow occur.
a. Water Depth and Velocity. Flowing water within streams is
critical to provide living space for the Devils River minnow. All of
the streams where the Devils River minnow is found are supported by
springs that derive their discharge from underground aquifers, either
the Edwards Aquifer or the Edwards-Trinity Aquifer (Brune 1981, pp.
274-277, 449-456; Edwards et al. 2004, p. 256; Garrett et al. 1992, p.
261; Garrett et al. 2004, p. 439; Hubbs and Garrett 1990, p. 448;
Lopez-Fernandez and Winemiller 2005, p. 249). The Devils River minnow
has been associated within the stream channel with areas with slow to
moderate velocities between 10 and 40 centimeters (cm)/second (4 and 16
inches (in)/second) (Winemiller 2003, p. 13). The Devils River minnow
is usually found in areas with shallow to moderate water depths between
about 10 cm (4 in) and 1.5 meters (m) (4.9 feet (ft)) (Garrett et al.
2004, p. 436). Appropriate water depths and velocities are required
physical features for Devils River minnows to complete all life history
functions.
b. Cover. The presence of vegetative structure appears to be
particularly important for the Devils River minnow. Garrett et al.
(2004, p. 437) states that the species is most often found associated
with emergent or submerged vegetation. Although some sites where Lopez-
Fernandez and Winemiller (2005, p. 249) found Devils River minnow had
little or no aquatic vegetation, they often found the Devils River
minnow associated with stream banks having riparian vegetation that
overhangs into the water column, presumably providing similar structure
for the fish to use as cover. The structure provided by vegetation
likely serves as cover for predator avoidance by the Devils River
minnow and as a source of food where algae and other microorganisms may
be attached. In controlled experiments in an artificial stream setting,
minnows in the Dionda genus (the experiment did not distinguish between
the Devils River minnow and the closely related manantial roundnose
minnow) were found consistently associated with plants, and, in the
presence of a predator, sought shelter in plant substrate habitat
(Thomas 2001, p. 8). Also, laboratory observations by Gibson et al.
(2004, p. 42) suggested that spawning only occurred when structure was
provided in aquaria. Instream vegetative structure is an important
biological feature for the Devils River minnow to avoid predation and
complete other normal behaviors, such as feeding and spawning.
c. Substrates. The Devils River minnow is most often associated
with substrates (stream bottom) described as gravel and cobble (Garrett
et al. 2004, p. 436). Lopez-Fernandez and Winemiller (2005, p. 248)
found the Devils River minnow associated with areas where the amounts
of fine sediment on stream bottoms were low (less than 65 percent
stream bottom coverage) (Winemiller 2003, p. 13) and where there was
low or moderate amounts of substrate embeddedness. The term
embeddedness is defined by Sylte and Fischenich (2003, p. 1) as the
degree to which fine sediments surround coarse substrates on the
surface of a streambed. Low levels of substrate embeddedness and low
amounts of fine sediment are physical stream features that provide
interstitial spaces within cobble and gravel substrates where
microorganisms grow. These microorganisms are a component of the diet
of the Devils River minnow (Lopez-Fernandez and Winemiller 2005, p.
250). We estimate substrate sizes for gravel-cobble between 2 and 10 cm
(0.8 and 4 in) in diameter (Cummins 1962, p. 495) are important for
supporting food sources for the Devils River minnow.
d. Stream Channel. The Devils River minnow occurs in the waters of
stream channels that flow out of the Edwards Plateau of Texas. The
streams contain a variety of mesohabitats for fish that are temporally
and spatially dynamic (Harrell 1978, p. 60-61; Robertson and Winemiller
2003, p. 115). Mesohabitat types are stream conditions with different
combinations of depth, velocity, and substrate, such as pools (stream
reaches with low velocity and deep water), riffles (stream reaches with
moderate velocity and shallow depths and some turbulence due to high
gradient), runs (stream reaches with moderate depths, moderate
velocities, and a uniformly flat stream bottom), and backwaters (areas
in streams with little or no velocities along stream margins)
(Parasiewicz 2001, p. 7). These physical conditions in stream channels
are mainly formed by large flood events that shape the banks and alter
stream beds. Healthy stream ecosystems require intact natural stream
banks (including rocks and native vegetation) and stream beds
(dynamically fluctuating from silt, sand, gravel, cobble, and bedrock).
These physical features allow natural ecological processes in stream
ecosystems, such as nutrient cycling, aquatic species reproduction and
rearing of young, predator-prey interactions, and maintenance of
habitat for Devils River minnow behaviors of feeding, breeding, and
seeking shelter.
Devils River minnow may move up and downstream to use diverse
mesohabitats during different seasons and life stages, which could
partially explain the highly variable sampling results assessing
abundance of the fish (Garrett et al. 2002, p. 478). However, it is
unknown to what extent Devils River minnow may move within occupied
stream segments because no research on movement has been conducted.
Linear movement (upstream or downstream) within streams may be
important to allow fishes to complete life history functions and adjust
to resource abundance, but this linear movement may often be
underestimated due to limited biological studies (Fausch et al. 2002,
p. 490). The Devils River minnow occurs in relatively short stream
segments and, therefore, needs to be able to move within the stream
unimpeded to access different areas
[[Page 46999]]
within the stream to complete life history functions and find
resources, such as food and cover.
Food
The Devils River minnow, like other minnows in the Dionda genus,
has a long coiled gut for digesting algae and other plant material.
Lopez-Fernandez and Winemiller (2005, p. 250) noted that Devils River
minnows graze on algae attached to stream substrates (such as gravel,
rocks, submerged plants, and woody debris) and associated
microorganisms. Thomas (2001, p. 13) observed minnows in the Dionda
genus (the experiment did not distinguish between Devils River minnow
and the closely related manantial roundnose minnow) feeding extensively
on filamentous algae growing on plants and rocks in an artificial
stream experiment. The specific components of the Devils River minnow
diet have not been investigated, but a study is underway to identify
stomach contents of the Devils River minnow in San Felipe Creek (TPWD
2006, p. 1). An abundant aquatic food base of algae and other aquatic
microorganisms attached to stream substrates is an essential biological
feature for conservation of Devils River minnow.
Water Quality
The Devils River minnow occurs in spring-fed streams originating
from groundwater. The aquifers that support these streams are of high
quality and are free of pollution and most human-caused impacts
(Plateau Water Planning Group (PWPG) 2006, pp. 5-9). This region of
Texas has limited human development that would compromise water quality
of the streams where Devils River minnows occur. San Felipe Creek may
be an exception; see ``Special Management Considerations or
Protection'' below. The watersheds are largely rural and were altered
in the past to some extent by livestock grazing (cattle, sheep, and
goats) for many decades (Brune 1981, p. 449), which may have caused
some degradation in water quality. In recent years, land management has
shifted away from sheep and goat grazing toward cattle grazing and
recreational uses, such as hunting, that can promote maintenance of
healthier grasslands (McCormick 2008, p. 33).
No specific studies have been conducted to determine water quality
preferences or tolerances for Devils River minnow. However, because the
species now occurs in only three streams, observations of water quality
conditions in these streams are used to evaluate the needed water
quality parameters for critical habitat. In addition, laboratory
studies by Gibson et al. (2004, pp. 44-46) and Gibson and Fries (2005,
pp. 299-203) have also provided useful information for the water
quality conditions in captivity for Devils River minnow, as described
in the following discussion.
a. Water temperature. Water temperatures from groundwater discharge
at these springs are considered constant (Hubbs 2001, p. 324). However,
water temperatures downstream from springs vary daily and seasonally
(Hubbs 2001, p. 324). Water temperatures have been measured in these
stream segments where Devils River minnow are found to range from about
17 [deg]C (degrees Celsius) to 29 [deg]C (63 [deg]F (degrees
Fahrenheit) to 84 [deg]F). Temperatures in the Devils River ranged from
17 [deg]C to 27 [deg]C (63 [deg]F to 81 [deg]F) (Lopez-Fernandez and
Winemiller 2005, p. 248; Hubbs 2001, p. 312). Measurements in San
Felipe Creek have ranged from 19 [deg]C to 24 [deg]C (66 [deg]F to 75
[deg]F) (Hubbs 2001, p. 311; Winemiller 2003, p. 13). Gibson and Fries
(2005, p. 296) had successful spawning by Devils River minnow in
laboratory settings at temperatures from about 18 [deg]C to 24 [deg]C
(64 [deg]F to 75 [deg]F). Higher water temperatures are rare in Devils
River minnow habitat, but temperatures up to 29 [deg]C (84 [deg]F) were
recorded in Pinto Creek (Garrett et al. 2004, p. 437). Pinto Creek
generally has the lowest seasonal discharge rates (in other words,
lower flows) of the streams known to contain the Devils River minnow,
resulting in higher seasonal temperatures. Lower discharges during the
summer can result in areas of shallow water with high levels of solar
heat input leading to high water temperatures. Maintaining water
temperatures within an acceptable range in small streams is an
essential physical feature for the Devils River minnow to allow for
survival and reproduction. Maintaining water temperatures within these
ranges is interdependent on maintaining adequate spring flows to
streams from groundwater aquifers, which generally discharge stable
cooler water (Mathews 2007, p. 2).
b. Water chemistry. Researchers have noted the need for high-
quality water in habitats supporting the Devils River minnow (Garrett
2003, p. 155). Field studies at sites where Devils River minnow have
been collected in conjunction with water quality measurements have
documented that habitats contain the following water chemistry:
dissolved oxygen levels are greater than 5.0 mg/l (milligrams per
liter) (Hubbs 2001, p. 312; Winemiller 2003, p. 13; Gibson et al. 2004,
p. 44); pH ranges between 7.0 and 8.2 (Garrett et al. 2004, p. 440;
Hubbs 2001, p. 312; Winemiller 2003, p. 13); conductivity is less than
0.7 mS/cm (microseimens per centimeter) and salinity is less than 1 ppt
(part per thousand) (Hubbs 2001, p. 312; Winemiller 2003, p. 13;
Garrett et al. 2004, p. 440; Gibson et al. 2004, p. 45); and ammonia
levels are less than 0.4 mg/l (Hubbs 2001, p. 312; Garrett et al. 2004,
p. 440). Streams with water chemistry within the observed ranges are
essential physical features to provide habitat for normal behaviors of
Devils River minnow.
Garrett et al. (2004, pp. 439-440) highlighted the conservation
implications of water quality when describing the distribution of
Devils River minnow in Pinto Creek. The species is abundant in upstream
portions of the creek and is abruptly absent at and downstream from the
Highway 90 Bridge crossing. A different aquifer (Austin Chalk) feeds
the lower portion of the creek (Ashworth and Stein 2005, p. 19), which
results in changes in water quality (different measurements of water
temperature, pH, ammonia, and salinity). Garrett et al. (2004, p. 439)
found that the change in water quality also coincided with the
occurrence of different fish species that were more tolerant of these
changes in water quality parameters.
c. Pollution. The Devils River minnow occurs only in habitats that
are generally free of human-caused pollution. Garrett et al. (1992, pp.
266-267) suspected that the addition of chlorine to Las Moras Creek for
the maintenance of a recreational swimming pool may have played a role
in the extirpation of Devils River minnow from that system. Unnatural
addition of pollutants such as chlorine, copper, arsenic, mercury, and
cadmium; human and animal waste products; pesticides; suspended
sediments; and petroleum compounds and gasoline or diesel fuels will
alter habitat functions and threaten the continued existence of Devils
River minnow. Fish, particularly herbivores and bottom-feeders, such as
the Devils River minnow, are most likely affected by aquatic pollutants
because their food source (algae and other macroinvertebrates) can be
particularly susceptible to pollutant impacts (Buzan 1997, p. 4).
Because Devils River minnow occurs in spring-fed waters that are
generally free of sedimentation, protection from increased turbidity
from suspended sediments or increased sedimentation from runoff are
important to maintain suitable habitat (Robertson 2007, pp. 2-3). Areas
with waters free of pollution are essential physical features to allow
normal behaviors and growth of the Devils River minnow and
[[Page 47000]]
to maintain healthy populations of its food sources.
Sites for Breeding, Reproduction, and Rearing of Offspring
The specific sites and habitat associated with Devils River minnow
breeding and reproduction have not been documented in the wild.
However, Gibson et al. (2004) studied preferred conditions for spawning
by Devils River minnow in a laboratory setting. Gibson et al. (2004,
pp. 45-46) documented that the species is a broadcast spawner (they
release eggs and sperm into the open water), over unprepared substrates
(they don't build nests), and males display some territorial behavior.
Broadcast spawning is the most common reproductive method in minnows
(Johnston 1999, p. 22; Johnston and Page 1992, p. 604). Fertilized eggs
of Devils River minnow were slightly adhesive (or became more adhesive
with time) and tended to stick to gravels just below the surface of the
substrate (Gibson et al. 2004, p. 46). The eggs can hatch less than one
week after deposition (Gibson 2007, p. 1). There was little seasonality
in spawning periods observed (Gibson et al. 2004, p. 45-46), which is
consistent with a species that lives in a relatively stable temperature
environment, such as spring-fed streams with low seasonal temperature
variations. Based on this information, it is likely the species can
spawn during most of the year. This is supported by Garrett et al.
(2004, p. 437), who observed distinct breeding coloration of Devils
River minnow (blue sheen on the head and yellow tint on body) in Pinto
Creek in December 2001, and Winemiller (2003, p. 16), who found
juveniles from early spring to late fall in San Felipe Creek.
a. Substrate. Gibson and Fries (2005, p. 299) found that Devils
River minnow preferred gravel for spawning substrate, with size ranging
mostly from 2 to 3 cm (0.8 to 1.2 in) in diameter. Gravel and rock
substrates are required physical features for spawning (depositing,
incubating, and hatching) of Devils River minnow eggs.
b. Cover. In laboratory experiments, Devils River minnow did not
spawn in tanks until live potted plants (Vallisnaria spp. and Justicia
spp.) were added; however, eggs were never found on the plants or other
parts of the tank (Gibson et al. 2004, pp. 42, 43, 46). The plants
apparently served as cover for the fish and allowed favorable
conditions for spawning to occur. This condition is supported by
observations in the wild that associates Devils River minnow with
aquatic habitats where vegetative structure is present. This vegetative
structure is a biological feature that is important for reproduction of
Devils River minnow.
Habitat Protected From Disturbance or Representative of the Historic
Geographical and Ecological Distribution of a Species
a. Nonnative Species. The introduction and spread of nonnative
species have been identified as major factors in the continuing decline
of native fishes throughout North America (Moyle et al. 1986, pp. 415-
416) and particularly in the southwestern United States (Miller 1961,
p. 397; Miller 1977, pp. 376-377). Williams et al. (1989, p. 1)
concluded that nonnative species were a causal factor in 68 percent of
the fish extinctions in North America in the last 100 years. For 70
percent of those fish still extant, but considered to be endangered or
threatened, introduced nonnative species are a primary cause of the
decline (Lassuy 1995, p. 392). Nonnative species have been referenced
as a cause of decline in native Texas fishes as well (Anderson et al.
1995, p. 319; Hubbs 1990, p. 89; Hubbs et al. 1991, p. 2).
Aquatic nonnative species are introduced and spread into new areas
through a variety of mechanisms, intentional and accidental, authorized
and unauthorized. Mechanisms for nonnative fish dispersal in Texas
include sport fish stocking (intentional and inadvertent, non-target
species), aquaculture escapes, aquarium releases, and bait bucket
releases (release of fish used as bait by anglers) (Howells 2001, p.
1).
Within the range of the Devils River minnow, nonnative aquatic
species of potential concern include: armored (or suckermouth) catfish
(Hypostomus sp.) in San Felipe Creek (Lopez-Fernandez and Winemiller
2005, pp. 246-251); smallmouth bass (Thomas 2001, p. 1), carp (Cyprinus
carpio), goldfish (Carassius auratus), and redbreast sunfish (Lepomis
auritus) (Edwards 2007, p. 1) in the Devils River; African cichlid
(Oreochromis aureus) in San Felipe Creek (Lopez-Fernandez and
Winemiller 2005, p. 249) and Devils River (Garrett et al. 1992, p.
266); Asian snail (Melanoides tuberculata) and associated parasites
(McDermott 2000, pp. 13-14) in San Felipe Creek; and Asian bivalve
mollusk (Corbicula sp.) (Winemiller 2003, p. 25) in San Felipe Creek.
