[Federal Register: October 20, 1999 (Volume 64, Number 202)]

[Rules and Regulations]               

[Page 56596-56609]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]




Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AE 86


Endangered and Threatened Wildlife and Plants; Final Rule To List 

the Devils River Minnow as Threatened

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.


SUMMARY: We, the U.S. Fish and Wildlife Service, determine the Devils 

River minnow (Dionda diaboli) to be a threatened species under the 

authority of the Endangered Species Act of 1973, as amended (Act). The 

Devils River minnow is a small fish with a known distribution limited 

to three locations in Val Verde and Kinney counties, Texas, and one 

drainage in Coahuila, Mexico. The species' range is significantly 

reduced and fragmented due to habitat loss from dam construction, 

spring dewatering, and other stream modifications. The numbers of 

Devils River minnows collected during fish surveys over the past 25 

years have declined; once one of the most abundant fish in the Devils 

River, the minnow has now become one of the least abundant. The 

species' decline in abundance in the Devils River may be attributed to 

the effects of both habitat modification and possibly predation by 

smallmouth bass (Micropterus dolomieu), an introduced game fish.

    We originally proposed to list the Devils River minnow as 

endangered. However, since publication of the proposed rule, a 

Conservation Agreement (Agreement) for the species has been signed and 

specific milestones for conservation actions have been agreed to by us, 

the Texas Parks and Wildlife Department (TPWD), and the City of Del 

Rio. We determine that the actions already accomplished under this 

Agreement, have reduced the imminence of the threats to the species 

sufficiently to justify a threatened designation. This action will 

implement Federal protection provided by the Act for the Devils River 

minnow. We determine that designation of critical habitat for the 

Devils River minnow is not prudent.

EFFECTIVE DATES: The effective date of this rule is November 19, 1999.

ADDRESSES: The complete file for this rule is available for inspection, 

by appointment, during normal business hours at the Austin Ecological 

Services Field Office, 10711 Burnet Road, Suite 200, Austin, Texas, 


FOR FURTHER INFORMATION CONTACT: Nathan Allan, Fish and Wildlife 

Biologist, at the above address, telephone 512/490-0057, or facsimile 




    The Devils River minnow (Dionda diaboli Hubbs and Brown) is 

classified in the Cyprinidae (minnow) family. It was first collected 

from Las Moras Creek, near Brackettville, Texas, on April 14, 1951. The 

species was described by Hubbs and Brown (1956) from specimens 

collected in the Devils River at Baker's Crossing (southern-most bridge 

crossing of State Highway 163) in 1951. The species occurs with similar 

minnows, such as the closely related manantial roundnose minnow (Dionda 

argentosa) and is also related to the more common roundnose minnow 

(Dionda episcopa). Devils River minnow is recognized as a distinct 

species by the American Fisheries Society (Robins et al. 1991) based on 

morphological characteristics (Hubbs and Brown 1956), genetic markers 

(Mayden et al. 1992), and chromosome differences (Gold et al. 1992).

    The Devils River minnow is a small fish, with adults reaching sizes 

of 25-53 millimeters (mm) (1.0-2.1 inches (in.)) standard length. The 

fish has a wedge-shaped caudal (near the tail) spot and pronounced 

lateral stripe with double dashes extending through the eye to the 

snout but not reaching the lower lip. The species has a narrow head 

with prominent dark markings on scale pockets above the lateral line 

that produce a cross-hatched appearance when viewed from the top (Hubbs 

and Brown 1956).

    Little information is available on life history characteristics, 

feeding patterns, or reproductive behaviors of this species. However, 

based on their extended intestinal tract, species of the genus Dionda 

are considered to feed primarily on algae. Since Dionda episcopa, a 

closely related species, are broadcast spawners with nonadhesive eggs 

that sink to the substrate (Johnston and Page 1992), we believe Devils 

River minnows are as well.

    General habitat associations for Devils River minnow have been 

described as channels of fast-flowing, spring-fed waters over gravel 

substrates (Harrell 1978). Although the species is closely associated 

with spring systems, it most often occurs where spring flow enters a 

stream, rather than in the spring outflow itself (Hubbs and Garrett 

1990). The species is adapted to the hydrologic variations inherent in 

desert river systems (Harrell 1978), which are characterized by 

extended droughts and extreme flash floods (USGS 1989).

    The Devils River minnow is part of a unique fish fauna in west 

Texas streams where a mixture of fishes occur, including Mexican 

peripherals, local endemics, and widespread North American fishes 

(Hubbs 1957). About half of the native fishes of the Chihuahuan Desert 

of Mexico and Texas are considered by Hubbs as threatened (1990) and at 

least four species have been documented to be extinct (Miller et al. 

1989), primarily due to habitat destruction and introduced species.

    The Devils River minnow is native to tributary streams of the Rio 

Grande in Val Verde and Kinney counties, Texas, and Coahuila, Mexico. 

The known historical range of the species is based on collections from 

the 1950's and 1970's and includes the Devils River from Beaver Lake 

downstream to near its confluence with the Rio Grande; San Felipe Creek 

from the springs in the headwaters to springs in Del Rio; Sycamore 

Creek; Las Moras Creek near

[[Page 56597]]

Brackettville; Rio San Carlos, Mexico; and the Rio Salado Drainage, 

Mexico (Brown 1955; Hubbs and Brown 1956; Robinson 1959; Harrell 1978; 

Smith and Miller 1986; Garrett et al., 1992). Despite numerous 

collection efforts, the species has never been reported from the 

mainstem Rio Grande, the Rio Conchos drainage, or tributary streams 

other than those listed above. The range of the species prior to 1951 

is unknown.

