[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


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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

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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)
いいいいいいいいいいいいいいいいいいいいいいいいいい
    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:
BILLING CODE 4310-55-P

[[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