Effects from nonnative species can include predation, competition for
resources, altering of habitat, changing of fish assemblages
(combinations of species), or transmission of harmful diseases or
parasites (Aquatic Nuisance Species Task Force 1994, pp. 51-59; Baxter
et al. 2004, p. 2656; Howells 2001, pp. 17-18; Light and Marchetti
2007, pp. 442-444; Moyle et al. 1986, pp. 416-418). Studies have
suggested effects on the Devils River minnow from the armored catfish
in San Felipe Creek, most likely due to competition for food (Lopez-
Fernandez and Winemiller 2005, p. 250). Armored catfish may also be
piscivorous and directly prey on Devils River minnow (Wiersema 2007,
pp. 5-6). Nonnative aquatic and riparian plants, such as hydrilla,
water hyacinth, and giant river cane, also represent concerns for
Devils River minnow from altering habitat conditions, food sources, and
stream hydrology (Mathews 2007, p. 2).
The absence of impacts from harmful nonnative species is an
essential biological feature for the conservation of the Devils River
minnow. The persistence of Devils River minnow in its natural habitat
depends on either having areas devoid of harmful nonnative aquatic
species or having areas where nonnative aquatic species are present,
but with sufficiently low levels of impacts to allow for healthy
populations of the Devils River minnow.
b. Hydrology. Natural stream flow regimes (both quantity and
timing) are vital components to maintaining ecological integrity in
stream ecosystems (Poff et al. 1997, p. 769; Resh et al. 1988, pp. 443-
444). Aquatic organisms, like the Devils River minnow, have specific
adaptations to use the environmental conditions provided by natural
flowing systems and the highly variable stream flow patterns (Lytle and
Poff 2004, p. 94). As with other streams in the arid southwestern
United States, streams where the Devils River minnow occurs can have
large fluctuations in stream flow levels. In Texas, streams are
characterized by high variation between large flood flows (occurring
irregularly from rainfall events) and extended period of low flows
(Jones 1991, p. 513). Base flows in streams containing Devils River
minnow are generally maintained by constant spring flows (Ashworth and
Stein 2005, p. 4), but in periods of drought, especially in combination
with groundwater withdrawals, portions of stream segments can be
periodically dewatered. The occurrence of intermittent stream segments
within the range of the Devils River minnow is most common in Pinto
Creek (Ashworth and Stein 2005, Figure 13; Uliana 2005, p. 4; Allan
2006, p. 1).
Although portions of stream segments included in this designation
may experience short periods of low or no flows (causing dry sections
of stream), they are still important because the
[[Page 47001]]
Devils River minnow is adapted to stream systems with some fluctuating
water levels. Fish cannot persist in dewatered areas (Hubbs 1990, p.
89). However, Devils River minnows will use dewatered areas that are
subsequently wetted as connective corridors between occupied or
seasonally occupied habitat. Fausch et al. (2002, p. 490) notes in a
review of movement of fishes related to metapopulation dynamics that,
``Even small fishes may move long distances to repopulate rewetted
habitats.'' Preventing habitat fragmentation of fish populations is
important in reducing extinction risks in rare species (Fagan 2002, p.
3255). Areas within stream courses that may be periodically dewatered
but that serve as connective corridors between occupied or seasonally
occupied habitat and through which the species may move when the
habitat is wetted are important physical features of Devils River
minnow habitat.
Flooding is also a large part of the natural hydrology of streams
within the range of Devils River minnow. Large floods have been shown
to alter fish community structure and fish habitat use in the Devils
River (Harrell 1978, p. 67) and in San Felipe Creek (Garrett and
Edwards 2003, p. 787; Winemiller 2003, p. 12). Pearsons et al. (1992,
pp. 427) state that ``Flooding is one of the most important abiotic
factors that structure biotic assemblages in streams.'' Floods provide
flushing flows that remove fine sediments from gravel and provide
spawning substrates for species like the Devils River minnow (Instream
Flow Council 2002, p. 103; Poff et al. 1997, p. 775). Flooding is the
physical mechanism that shapes stream channels by a process known as
scour and fill, where some areas are scoured of fine sediments while
fine sediments are redeposited in other areas (Gordon et al. 1992, pp.
304-305; Poff et al. 1997, pp. 771-772). This dynamic process is
fundamental to maintaining habitat diversity in streams that ensure
healthy ecosystem function (Lytle and Poff 2004, pp. 96-99; Poff et al.
1997, pp. 774-777). Allowing natural stream flows, particularly during
flood events, is an essential physical process to maintain stream
habitats for Devils River minnow.
Primary Constituent Elements for the Devils River Minnow
Within the geographical area we know to be occupied by the Devils
River minnow, we must identify the physical and biological features
within the geographical area occupied by the Devils River minnow at the
time of listing that are essential to the conservation of the species
and which may require special management considerations or protections.
The physical and biological features are those primary constituent
elements (PCEs) laid out in a specific spatial arrangement and quantity
to be essential to the conservation of the species.
Based on the above needs and our current knowledge of the life
history, biology, and ecology of the species, we have determined that
the Devils River minnow's PCEs are:
(1) Streams characterized by:
a. Areas with slow to moderate water velocities between 10 and 40
cm/second (4 and 16 in/second) in shallow to moderate water depths
between approximately 10 cm (4 in) and 1.5 m (4.9 ft), near vegetative
structure, such as emergent or submerged vegetation or stream bank
riparian vegetation that overhangs into the water column;
b. Gravel and cobble substrates ranging in diameter between 2 and
10 cm (0.8 and 4 in) with low or moderate amounts of fine sediment
(less than 65 percent stream bottom coverage) and low or moderate
amounts of substrate embeddedness; and
c. Pool, riffle, run, and backwater components free of artificial
instream structures that would prevent movement of fish upstream or
downstream.
(2) High-quality water provided by permanent, natural flows from
groundwater springs and seeps characterized by:
a. Temperature ranging between 17 [deg]C and 29 [deg]C (63 [deg]F
and 84 [deg]F);
b. Dissolved oxygen levels greater than 5.0 mg/l;
c. Neutral pH ranging between 7.0 and 8.2;
d. Conductivity less than 0.7 mS/cm and salinity less than 1 ppt;
e. Ammonia levels less than 0.4 mg/l; and
f. No or minimal pollutant levels for copper, arsenic, mercury, and
cadmium; human and animal waste products; pesticides; fertilizers;
suspended sediments; and petroleum compounds and gasoline or diesel
fuels.
(3) Abundant aquatic food base consisting of algae; attached to
stream substrates; and other microorganisms associated with stream
substrates.
(4) Aquatic stream habitat either devoid of nonnative aquatic
species (including fish, plants, and invertebrates) or in which such
nonnative aquatic species are at levels that allow for healthy
populations of Devils River minnows.
(5) Areas within stream courses that may be periodically dewatered
for short time periods, during seasonal droughts, but otherwise serve
as connective corridors between occupied or seasonally occupied areas
through which the species moves when the area is wetted.
This final designation is designed for the conservation of PCEs
necessary to support the life history functions that were the basis for
the designation and the areas containing those PCEs in the appropriate
quantity and spatial arrangement. Because not all life history
functions require all the PCEs, not all critical habitat will contain
all the PCEs.
Special Management Considerations or Protections
When designating critical habitat, we assess whether the areas
occupied by the species at the time of listing contain the physical and
biological features that are essential to the conservation of the
species and that may require special management considerations or
protections. We provide a summary discussion below of the special
management needs for the Devils River, San Felipe Creek, and Pinto
Creek stream segments. For additional information regarding the threats
to the Devils River minnow and the needed management strategies to
address those threats, see the Devils River Minnow Recovery Plan
(Service 2005, pp. 1.7-1-1.7-7; 1.8-1-1.8-4; 2.5-1-2.5-5).
The following special management needs apply to all three stream
segments, Devils River, San Felipe Creek, and Pinto Creek, and will be
further discussed for each stream segment in the ``Critical Habitat
Designation'' section below.
a. Groundwater Management. The waters that produce all three stream
segments issue from springs that are supported by underground aquifers,
generally some portion of the Edwards-Trinity Aquifer or the Edwards
Aquifer (Ashworth and Stein 2005, pp. 16-33; Barker and Ardis 1996, pp.
B5-B6; Brune 1981, pp. 274-277, 449-456; Green et al. 2006, pp. 28-29;
LBG-Guyton Associates 2001, pp. 5-6; PWPG 2006, pp. 3-5, 3-6, 3-30;
USGS 2007, p.2). Regional groundwater flow in this area is generally
from north to south (Ashworth and Stein 2005, Figure 8). These aquifers
are currently pumped to provide water for human uses including
agricultural, municipal, and industrial (Ashworth and Stein 2005, p. 1;
Green et al. 2006, pp. 28-29; LBG-Guyton Associates 2001, pp. 22-27;
PWPG 2006, pp. 3-14, 3-15). Some parts of these aquifers have already
experienced large water level declines due to a combination of pumping
withdrawals and regional drought (Barker and Ardis 1996, p. B50). There
are a number of
[[Page 47002]]
preliminary project plans to significantly increase the amount of
groundwater pumped in this area to export it to other metropolitan
centers (HDR Engineering Inc. 2001, p. 1-1; Khorzad 2002, p. 19; PWPG
2006, pp. 4-54). If the aquifers are pumped beyond their ability to
sustain levels that support spring flows, these streams will no longer
provide habitat for the Devils River minnow (Ashworth and Stein 2005,
p.34; Edwards et al. 2004, p. 256; Garrett et al. 2004, pp. 439-440).
Flow reductions can have indirect effects on fishes by impacting
thermal regimes because higher water volumes buffers against
temperature oscillations (Hubbs 1990, p. 89).
Groundwater pumping that could affect stream flows within the
Devils River minnow's range is subject to local management control.
State or Federal agencies do not control groundwater. Local groundwater
conservation districts and groundwater management areas are the method
for groundwater management in Texas and essentially replace the rule of
capture where they exist (Caroom and Maxwell 2004, pp. 41-42; Holladay
2006, p. 3). Most districts are created by action of the Texas
Legislature (Lesikar et al. 2002, p. 13). The regulations adopted by
local groundwater conservation districts vary across the State and
often reflect local decisions based on regional preferences, geologic
limitations, and the needs of citizens (Holladay 2006, p. 3). The KCGCD
is a local authority with some regulatory control over the pumping and
use of groundwater resources in Kinney County (Brock and Sanger 2003,
p. 42-44). The KCGCD intends to manage the groundwater in Kinney County
on a sustainable basis and yet beneficially use the groundwater without
exploiting or adversely affecting the natural flow of the intermittent
streams, such as Pinto Creek. Additional scientific information is
needed on the geology and hydrology in Kinney County to increase the
knowledge on the relationships of groundwater and stream flows.
The 16 groundwater management areas in Texas include all of the
state's major and minor aquifers. Each GMA is required to determine a
future desired groundwater condition for their aquifers. Based on the
desired future condition specified, the Texas Water Development Board
determines a managed available groundwater level for the groundwater
management area. Lands outside of a groundwater conservation district,
such as Val Verde County, are not subject to groundwater pumping
regulations unless a landowner seeks State funding for a groundwater
project. In this case, the project must be included in the groundwater
management area's regional water plan. The total groundwater allotments
permitted by the groundwater management area must not exceed its
managed available groundwater level. Val Verde is Groundwater
Management Area 7 and Kinney County is within Groundwater Management
Areas 7 and 10.
Currently, there is no groundwater district in Val Verde County.
Absent a local groundwater district, groundwater resources in Texas are
generally under the ``Rule of Capture,'' (Holladay 2006, p. 2; Potter
2004, p. 9) or subject to the groundwater management area plans. The
rule of capture essentially provides that groundwater is a privately
owned resource and, absent malice or willful waste, landowners have the
right to take all the water they can capture under their land (Holladay
2006, p. 2; Potter 2004, p. 1). The regional water plan adopted by the
Plateau Regional Water Planning Group for this area recognizes that
groundwater needs to be managed for the benefit of spring flows (PWPG
2006, p. 3-30) and that groundwater use should be limited so that
``base flows of rivers and streams are not significantly affected
beyond a level that would be anticipated due to naturally occurring
conditions'' (Ashworth and Stein 2005, p. 34; PWPG 2006, p. 3-8). The
Plateau Regional Water Plan is a non-regulatory water planning document
for a 6-county area (including both Val Verde and Kinney counties) that
maps out how to conserve water supplies, meet future water supply
needs, and respond to future droughts.
Special management efforts are needed across the range of the
Devils River minnow to ensure that aquifers are used in a manner that
will sustain spring flows and provide water as an essential physical
feature for the species. We would like to work cooperatively with
landowners, conservation districts, and others to assist in
accomplishing these management needs.
b. Nonnative Species. Controlling existing nonnative species and
preventing the release of new nonnative species are special management
actions needed across the range of the Devils River minnow. The best
tool for preventing new releases is education of the public on the
problems associated with nonnative species (Aquatic Nuisance Species
Task Force 1994, pp. 16-17). Current nonnative species issues have been
cited for possible impacts to the Devils River (smallmouth bass) and
San Felipe Creek (armored catfish) (Lopez-Fernandez and Winemiller
2005, p. 247; Thomas 2001, p. 1; Robertson and Winemiller 2001, p.
220). The armored catfish may already be impacting Devils River minnows
in San Felipe Creek through competition for common food resources of
attached algae and associated microorganisms (Lopez-Fernandez and
Winemiller 2005, p. 250). Hoover et al. (2004, pp. 6-7) suggest that
nonnative catfishes in the family Loricariidae, such as armored
catfish, will impact stream systems and native fishes by competing for
food with other herbivores, changing plant communities, causing bank
erosion due to burrowing in stream banks for spawning, incidentally
ingesting fish eggs, and directly preying on native fishes (Wiersma
2007, p. 5). Problematic, nonnative species have not been documented in
Pinto Creek.
c. Pollution. Special management actions are needed to prevent
point and nonpoint sources of pollution entering the stream systems
where the Devils River minnow occurs. Devils River and Pinto Creek are
generally free of threats from obvious sources of pollution. San Felipe
Creek is in an urban environment where threats from human-caused
pollution are substantial. Potential for spill or discharge of toxic
materials is an inherent threat in urban environments. In addition,
there are little to few current controls in the City of Del Rio to
minimize the pollutants that will run off into the creek during
rainfall events from streets, parking lots, roof tops, and maintained
lawns from private yards and the golf course (Winemiller 2003, p. 27).
All of these surfaces will contribute pollutants (for example,
fertilizers, pesticides, herbicides, petroleum products) to the creek
and potentially impact biological functions of the Devils River minnow.
In addition, trash is often dumped into or near the creek and can be a
source of pollutants (City of Del Rio 2006, p. 11). Special management
by the City of Del Rio is needed (City of Del Rio 2006, p. 13) to
institute best management practices for controlling pollution sources
that enter the creek and maintain the water quality at a level
necessary to support Devils River minnow.
Special management actions may be needed to ensure appropriate best
management practices are used in the exploration and development of
petroleum resources in the watersheds of the Devils River minnow,
particularly the Devils River (Smith 2007, p. 1). This will ensure that
site development and drilling practices do not impact groundwater or
surface water quality in habitats of the Devils River minnow.
d. Stream Channel Alterations. The stream channels in the three
streams where Devils River minnow occurs
[[Page 47003]]
should be maintained in natural conditions, free of instream
obstructions to fish movement and with intact stream banks of native
vegetation. Devils River and Pinto Creek are generally free of stream
channel alterations; however, San Felipe Creek has been altered by
diversion dams, bridges, and armoring of stream banks (replacing native
vegetation and soils with rock or concrete). Special management is
needed in all three occupied streams to protect the integrity of the
stream channels for the maintenance of the PCEs.
Criteria Used To Identify Critical Habitat
We are designating critical habitat for the Devils River minnow in
areas that were occupied by the species at the time of listing and that
contain PCEs in the quantity and spatial arrangement to support life
history functions essential for the conservation of the species. We are
also designating critical habitat in areas not considered to be
occupied at the time of listing, but were subsequently discovered to be
occupied and are essential for the conservation of the Devils River
minnow.
Critical habitat is designated based on sufficient PCEs being
present to support the life processes of the species. Some areas
contain all PCEs and support multiple life processes. Some areas
contain only a portion of the PCEs necessary to support the particular
use of that habitat.
a. Range. We evaluated the geographical range of the Devils River
minnow, as described in the Recovery Plan (Service 2005, p. 1.4.1-
1.4.5). There are five stream segments in the United States (all in
Texas) that have ever been known to have been occupied by the Devils
River minnow: (1) The Devils River (Val Verde County) from Beaver Lake
downstream to near the confluence with the Rio Grande; (2) San Felipe
Creek (Val Verde County) from the headsprings on the Lowe Ranch to
downstream of the City of Del Rio; (3) Sycamore Creek (Val Verde/Kinney
county boundary), only documented from the Highway 277 Bridge crossing;
(4) Pinto Creek (Kinney County) from Pinto Springs downstream to 0.5
stream km (0.3 stream mi) upstream of the Highway 90 Bridge crossing;
and (5) Las Moras Creek (Kinney County), only documented from the Las
Moras Spring in the City of Brackettville.