    A comprehensive assessment of the distribution of Devils River 

minnow in Texas was described by Garrett et al. (1992). This study 

documented the presence of the species in 1989 at two sites on the 

Devils River (Baker's Crossing and Dolan Springs), two sites on San 

Felipe Creek, and one site on Sycamore Creek. None were collected in 

samples from Las Moras Creek.

    Garrett et al. (1992) found that Devils River minnow was very rare 

throughout its range in 1989 compared to past collections. At 24 

sampling locations within the historical range, a total of only 7 

individuals were collected from 5 sites. In addition to declines in the 

Devils River minnow populations, Garrett et al. (1992) also observed a 

general shift in community structure toward fishes that tend to occupy 

quiet water or pool habitat, conditions that are often limited in 

flowing spring runs. The authors hypothesized that this shift was the 

result of reduced stream flows from drought, exacerbated by human 

modification of stream habitats, especially in Sycamore and Las Moras 


    The most recent information from collections in 1997 and 1998 

confirm the existence of Devils River minnow in only three locations in 

Texas--two sites in small streams tributary to the Devils River 

(Phillips Creek and Dolan Creek) and one site in San Felipe Creek in 

Del Rio.

    We are unaware of any published information on the status of the 

Devils River minnow in Mexico. A review of museum records indicates 

that the species may now occur in only one locality in Mexico. 

Populations there appear to be very depressed (S. Contreras-Balderas, 

University of Nuevo Leon, in litt. 1997) and face significant threats 

from industrial and agricultural development (Contreras and Lozano 


    The region of Texas where the Devils River minnow occurs is semi-

arid, receiving an average of about 46 centimeters (cm) (18 in.) of 

rainfall annually. Spring-fed streams of west Texas flow southerly 

through rocky, limestone soils and shrubby vegetation characteristic of 

the more arid western reaches of the Hill Country. The aquifer that 

sustains spring flows within the range of the Devils River minnow is 

the Edwards-Trinity (Plateau) Aquifer. This major aquifer produces the 

largest number of springs in Texas (Brune 1975). The contributing and 

recharge area for springs on the Devils River and San Felipe Creek is 

suspected to include a large area as far north as Sheffield in Pecos 

County and Eldorado in Schleicher County, although the subsurface 

hydrogeomorphology (underground water characteristics) of the region is 

not well-defined (Brune 1981). The flow from springs fluctuates 

considerably, depending on the amount of rainfall, recharge, and water 

in storage in the aquifer. Conservation of the quality and quantity of 

this groundwater supply is essential for the continued existence of the 

Devils River minnow.

    Areas where the Devils River minnow occurs are mostly in private 

ownership. Exceptions include the Devils River State Natural Area 

located north of Dolan Falls and managed by the TPWD (Baxter 1993), and 

land adjoining portions of San Felipe Creek owned by the City of Del 

Rio (population of about 38,000). One important private holding is the 

Dolan Falls Preserve, in the middle portion of the Devils River, owned 

by The Nature Conservancy (Baxter 1993). Primary land uses within the 

watersheds supporting Devils River minnow are cattle, sheep, and goat 

ranching. Generally, these areas are very remote with little human 

development beyond that necessary to support ranching operations.

    The Devils River minnow is currently listed as a threatened species 

by the State of Texas, the Texas Organization for Endangered Species 

(Hubbs et al. 1991), and the Endangered Species Committee of the 

American Fisheries Society (Williams et al. 1989). The Devils River 

minnow is listed as an endangered species in Mexico (NOM-ECOL-059).

    The Agreement for Devils River minnow was signed by the Service, 

the TPWD (in cooperation with local landowners), and the City of Del 

Rio on September 2, 1998, to expedite conservation measures needed to 

ensure the continued existence of the species. Preliminary drafts of 

the Agreement were made available to local landowners for comment and a 

draft version was also distributed at a public hearing on the proposal 

to list the species. The Agreement includes a Conservation Strategy 

(Strategy) to describe the specific procedures required for 

conservation of the Devils River minnow. We carefully considered the 

implementation to date of the conservation actions as described in the 

Strategy and the effects of that implementation on removing threats to 

the species when making the final listing determination for the Devils 

River minnow. Following is a discussion of the conservation actions and 

implementation that have occurred to date.

    The ten conservation actions that are included in the Strategy and 

their implementation status are:

    (1) Determine the current status of the Devils River minnow and 

monitor changes. This action was initiated in November 1997, (prior to 

signing the Agreement) with sampling in the mainstem Devils River and 

San Felipe Creek in Del Rio and continued with collections from Philips 

Creek and Dolan Creek in May, 1998.

    (2) Maintain genetically representative, captive populations of 

Devils River minnow at two fish hatchery facilities for reintroduction, 

and as insurance against extinction. This action has been initiated by 

the TPWD by holding a small number of individuals of Devils River 

minnow at a hatchery since November 1997. Those individuals produced an 

unassisted reproductive effort in March 1999, in an artificial stream, 

indicating that captive propagation is likely readily accomplished. We 

agreed to assist in this action by providing an additional location to 

develop captive propagation techniques for the species. We have secured 

funding for our San Marcos National Fish Hatchery and Technology Center 

to initiate this action in the very near future.

    (3) Reintroduce Devils River minnows, reared in captive 

populations, in order to reestablish populations in nature. This action 

has not yet been implemented and depends on a number of other actions 

being completed before reintroductions can be initiated.

    (4) Continue and enhance protection of the San Felipe Creek 

watershed. This action by the City of Del Rio to protect San Felipe 

Creek has not yet been implemented. The City has committed to a concept 

of conservation of the natural environment in any future development 

plans within the riparian zone of the creek (Beth Eby, City Manager, 

City of Del Rio, in litt. 1997). This action will be an ongoing effort 

by the City for protection of this population of Devils River minnow.

    (5) Provide technical assistance to landowners on riparian 

protection and management. Not yet initiated.