Each of these five stream segments has (or formerly had) isolated
populations of Devils River minnow separated by long distances,
unsuitable habitat, or large dams that prevent fish movements. Although
each of these streams is a tributary of the Rio Grande, we do not
expect any contemporary exchange of individuals between these stream
segments. The Devils River minnow is generally associated with upstream
reaches of these streams, and connectivity would require movement
through downstream reaches, through the Rio Grande, and back upstream
through uninhabited reaches. The Devils River minnow has not been
documented in the Rio Grande, or any other of its tributaries in the
United States in modern times (Contreras-Balderas et al. 2002, pp. 228-
240; Edwards et al. 2002, p. 123; Garrett et al. 1992, pp. 261-265;
Hoagstrom 2003, p. 95; Hubbs 1957, p. 93; Hubbs 1990, p. 90; Hubbs et
al. 1991, p. 18; Trevi[ntilde]o-Robinson 1959, p. 255). The mainstem
Rio Grande is considered unsuitable habitat (Garrett et al. 1992, p.
261) because the aquatic habitat is very different (larger volume,
higher suspended sediments, different suite of native fishes) than the
streams where the Devils River minnow is found. The presence of Amistad
Reservoir and Dam has further isolated the Devils River stream segment
from the other stream segments. While some exchange of individuals
could have occurred across a geologic time scale, any natural exchange
of individual Devils River minnows between currently occupied streams
in modern times is unlikely because of habitat changes in the Rio
Grande, nonnative species, and potential instream barriers.
Lack of access to private property can limit opportunities to
sample for the presence of Devils River minnow (such as occurred on
Pinto Creek, see Garrett et al. 2004, p. 436) and may limit our ability
to accurately determine the full range of the species. However, we do
not expect any additional streams outside of the known historical range
of the species to be occupied. There could be additional stream
segments within the known range that may be found to be occupied during
future surveys, but the best available information at this time
supports only these five stream segments known to be or to have been
occupied by Devils River minnow in the United States.
b. Occupancy. We have assessed the occupancy of streams based on
the best survey information available. For the purpose of this critical
habitat designation, we consider a stream segment to be occupied if
Devils River minnow has been found to be present by species experts
within the last 10 years, or where the stream segment is directly
connected to a segment with documented occupancy within the last 10
years (see the ``Critical Habitat Designation'' section for additional
occupancy information). The life expectancy of Devils River minnow is
assumed to be about 3 years, although individuals have lived 5 years in
captivity (Gibson 2007, p. 1). This represents new information compared
to the estimate of 2 years life expectancy from the recovery plan
(Service 2005 p. 2.2-3). Ten years is estimated to represent a time
period that provides for at least three generations. We believe that a
time period that provides for at least three generations allows
adequate time to detect occupancy because the time period would
encompass potential fluctuations in species abundance associated with
seasonal or annual changes. Based on our biological expertise, it is
reasonable to assume that combining life expectancy with environmental
factors that may occur in a 10-year period will provide us with an
indication of habitat occupancy. We expect a variety of environmental
factors such as floods, droughts, and average precipitation and
hydrologic conditions would be experienced over a 10-year period. Most
stream segments have not been surveyed with a high degree of frequency,
and this species can be difficult to detect, as even multiple samples
within a short time in the same location by the same researcher can
yield different results (Garrett et al. 2002, p. 478). If Devils River
minnow are not documented in a 10-year period, which would encompass at
least 3 generations and variable environmental conditions that could
influence fish abundance and detect ability, we will consider that
stream not occupied.
c. Areas Occupied at the Time of Listing. At the time the Devils
River minnow was listed as a threatened species, it was only confirmed
to occur at two sites on the Devils River (small tributaries) and in
San Felipe Creek in the City of Del Rio, Texas (64 FR 56597). This
species is reasonably expected to move throughout connected stream
reaches, based on past and recent collection records from these streams
(Garrett et al. 2002, p. 478). Therefore, we determine there are two
stream segments that were occupied at the time of listing: (1) Devils
River from Pecan Springs to downstream of Dolan Falls (Garrett 2006a,
p. 4; Garrett 2007, p. 1); and (2) San Felipe Creek from the Head
Spring to downstream through the City of Del Rio (Garrett 2006b, p. 1;
Garrett 2007, p.1). The full extent of both stream segments is
considered occupied, as surveys in the last 10 years have confirmed the
species' presence in the streams and the unit consists of
[[Page 47004]]
contiguous habitat that allows fish movement throughout the stream.
Because no collections had been made in Pinto Creek prior to the time
of listing, we have chosen to treat this stream as unoccupied for the
purposes of this designation (see the description of Pinto Creek under
``Areas Not Occupied at Time of Listing'' section).
d. Primary Constituent Elements. We are proposing to designate the
stream segments that we have determined to be occupied at the time of
listing and contain sufficient PCEs to support life history functions
essential for the conservation of the species. Both of the stream
segments occupied at the time of listing (Devils River and San Felipe
Creek) contain sufficient PCEs to support life history functions
essential for the conservation of the Devils River minnow.
e. Areas Not Occupied at Time of Listing. Section 3(5)(A)(ii) of
the Act allows for critical habitat to be designated in areas outside
the geographical area occupied by the species at the time it is listed
if those areas are essential for the conservation of the species. Three
stream segments historically occupied by Devils River minnow but not
considered occupied at the time of listing are Pinto Creek, Sycamore
Creek, and Las Moras Creek.
Pinto Creek. At the time of listing in 1999, previous fish surveys
in Pinto Creek were limited to the locations of public access at
highway bridge crossings and did not find the species present (Garrett
et al. 1992, p. 260). In 2001, fish surveys were conducted in upstream
areas of Pinto Creek that had not been sampled before; the surveys
discovered a previously unknown population of Devils River minnow
(Garrett et al. 2004, pp. 436-439). The species has been confirmed to
occur from just upstream of the Highway 90 Bridge crossing further
upstream to the origin of Pinto Creek at Pinto Springs (Garrett et al.
2004, pp. 438-439). Since this stream segment is isolated from other
occupied areas, this stream segment was likely occupied at the time of
listing, but appropriate surveys had not been conducted to verify it.
We find that the Pinto Creek stream segment is essential to the
conservation of the Devils River minnow because preliminary analysis
has shown significant genetic variation between Devils River minnow
populations in Pinto Creek and the Devils River (Conway et al. 2007,
pp. 9-10). This makes Pinto Creek a unique population of Devils River
minnow and an essential unit to maintain overall genetic diversity of
the species to improve the likelihood of persistence in the future. In
addition, maintaining a population in Pinto Creek is included in the
recovery criteria (Service 2005, p. 2.1-2) and Pinto Creek provides the
best source of Devils River minnows (due to proximity and habitat
similarity) to implement possible future recovery actions if
reestablishing the species into nearby Las Moras Creek proves feasible
(Garrett et al. 2004, p. 440). As a result of this finding, it is not
necessary to determine whether Pinto Creek was occupied at the time of
listing for purposes of this particular rule.
Sycamore Creek and Las Moras Creek. For the purposes of the
designation of critical habitat, Sycamore Creek and Las Moras Creek are
not currently considered occupied by the Devils River minnow (that is,
they have not been collected in either stream in the last 10 years).
The last known occurrence of the species in these stream segments was
1989 for Sycamore Creek (Garrett et al. 1992, p. 265) and 1955 for Las
Moras Creek (Garrett et al. 1992, p. 266; Hubbs and Brown 1956, pp. 70-
71). Although recent publications continue to list Sycamore Creek as a
stream where Devils River minnow may still occur (Garrett et al. 2004,
p. 435; Lopez-Fernandez and Winemiller 2005, p. 247), we have a high
degree of uncertainty as to the status of the fish in Sycamore Creek.
Surveys in 1999 and 2002 from the area of last known occurrence (in
1989) did not yield Devils River minnow (Service 2005, Appendix A). In
addition, Garrett et al. (1992, pp. 265-266) surveyed portions of Mud
Creek (a tributary to Sycamore Creek) in 1989, but found no Devils
River minnow. Additional surveys are needed to determine the current
status of the fish in the Sycamore Creek watershed. Devils River minnow
has not been collected from Las Moras Creek since the 1950s and is
believed to be extirpated from the Las Moras Creek drainage. This
conclusion is based on the absence of the species in sampling efforts
from the late 1970s to 2002 (Hubbs et al. 1991, p. 18; Garrett et al.
1992, p. 266; Garrett et al. 2002, p. 479).
In our proposed critical habitat designation for Devils River
minnow we specifically requested information from the public and peer
reviewers regarding whether or not Sycamore and Las Moras creeks should
be considered essential for the conservation of the Devils River minnow
(72 FR 41687). Additionally, these streams were also included in our
draft economic analysis. We received several comments, including from
multiple peer reviewers, encouraging us to include these streams in the
critical habitat because of their importance in the recovery of the
Devils River minnow. Three peer reviewers expressed specific support
for including Las Moras and Sycamore creeks in the critical habitat
designation for the following reasons: (1) To maintain suitable habitat
within its range because if left undesignated, the PCEs currently
present will fall out of range and potential use for the recovery of
the species will be lost; (2) to protect genetic diversity within the
range of the species; (3) including them may be important for future
recovery efforts, based on metapopulation theory that unoccupied
patches are not less important than the occupied ones; (4) not
including them as ecologically significant stream segments would be
possibly detrimental to the species over time; and (5) if the creeks
are determined not to provide essential habitat elements, they could be
removed from the designation later or the habitat could be improved by
future management. Three peer reviewers did not call for the inclusion
of Las Moras and Sycamore creeks in the designation. However, two of
those peer reviewers stressed that recovery of the Devils River minnow
would need to include restoring the species to these streams to
maintain genetic diversity and population redundancy and encouraged us
to continue to work on these efforts.
Based on these comments and the guidance in the Devils River Minnow
Recovery Plan we have determined these streams are essential for the
conservation of the species. The delisting recovery criteria (1) in the
Recovery Plan states that we have stable or increasing population
trends for at least 10 years throughout the range of the Devils River
(middle portion), San Felipe Creek, Sycamore Creek, and Pinto Creek and
the species should be reestablished in Las Moras Creek, if
scientifically feasible (Service 2005, p. iv). We explain in the
following discussion our finding that these two streams are essential.
However, we are excluding these areas from critical habitat because we
find the benefits of excluding them outweigh the benefits of including
them (see the ``Exclusions under Section 4(b)(2) of the Act'' section
of this final rule for further details).
Because the recovery objectives, criteria, and strategy include
having populations of Devils River minnow in Sycamore Creek and Las
Moras Creek (if reestablishment is technologically feasible) (Service
2005, pp. 2.1-1--2.2-3), we find that these two streams are essential
for the conservation of the Devils River minnow. Restoring Devils River
minnow to Sycamore Creek and Las Moras Creek is important to achieving
recovery goals for the species
[[Page 47005]]
and optimizes the chances of long-term species conservation because
these creeks are isolated, vulnerable to threats, and therefore not
likely to be naturally recolonized (Service 2005, p. 2.2-2). As
discussed in the recovery plan, the feasibility of restoring
populations in these areas is uncertain and the recovery plan provides
no information as to which specific reaches of the creeks could support
the restored populations. The recovery plan advises additional
assessment to develop an effective restoration strategy. Landowner
willingness and cooperation will be necessary in both streams before
restoration could occur and will require using tools specifically
designed for restoration efforts, such as Safe Harbor Agreements and
reintroduction as an experimental population under section 10(j) of the
Act.
f. Lateral Extent. The areas designated as critical habitat are
designed to provide sufficient areas for breeding and non-breeding
adults and rearing of juvenile Devils River minnow. In general, the
essential physical and biological features of critical habitat for
Devils River minnow include the spring heads and the wetted channel
during average flow conditions of the stream segments. The Devils River
minnow evolved in streams maintained by consistent flows from
groundwater springs that varied little seasonally. Episodic floods,
sometimes very large floods, are important hydrological processes for
maintaining the natural stream channels and fish communities (Harrell
1978, p. 67; Valdes Cantu and Winemiller 1997, pp. 276-277). However,
the streams do not have a regular seasonal pattern of flooding. Unlike
some other stream fishes, the Devils River minnow is not known to be
dependent on high flow events or use flooded habitats in overbank areas
for reproduction or rearing of young. Therefore, the floodplain is not
known to contain the features essential for the conservation of the
Devils River minnow and is not included in this critical habitat
designation.
The critical habitat designation includes a lateral extent that is
limited to the normal wetted channel at bankfull discharge of the
streams included in this designation. For the purposes of this
designation, the wetted channel is considered the width of the stream
channel at bankfull stage. Bankfull stage is the water height when
stream flows just fill the stream to its banks before water spills out
onto the adjacent floodplain (Gordon et al. 1992, pp. 305-307). The
stream discharge that reaches bankfull stage occurs 1 or 2 days each
year and has a recurrence interval that averages 1.5 years (Leopold
1994, pp. 129-141). The width of the lateral extent of critical habitat
will vary depending on the stream geometry; however, it generally
includes the immediate streamside vegetation that can extend into the
water column and provide vegetative structure, one of the PCEs.
The critical habitat areas include the stream channels up to
bankfull width within the identified stream reaches. The stream beds of
navigable waters (stream beds of at least 30 ft wide) in Texas are
generally owned by the State, in trust for the public, while the lands
alongside the streams can be privately owned (Kennedy 2007, p. 3;
Riddell 1997, p. 7). We believe that the bulk of the stream beds
(including the small portion of the stream beds' lateral extent that is
not under water when streams are not at bankfull stage) for all stream
segments included in the critical habitat are considered public
property, owned by the State, for the purpose of this rule.
Summary. We are designating critical habitat in areas that we have
determined were occupied at the time of listing, and that contain
sufficient PCEs to support life history functions essential for the
conservation of the species. Stream segments are designated based on
sufficient PCEs being present to support the life processes of the
species. Some stream segments contain all PCEs and support multiple
life processes. Some stream segments contain only a portion of the PCEs
necessary to support the particular use of that habitat. For stream
segments that were not occupied at the time of listing, we evaluated
whether those areas were essential to the conservation of the Devils
River minnow.
We find that two stream segments were occupied at the time of
listing and contain sufficient PCEs to support life history functions
essential for the conservation of the species: (1) Devils River from
Pecan Springs to downstream of Dolan Falls, including short stretches
of two tributaries, Phillips Creek and Dolan Creek; and (2) San Felipe
Creek from the headsprings downstream through the City of Del Rio,
including the outflow channels of East and West Sandia springs. We find
that a third stream segment, Pinto Creek from Pinto Springs downstream
to the Highway 90 Bridge crossing, was subsequently discovered to be
occupied after listing and, for purposes of this rule, is essential for
the conservation of the Devils River minnow for the reasons discussed
above. We also find that Sycamore Creek and Las Moras Creek are
essential for the conservation of the Devils River minnow.
Within this final rule, the critical habitat boundary is limited to
bankfull width of the stream segments included in the designation, at
the height in which stream flows just fill the stream to its banks
before water spills out onto the adjacent floodplain. The scale of the
critical habitat maps prepared under the parameters for publication
within the Code of Federal Regulations may not reflect the exclusion of
developed areas such as bridge pylons, concrete paving, and other
similar structures that lack PCEs for the Devils River minnow. Areas
under bridge pylons and concrete paving do not contain PCEs, and we are
excluding them from the boundaries of critical habitat, although the
structures are too small to digitally delete from maps at the scale
that we used to delineate the critical habitat boundaries. Any such
structures and the land under them inside critical habitat boundaries
shown on the maps of this final rule are not designated as critical
habitat. Some such structures likely exist only within the San Felipe
Creek Unit. Therefore, Federal actions limited to these areas would not
trigger section 7 consultation, unless they affect the species or PCEs
in adjacent critical habitat.
Final Critical Habitat Designation
Five areas meet the definition of critical habitat for the Devils
River minnow. The five areas are: (1) Devils River Unit; (2) San Felipe
Creek Unit; (3) Pinto Creek Unit; (4) Sycamore Creek; and (5) Las Moras
Creek. The Devils River, San Felipe Creek, and Pinto Creek units are
currently occupied by the Devils River minnow and all five areas
constitute our best assessment of areas that meet the definition of
critical habitat for the species.
All distances reported in this designation are estimated stream
lengths calculated using geographic information system computer
software (ArcGIS) approximating the stream channel (reported in stream
km and stream mi). Stream channel lines were based on the National
Hydrography Dataset and 7.5' topographic quadrangle maps obtained from
the U.S. Geological Survey. We made some minor adjustments using the
2004 National Agriculture Imagery Program digital orthophotos obtained
from the Texas Natural Resources Information System. The approximate
length of each designated stream segment for each critical habitat unit
is shown in Table 1. Critical habitat for Devils River minnow includes
a total of 73.5 stream km (45.7 stream mi) that meet the definition of
critical habitat for this species.
[[Page 47006]]
Table 1--Critical Habitat Units for the Devils River Minnow
----------------------------------------------------------------------------------------------------------------
Stream km (stream
mi) meeting the Stream km (stream Critical habitat
Critical habitat unit * definition of mi) excluded from stream km (stream
critical habitat critical habitat mi)
----------------------------------------------------------------------------------------------------------------
1. Devils River Unit (includes Philips and Dolan 47.0 (29.2) 47.0 (29.2) 0 (0)
Creeks)............................................
2. San Felipe Creek Unit (includes outflow of East 9.0 (5.6) 0 (0) 9.0 (5.6)
and West springs)..................................
3. Pinto Creek Unit................................. 17.5 (10.9) 0 (0) 17.5 (10.9)
4. Sycamore Creek Unit.............................. 4.0 (2.5) 4.0 (2.5) 0 (0)
5. Las Moras Creek Unit............................. 18.8 (11.7) 18.8 (11.7) 0 (0)
¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤
Total........................................... 96.3 (59.9) 69.8 (43.4) 26.5 (16.5)
----------------------------------------------------------------------------------------------------------------
* The stream beds of the units meeting the definition of critical habitat are considered public and owned by the
State of Texas.
Below, we provide brief descriptions of the Devils River, San
Felipe Creek, and Pinto Creek, Sycamore Creek, and Las Moras Creeks
units and reasons why each meets the definition of critical habitat for
the Devils River minnow.
Unit 1: Devils River Unit
Unit 1 consists of approximately 43.6 stream km (27.1 stream mi) of
the Devils River; 1.1 stream km (0.7 stream mi) of Phillips Creek; and
2.3 stream km (1.4 stream mi) of Dolan Creek. Phillips Creek and Dolan
Creek are small tributaries to the Devils River that contain the PCEs
and are occupied by the Devils River minnow. The upstream boundary on
the Devils River is at, and includes, Pecan Springs. The downstream
boundary on the Devils River is 3.6 stream km (2.2 stream mi) below
Dolan Falls. Phillips Creek is included in this unit from the
confluence with the Devils River to a point 1.1 stream km (0.7 stream
mi) upstream. Dolan Creek is included from the confluence with the
Devils River 2.3 stream km (1.4 stream mi) upstream to Dolan Springs.
Including all three streams, the total distance in the Devils River
Unit is approximately 47.0 stream km (29.2 stream mi).
The Devils River minnow was originally described from this unit in
the 1950s (Hubbs and Brown 1956, p. 70), and it has been continually
occupied ever since (Harrell 1978, pp. 64, 67; Garrett et al. 1992, p.
261; Service 2005, Appendix A). The Devils River minnow occupied this
unit at the time of listing; at that time, the fish had been collected
from only a few locations. Subsequent surveys by TPWD have established
current occupancy of this entire unit (Service 2005, Appendix A). The
upstream boundary of critical habitat represents the beginning of the
permanent flow of the river (De La Cruz 2004, p. 1). The downstream
boundary, 3.6 stream km (2.2 stream mi) downstream of Dolan Falls,
represents the downstream extent of collections of the Devils River
minnow by TPWD (Garrett 2007, p. 1).
The Devils River Unit contains one or more of the PCEs essential
for conservation of the Devils River minnow. Special management in the
Devils River Unit may be needed to control groundwater pumping to
ensure spring flows are maintained and to prevent the introduction of
nonnative species. See additional discussion above in the ``Special
Management Considerations or Protections'' section.
Areas meeting the definition of critical habitat for Devils River
minnow do not include lands adjacent to the stream channels. However,
land ownership adjacent to the streams in the Devils River Unit is
primarily private. Private ownership of the area includes The Nature
Conservancy's 1,943-ha (4,800-ac) Dolan Falls Preserve, which also
includes river frontage on the Devils River and Dolan Creek. The Nature
Conservancy has owned this area since 1991 (The Nature Conservancy
2004, p. 9). The Nature Conservancy also holds conservation easements
on about 66,800 ha (about 165,000 ac) of private land along the Devils
River or in the Devils River watershed (McWilliams 2006, p. 1). The
only public land adjacent to the streams of this unit is the State-
owned Devils River State Natural Area (DRSNA) managed by the TPWD. The
portion of this unit within the DRSNA includes about 1.6 stream km (1.0
stream mi) along the east bank of the Devils River and about 1.9 stream
km (1.17 stream mi) along both banks of a portion of Dolan Creek.
As described below, we are excluding the Devils River Unit from the
critical habitat designation for Devils River minnow (see the
``Exclusions Under Section 4(b)(2)'' section).
Unit 2: San Felipe Creek Unit
Unit 2 consists of approximately 7.9 stream km (4.9 stream mi) on
San Felipe Creek, 0.8 stream km (0.5 stream mi) of the outflow of San
Felipe Springs West, and 0.3 stream km (0.2 stream mi) of the outflow
of San Felipe Springs East. The upstream boundary on San Felipe Creek
is the Head Springs located about 1.1 stream km (0.7 stream mi)
upstream of the Jap Lowe Bridge crossing. The downstream boundary on
San Felipe Creek is in the City of Del Rio 0.8 stream km (0.5 stream
mi) downstream of the Academy Street Bridge crossing. The unit includes
the outflow channels of San Felipe Springs West and San Felipe Springs
East. These channels are included in the critical habitat unit from
their spring origin downstream to the confluence with San Felipe Creek.
Including all three streams, the total distance included in the
critical habitat in the San Felipe Creek Unit is approximately 9.0
stream km (5.6 stream mi). For specific coordinates of the boundaries
for the critical habitat designation, please reference to the unit
descriptions in the Regulation Promulgation section below.
San Felipe Creek was occupied by the Devils River minnow at the
time of listing and is still occupied (Hubbs and Brown 1956, p. 70;
Garrett et al. 1992, pp. 261, 265; Service 2005, Appendix A; Lopez-
Fernandez and Winemiller 2005, p. 249). Although limited survey data
are available, we consider the entire unit occupied because the habitat
is contiguous, allowing fish to move in the upstream portions of the
unit (Garrett 2006b, p. 1). The boundaries of critical habitat include
all areas where TPWD has collected Devils River minnow within the San
Felipe Creek Unit (Garrett 2007, p. 1).
The San Felipe Creek Unit contains one or more of the PCEs
essential for conservation of the Devils River minnow. There are
several unnatural barriers to fish movement that may currently segment
the reaches within the City of Del Rio. Portions of the stream banks in
the City of Del Rio have been significantly altered by arming with
concrete and the invasion of an exotic cane (Arundo donax). However,
much of the riparian area remains a functional part of the stream
ecosystem,
[[Page 47007]]
contributing to the physical (for example, stream bank stabilization
and water runoff filtration) and biological (for example, invertebrate
communities using riparian vegetations and input of nutrient material
from riparian vegetation) features of Devils River minnow habitat.
Water quality in San Felipe Creek has been a concern due to the urban
environment through which much of the creek flows. Potential for spill
or discharge of toxic materials is an inherent threat in urban
environments (City of Del Rio 2006, p. 13). The threats to the San
Felipe Creek Unit that require special management include the potential
for large-scale groundwater withdrawal and exportation that would
impact spring flows, surface water diversion, pollution from urban
runoff, nonnative vegetation on stream banks, other nonnative species
(such as the armored catfish), and potential new nonnative species'
introductions into the stream.
Land ownership adjacent to the streams areas being designated as
critical habitat within the San Felipe Creek Unit includes private
ranch lands from the Head Springs downstream to the City of Del Rio.
Within the city limits, the City owns various tracts of land along the
stream. Some of these areas are developed as public use parks and
others have been recently obtained through a buyout program from the
Federal Emergency Management Agency following damages from the 1998
flood (City of Del Rio 2006, pp. 5-6). Most of the City-owned property
along the creek appears to be on the east bank of the creek, while the
west bank is primarily private-owned residences. The San Felipe Springs
East and West and their immediate outflow channels are on a golf
course, privately owned by the San Felipe Country Club. In all, we
estimate that the City of Del Rio owns about 1.1 stream km (0.7 stream
mi) along both banks of the creek and spring outflow channels, mainly
located downstream of the Highway 90 Bridge. Through the remainder of
the City of Del Rio, we estimated the City of Del Rio owns about 2.2
stream km (1.4 stream mi) along the east bank of San Felipe Creek in
parcels fragmented by private holdings.
Unit 3: Pinto Creek Unit
Unit 3 consists of approximately 17.5 stream km (10.9 stream mi) on
Pinto Creek. The upstream boundary is Pinto Springs. The downstream
boundary is 100 m (330 ft) upstream of the Highway 90 Bridge crossing
of Pinto Creek. For specific coordinates of the boundaries for the
critical habitat designation, please reference the unit descriptions in
the Regulation Promulgation section below.
Pinto Creek was not considered occupied by Devils River minnow at
the time of listing; however, Devils River minnows were documented in
2001 in upstream reaches of the creek where fish surveys had not been
previously conducted (Garrett et al. 2004, pp. 437). The Pinto Creek
Unit is essential for the conservation of the Devils River minnow
because fish from this stream show significant genetic variation from
other populations (Service 2006, p. 15). Because of its proximity to
Las Moras Creek and the genetic variation from the more western
population, fish from Pinto Creek would be the likely source population
for possible future reintroduction into formerly occupied areas
(Garrett et al. 2004, p. 440).
The boundaries of critical habitat represent all the areas within
Pinto Creek where Devils River minnow has been collected (Garrett et
al. 2004, p. 437-438). Further, the Pinto Creek Unit contains one or
more of the PCEs essential for conservation of the Devils River minnow.
The main threat to the Pinto Creek Unit that requires special
management is the potential for large-scale groundwater withdrawal
that, in combination with nature hydrological variation, could
significantly impact spring flows. While nonnative species are not
currently known to be a problem in Pinto Creek, preventing nonnative
species from being introduced into the stream is an additional threat
needing special management. Land ownership adjacent to the Pinto Creek
Unit is all private ranches.
Unit 4: Sycamore Creek
The documented habitat for Devils River minnow in Sycamore Creek is
at the U.S. Highway 277 bridge (Garrett et al. 1992, p. 265). Based on
this information, we have estimated a critical habitat area of 4 stream
km (about 2.5 stream mi) encompassing this site. Garrett et al. (1992,
p. 265-266) recognized that the majority of surface flow in the
drainage comes from Mud Creek, an eastern tributary that confluences
with Sycamore Creek approximately 3 stream km (about 2 stream mi)
upstream of the U.S. Highway 277 bridge crossing. The origin of the
surface flows in Mud Creek is Mud Springs, located about 24 air km
(about 15 air mi) north of U.S. Highway 277 crossing of Sycamore Creek
and north of the U.S. Highway 90 (Brune 1981, p. 276). Despite
collection efforts from Mud Creek, Devils River minnow has not been
documented to occur there (Garrett et al. 1992, p. 266).
Sycamore Creek was not considered occupied by Devils River minnow
at the time of listing. Sycamore Creek is essential for the
conservation of the Devils River minnow because it is identified as a
necessary population to achieve recovery (Service 2005, p. 2.1-2). The
main threat to Sycamore Creek that requires special management is the
potential for large-scale groundwater withdrawal that, in combination
with natural hydrological variation, could significantly impact spring
flows. While nonnative species are not currently known to be a problem
in Sycamore Creek, preventing nonnative species from being introduced
into the stream is an additional threat needing special management.
Land ownership adjacent to Sycamore Creek is all private.
Unit 5: Las Moras Creek
The only confirmed habitat for Devils River minnow in Las Moras
Creek is at the headwater spring on the grounds of Fort Clark in
Brackettville based on collections in the 1950s (Garrett et al. 1992,
p. 266; Brune 1981, p. 275). Based on this information and the
longitudinal distribution of the fish in Pinto Creek and San Felipe
Creek, we estimate that the critical habitat extends approximately 18.8
stream km (about 11.7 stream mi) downstream from Las Moras Spring to
the Standard Pacific Railroad bridge crossing.
Las Moras Creek was not considered occupied by Devils River minnow
at the time of listing. Las Moras Creek is essential for the
conservation of the Devils River minnow because it is identified as a
necessary population to achieve recovery (Service 2005, p. 2.1-2). The
main threat to Las Moras Creek that requires special management is the
potential for large-scale groundwater withdrawal that, in combination
with natural hydrological variation, could significantly impact spring
flows. Special management is also needed within the local watershed to
maintain water quality and stream flows. While nonnative species are
not currently known to be a problem in Las Moras Creek, preventing
nonnative species from being introduced into the stream is an
additional threat needing special management. Land ownership adjacent
to Las Moras Creek includes the Fort Clark Springs Association in the
upper portion of the reach and the remainder is all private.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that actions they fund,
[[Page 47008]]
authorize, or carry out are not likely to jeopardize the continued
existence of a listed species or destroy or adversely modify designated
critical habitat. Decisions by the Fifth and Ninth Circuit Court of
Appeals have invalidated our definition of ``destruction or adverse
modification'' (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S.
Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir 2004) and Sierra
Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442F (5th
Cir 2001)), and we do not rely on this regulatory definition when
analyzing whether an action is likely to destroy or adversely modify
critical habitat. Under the statutory provisions of the Act, we
determine destruction or adverse modification on the basis of whether,
with implementation of the proposed Federal action, the affected
critical habitat would remain functional (or retain the current ability
for the PCEs to be functionally established) to serve its intended
conservation role for the species.
If a species is listed or critical habitat is designated, section
7(a)(2) of the Act requires Federal agencies to ensure that activities
they authorize, fund, or carry out are not likely to jeopardize the
continued existence of the species or to destroy or adversely modify
its critical habitat. If a Federal action may affect a listed species
or its critical habitat, the responsible Federal agency (action agency)
must enter into consultation with us. As a result of this consultation,
we document compliance with the requirements of section 7(a)(2) through
our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that are likely to
adversely affect listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species or
destroy or adversely modify critical habitat, we also provide
reasonable and prudent alternatives to the project, if any are
identifiable. We define ``Reasonable and prudent alternatives'' at 50
CFR 402.02 as alternative actions identified during consultation that:
Can be implemented in a manner consistent with the
intended purpose of the action,
Can be implemented consistent with the scope of the
Federal agency's legal authority and jurisdiction,
Are economically and technologically feasible, and
Would, in the Director's opinion, avoid jeopardizing the
continued existence of the listed species or destroying or adversely
modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where we have
listed a new species or subsequently designated critical habitat that
may be affected and the Federal agency has retained discretionary
involvement or control over the action (or such discretionary
involvement or control is authorized by law). Consequently, Federal
agencies may sometimes need to request reinitiation of consultation
with us on actions for which formal consultation has been completed, if
those actions may affect subsequently listed species or designated
critical habitat.
Federal activities that may affect the Devils River minnow or its
designated critical habitat will require section 7 consultation under
the Act. Activities on State, Tribal, local, or private lands requiring
a Federal permit (such as a permit from the U.S. Army Corps of
Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 et
seq.) or a permit from us under section 10 of the Act) or involving
some other Federal action (such as funding from the Federal Highway
Administration, Federal Aviation Administration, or the Federal
Emergency Management Agency) are examples of agency actions that may be
subject to the section 7 consultation process. Federal actions not
affecting listed species or critical habitat, and actions on State,
Tribal, local or private lands that are not federally funded,
authorized, or carried out, do not require section 7 consultations.
There are no Federal lands in the areas we are designating as
critical habitat for the Devils River minnow. Laughlin Air Force Base
is located east of the City of Del Rio and obtains its municipal water
from the City of Del Rio (which ultimately is withdrawn from the two
San Felipe Springs). The Amistad National Recreation Area, located
around Amistad Reservoir, is owned by the National Park Service and
includes the downstream portions of the Devils River, but is not
included in the critical habitat designation.
Since the Devils River minnow was listed in 1999, one formal
section 7 consultation has occurred specifically concerning the
species. That consultation was completed in 2006 with the Federal
Highway Administration, through the Texas Department of Transportation,
to replace the Beddell Avenue Bridge over San Felipe Creek in the City
of Del Rio. One substantial informal consultation was completed in 2001
with the Environmental Protection Agency for funding through the TWDB
to the City of Del Rio to upgrade the City's water treatment and
distribution facilities. One programmatic consultation was completed
with NRCS in 2004 concerning USDA programs for brush management in the
western portions of Texas. This consultation concluded that the
proposed actions were likely to result in benefits to the Devils River
minnow by improving instream flows in the streams where the species
occurs. The nature of the proposed brush clearing was not considered to
have adverse affects (such as sedimentation) to Devils River minnow.
Seven other informal consultations have occurred in the range of the
species since its listing in 1999 which only peripherally involved
Devils River minnow. Since the listing we provided technical assistance
on five other projects that considered Devils River minnow but had no
effects on the species. Based on this consultation history, we
anticipate similarly low numbers of future Federal actions within the
area designated as critical habitat for Devils River minnow.