    (6) Review live bait harvest and selling practices in the Devils 

River area to develop methods and take appropriate actions (for 


[[Page 56598]]

regulation, education) to prevent the further establishment of exotic 

aquatic species within the historical range of Devils River minnow. Not 

yet initiated.

    (7) Document the abundance and ranges of exotic fish in the Devils 

River, and San Felipe, Las Moras, and Sycamore creeks. Not yet 


    (8) Obtain and analyze changes in flow data for the Devils River, 

and San Felipe, Las Moras, and Sycamore creeks. Not yet initiated.

    (9) With progeny of the captive population, use a simulated 

environment to determine ecological and life history requirements of 

the Devils River minnow. The TPWD has initiated this action through the 

purchase and construction of the facilities necessary to do experiments 

on the ecology of the species. Preliminary experiments have been 


    (10) Determine predator/prey interactions between smallmouth bass 

and the Devils River minnow through field studies. This action will 

depend in part on the completion of a current study by Texas A&M 

University and implementation of laboratory experiments discussed in 

action number 9, above.

    In February 1999, we requested confirmation from the TPWD and the 

City of Del Rio of their commitment to implementation of the Agreement, 

and clarified some specific milestones for accomplishing the goals of 

the Agreement. The TPWD and the City concurred in writing to implement 

key components of the Agreement within the next 2 years. The milestones 

agreed to by the three parties include:

    (1) Have healthy, genetically representative captive stocks of 

Devils River minnow in at least two facilities. Each facility should 

maintain two separate stocks, one from the Devils River and one from 

San Felipe Creek.

    (2) Conduct the first annual population monitoring for the Devils 

River minnow throughout its historical range in the U.S.

    (3) Conduct the first annual monitoring for the Devils River minnow 

throughout its historical range and potential habitats in Mexico.

    (4) Conduct the second annual population monitoring for the Devils 

River minnow throughout its historical range in the U.S.

    (5) Improve the status of the Devils River minnow in San Felipe 

Creek at Del Rio and restore Devils River minnow populations in the 

headwater springs area. This will be indicated by maintaining stable 

population sizes of Devils River minnow at Del Rio and restoring 

population sizes at least equal to those historically in the headwater 

springs. In addition, implementation of conservation measures in San 

Felipe Creek in Del Rio (such as a finalized policy by the City of Del 

Rio for preservation of the San Felipe Creek watershed, development of 

a San Felipe Creek floodplain restoration plan, completion of a water 

conservation plan, and completion of a management plan for the golf 

course) will be completed to reduce threats to the species there.

    (6) Improve the status of the Devils River minnow in the Devils 

River. This will be accomplished by establishing additional locations 

of Devils River minnow, with population sizes at least equal to 

historical levels (such as similar to those found by H.L. Harrell in 

the 1970's). This will include further threat assessment and addressing 

potential limiting factors in this system, particularly the effects of 

smallmouth bass and changes in stream flows.

    We concur with many of the public comments that supported this 

cooperative approach. This listing does not preclude continuation of 

cooperative efforts between parties to the Agreement or continuing 

efforts to implement the Conservation Strategy. As stated in the 

introduction of the Agreement, we believe that full implementation of 

the Strategy may ultimately reduce the threats to the Devils River 

minnow and allow a future review of the species' status. This could 

result in a future delisting if threats are removed and the status of 

the species significantly improves such that recovery has occurred.

Previous Federal Action

    On August 15, 1978, we published a proposed rule (43 FR 36117) to 

list the Devils River minnow as a threatened species and to designate 

its critical habitat. On March 6, 1979, we published a notice (44 FR 

12382) to withdraw the critical habitat portion of the proposal to meet 

the new critical habitat requirements set forth in the Endangered 

Species Act Amendments of 1978 (Public Law 95-632, 92 Stat. 3751). We 

reproposed the designation of critical habitat for the Devils River 

minnow on May 16, 1980 (45 FR 32348). A notice of public hearing was 

published on July 9, 1980 (45 FR 46141), and the public hearing was 

held on July 23, 1980, in Del Rio, Texas. The 1978 amendments to the 

Act also required that all proposals over two years old be withdrawn. 

We withdrew the listing and critical habitat proposals on September 30, 

1980 (45 FR 64853), because the 2-year time limit on the proposed 

listing had expired.

    We included the Devils River minnow as a category 2 candidate 

species in notices of review published December 30, 1982 (47 FR 38454), 

September 18, 1985 (50 FR 37958), and January 6, 1989 (54 FR 554). 

Category 2 taxa were those that we believed may be eligible for 

threatened or endangered status, but for which the available biological 

information in our possession was insufficient to support listing the 

species. However, new information obtained in 1989 (and later published 

as Garrett et al. 1992) provided a basis for including the Devils River 

minnow as a category 1 candidate in notices of review published 

November 21, 1991 (56 FR 58804), and November 15, 1994 (59 FR 58982). 

Category 1 taxa were those for which we had substantial biological 

information on hand to support proposing to list the species as 

threatened or endangered.

    As announced in a notice published in the February 28, 1996, 

Federal Register (61 FR 7596), the designation of multiple categories 

of candidates was discontinued, and only species for which we have 

sufficient information to support listing are now recognized as 

candidates. The Devils River minnow remained a candidate species in 

notices of review published February 28, 1996 (61 FR 7596), and 

September 19, 1997 (62 FR 49398).

    On March 27, 1998, we published a proposed rule to list the Devils 

River minnow as endangered and invited public comment (63 FR 14885). On 

May 14, 1998, we published a notice of public hearing on the proposal 

(63 FR 26764), and a public hearing was subsequently held in Del Rio, 

Texas, on May 28, 1998. On October 13, 1998, we published a notice 

reopening the comment period on the proposed rule for an additional 30 

days and announcing the availability of new information and the 

Conservation Agreement (63 FR 54660).