Application of the ``Adverse Modification'' Standard
The key factor related to the adverse modification determination is
whether, with implementation of the proposed Federal action, the
affected critical habitat would continue to serve its intended
conservation role for the species, or would retain its current ability
for the PCEs to be functionally established. Activities that may
destroy or adversely modify critical habitat are those that alter the
physical and biological features to an extent that appreciably reduces
the conservation value of critical habitat for Devils River minnow.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation.
Activities that, when carried out, funded, or authorized by a
Federal agency, may affect critical habitat and therefore would result
in consultation for the Devils River minnow include, but are not
limited to:
[[Page 47009]]
(1) Actions that would alter the natural flow regime, particularly
the reduction of spring flows. These activities could include, but are
not limited to, excessive groundwater pumping (significantly greater
than current levels), water diversions from streams, and stream
impoundments. These activities could reduce the amount of available
habitat and space for normal behaviors of Devils River minnow, alter
water quality as an indirect effect of reduced flows, alter the
mesohabitat (pools, riffles, and runs) conditions necessary for Devils
River minnow life history functions, and alter fish community dynamics
to unnaturally favor species other than the Devils River minnow.
(2) Actions that would reduce native aquatic vegetation or native
vegetation along stream banks. These activities could include, but are
not limited to, channelization of the stream, armoring stream banks
(replacing native vegetation and soils with rock or concrete), dredging
the stream bottom, introducing nonnative plants that would replace
native vegetation, or introducing herbivorous nonnative species. Loss
of aquatic vegetation would eliminate an important structural component
of Devils River minnow habitat (important for predator avoidance and
spawning cues) and could reduce the amount of available habitat for
reproduction, growth, and feeding.
(3) Actions that would significantly alter water quality or
introduce pollutants into streams. Such activities could include, but
are not limited to, release of chemicals, biological pollutants, or
heated effluents (liquid waste products) into the surface water or
connected groundwater at a point source or by dispersed release (non-
point source). Sources of pollutants also include, but are not limited
to, storm water runoff from urban development without adequate storm
water controls, spill of hazardous chemicals into the creek or
groundwater, or groundwater contamination by improperly drilled or
maintained oil or gas wells. These activities could alter water
conditions that are beyond the tolerances of the Devils River minnow or
their food sources and could result in direct or cumulative adverse
effects to these individuals and their life cycles.
(4) Actions that would significantly increase sediment deposition
within the stream channel. Such activities could include, but are not
limited to, excessive sedimentation from livestock grazing, road
construction, channel alteration, brush clearing, off-road vehicle use,
and other watershed and floodplain disturbances. Under some
circumstances, these activities could eliminate or reduce the habitat
necessary for the reproduction of Devils River minnow and could reduce
the availability of food sources by affecting light penetration into
the water column, filling in of stream beds with silt, or increasing
the embeddedness of stream bottoms that reduces algae availability. The
effects of any particular activity on Devils River minnow habitat must
be evaluated on project-specific basis. The impacts of any specific
activity will depend on the location, extent, and manner in which the
activity is carried out.
(5) Actions that would significantly alter channel shape or
geometry. Such activities could include, but are not limited to,
channelization, impoundment, armoring stream banks, road and bridge
construction, mining, dredging, and destruction of riparian vegetation.
These activities may alter the natural pattern of available
mesohabitats (pools, riffles, and runs). These actions can reduce the
amount of habitat available for Devils River minnow to complete its
normal life cycle and can give other species, especially nonnative
species, competitive advantages. These actions can also lead to
increased sedimentation and degradation in water quality to levels that
are beyond the tolerances of the fish or their food sources.
Exclusions
Application of Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary must designate
and revise critical habitat on the basis of the best available
scientific data after taking into consideration the economic impact,
national security impact, and any other relevant impact of specifying
any particular area as critical habitat. The Secretary may exclude an
area from critical habitat if he determines that the benefits of such
exclusion outweigh the benefits of specifying such area as part of the
critical habitat, unless he determines, based on the best scientific
data available, that the failure to designate such area as critical
habitat will result in the extinction of the species. In making that
determination, the statute on its face, as well as the legislative
history, are clear that the Secretary has broad discretion regarding
which factor(s) to use and how much weight to give any factor. In the
following sections, we address a number of general issues that are
relevant to the exclusions we considered.
Benefits of Designating Critical Habitat
The process of designating critical habitat as described in the Act
requires that the Service identify those lands on which are found the
physical or biological features essential to the conservation of the
species that may require special management considerations or
protection, and those areas outside the geographical area occupied by
the species at the time of listing that are essential to the
conservation of the species. In identifying those lands, the Service
must consider the recovery needs of the species, such that, on the
basis of the best scientific and commercial data available at the time
of designation, the habitat that is identified, if managed, could
provide for the survival and recovery of the species.
The identification of those areas that are essential for the
conservation of the species and can, if managed, provide for the
recovery of a species is beneficial. The process of proposing and
finalizing a critical habitat rule provides the Service with the
opportunity to determine the physical and biological features essential
for conservation of the species within the geographical area occupied
by the species at the time of listing, as well as to determine other
areas essential to the conservation of the species. The designation
process includes peer review and public comment on the identified
physical and biological features and areas. This process is valuable to
land owners and managers in developing conservation management plans
for identified areas, as well as any other occupied habitat or suitable
habitat that may not have been included in the Service's determination
of essential habitat.
The consultation provisions under section 7(a)(2) of the Act
constitute the regulatory benefits of critical habitat. As discussed
above, Federal agencies must consult with us on actions that may affect
critical habitat and must avoid destroying or adversely modifying
critical habitat. Federal agencies must also consult with us on actions
that may affect a listed species and refrain from undertaking actions
that are likely to jeopardize the continued existence of such species.
The analysis of effects to critical habitat is a separate and different
analysis from that of the effects to the species. Therefore, the
difference in outcomes of these two analyses represents the regulatory
benefit of critical habitat. For some species, and in some locations,
the outcome of these analyses will be similar, because effects to
habitat will often also result in effects to the species. However, the
regulatory
[[Page 47010]]
standard is different, as the jeopardy analysis looks at the action's
impact to survival and recovery of the species and the adverse
modification analysis looks at the effects to the designated habitat's
contribution to conservation of the species. This will, in many
instances, lead to different results, and different regulatory
requirements.
For 30 years prior to the Ninth Circuit's decision in Gifford
Pinchot, consistent with the 1986 regulations, we essentially combined
the jeopardy standard with the standard for destruction or adverse
modification of critical habitat when evaluating Federal actions that
affected currently occupied critical habitat. However, the court of
appeals ruled that the two standards are distinct and that adverse
modification evaluations require consideration of impacts on species
recovery. Thus, critical habitat designations may provide greater
regulatory benefits to the recovery of a species than would listing
alone.
There are two limitations to the regulatory effect of critical
habitat. First, a section 7(a)(2) consultation is required only where
there is a Federal nexus (an action authorized, funded, or carried out
by any Federal agency)--if there is no Federal nexus, the critical
habitat designation of private lands itself does not restrict any
actions that destroy or adversely modify critical habitat. Second, the
designation only limits destruction or adverse modification. By its
nature, the prohibition on adverse modification is designed to ensure
that the conservation role and function of those areas that contain the
physical and biological features essential to the conservation of the
species or of unoccupied areas that are essential for the conservation
of the species are not appreciably reduced. Critical habitat
designation alone, however, does not require private property owners to
undertake specific steps toward recovery of the species.
Once an agency determines that consultation under section 7(a)(2)
of the Act is necessary, the process may conclude informally when the
Service concurs in writing that the proposed Federal action is not
likely to adversely affect critical habitat. However, if the Service
determines through informal consultation that adverse impacts are
likely to occur, then formal consultation is initiated. Formal
consultation concludes with a biological opinion issued by the Service
on whether the proposed Federal action is likely to result in
destruction or adverse modification of critical habitat.
For critical habitat, a biological opinion that concludes in a
determination of no destruction or adverse modification may contain
discretionary conservation recommendations to minimize adverse effects
to the physical and biological features essential to the conservation
of the species, but it would not suggest the implementation of any
reasonable and prudent alternative. We suggest reasonable and prudent
alternatives to the proposed Federal action only when our biological
opinion results in an adverse modification conclusion.
As stated above, the designation of critical habitat does not
require that any management or recovery actions take place on the lands
included in the designation. Even in cases where consultation has been
initiated under section 7(a)(2) of the Act, the end result of
consultation is to avoid jeopardy to the species and/or adverse
modification of its critical habitat, but not necessarily to manage
critical habitat or institute recovery actions on critical habitat.
Conversely, voluntary conservation efforts implemented through
management plans institute proactive actions over the lands they
encompass and are put in place to remove or reduce known threats to a
species or its habitat; therefore, implementing recovery actions. We
believe that in many instances the regulatory benefit of critical
habitat is low when compared to the conservation benefit that can be
achieved through conservation efforts or management plans. The
conservation achieved through implementing Habitat Conservation Plans
(HCPs), Safe Harbor Agreements, or experimental populations established
under section 10 of the Act or other habitat management plans is
typically greater than would be achieved through multiple site-by-site,
project-by-project section 7 consultations involving consideration of
critical habitat. Management plans commit resources to implement long-
term management and protection to particular habitat for at least one
and possibly other listed or sensitive species. Section 7 consultations
only commit Federal agencies to prevent adverse modification to
critical habitat caused by the particular project; they do not commit
Federal agencies to provide conservation or long-term benefits to areas
not affected by the proposed project. Thus, implementation of any HCP
or management plan that incorporates enhancement or recovery as the
management standard may often provide as much or more benefit than a
consultation for critical habitat designation.
Another benefit of including lands in critical habitat is that
designation of critical habitat serves to educate landowners, State and
local governments, and the public regarding the potential conservation
value of an area. This helps focus and promote conservation efforts by
other parties by clearly delineating areas of high conservation value
for Devils River minnow. In general, critical habitat designation
always has educational benefits; however, in some cases, it may be
redundant with other educational effects. For example, HCPs have
significant public input and may largely duplicate the educational
benefits of a critical habitat designation. Including lands in critical
habitat also would inform State agencies and local governments about
areas that could be conserved under State laws or local ordinances.
Recovery Benefits
The process of designating critical habitat as described in the Act
requires that the Service identify those lands on which are found the
physical or biological features essential to the conservation of the
species which may require special management consideration or
protections and specific unoccupied areas that are determined to be
essential for the conservation of the species. In identifying those
lands, the Service must consider the recovery needs of the species,
such that the habitat that is identified, if managed, could provide for
the survival and recovery of the species. Furthermore, once critical
habitat has been designated, Federal agencies must consult with the
Service under section 7(a)(2) of the Act to ensure that their actions
will not adversely modify designated critical habitat or jeopardize the
continued existence of the species. As noted in the Ninth Circuit's
Gifford Pinchot decision, the Court ruled that the jeopardy and adverse
modification standards are distinct, and that adverse modification
evaluations require consideration of impacts to the recovery of
species. Thus, through the section 7(a)(2) consultation process,
critical habitat designations provide recovery benefits to species by
ensuring that Federal actions will not destroy or adversely modify
designated critical habitat.
It is beneficial to identify those lands that are necessary for the
conservation of the species and that, if managed appropriately, would
further recovery measures for the species. The process of proposing and
finalizing a critical habitat rule provides the Service with the
opportunity to determine lands essential for conservation as well as
identify the physical and biological
[[Page 47011]]
features essential for conservation on those lands. The designation
process includes peer review and public comment on the identified
features and lands. This process is valuable to landowners and managers
in developing habitat management plans for identified lands, as well as
any other occupied habitat or suitable habitat that may not have been
included in the Service's determination of essential habitat.
However, the designation of critical habitat does not require that
any management or recovery actions take place on the lands included in
the designation. Even in cases where consultation has been initiated
under section 7(a)(2) of the Act, the end result of consultation is to
avoid jeopardy to the species and adverse modification of its critical
habitat, but not specifically to manage remaining lands or institute
recovery actions on remaining lands. Conversely, management plans
institute proactive actions over the lands they encompass intentionally
to remove or reduce known threats to a species or its habitat and,
therefore, implement recovery actions. We believe that the conservation
of a species and its habitat that could be achieved through the
designation of critical habitat, in some cases, is less than the
conservation that could be achieved through the implementation of a
management plan that includes species-specific provisions and considers
enhancement or recovery of listed species as the management standard
over the same lands. Consequently, implementation of an HCP or
management plan that considers enhancement or recovery as the
management standard will often provide as much or more benefit than a
consultation for critical habitat designation conducted under the
standards required by the Ninth Circuit in the Gifford Pinchot
decision.
Conservation Partnerships on Non-Federal Lands
Most federally listed species in the United States will not recover
without the cooperation of non-Federal landowners. More than 60 percent
of the United States is privately owned (National Wilderness Institute
1995, p. 2), and at least 80 percent of endangered or threatened
species occur either partially or solely on private lands (Crouse et
al. 2002, p. 720). Stein et al. (1995, p. 400) found that only about 12
percent of listed species were found almost exclusively on Federal
lands (90 to 100 percent of their known occurrences restricted to
Federal lands) and that 50 percent of federally listed species are not
known to occur on Federal lands at all.
Given the distribution of listed species with respect to land
ownership, conservation of listed species in many parts of the United
States is dependent upon working partnerships with a wide variety of
entities and the voluntary cooperation of many non-Federal landowners
(Wilcove and Chen 1998, p. 1407; Crouse et al. 2002, p. 720; James
2002, p. 271). Building partnerships and promoting voluntary
cooperation of landowners is essential to our understanding the status
of species on non-Federal lands, and necessary to implement recovery
actions such as reintroducing listed species, habitat restoration,
population monitoring, and habitat protection.
Many non-Federal landowners derive satisfaction from contributing
to endangered species recovery. We promote these private-sector efforts
through the Department of the Interior's Cooperative Conservation
philosophy. Conservation agreements with non-Federal landowners (HCPs,
safe harbor agreements, 10(j) experimental populations, other
conservation agreements, easements, and State and local regulations)
enhance species conservation by extending species protections beyond
those available through section 7 consultations. In the past decade, we
have encouraged non-Federal landowners to enter into conservation
agreements, based on the view that we can achieve greater species
conservation on non-Federal land through such partnerships than we can
through regulatory methods (61 FR 63854; December 2, 1996).
Many private landowners, however, are wary of the possible
consequences of encouraging endangered species to their property.
Mounting evidence suggests that some regulatory actions by the Federal
Government, while well-intentioned and required by law, can (under
certain circumstances) have unintended negative consequences for the
conservation of species on private lands (Wilcove et al. 1996, pp. 5-6;
Bean 2002, pp. 2-3; Conner and Mathews 2002, pp. 1-2; James 2002, pp.
270-271; Koch 2002, pp. 2-3; Brook et al. 2003, pp. 1639-1643). Many
landowners fear a decline in their property value due to real or
perceived restrictions on land-use options where threatened or
endangered species are found. Consequently, harboring endangered
species is viewed by many landowners as a liability. This perception
results in anti-conservation incentives because maintaining habitats
that harbor endangered species represents a risk to future economic
opportunities (Main et al. 1999, pp. 1264-1265; Brook et al. 2003, pp.
1644-1648).
According to some researchers, the designation of critical habitat
on private lands significantly reduces the likelihood that landowners
will support and carry out conservation actions (Main et al. 1999, p.
1263; Bean 2002, p. 2; Brook et al. 2003, pp. 1644-1648). The magnitude
of this outcome is greatly amplified in situations where active
management measures (such as reintroduction, fire management, and
control of invasive species) are necessary for species conservation
(Bean 2002, pp. 3-4). The Service believes that the judicious exclusion
of specific areas of non-federally owned lands from critical habitat
designations can contribute to species recovery and provide a superior
level of conservation than critical habitat alone.
The purpose of designating critical habitat is to contribute to the
conservation of threatened and endangered species and the ecosystems
upon which they depend. The outcome of the designation, triggering
regulatory requirements for actions funded, authorized, or carried out
by Federal agencies under section 7(a)(2) of the Act, can sometimes be
counterproductive to its intended purpose on non-Federal lands. Thus,
the benefits of excluding areas that may be covered by effective
partnerships or other conservation commitments can often be high.
Benefits of Excluding Lands With HCPs or Other Management Plans From
Critical Habitat
The benefits of excluding lands with approved long-term management
plans from critical habitat designation include relieving landowners,
communities, and counties of any additional regulatory burden that
might be imposed by a critical habitat designation. Many conservation
plans provide conservation benefits to unlisted sensitive species.
Imposing an additional regulatory review as a result of the designation
of critical habitat may undermine these conservation efforts and
partnerships in many areas. Designation of critical habitat within the
boundaries of management plans that provide conservation measures for a
species is a disincentive to entities currently developing these plans
or contemplating them in the future, because one of the incentives for
undertaking conservation is greater ease of permitting where listed
species will be affected. Addition of a new regulatory requirement
would remove a significant incentive for undertaking the time and
expense of management planning.
[[Page 47012]]
A related benefit of excluding lands within management plans from
critical habitat designation is the unhindered, continued ability it
gives us to seek new partnerships with future plan participants,
including States, Counties, local jurisdictions, conservation
organizations, and private landowners, which together can implement
conservation actions that we would be unable to accomplish otherwise.
Designating lands within approved management plan areas as critical
habitat would likely have a negative effect on our ability to establish
new partnerships to develop these plans, particularly plans that
address landscape-level conservation of species and habitats. By
preemptively excluding these lands, we preserve our current
partnerships and encourage additional conservation actions in the
future.
Furthermore, both HCP and Natural Community Conservation Plan
(NCCP)-HCP applications require consultation, which would review the
effects of all HCP-covered activities that might adversely impact the
species under a jeopardy standard, including possibly significant
habitat modification (see definition of ``harm'' at 50 CFR 17.3), even
without the critical habitat designation. In addition, all other
Federal actions that may affect the listed species would still require
consultation under section 7(a)(2) of the Act, and we would review
these actions for possibly significant habitat modification in
accordance with the definition of harm referenced above.
The information provided in the previous section applies to all the
following discussions of benefits of inclusion or exclusion of critical
habitat.
Exclusions Under Section 4(b)(2) of the Act
We found that the public comments we received made a compelling
case that excluding the Devils River Unit will provide for maintenance
of positive relationships with private landowners along that stretch of
river. These relationships are fundamental for implementing recovery
actions for the Devils River minnow and outweigh the limited benefits
that may occur from the designation of critical habitat there.
Maintaining non-Federal partnerships in the other units in San Felipe
Creek and Pinto Creek are of equal importance. However, as explained
below, we believe that designation of critical habitat in those units
does not put our non-Federal partnerships at risk and, therefore, no
additional benefits for the Devils River minnow would be expected by
excluding those units.
We also found in this final rule that Sycamore Creek and Las Moras
Creek are essential streams for the conservation of the Devils River
minnow. However, both streams are located exclusively on non-Federal
lands and will require significant cooperation with private landowners
and implementation of cooperative tools, such as safe harbor agreements
and experimental populations established under section 10(j) of the
Act, to achieve the recovery goals for the Devils River minnow in these
creeks as outlined in the Recovery Plan. These recovery actions would
be potentially precluded if critical habitat were designated on these
streams since we consider these areas not occupied and landowner
cooperation is a necessary step in the restoration and reestablishment
of the Devils River minnow to these two creeks.
Devils River Unit
Benefits of Inclusion
The benefits of including lands in critical habitat can be
regulatory, educational, or to aid in recovery of species as generally
discussed in the ``Benefits of Designating Critical Habitat'' section
above. The following is our assessment of the estimated benefits for
inclusion of the Devils River Unit.
We expect only minimal regulatory benefits from the designation of
critical habitat for the Devils River minnow. As explained in the final
economic analysis (FEA) (p. A-1) and the ``Effects of Critical Habitat
Designation'' section in this final rule, we have had very few section
7 consultations for this species since its listing, (one formal
consultation, nine informal consultations, and five technical
assistance events since 1999) and we foresee few section 7
consultations in the next 20 years. Appendix A in the FEA (p. A-5)
estimates a total of 2 formal consultations, 21 informal consultations,
and 12 technical assistance events over the next 20 years throughout
the range of the species. This is because there are few, if any,
actions occurring with a Federal nexus within the range of the species
that may affect the species or its habitat. The FEA found that no
formal section 7 consultations are likely to occur in the Devils River
Unit in the next 20 years. Comments received during the public comment
period indicated that oil and gas development in the Devils River
watershed could adversely affect Devils River minnow habitat in the
Devils River. However, we are not aware of a Federal nexus to oil and
gas activities that would result in a section 7 consultation and
possible regulatory benefit of critical habitat. The lack of section 7
consultations results in very limited regulatory benefits for the
designation of critical habitat in the Devils River Unit.
We expect there may be some limited educational benefits associated
with the designation of critical habitat. However, most people actively
involved in water resource management in these areas likely already
know the need for conservation of the Devils River minnow. Designating
critical habitat could provide another opportunity to highlight these
areas as important for the conservation of the species and provide more
specific information on the physical and biological features that
define habitat for the species. We expect the educational benefits to
be especially limited in the Devils River Unit, where the few local
landowners along the river have been engaged in Devils River minnow
issues for the 30 years since the species was initially proposed for
listing and the river proposed for critical habitat designation in
1978. Many of the families involved in Devils River minnow issues in
1978 are still involved. We therefore foresee very limited additional
education value that the designation would be expected to offer to
these landowners.
We expect few to no additional benefits to the recovery of the
Devils River minnow as a result of the designation of critical habitat
in the Devils River Unit. The habitat areas are outlined and the
biological features are readily defined in the species' recovery plan.
With limited regulatory and educational benefits likely, we foresee no
other tangible benefits to further recovery of the species as a result
of the designation of critical habitat.
Benefits of Exclusion
Non-Federal Partnerships
The distribution of the Devils River minnow is largely within
private ownership, and, therefore, the management of its habitat has
limited influence by Federal agency actions. As a result, partnerships
with and among non-Federal organizations and private individuals are
the key to conserving the Devils River minnow. The top priority task in
the Devils River Minnow Recovery Plan, for example, includes ``Seek and
maintain the cooperation of landowners'' (Service 2005, p. 3.3-1).
Therefore, we believe it is important to consider the potential
benefits that will be realized by preserving our positive relationships
with landowners and other non-Federal organizations if we
[[Page 47013]]
exclude an area from the final critical habitat designation.
The need for strong partnerships on non-Federal lands for the
conservation of the Devils River minnow is of heightened importance in
the Devils River watershed. The remote, rural area is comprised of
large private ranches with very limited influence by public activities.
Land management to promote and conserve healthy watersheds, native
riparian areas, and groundwater recharge and sustainable use depends on
the voluntary actions of the private landowners.
During the second public comment period, at least 12 individuals
(either landowners along the Devils River or representatives for those
interests) commented negatively about the perceived effects of the
designation of the Devils River Unit as critical habitat. They
envisioned that the designation would restrict landowner activities,
lead to a change in the status of the Devils River minnow from
threatened to endangered, and result in a devaluation of land values in
the area.
We do not believe that these concerns are likely to be realized. We
provide specific responses to these comments in the ``Comments and
Responses'' section-that the designation of critical habitat should
have little to no effect on landowner actions, is not a factor in the
species' status as threatened rather than endangered, and should not
result in a stigma effect to decrease land values. However, these
widely held perceptions by landowners in the Devils River Unit could
result in anti-conservation incentives because furthering Devils River
minnow conservation is seen as a risk to future economic opportunities
or loss of private property rights.
In addition, we received specific comments from the President of
The Devils River Association (a 164-member local landowner organization
to promote balance between preservation of the Devils River ecosystem
and the desire to use the river and respect private property rights).
These comments specifically stated that the Devils River Unit should be
excluded because the benefits of doing so outweighed the benefits of
inclusion. The comments included a discussion of the importance of
cooperation with landowners that has occurred in the past. The comment
states that this action (designating the Devils River as critical
habitat) ``significantly decreases our interest to work cooperatively
with USFWS.'' The comment goes on to state that, ``This action would
terribly and, I am afraid, irreparably damage the trust that we have
all built up over the last few years.''
Losing landowner trust and cooperation would be a significant
setback to recovery efforts for the Devils River minnow on the Devils
River. The designation of critical habitat could reduce the likelihood
that landowners will support and carry out conservation actions needed
to implement the recovery plan. The recovery plan calls for the
following actions: monitor the status of Devils River minnow; determine
biological and life history requirements; identify specific habitat
requirements; and manage Devils River minnow habitat (Service 2005, pp.
2.3-1--2.4-6). All of these actions require the cooperation of private
landowners.
One practical aspect of landowner cooperation in this area is the
need for access to locations on the Devils River to carry out many
recovery actions. In the past, landowners on the Devils River have been
open to allowing access to conduct studies and for monitoring efforts
by TPWD, the Service, and others. This is important on the Devils River
because public access is limited to only two small areas, one on the
Devils River State Natural Area and one at the Highway 163 bridge
crossing. Past efforts for monitoring the Devils River minnow
populations and habitats benefited from landowners voluntarily
permitting access on private property to collect valuable information.
Field monitoring of the river conditions and fish populations is a
vital component to the recovery of the Devils River minnow.
In the past, this non-Federal partnership was under the guidance of
the 1998 Devils River Minnow Conservation Agreement. The purpose of
this agreement was to expedite conservation measures needed to ensure
the continued existence and facilitate recovery of the species prior to
a final listing decision. Although the formal agreement expired in 2003
without renewal, the landowners along the Devils River have continued
to cooperate with us and TPWD to further the agreement's conservation
goals (this was also highlighted in the public comments we received).
Without this ongoing non-Federal partnership with private landowners,
we expect that conservation opportunities for the species in the Devils
River will be greatly reduced. We believe that maintaining non-Federal
partnerships with local landowners on the Devils River is a substantial
benefit of excluding the Devils River Unit from critical habitat
designation and outweighs any benefits expected from including this
unit in the designation. We anticipate that exclusion of this unit is
likely to provide a superior level of conservation than critical
habitat designation.
Conservation Efforts and Management Plans
When performing the required analysis under section 4(b)(2) of the
Act to consider any potential exclusions of areas proposed for critical
habitat, we considered planned or ongoing conservation efforts within
the Devils River minnow's range (described in the proposed rule, 72 FR
41692). We received no new information during the public comment
periods on the existence of other plans or conservation efforts, beyond
those discussed below in this section. We evaluated these ongoing
conservation efforts based on whether excluding one or more critical
habitat units might provide recovery benefits for the Devils River
minnow. Each effort provides some opportunity to benefit the Devils
River minnow. However, we are not excluding any areas based solely on
these conservation efforts and management plans.
The Nature Conservancy has a Conservation Area Plan (CAP) and
several conservation easements in the Devils River Watershed. The CAP
has significant goals for conserving the Devils River watershed and its
implementation will provide benefits for the Devils River minnow. The
Nature Conservancy has limited opportunity to implement the
conservation strategies outside of the lands under their ownership or
easement. Implementing the goals of the CAP will depend on the
voluntary cooperation of the private landowners throughout the
watershed.
We support the past and ongoing conservation efforts by The Nature
Conservancy and encourage their continued work. Without the voluntary
cooperation of neighboring landowners, the local and State agencies,
the efforts by The Nature Conservancy provide only minimal benefits for
the Devils River minnow. We believe The Nature Conservancy will
continue to work on conservation efforts with or without the
designation of critical habitat, and there are no benefits to The
Nature Conservancy's ongoing conservation efforts by designating the
Devils River Unit as critical habitat. However, there may be benefits
accrued by excluding this unit from critical habitat if it increases
The Nature Conservancy's ability to work more successfully with private
landowners. As discussed above in the ``Benefits of Excluding Lands
With HCPs or Other Management Plans From Critical Habitat'' section,
designating critical habitat in an area with existing management plans
may
[[Page 47014]]
provide a disincentive for voluntary cooperation by private landowners.
Therefore, to maintain landowner relationships, there could be some
benefits to excluding the Devils River Unit.
Benefits of Exclusion Outweigh the Benefits of Inclusion
In weighing the benefits of including versus the benefits of
excluding the Devils River Unit, we find that the benefits of exclusion
of these lands outweigh the benefits of inclusion of these lands in the
critical habitat designation. This is based on the fact that there are
very limited benefits to inclusion and substantial benefits from
maintaining non-Federal partnerships by excluding this unit. Therefore,
we find that excluding Devils River Unit is reasonable under the
Secretary's discretion for ``other relevant impacts'' under section
4(b)(2) of the Act. We believe the loss of non-Federal partnerships on
the Devils River, as expressed in the public comments we received on
the proposed rule, is a relevant impact. The cooperation of private
landowners to provide access to the river and participate in other
recovery actions is a vital component to conservation of the Devils
River minnow, and this could be lost if we designate critical habitat.
In contrast, the benefits of inclusion are, as noted above, likely to
be minor because of very limited opportunities for additional education
and the lack of any Federal nexus for section 7 consultations specific
to Devils River minnow in the unit. Recovery of the Devils River minnow
is best served by the exclusion of the Devils River Unit.
Exclusion Will Not Result in Extinction of the Species
We have determined that the exclusion of the Devils River Unit that
includes 29.2 stream mi (47.0 stream km) from the final designation of
critical habitat will not result in the extinction of Devils River
minnow. As described above, all of the area we are excluding from
critical habitat is occupied by the species, and consultations will
still occur under section 7 of the Act if there is a Federal nexus,
even in the absence of their designation as critical habitat.
Application of the jeopardy standard of section 7 of the Act also
provides assurances that the species will not go extinct in the absence
of this designation.
In summary, the benefits of including the Devils River Unit in the
critical habitat designation for the Devils River minnow are few. The
benefits of excluding this area from designated critical habitat are
greater, and include maintaining important non-Federal partnerships. We
find that the benefits of excluding this area from critical habitat
designation outweigh the benefits of including this area and will not
result in the extinction of the species.
Sycamore Creek and Las Moras Creek
Benefits of Inclusion
We expect only minimal regulatory benefits from the designation of
critical habitat for the Devils River minnow. As explained in the FEA
(p. A-1) and the ``Effects of Critical Habitat Designation'' section in
this final rule, we have had very few section 7 consultations for this
species since its listing (one formal consultation, nine informal
consultations, and five technical assistance events since 1999) and we
foresee few section 7 consultations in the next twenty years. Appendix
A in the FEA (p. A-5) estimates a total of 2 formal consultations, 21
informal consultations, and 12 technical assistance events over the
next 20 years throughout the range of the species. This is because
there are few, if any, actions occurring with a Federal nexus within
the range of the species that may affect the species or its habitat.
There are no Federal lands within the watersheds of Sycamore or Las
Moras creeks and the FEA found no formal section 7 consultations are
likely to occur in the area of Sycamore or Las Moras creeks in the next
20 years. The absence of expected section 7 consultations suggests
there are very limited regulatory benefits for the designation of
critical habitat in Sycamore or Las Moras creeks.
We expect there may be some limited educational benefits associated
with the designation of critical habitat. However, most people actively
involved in water resource management in these areas likely already
know the need for conservation of the Devils River minnow. Both
Sycamore and Las Moras creeks are highlighted in the Devils River
Minnow Recovery Plan. The streams are located in Kinney County where we
are already actively working with local officials on conservation
issues for the Devils River minnow. Designating critical habitat could
provide another opportunity to highlight these areas as important for
the conservation of the species and to seek specific information on the
physical and biological features that define habitat for the species in
these creeks. However, as discussed above, we expect the educational
benefits of designating critical habitat in Sycamore or Las Moras
creeks would be minimal since the importance of these creeks and the
need for further information is already highlighted in the recovery
plan and in the rules and economic analysis associated with this
designation.
We expect few to no additional benefits to recovery of the Devils
River minnow if critical habitat were designated in Sycamore or Las
Moras creeks. With limited regulatory and educational benefits likely,
we foresee no other tangible benefits to further recovery of the
species as a result of the designation of critical habitat in these
streams.
Benefits of Exclusion
As stated above and in the recovery plan, achieving recovery
objectives for the Devils River minnow will include, if feasible,
restoring populations in Sycamore and Las Moras creeks. We believe that
the best way to achieve these objectives will be to use the authorities
under section 10(j) of the Act to reestablish experimental populations
or through safe harbor agreements. We believe that section 10(j) of the
Act would be an appropriate tool to utilize in future restoration
efforts. An overview of the process to establish an experimental
population under section 10(j) of the Act is described below.
Alternately, developing voluntary safe harbor agreements under section
10 of the Act is another tool that would allow restoring these
populations in a cooperative effort with local landowners. Developing
safe harbor agreements, as described below will require extensive
partnerships with non-Federal landowners. Either alternative to
accomplish these recovery objectives would benefit from excluding the
areas from critical habitat designation.
Section 10(j) of the Act enables us to designate certain
populations of federally listed species that are released into the wild
as ``experimental.'' The circumstances under which this designation can
be applied are the following: (1) The population is geographically
separate from nonexperimental populations of the same species (e.g.,
the population is reintroduced outside the species' current range but
within its probable historic range); and (2) we determine that the
release will further the conservation of the species. Section 10(j) is
designed to increase our flexibility in managing an experimental
population by allowing us to issue a special rule that provides
flexibility in how the experimental population is managed. In
situations where we have experimental populations, portions of
[[Page 47015]]
the statutory section 9 prohibitions (e.g., harm, harass, capture) that
apply to all endangered species and most threatened species may no
longer apply, and a special rule can be developed that contains the
specific prohibitions and exceptions necessary and appropriate to
conserve that species. This flexibility allows us to manage the
experimental population in a manner that will ensure that current and
future land, water, or air uses and activities will not be
unnecessarily restricted and that the population can be managed for
recovery purposes.