    The processing of this final rule conforms with our current listing 

priority guidance published in the Federal Register on May 8, 1998 (63 

FR 25503). The guidance calls for giving highest priority to handling 

emergency situations (Tier 1) and second highest priority to resolving 

the listing status of outstanding proposed listings, resolving the 

conservation status of candidate species, processing petitions, and 

delisting or reclassifications (Tier 2). The guidance assigns the 

lowest priority (Tier 3) to processing proposed or final designations 

of critical habitat. Processing of this final rule is a Tier 2 action.

[[Page 56599]]

Summary of Comments and Recommendations

    In the March 27, 1998, proposed rule (63 FR 14885), the May 14, 

1998, public hearing notice (63 FR 26764), and the October 13, 1998, 

notice reopening the comment period (63 FR 54660), we requested all 

interested parties to submit factual reports or information that might 

contribute to the development of a final rule. The original public 

comment period extended 120 days from the date of the proposal and 

closed on July 27, 1998. The comment period was reopened for an 

additional 30 days on October 13, 1998, and closed on November 12, 

1998. The second comment period was reopened to accept comments on the 

proposal after the original comment period closed. Updated information 

on the distribution and abundance of the species was provided by the 

TPWD (G. Graham, TPWD, in litt. 1998). In addition, a Conservation 

Agreement for the Devils River minnow among us, the TPWD, and the City 

of Del Rio was signed on September 2, 1998.

    We contacted numerous Federal and State agencies, county and 

municipal governments, scientific organizations, and private 

individuals to request comments on the proposal. Newspaper notices 

inviting public comment and announcing the public hearing were 

published between May 3 and May 12, 1998, in the Sanderson Times, Del 

Rio News Herald, Odessa American, San Angelo Standard Times, Midland 

Reporter-Telegram, Devils River News, and the Ozona Stockman.

    The public hearing was held in Del Rio on May 28, 1998. About 50 

people attended, and 18 made oral statements. We also received 13 

written comments from the public and agency officials during both 

comment periods. Four of the oral comments at the public hearing were 

the same or similar to written comments submitted by the same parties. 

One person submitted two comment letters. Therefore, comments were 

received from 26 separate commenters on the proposal.

    The following summary addresses the written and oral comments 

received. These comments comprise a range of issues regarding the 

proposal. Because multiple respondents offered similar comments in some 

cases, those comments were combined. Of those commenters stating a 

position, 11 clearly indicated opposition to the listing and another 8 

implied that they were opposed. Seven commenters did not clearly state 

a position. Ten commenters expressed support for the Conservation 

Agreement. The comments and our responses are as follows:

    Comment 1: There is a need for more information on the Devils River 

minnow before a decision is made. The distribution and abundance of the 

fish is likely larger than reported in the proposal, both in the U.S. 

and Mexico.

    Service Response: We agree that more can be learned about the 

Devils River minnow and its conservation with additional research. The 

Conservation Agreement has additional research and monitoring as key 

components for benefitting the species (see the ``Background'' section 

of this final rule). However, we must base the listing decision on the 

best information available at this time. With the current data, we 

conclude that the fish has declined over a significant portion of its 

range. Therefore, based on the best available information, threatened 

status for the Devils River minnow is warranted.

    Comment 2: Numerous commenters requested that we accept the 

Conservation Agreement among the Fish and Wildlife Service, TPWD, and 

the City of Del Rio in lieu of listing the minnow. Many believed this 

is a better approach to management of the Devils River minnow.

    Service Response: We agree that cooperative, voluntary efforts to 

conserve this species that remove or reduce threats that preclude the 

need to list would be preferable to Federal listing. However, full 

implementation of the conservation strategy activities that the 

agreement calls for has not occurred. We signed the Conservation 

Agreement so that conservation efforts could be quickly put in place to 

reduce the risks to the species' survival. We have considered the 

extent to which the conservation actions outlined in the Conservation 

Agreement have been implemented and are likely to reduce threats to the 

species, particularly in the near-term, in making this listing 

determination. We strongly support the efforts of State and local 

agencies taking active roles in the conservation of the Devils River 

minnow, and we believe the Agreement and actions outlined in it have 

the potential to benefit the species. The actions already accomplished 

in the Conservation Agreement, as well as the agreed-upon schedule for 

implementing the remaining actions, were considered in the decision to 

list as threatened. We believe that the conservation agreement is an 

important conservation tool. Even though full implementation has not 

occurred and we determined that threats to the species still exist such 

that listing is still warranted, the Conservation Agreement will be 

useful in facilitating and expediting the recovery of the Devils River 


    Comment 3: Some commenters requested the listing decision be 

delayed to allow the Conservation Agreement time to be implemented.

    Service Response: We are required by section 4 of the Act to 

publish a final decision within one year of a proposed rule. We took 

into account those actions of the Conservation Agreement that have been 

implemented to date and the benefits expected from actions that will be 

implemented in the near future. We determined that, within the 

statutory time frames mandated by the Act, listing the Devils River 

minnow as threatened at this time is the best course of action.

    Comment 4: Several commenters stated a strong desire to not incur 

additional Federal regulations over land and water use that would limit 

private property rights.

    Service Response: We do not foresee substantial impacts on private 

property rights through the Devils River minnow. In the ``Available 

Conservation Measures'' section of this final rule, we have outlined 

some private activities that likely will and likely will not result in 

take of the species under the prohibitions of section 9 of the Act. We 

are interested in working with landowners to develop cooperative 

solutions to species conservation that avoid or minimize the need for 

regulatory burdens on landowners.

    Comment 5: Local and state governmental agencies could manage the 

Devils River minnow better than the Federal government.

    Service Response: Listing the species by the Federal government 

does not preclude State and local management of the species. On the 

contrary, we encourage State and local involvement in recovery of 

endangered species. We believe that local actions are crucial to long-

term conservation of this species. We believe a cooperative approach by 

all parties will provide an even greater benefit to the species, and we 

offer any support where possible and needed.

    Comment 6: No significant groundwater pumping has occurred in the 

watershed since the 1960's.

    Service Response: We took this comment into consideration in this 

final rule (see discussion in the ``Summary of Factors Affecting the 

Species'' section) and have modified the discussion of this topic. 

Because of the lack of information on groundwater withdrawals, we do 

not have substantial information showing the level of pumping in and 

around the Devils River watershed. This prevents any correlation of 

streamflow with groundwater withdrawals. However,

[[Page 56600]]

sources such as Dietz (1955) and Brune (1981) claim that groundwater 

withdrawals have affected stream flows. We believe there is a potential 

that groundwater pumping could adversely affect habitat of the Devils 

River minnow.

    Comment 7: There have not been any changes in stream flows in the 

Devils River, and no data exist that suggest otherwise. In addition, 

there has never been permanent stream flow in the reach from Beaver 

Lake to Pecan Springs.

    Service Response: The information used in evaluating historical 

stream flow on the Devils River is from gage records collected by the 

International Boundary and Water Commission at the gage near Del Rio 

(1900-1957), the gage at Pafford Crossing (1960-1997), and the gage 

near Juno (1925-1973). We did not locate any specific studies or 

analysis of hydrology on the Devils River.

    We reevaluated all existing and new information concerning the 

presence of permanent flow between Pecan Springs and Beaver Lake on the 

Devils River. The ``Summary of Factors Affecting the Species'' section 

of this rule reflects the available information. One task included in 

the Conservation Agreement is an analysis of the hydrology of the 

Devils River and other streams supporting Devils River minnow to 

determine if stream flows have declined over time.

    Comment 8: No changes in grazing practices have occurred in recent 

times. Instead, the land is actually in better condition today than in 

previous times and the only changes have been an increase in the amount 

of cedar and mesquite.

    Service Response: We took this comment into consideration in this 

final rule (see discussion in the ``Summary of Factors Affecting the 

Species'' section) and have modified the discussion of this topic. The 

proposed rule did not state that land use practices, such as grazing, 

were known to be a major threat to the Devils River minnow. Instead we 

cited Brune's (1981) statement that some land use practices, such as 

overgrazing, that result in the loss of native rangeland grasses on the 

watershed, could lead to increased runoff and decreased groundwater 


    We do not have specific evidence that land use practices are a 

significant reason for the current decline in the species' distribution 

and abundance. However, Brune (1981) stated that if upland areas are 

poorly managed, one long-term effect is an increased rate of rainfall 

runoff and decreased rates of recharge to the groundwater.

    Comment 9: One commenter stated that there have never been any 

Devils River minnows collected from Beaver Lake or anywhere upstream of 

Pecan Springs.

    Service Response: In September 1973, and March 1974, H. Harrell 

collected Devils River minnow in Beaver Lake. Voucher specimens are 

deposited in the Strecker Museum, Baylor University. The 1973 sample 

contains 14 specimens and the 1974 sample contains 13 specimens of 

Devils River minnow.

    Comment 10: The actual abundance of Devils River minnow is higher 

than reported in the proposed rule. The recent collections of Devils 

River minnow from Phillips Creek and Dolan Creek show they are 


    Service Response: The new information on the presence of the Devils 

River minnow in Phillips and Dolan creeks is included in this final 

rule. The number of fish in Phillips Creek taken in May 1998, indicated 

a good population at this site at the time the collections were made. 

The collections at Dolan Creek are important because the only other 

collection of the species from this site was one specimen in 1989 

(Garrett et al. 1992). The two locations in the Devils River drainage 

are less than 20 river-km (13 river-mi) apart and are not sufficient to 

alleviate the concern for the status of the species in the Devils River 

or other portions of its range. The most recent information can only 

confirm three locations of the species throughout its historical range 

in the U.S. (these two in the Devils River and one at Del Rio in San 

Felipe Creek). Although population numbers are important, the 

determination to list a species is based on the five factors outlined 

in section 4 of the Act and summarized in this final rule under the 

``Summary of Factors Affecting the Species'' section.

    Comment 11: Devils River minnows are rare in the Devils River 

because of the introduction of smallmouth bass by TPWD.

    Service Response: We agree that predation by smallmouth bass could 

be a significant factor in the decline of Devils River minnow in the 

Devils River. Identification of the significance of this threat is one 

of the actions included in the Conservation Agreement (Conservation 

Action #8).

    Comment 12: It is illogical to expect the Devils River minnow 

population in the Devils River to be reestablished to 1950-levels under 

today's vastly changed circumstances, such as Amistad Dam.

    Service Response: Destruction of the species' habitat, such as what 

resulted from Amistad Dam, is one of the five factors we are required 

to consider (See the ``Summary of Factors Affecting the Species'' 

section below) when deciding if a species is threatened or endangered. 

However, when planning recovery, we do not expect to restore 

populations of Devils River minnow to historical locations because some 

habitat changes are not reversible. We do believe the Devils River 

minnow can be protected from extinction through conservation of the 

remaining ecosystems upon which the species depends. The past habitat 

destruction only serves to heighten the need for protection and 

enhancement of suitable habitats remaining for the Devils River minnow.

    Comment 13: The Natural Resources Conservation Service (NRCS) 

requested we remove their agency from the list of Federal agencies that 

may have actions that require consultation under section 7 of the Act. 

The NRCS indicated that none of their programs adversely affected the 

minnow, but served to benefit the minnow by improving habitat.