When we designate a population as experimental, section 10(j) of
the Act requires that we determine whether that population is either
essential or nonessential to the continued existence of the species, on
the basis of the best available information. Nonessential experimental
populations located outside National Wildlife Refuge System or National
Park System lands are treated, for the purposes of section 7 of the
Act, as if they are proposed for listing. Thus, for nonessential
experimental populations, only two provisions of section 7 would apply
outside National Wildlife Refuge System and National Park System lands:
section 7(a)(1), which requires all Federal agencies to use their
authorities to conserve listed species, and section 7(a)(4), which
requires Federal agencies to informally confer with us on actions that
are likely to jeopardize the continued existence of a proposed species.
Section 7(a)(2) of the Act, which requires Federal agencies to ensure
that their activities are not likely to jeopardize the continued
existence of a listed species, would not apply except on National
Wildlife Refuge System and National Park System lands.
The flexibility gained by establishment of an experimental
population through section 10(j) would be of little value if a
designation of critical habitat overlaps it. This is because Federal
agencies would still be required to consult with us on any actions that
may adversely modify critical habitat. In effect, the flexibility
gained from section 10(j) would be rendered useless by the designation
of critical habitat. In fact, section 10(j)(2)(C)(ii) of the Act states
that critical habitat shall not be designated under the Act for any
experimental population determined to be not essential to the continued
existence of a species.
We strongly believe that, in order to facilitate recovery for the
Devils River minnow, we would need the flexibility provided for in
section 10(j) of the Act to help ensure the success of reestablishing
populations in Sycamore or Las Moras creeks. Use of section 10(j) is
meant to encourage local cooperation through management flexibility.
Because critical habitat is often viewed negatively by the public, as
is the case here as discussed elsewhere in this rule (see Non-Federal
Partnerships discussion above), we believe it is important and
necessary for recovery of this species that we have the support of the
public when we develop and implement recovery actions.
Safe harbor agreements are another alternative that provide
voluntary arrangements between us and cooperating non-Federal
landowners. This policy's main purpose is to promote voluntary
management for listed species on non-Federal property while giving
assurances to participating landowners that no additional future
regulatory restrictions will be imposed. The agreements are intended to
benefit endangered and threatened species, by creating or restoring
habitat for the species, while giving landowners assurances from
additional restrictions. As part of a safe harbor agreement, we issue
an ``enhancement of survival'' permit under section 10 of the Act, to
authorize any necessary future incidental take to provide participating
landowners with assurances that no additional restrictions would be
imposed as a result of their conservation actions.
Developing future safe harbor agreements to facilitate restoration
efforts for Devils River minnow in Sycamore and Las Moras creeks would
require close cooperation with a number of private or non-Federal
landowners. The negative perceptions of landowners regarding critical
habitat, as described above, would most likely forestall any
opportunity to engage landowners in Devils River minnow restoration
using safe harbor agreements. Excluding these two streams from critical
habitat provides better opportunities to work with landowners through
safe harbor agreements to further restoration efforts of Devils River
minnow. The ability to implement these conservation actions provides a
clear benefit of excluding these streams from critical habitat
designation.
This voluntary approach is consistent with the actions identified
in the Recovery Plan necessary to establish additional viable
populations of Devils River minnow within its historic range (Service
2005, pp. 2.4-6--2.4-7). The recovery plan recognizes that, ``Support
of private landowners will be necessary to plan and implement
reestablishment of the Devils River minnow'' (Service 2005, p. 2.4-6).
The recovery plan also recognizes the need for landowner agreements
(Recovery Action 2.1) to document landowner cooperation and a
commitment to future conservation measures to ensure successful
repatriation of the species (Service 2005, p. 2.4-6). Working with
landowners in the future through either a establishing a section 10(j)
experimental population or developing one or more safe harbor
agreements would fulfill the anticipated recovery actions envisioned in
the recovery plan.
Engaging private citizens and local landowners in proactive,
voluntary measures such as restoration through experimental populations
or safe harbor agreements requires a high level of trust and
cooperation with Federal agencies. We believe it is highly unlikely we
will develop this level of cooperation if these streams were designated
as critical habitat. The strong negative perceptions that are likely to
persist if these lands were designated as critical habitat would
prevent us from realizing these voluntary opportunities for restoration
in the near future. Maintaining existing non-Federal partnerships and
creating new ones are necessary recovery actions to conserve the Devils
River minnow. We note that Texas Governor Rick Perry submitted a letter
to us dated June 27, 2008, indicating that he believes a cooperative
method of land, water, and wildlife management is the best way to
protect property rights and support healthy habitats and that critical
habitat will do little to improve the habitat of the Devils River
minnow. We believe this philosophy of cooperation between private
landowners and the Service is consistent with the information in our
analysis and is supported by the comments we received.
The Devils River Minnow Recovery Plan also recognizes the need to
develop and implement a reintroduction plan, including a captive
propagation plan and a genetics management plan (estimated cost of
$100,000 per the Recovery Plan) (Service 2005, p. 3.3.-3), as first
steps in our restoration efforts (Service 2005, pp. 2.4-7--2.4-8).
We've been working to collect the necessary information to develop
these plans through research since 2000 with the captive stocks of
Devils River minnows being maintained at our San Marcos National Fish
Hatchery and Technology Center (Conway et al. 2007; Gibson et al. 2004;
Gibson and Fries, 2005; Service 2005, p. 1.8-2). These scientific
studies have provided important baseline biological data on the species
through experiments on captive breeding techniques. This information
will allow us to develop reintroduction plans and begin seeking funding
and landowner
[[Page 47016]]
cooperation to put these recovery tools in place to implement
restoration efforts.
We have worked with local groups in the past to discuss the
opportunities for restoration of the Devils River minnow in Las Moras
Creek (Service 2005, p. 1.8-2). The implementation schedule from the
recovery plan anticipates that landowner agreements to restore Devils
River minnow to former sites of occurrence would, depending on
availability of funding and cooperation, occur between years 3 through
6 following the approval of the recovery plan in 2005 (Service 2005, p.
3.3-2). The recovery plan estimates the cost of developing these
agreements at $20,000. The recovery plan foresees the development and
implementation of a reintroduction plan would occur in years 3 through
8 (Service 2005, p. 3.3-1), at an estimated cost of $200,000. We are
committed to continue to actively examine the opportunities for
developing the necessary landowner agreements to implement the actions
identified in the Devils River Minnow Recovery Plan. The Service's lead
field office for the Devils River minnow is also committed to using
their funding through the Partners for Fish and Wildlife Program to
work with landowners to develop and implement stream channel
restoration projects if necessary. At the time of preparation of the
Recovery Plan, the Service was not able to determine the cost of future
restoration projects.
Benefits of Exclusion Outweigh the Benefits of Inclusion
In weighing the benefits of including versus the benefits of
excluding Sycamore and Las Moras creeks, we find that the benefits of
exclusion of these streams outweigh the benefits of inclusion of these
streams in the critical habitat designation. This is based on the facts
that there are very limited benefits to inclusion and substantial
benefits to exclusion from maintaining non-Federal partnerships and
providing opportunities for using flexible tools for restoration of the
species to these streams. Use of these tools (safe harbor agreements
and section 10(j) of the Act) would not be possible or effective
without landowner cooperation. Therefore, we find that excluding
Sycamore Creek and Las Moras Creek is reasonable under the Secretary's
discretion for ``other relevant impacts'' under section 4(b)(2) of the
Act. We believe the cooperation of private landowners to provide access
to the river and participate in restoration actions under section 10 of
the Act is a vital component to conservation of the Devils River minnow
and these opportunities would be lost if critical habitat were
designated. In contrast, the benefits of inclusion are, as noted above,
likely to be minor because of limited opportunities for additional
education and the lack of any Federal nexus for section 7 consultations
specific to Devils River minnow in these two streams. Recovery of the
Devils River minnow is best served by the exclusion of the Sycamore
Creek and Las Moras Creek from critical habitat designation.
Exclusion Will Not Result in Extinction of the Species
We have determined that the exclusion of Sycamore Creek and Las
Moras Creek from the final designation of critical habitat will not
result in the extinction of Devils River minnow. As described above, we
do not consider either of these streams to be currently occupied by the
Devils River minnow. The species occurs in three other streams, two of
which are being designated as critical habitat. Excluding these two
streams will not affect conservation efforts ongoing throughout the
currently occupied range of the species. We do not anticipate any loss
of protection to the species or other impacts that would result from
excluding these two streams from the designation of critical habitat.
In summary, the benefits of including Sycamore and Las Moras creeks
in the critical habitat designation for the Devils River minnow are
few. The benefits of excluding these streams from being designated as
critical habitat are greater, and include creating important non-
Federal partnerships and opportunities for restoration of the
populations using tools under section 10 of the Act. We find that the
benefits of excluding these two streams from critical habitat
designation outweigh the benefits of including them and will not result
in the extinction of the species. Therefore, these two streams are not
included in the final critical habitat designation.
Pinto Creek Unit
We considered the exclusion of the Pinto Creek unit, but based on
the record before us have elected not to exercise our discretion under
section 4(b)(2) of the Act to exclude this unit. We expect there may be
some limited educational benefits associated with the designation of
critical habitat. However, most people actively involved in water
resource management in these areas likely already know the need for
conservation of the Devils River minnow. Pinto Creek is highlighted in
the Devils River Minnow Recovery Plan. The stream is located in Kinney
County where we are already working with local officials on
conservation issues for the Devils River minnow. Designating critical
habitat could provide another opportunity to highlight these areas as
important for the conservation of the species and provide more specific
information on the physical and biological features that define habitat
for the species. We expect the educational benefits of designating
critical habitat in Pinto Creek would be minimal.
We considered the Kinney County Groundwater Conservation District
(KCGCD) draft management plan in our analysis. An updated management
plan by the KCGCD was under development during completion of this final
rule, and the final plan was approved after the close of the public
comment period. We received comments from the KCGCD that the draft
management plan would provide benefits to the Devils River minnow by
managing groundwater on a sustainable basis without exploiting or
adversely affecting the natural flow of the intermittent streams. We
also received comments that groundwater pumping authorized by the KCGCD
will result in adverse impact to Devils River minnow habitat in Pinto
Creek. The KCGCD management plan was not approved until after the
public comment period for this designation and, therefore, was not
considered in its entirety as a basis for possible exclusion. We
received comments from the KCGCD during the public comment period
indicating that the future plan will likely provide spring flows in
Pinto Creek. If so, it will be of great value to the conservation of
the Devils River minnow and its habitat. We fully expect the KCGCD's
plan will be carried out with or without the designation of critical
habitat for the Devils River minnow and we look forward to working with
the KCGCD to conserve Devils River minnow habitats in Kinney County.
Landowners in the District are under the authority of the KCGCD for
pumping permits, and their compliance does not depend on their
voluntary cooperation. Therefore, we do not expect landowner
cooperation with the KCGCD to be influenced by the designation of
critical habitat or the exclusion from critical habitat, of Pinto
Creek.
However, for all the reasons discussed above under the Devils River
Unit, ``Benefits of Exclusion,'' section, maintaining strong non-
Federal partnerships with landowners along Pinto Creek are important.
This unit flows only through private lands, and there is only one
bridge crossing that provides very limited access, so
[[Page 47017]]
landowner cooperation here is also vital to accomplishing recovery
tasks. In the past we have had good relationships with the landowners
along Pinto Creek, and access has been provided upon request. Based on
our current relationships with the landowners, particularly in the most
upstream reaches, we do not expect that critical habitat designation in
this unit will likely negatively impact those relationships. We
received only one comment from a landowner on Pinto Creek. This
landowner was concerned about the impacts of groundwater pumping on
stream flows and did not express any concerns about the proposed
designation of critical habitat.
The KCGCD included as a public comment a resolution opposing the
designation of critical habitat because they considered the Pinto Creek
population of Devils River minnow introduced and stream flows there
intermittent. They made no comment relative to any cooperation or
potential that it would damage any future non-Federal partnership
opportunities. We hope to build a strong partnership with the KCGCD in
the future to work together to conserve spring flows in Pinto Creek.
While the critical habitat designation may be perceived negatively by
the KCGCD, we do not believe it will impact the long-term conservation
efforts of the KCGCD. The KCGCD stated in their resolution that they
were committed to maintaining natural flows in Pinto Creek. This is
part of their authority to manage groundwater pumping through a
permitting program. We believe the KCGCD will continue to strive toward
maintaining spring flows whether or not the Pinto Creek Unit is
included in the designation. Therefore, excluding the Pinto Creek Unit
is not anticipated to provide benefits for Devils River minnow through
preventing the loss of non-Federal partnerships in the Pinto Creek
Unit. We received no other information during the comment period that
would indicate there are additional benefits to excluding the Pinto
Creek Unit.
San Felipe Creek Unit
We considered the exclusion of the San Felipe Creek Unit, but based
on the record before us have elected not to exercise our discretion
under section 4(b)(2) of the Act to exclude this unit. There are some
limited educational benefits for the designation of the San Felipe
Creek Unit. Many local officials and agency personnel are already aware
of the need for conservation of San Felipe Creek for the benefit of the
Devils River minnow. However, educating the general public (citizens of
Val Verde County and the City of Del Rio) is a continuing goal for the
recovery of the species (related to water use conservation by the City
of Del Rio and preventing water pollution in San Felipe Creek) and
requires ongoing efforts to accomplish. Designation of critical habitat
could help to elevate the awareness to the public of the importance of
the conservation of San Felipe Creek.
We considered the San Felipe Creek management plans by the City of
Del Rio and the San Felipe Creek Country Club. These plans, signed in
2003, provide some conservation opportunities for the Devils River
minnow in San Felipe Creek. However, to date, many of the actions in
the plans have not been implemented. We have worked with the City of
Del Rio to draft a new San Felipe Creek Master Plan, but this plan was
not completed before the close of the comment period, and we do not
know when it will be finalized. Most of the lands along San Felipe
Creek are owned by the City of Del Rio. We do not expect the
designation of critical habitat to have any bearing on the management
of San Felipe Creek by the City of Del Rio. We have a good working
relationship with the City of Del Rio, and we expect to continue this
relationship. We received no indication from the City of Del Rio that
designation of critical habitat would impact our relationship. We
believe the City of Del Rio will continue to work toward completion and
implementation of the master plan and conservation efforts for San
Felipe Creek whether or not critical habitat is designated on San
Felipe Creek. Therefore, we do not believe there are any benefits of
excluding San Felipe Creek Unit based on these management plans and
ongoing conservation efforts.
Economic Analysis
Section 4(b)(2) of the Act requires us to designate critical
habitat on the basis of the best scientific information available and
to consider the economic and other relevant impacts of designating a
particular area as critical habitat. Section 4(b)(2) of the Act allows
the Secretary to exclude areas from critical habitat for economic or
other reasons if the Secretary determines that the benefits of such
exclusion exceed the benefits of designating the area as critical
habitat. However, this exclusion cannot occur if it will result in the
extinction of the species concerned.
Following the publication of the proposed critical habitat
designation, we conducted an economic analysis to estimate the
potential economic effects of the designation. The draft analysis
(dated December 21, 2007) was made available for public review on
February 7, 2008 (73 FR 7237). We accepted comments on the draft
analysis until March 10, 2008. Following the close of the comment
period, a final analysis of the potential economic effects of the
designation was developed taking into consideration the public comments
and any new information.
The economic analysis considers the potential economic effects of
all actions relating to the conservation of Devils River minnow,
including costs associated with sections 4, 7, and 10 of the Act, as
well as those attributable to designating critical habitat. It further
considers the economic effects of protective measures taken as a result
of other Federal, State, and local laws that aid habitat conservation
for Devils River minnow in areas containing the features essential to
the conservation of the species. The analysis considers both economic
efficiency and distributional effects. In the case of habitat
conservation, efficiency effects generally reflect the ``opportunity
costs'' associated with the commitment of resources to comply with
habitat protection measures (such as lost economic opportunities
associated with restrictions on land use). The economic analysis also
addresses how potential economic impacts are likely to be distributed,
including an assessment of any local or regional impacts of habitat
conservation and the potential effects of conservation activities on
small entities and the energy industry. This information can be used by
the decision-makers to assess whether the effects of the designation
might unduly burden a particular group or economic sector (see
``Required Determinations'' section below). Finally, the economic
analysis looks retrospectively at costs that have been incurred since
the date this species was listed as threatened (October 20, 1999; 64 FR
56596), and considers those costs that may occur in the 20 years
following designation of critical habitat (i.e., coextensive costs,
2008-2027).