    Service Response: We support the NRCS in assisting landowners with 

ranching practices that may benefit Devils River minnow habitat. 

However, we left the NRCS as a potential agency for consultations 

because the Act mandates that any Federal action that may affect a 

listed species, even if that effect is beneficial, requires 

consultation with us under section 7 of the Act. We included language 

in this final rule (see Available Conservation Measures, below) to 

explain the requirements of Federal agencies under section 7(a)(1) of 

the Act.

    Comment 14: The proposed rule does not indicate the Devils River 

minnow is bred or hunted for commercial purposes, or that it moves in 

interstate commerce. Therefore, the Service lacks authority under the 

Act pursuant to the Commerce Clause of Article 1, section 8 of the 

United States Constitution to regulate the Devils River minnow.

    Service Response: A recent decision in the United States Court of 

Appeals for the District of Columbia Circuit (National Association of 

Homebuilders v. Babbitt, 130 F. 3d 1041, D.C. Cir. 1997) makes it clear 

in its application of the test used in the United States Supreme Court 

case, United States v. Lopez, 514 U.S. 549 (1995), that regulation of 

species limited to one State under the Act is within Congress' commerce 

clause power. On June 22, 1998, the Supreme Court declined to accept an 

appeal of this case (118 S. Ct. 2340 1998). Therefore, our application 

of the Act to Devils River minnow, a fish endemic to only two counties 

in the State of Texas, is constitutional. We

[[Page 56601]]

have authority under the Act to list the Devils River minnow as 

threatened and direct its conservation and eventual recovery.

    In addition to the reasons supporting the constitutionality of the 

Act itself that were discussed in National Association of Homebuilders 

v. Babbitt, the past, current, and potentially future use of Devils 

River minnow habitat for agriculture and livestock production, 

residential development and roads and highways are activities that 

affect interstate commerce. The specimens of this species in museums 

around the country directly traveled via the channels of interstate 

commerce, as well as the scientists and others who have traveled 

interstate to study or observe the species. Finally, international 

commerce between the U.S. and Mexico, where the species also occurs, 

may impact Devils River minnow habitat and is also under the authority 

of Federal regulation.

    Comment 15: The Service is intentionally making untrue, 

nonscientific statements to serve a political agenda to list the Devils 

River minnow.

    Service Response: In both the proposed rule and this final rule we 

conducted an objective evaluation of the scientific evidence available 

to reach a decision on whether the Devils River minnow warrants listing 

under the Act. Where additional information was submitted to us, we 

have considered that new information as well. The information upon 

which this decision is based has been peer reviewed by independent 

experts outside the Service, as required by our 1994 Peer Review Policy 

(see discussion below).

Peer Review

    Service policy (59 FR 34270; July 1, 1994) requires that we solicit 

review of listing actions from a minimum of three independent experts. 

We sent copies of the proposed rule, supporting primary literature, and 

other information to five independent specialists who have extensive 

knowledge in the biology and ecology of Devils River minnow or other 

native fishes. Four of these specialists are currently employed at 

universities conducting research on fishes and one reviewer is a 

retired fishery biologist from a state agency, currently serving as 

Executive Secretary of a scientific society specializing in native 

fishes of the southwestern U.S. Four peer reviewers responded to our 


    All four reviewers indicated the proposal was consistent with the 

information available in the scientific literature. Three of the 

reviewers indicated that the proposal to list the Devils River minnow 

was clearly supported by the scientific literature, emphasizing that 

the factors cited in the proposal were real threats to the continued 

existence of the species. One reviewer pointed out the lack of 

intensive surveys to determine the exact status of the species as a 

weakness in the available information. However, we believe that 

sufficient surveys have been conducted to demonstrate a significant 

range reduction for the Devils River minnow.

Summary of Factors Affecting the Species

    After a thorough review and consideration of all information 

available, we determine that the Devils River minnow should be 

classified as a threatened species. Procedures found at section 4(a)(1) 

of the Act (16 U.S.C. 1531 et seq.) and regulations implementing the 

listing provisions of the Act (50 CFR part 424) were followed. A 

species may be determined to be an endangered or threatened species due 

to one or more of the five factors described in section 4(a)(1). These 

factors and their application to the Devils River minnow (Dionda 

diaboli) are as follows:

A. The Present or Threatened Destruction, Modification, or Curtailment 

of its Habitat or Range

Devils River

    The Devils River is the largest segment of the historical 

documented range of the Devils River minnow. The Devils River from 

Beaver Lake to its confluence with the Rio Grande is about 127 river-km 

(79 river-mi) long. At least one-quarter of the total length of the 

Devils River, from Big Satan Canyon to the Rio Grande, has been 

permanently lost as potential habitat due to inundation behind Amistad 


    One of the most significant losses of Devils River minnow habitat 

occurred in the lower portion of the Devils River with the impoundment 

of Amistad Reservoir in 1968. The river downstream of Big Satan Canyon 

is often inundated by Amistad Reservoir and the river can be affected 

farther upstream when the reservoir level is high. Backwaters from 

Amistad Dam have inundated the natural stream habitats, transforming 

the area from a river to a lake environment. The area is no longer 

suitable for most native fishes, including Devils River minnow.

    Before construction of Amistad Dam, two smaller dams (Devils Lake 

and Wall Lake) were built in about the 1920's in the lower portion of 

the stream. However, Devils River minnows were collected in 1953 and 

1954 in the spring run habitat that remained. Amistad Reservoir, 

however, inundated these springs, eliminating the natural environment 

and suitable habitat for native fish. Also, the construction of the dam 

created a physical barrier to fish movement that permanently separated 

the Devils River population of the species from others, such as the 

population in San Felipe Creek.

    Habitat for the species may be affected by inconsistent spring 

flows in the upstream portion of the Devils River, especially between 

Pecan Springs and Beaver Lake (about 26 km, 16 mi). The only discharge 

records in this portion of the river are from a gage near Juno, located 

downstream of Pecan Springs (International Boundary and Water 

Commission, unpublished data, in litt., 1997) that was discontinued in 

1973 and has no records from 1949 to 1963. The available data from this 

gage show an average base flow (based on the monthly median discharge) 

in the range of about 1,982 to 2,832 liters per second (lps) (70 to 100 

cubic feet per second (cfs)) from 1925 to 1949 and a range of about 991 

to 1982 lps (35 to 70 cfs) from 1963 to 1973.

    We based our assessment of the uppermost portion of the river on 

published observational data. One of the earliest descriptions of the 

Devils River is from Taylor (1904) who stated the river ``rises'' at 

Pecan Springs. It is unclear from this account whether there was any 

flow upstream of this spring system. However, Brune (1975 and 1981) 

clearly states that the river once flowed from Beaver Lake, as did 

other springs downstream from Beaver Lake such as Juno, Headwater, 

Stein, and San Pedro springs, but has dried in recent times. Brune 

(1975 and 1981) supports this by--(1) referencing an observation from 

1916 that described the Beaver Lake area as a beautiful stream; (2) 

providing flow data from Beaver Lake in 1925 at 45 lps (1.59 cfs) and 

in 1939 at 0.38 lps (0.01 cfs); and, (3) recording no surface flow from 

these springs in 1971 and 1976.

    Harrell (1978) collected Devils River minnow from the Beaver Lake 

area in 1973 and 1974 (specimens in Strecker Museum, Baylor 

University). This indicates that there was sufficient surface flow in 

the area during those years to support populations of the fish. 

However, Harrell (1978) states that during the study period in 1974-75, 

Pecan Springs was the uppermost flowing surface water connected to the 

river. Harrell (1978) further states that the upper portion of the 

Devils River (Beaver Lake to Baker's Crossing) has intermittent flow 

characterized by

[[Page 56602]]

numerous rapids (citing Belisle and Josselet 1975).

    The available information indicates that the flow of the Devils 

River upstream of Pecan Springs is intermittent and is connected to 

downstream surface flows only during wetter climatic conditions. The 

Devils River minnow has been documented in these areas in the past and, 

therefore, this reach is considered potential habitat for the species. 

This habitat is likely also naturally intermittent and may not have 

been continuously occupied by the fish during recent time.

    Observations in 1954 and 1955 suggested a significant increase in 

irrigation farming from groundwater wells in the area of Juno and the 

headwaters of the Devils River (Dietz 1955). The result reported by 

Dietz (1955) was the lowering of the groundwater to a level causing the 

Devils River to cease flowing for a number of miles below Baker's 

Crossing. The upper portion of the Devils River is likely the most 

susceptible to declines in groundwater levels.

    Brune (1981) states that agricultural land use practices 

(specifically the decline of grasses from livestock grazing) both 

within and north of the watershed of the Devils River may affect 

aquifer levels and account for a lack of permanent flows from the 

northern-most springs. Brune (1981) explains that the natural layer of 

organic mulch that formerly functioned as a topsoil capable of 

absorbing rainfall has been lost and replaced with barer soils that 

enhance runoff and limit recharge.

    Another cumulative factor may be the expansion of Ashe juniper 

(Juniperus ashei) and Redberry juniper (Juniperus pinchotti), both 

commonly referred to as cedar. These two species have become abundant 

on the rangeland watersheds of the Devils River due to a number of 

natural and human factors (Smiens et al. 1997). The overabundance of 

juniper has been cited as a factor that could affect rangeland 

hydrology (Thurow and Hester 1997). However, definitive data are not 

available to show that removal of juniper will produce increased 

groundwater levels in Texas. Studies of juniper removal in other states 

have not resulted in significant yields to groundwater or stream flows 

(Thurow and Hester 1997).

    Any decline of permanent discharge from springs is a significant 

threat to Devils River minnow in the Devils River. This threat can be 

the result of drought and/or human activities that withdraw groundwater 

or significantly reduce recharge. The downstream portion of the Devils 

River below Baker's Crossing continues to flow naturally and has been 

referred to as one of the most pristine rivers in Texas. Because of 

groundwater reservoirs that support the remaining spring systems, the 

river maintains a substantial perennial flow in the range of 200 to 400 

cfs at the inflow to Amistad Reservoir (unpublished data, International 

Boundary and Water Commission, in litt. 1997).

    When spring flows become seasonally intermittent, fish populations 

are unable to use the stream to fulfill their life history 

requirements. Declines in base flow of streams also affect fish 

populations by reducing the total available habitat and thereby 

intensifying competitive and predatory interactions. For Devils River 

minnow, decreased stream flows could lead to a population decline due 

to exclusion from preferred habitats and increased mortality from 


    The eighth action listed in the Conservation Strategy of the 

Agreement requires the analysis of past changes in flows throughout the 

range of the Devils River minnow. These studies will determine the 

potential effects of flows on habitat for Devils River minnow.

    Using relative abundance as an indicator, the Devils River minnow 

has decreased in abundance in the Devils River over time. The Devils 

River minnow was the fifth most abundant species of 18 species 

collected in 1953 at Baker's Crossing (Brown 1955); the sixth most 

abundant of 23 species in the river in 1974 (Harrell 1978); and one of 

the least abundant of 16 species in 1989 (Garrett et al. 1992). Recent 

information from Cantu and Winemiller (1997) indicates that the species 

was still present in the Devils River at the confluence with Dolan 

Falls in 1994, but only in low numbers (thirteenth most abundant of 27 

species). The four collections by Cantu and Winemiller (1997) were 

extensive surveys over 1 year at the one site near Dolan Falls. Even 

with this increased effort, only 28 individuals of Devils River minnow, 

out of 4,470 total fish, were documented. No voucher specimens were 

maintained to verify these collections.