The economic analysis focuses on the direct and indirect costs of
the rule. However, economic impacts to land-use activities can exist in
the absence of critical habitat. These impacts may result from, for
example, section 7 consultations under the jeopardy standard, local
zoning laws, State and natural resource laws, and enforceable
management plans and best management practices applied by other State
and Federal agencies. Economic impacts that result from these types of
protections are not included in the analysis as they are considered to
be
[[Page 47018]]
part of the regulatory and policy baseline.
The economic analysis estimates potential economic impacts
resulting from the implementation of Devils River minnow conservation
efforts in three categories: (a) Water quality; (b) nonnative species;
and (c) Devils River minnow sampling and monitoring. The final economic
analysis estimates total pre-designation baseline impacts (8-year total
from 1999 to 2007) to be $388,000, assuming a 3 percent discount rate,
and $402,000, assuming a 7 percent discount rate. Post-designation
baseline impacts over the next 20 years (2008 to 2027) are estimated to
be $406,000, assuming a 3 percent discount rate, and $300,000, assuming
a 7 percent discount rate. The post-designation incremental impacts
(2008 to 2027) are estimated to be $47,600, assuming a 3 percent
discount rate, and $33,600, assuming a 7 percent discount rate.
We evaluated the potential economic impact of this designation as
identified in the economic analysis. Based on this evaluation, we
believe that there are no disproportionate economic impacts that
warrant exclusion under section 4(b)(2) of the Act at this time. The
final economic analysis is available on the Internet at http://
www.regulations.gov and http://www.fws.gov/southwest/es/AustinTexas/ or
upon request from the Austin Ecological Services Field Office (see
ADDRESSES section).
Required Determinations
In our July 31, 2007, proposed rule (72 FR 41679), we indicated
that we would defer our determination of compliance with several
statutes and Executive Orders until the information concerning
potential economic impacts of the designation and potential effects on
landowners and stakeholders was available in the draft economic
analysis. In this final rule, we affirm the information contained in
the proposed rule concerning Executive Order (E.O.) 13132, E.O. 12988,
the Paperwork Reduction Act, the National Environmental Policy Act, and
the President's memorandum of April 29, 1994, ``Government-to-
Government Relations with Native American Tribal Governments'' (59 FR
22951).
Regulatory Planning and Review
The Office of Management and Budget (OMB) has determined that this
rule is not significant and has not reviewed this rule under Executive
Order 12866 (E.O. 12866). OMB bases its determination upon the
following four criteria:
(a) Whether the rule will have an annual effect of $100 million or
more on the economy or adversely affect an economic sector,
productivity, jobs, the environment, or other units of the government.
(b) Whether the rule will create inconsistencies with other Federal
agencies' actions.
(c) Whether the rule will materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients.
(d) Whether the rule raises novel legal or policy issues.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.,
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) (5 U.S.C. 802(2)), whenever an agency must publish a notice of
rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small governmental jurisdictions).
However, no regulatory flexibility analysis is required if the head of
an agency certifies the rule will not have a significant economic
impact on a substantial number of small entities. SBREFA amended RFA to
require Federal agencies to provide a certification statement of the
factual basis for certifying that the rule will not have a significant
economic impact on a substantial number of small entities. In this
final rule, we are certifying that the critical habitat designation for
Devils River minnow will not have a significant economic impact on a
substantial number of small entities. The following discussion explains
our rationale.
According to the Small Business Administration (SBA), small
entities include small organizations, such as independent nonprofit
organizations, and small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents, as well as small businesses (13 CFR 121.201). Small
businesses include manufacturing and mining concerns with fewer than
500 employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term ``significant economic impact'' is meant to apply
to a typical small business firm's business operations.
To determine if the rule could significantly affect a substantial
number of small entities, we considered the number of small entities
affected within particular types of economic activities (e.g.,
residential and commercial development and agriculture). We apply the
``substantial number'' test individually to each industry to determine
if certification is appropriate. However, the SBREFA does not
explicitly define ``substantial number'' or ``significant economic
impact.'' Consequently, to assess whether a ``substantial number'' of
small entities is affected by this designation, this analysis considers
the relative number of small entities likely to be impacted in an area.
In some circumstances, especially with critical habitat designations of
limited extent, we may aggregate across all industries and consider
whether the total number of small entities affected is substantial. In
estimating the number of small entities potentially affected, we also
consider whether their activities have any Federal involvement.
Designation of critical habitat only affects activities conducted,
funded, or permitted by Federal agencies. Some kinds of activities are
unlikely to have any Federal involvement and so will not be affected by
critical habitat designation. In areas where the species is present,
Federal agencies already are required to consult with us under section
7 of the Act on activities they fund, permit, or carry out that may
affect Devils River minnow (see Section 7 Consultation section).
Federal agencies also must consult with us if their activities may
affect critical habitat. Designation of critical habitat, therefore,
could result in an additional economic impact on small entities due to
the requirement to reinitiate consultation for ongoing Federal
activities (see Application of the ``Adverse Modification'' Standard
section).
Appendix B of the final economic analysis (FEA) examined the
potential for Devils River minnow conservation efforts to affect small
entities. The analysis was based on the estimated impacts associated
with the proposed critical habitat designation. Based on the analysis,
the potential for economic impacts of the designation on small
[[Page 47019]]
entities are expected to be borne primarily by the City of Del Rio and
other miscellaneous small entities. The identities of these small
entities are not known at this time but are expected to include local
developers and private landowners that may represent third parties in
section 7 consultations on the Devils River minnow in the future. The
City of Del Rio and other miscellaneous small entities are expected to
incur, at most, combined annualized administrative costs related to
consultations for adverse modification of approximately $3,000,
assuming a 3 percent discount rate. This estimated $3,000 in combined
annual administrative costs is not expected to have a significant
impact on small entities, including the City of Del Rio. In addition,
because the annualized post-designation incremental impacts expected
for the City of Del Rio and other miscellaneous small entities are
relatively small, no future indirect impacts associated with post-
designation incremental impacts are expected for the small businesses
and entities included in this analysis.
Small Business Regulatory Enforcement Fairness Act (5 U.S.C 801 et
seq.)
Under SBREFA, this rule is not a major rule. Our detailed
assessment of the economic effects of this designation is described in
the economic analysis. Based on the effects identified in the economic
analysis, we believe that this rule will not have an annual effect on
the economy of $100 million or more, will not cause a major increase in
costs or prices for consumers, and will not have significant adverse
effects on competition, employment, investment, productivity,
innovation, or the ability of U.S.-based enterprises to compete with
foreign-based enterprises. Refer to the final economic analysis for a
discussion of the effects of this determination (see ADDRESSES for
information on obtaining a copy of the final economic analysis).
Executive Order 13211--Energy Supply, Distribution, or Use
On May 18, 2001, the President issued E.O. 13211 on regulations
that significantly affect energy supply, distribution, or use. E.O.
13211 requires agencies to prepare Statements of Energy Effects when
undertaking certain actions. OMB has provided guidance for implementing
this E.O. that outlines nine outcomes that may constitute ``a
significant adverse effect'' when compared without the regulatory
action under consideration. The economic analysis finds that none of
these criteria are relevant to this analysis. Thus, based on
information in the economic analysis, energy-related impacts associated
with Devils River minnow conservation activities within critical
habitat are not expected. As such, the designation of critical habitat
is not expected to significantly affect energy supplies, distribution,
or use. Therefore, this action is not a significant energy action, and
no Statement of Energy Effects is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C.
1501), the Service makes the following findings:
(a) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or Tribal
governments, or the private sector and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or Tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. Non-Federal entities that receive Federal
funding, assistance, permits, or otherwise require approval or
authorization from a Federal agency for an action, may be indirectly
impacted by the designation of critical habitat. However, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above on to State governments.
(b) We do not believe that this rule will significantly or uniquely
affect small governments because it will not produce a Federal mandate
of $100 million or greater in any year; that is, it is not a
``significant regulatory action'' under the Unfunded Mandates Reform
Act. The designation of critical habitat imposes no obligations on
State or local governments. By definition, Federal agencies are not
considered small entities, although the activities they fund or permit
may be proposed or carried out by small entities. As such, a Small
Government Agency Plan is not required.
Executive Order 12630--Takings
In accordance with E.O. 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have analyzed the potential takings implications of
critical habitat for the Devils River minnow in a takings implications
assessment. Critical habitat designation does not affect landowner
actions that do not require Federal funding or permits, nor does it
preclude development of habitat conservation programs or issuance of
incidental take permits to permit actions that do require Federal
funding or permits to go forward. The takings implications assessment
concludes that this final designation of critical habitat for Devils
River minnow does not pose significant takings implications for lands
within or affected by the designation.
Federalism
In accordance with E.O. 13132 (Federalism), the final rule does not
have significant Federalism effects. A Federalism assessment is not
required. In keeping with Department of the Interior and Department of
Commerce
[[Page 47020]]
policy, we requested information from, and coordinated development of,
this final critical habitat designation with appropriate State resource
agencies in Texas. The designation of critical habitat in areas
currently occupied by the Devils River minnow is not likely to impose
any additional restrictions to those currently in place and, therefore,
has little incremental impact on State and local governments and their
activities. The designation may have some benefit to these governments
because the areas that contain the physical and biological features
essential to the conservation of the species are more clearly defined,
and the PCEs of the habitat necessary to the conservation of the
species are specifically identified. This information does not alter
where and what federally sponsored activities may occur. However, it
may assist local governments in long-range planning (rather than having
them wait for case-by-case section 7 consultation to occur).
Civil Justice Reform
In accordance with E.O. 12988 (Civil Justice Reform), the Office of
the Solicitor has determined that the rule does not unduly burden the
judicial system and that it meets the requirements of sections 3(a) and
3(b)(2) of the Order. We are designating critical habitat in accordance
with the provisions of the Act. This final rule uses standard property
descriptions and identifies the physical and biological features
essential to the conservation of the species within the designated
areas to assist the public in understanding the habitat needs of the
Devils River minnow.
Paperwork Reduction Act of 1995
This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or
reporting requirements on State or local governments, individuals,
businesses, or organizations. An agency may not conduct or sponsor, and
a person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.
National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.)
It is our position that, outside the Tenth Circuit, we do not need
to prepare environmental analyses as defined by the NEPA in connection
with designating critical habitat under the Act. We published a notice
outlining our reasons for this determination in the Federal Register on
October 25, 1983 (48 FR 49244). This assertion was upheld in the courts
of the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir.
Ore. 1995), cert. denied 116 S. Ct. 698 (1996)).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175, and the Department
of Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. We have determined that
there are no tribal lands occupied at the time of listing that contain
the features essential for the conservation of Devils River minnow, and
no Tribal lands that are unoccupied areas that are essential for the
conservation of the Devils River minnow. Therefore, we are not
designating critical habitat for the Devils River minnow on Tribal
lands.
References Cited
A complete list of all references cited in this rulemaking is
available upon request from the Field Supervisor, Austin Ecological
Services Field Office (see ADDRESSES).
Author(s)
The primary authors of this rulemaking are staff members of the
Austin Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
0
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of
the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Public Law 99-625, 100 Stat. 3500; unless otherwise
noted.
0
2. Amend Sec. 17.11(h) by revising the entry for ``Minnow, Devils
River'' under ``FISHES'' to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
-------------------------------------------------------- population where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Fishes
* * * * * * *
Minnow, Devils River............. Dionda diaboli...... U.S.A. (TX), Mexico Entire............. T 669 17.95(e) NA
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.95(e) by adding an entry for ``Devils River Minnow
(Dionda diaboli)'' in the same alphabetical order that the species
appears in the table at Sec. 17.11(h) to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(e) Fishes.
* * * * *
Devils River Minnow (Dionda diaboli)
(1) Critical habitat units are depicted for Val Verde County and
Kinney County, Texas, on the maps below.
(2) The primary constituent elements of critical habitat for the
Devils River
[[Page 47021]]
minnow are the following habitat components:
(i) Streams characterized by:
(A) Areas with slow to moderate water velocities between 10 and 40
cm/second (4 and 16 in/second) in shallow to moderate water depths
between approximately 10 cm (4 in) and 1.5 m (4.9 ft), near vegetative
structure, such as emergent or submerged vegetation or stream bank
riparian vegetation that overhangs into the water column;
(B) Gravel and cobble substrates ranging in diameter between 2 and
10 cm (0.8 and 4 in) with low or moderate amounts of fine sediment
(less than 65 percent stream bottom coverage) and low or moderate
amounts of substrate embeddedness; and
(C) Pool, riffle, run, and backwater components free of artificial
instream structures that would prevent movement of fish upstream or
downstream.
(ii) High-quality water provided by permanent, natural flows from
groundwater spring and seeps characterized by:
(A) Temperature ranging between 17 [deg]C and 29 [deg]C (63 [deg]F
and 84 [deg]F);
(B) Dissolved oxygen levels greater than 5.0 mg/l;
(C) Neutral pH ranging between 7.0 and 8.2;
(D) Conductivity less than 0.7 mS/cm and salinity less than 1 ppt;
(E) Ammonia levels less than 0.4 mg/l; and
(F) No or minimal pollutant levels for copper, arsenic, mercury,
and cadmium; human and animal waste products; pesticides; fertilizers;
suspended sediments; and petroleum compounds and gasoline or diesel
fuels.
(iii) An abundant aquatic food base consisting of algae attached to
stream substrates and other microorganisms associated with stream
substrates.
(iv) Aquatic stream habitat either devoid of nonnative aquatic
species (including fish, plants, and invertebrates) or in which such
nonnative aquatic species are at levels that allow for healthy
populations of Devils River minnows.
(v) Areas within stream courses that may be periodically dewatered
for short time periods, during seasonal droughts, but otherwise serve
as connective corridors between occupied or seasonally occupied areas
through which the species moves when the area is wetted.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, airports, roads, and other paved areas) and the
land on which they are located existing on the effective date of this
rule and not containing one or more of the primary constituent
elements.
(4) Critical habitat map units. Data layers defining map units were
created in ArcGIS using the National Hydrography Dataset and 7.5'
topographic quadrangle maps obtained from U.S. Geological Survey to
approximate stream channels and calculate distances (stream km and
stream mi). We made some minor adjustments to stream channels using the
2004 National Agriculture Imagery Program digital orthophotos obtained
from the Texas Natural Resources Information System. For each critical
habitat unit, the upstream and downstream boundaries are described as
paired geographic coordinates X, Y (meters E, meters N, UTM Zone 14,
referenced to North American Horizontal Datum 1983). Additionally,
critical habitat areas include the stream channels within the
identified stream reaches and areas within these reaches up to the
bankfull width.
(5) Note: Index map of critical habitat units for the Devils River
minnow follows:
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[[Page 47022]]
[GRAPHIC] [TIFF OMITTED] TR12AU08.000
[[Page 47023]]
(6) Unit 2: San Felipe Creek, Val Verde County, Texas.
(i) Unit 2 consists of approximately 7.9 stream km (4.9 stream mi)
on San Felipe Creek, 0.8 stream km (0.5 stream mi) of the outflow of
San Felipe Springs West, and 0.3 stream km (0.2 stream mi) of the
outflow of San Felipe Springs East. The upstream boundary on San Felipe
Creek is the Head Springs (UTM 318813E, 3253702N) located about 1.1
stream km (0.7 stream mi) upstream of the Jap Lowe Bridge crossing. The
downstream boundary on San Felipe Creek is in the City of Del Rio 0.8
stream km (0.5 stream mi) downstream of the Academy Street Bridge
crossing (UTM 316317E, 3248147N). This unit includes the outflow
channels from the origin of the two springs, San Felipe Springs West
(UTM 317039E, 3250850N) and San Felipe Springs East (UTM 317212E,
250825N), downstream to the confluence with San Felipe Creek. Including
all three streams, the total distance in Unit 2 is approximately 9.0
stream km (5.6 stream mi).
(ii) Note: Map of Unit 2, San Felipe Creek Unit, follows:
[[Page 47024]]
[GRAPHIC] [TIFF OMITTED] TR12AU08.001
[[Page 47025]]
(7) Unit 3: Pinto Creek, Kinney County, Texas.
(i) Unit 3 consists of approximately 17.5 stream km (10.9 stream
mi) on Pinto Creek. The upstream boundary is Pinto Springs (UTM
359372E, 3254422N). The downstream boundary is 100 m (330 ft) upstream
of the Highway 90 Bridge crossing of Pinto Creek (UTM 351163E,
3246179N).
(ii) Note: Map of Unit 3, Pinto Creek Unit, follows:
[GRAPHIC] [TIFF OMITTED] TR12AU08.002
[[Page 47026]]
* * * * *
Dated: July 29, 2008.
Lyle Laverty,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E8-17985 Filed 8-11-08; 8:45 am]
BILLING CODE 4310-55-C