    The decline in abundance within the Devils River can best be 

documented from collections at the site at Baker's Crossing. Over 60 

individuals were collected there in 1953, only one was collected in 

1989, and none were collected in 1997.

    No Devils River minnow were collected in November 1997, by the TPWD 

from several locations on the Devils River from Pecan Springs 

downstream to Finegan Springs, just above Dolan Falls (Gary Garrett, 

TPWD, in litt. 1997). New information received after the proposed rule 

from additional surveys in 1998 found populations of Devils River 

minnow in Phillips Creek and Dolan Creek (Gary Graham, TPWD, in litt. 

1998). Phillips Creek is a very small intermittent tributary to the 

Devils River that enters from the east, south of Baker's Crossing. No 

previous collections are recorded from Phillips Creek. Sampling in May 

1998, resulted in the collection of about 142 individuals, or about 10 

percent of the fishes collected, and was fourth most abundant of the 

eleven species collected. Despite numerous collection efforts in Dolan 

Creek, only one individual had previously been collected in this 

tributary to the Devils River. Sampling in May 1998, resulted in the 

collection of about 12 individuals.

    The Conservation Agreement and subsequent commitments were designed 

to monitor and improve populations of Devils River minnow in the Devils 

River. By September 2000, we will establish more (than the two 

currently known) locations of Devils River minnow in the Devils River 

with population sizes at least equal to historical levels (such as that 

found by H.L. Harrell in the 1970's). Threats will be assessed and 

potential limiting factors in this system addressed, particularly the 

effects of smallmouth bass and changes in stream flows.

San Felipe Creek

    San Felipe Creek constitutes the second largest segment of 

remaining habitat for Devils River minnow in Texas. Brune (1981) lists 

San Felipe Springs (including ten separate spring sources) as one of 

the four largest springs in Texas. Devils River minnow previously 

occurred in two areas on this stream. The upper area is associated with 

a series of springs, Head and Lowe springs, several miles upstream of 

the City of Del Rio, and the lower area is associated with two large 

springs in Del Rio.

    In 1979, Devils River minnow made up about 2 percent of all 

collections (total of 3,458 fish), and was the seventh most abundant of 

16 species in the upper portion of San Felipe Creek. In 1989, no Devils 

River minnow were collected from this site (Garrett et al. 1992). No 

known collections have been made in this area since 1989. This area of 

San Felipe Creek (upstream of Del Rio) is privately owned and no 

information is available to discern why the populations of Devils River 

minnow in this area have significantly declined. Garrett et al. (1992) 

stated that reduced flow from these springs may have contributed to the 

reduction in

[[Page 56603]]

abundance of Devils River minnow. Any further declines in spring flows 

due to increased withdrawals could negatively affect the Devils River 

minnow population in this location.

    At San Felipe Springs in the City of Del Rio the fish was very rare 

(less than 1 percent of 1,651 fish collected, and the tenth most 

abundant of 12 species collected) in 1989 (Garrett et al. 1992). Data 

from 1997 suggest that the Devils River minnow is common in the San 

Felipe Springs and the urban section of the creek (about 50 individuals 

were collected for captive study) (Gary Garrett, TPWD, in litt. 1997).

    The San Felipe Springs are located within the City of Del Rio and 

may be threatened with future habitat changes from continued urban 

development. Brune (1981) shows data supporting that the springs have 

increased their flow since the filling of Amistad Reservoir. The 

Reservoir is thought to increase flows from San Felipe Springs because 

the pool elevation of the reservoir is often higher than that of the 

spring outlet. This situation places hydrostatic pressure on San Felipe 

Springs through inundated spring openings within the reservoir (Brune 

1981). According to Brune (1981), before the reservoir filled, the 

springs flowed about 2000 lps (about 70 cfs). Since the reservoir 

filled, flows at the springs have averaged 135 to 150 cfs (unpublished 

data from International Boundary and Water Commission, in litt. 1997). 

Both of these flow averages are after withdrawals of water by the City 

of Del Rio for municipal use.

    The City of Del Rio draws water directly from San Felipe Springs, 

which are the sole source of the City's municipal water supply as well 

as for Laughlin Air Force Base. During 1995 and 1996 the average water 

use by the City varied seasonally from about 8 to 19 million gallons 

per day (about 12 to 29 cfs). The expected population growth of Del Rio 

is projected to be low, 0.5 to 1 percent annually (B. Eby, City of Del 

Rio, pers. comm., 1997). The City is currently planning to upgrade 

their water treatment facility and provide a maximum of 20 million 

gallons per day (about 31 cfs) for municipal use (U.S. Environmental 

Protection Agency, Finding of No Significant Impact, in litt. 1998; 

O.J. Valdez, Malcom Pirnie, Inc., pers. comm., 1999). This new 

treatment plant and associated facilities will provide some water 

conservation because the existing system of water distribution and 

storage leaks significantly. With additional water conservation 

measures in place to reduce per capita water use, the City could 

decrease its water consumption from San Felipe Creek in the future.

    Water quality and contamination are inherent threats to the 

population in San Felipe Creek because of the urban setting. Recent 

studies by the Texas Natural Resource Conservation Commission (TNRCC; 

1994) found elevated levels of nitrates, phosphates and orthophosphate 

in San Felipe Creek, indicating potential water quality problems. Land 

uses in the immediate area of the springs, such as runoff from the 

municipal golf course, may be contributing to these conditions. Other 

threats from catastrophic events such as contaminant spills could 

adversely affect the species.

    The stream channel of San Felipe Creek in Del Rio has been modified 

to a limited extent for bank stabilization and public access. In some 

areas these actions may have limited the available habitat for Devils 

River minnow.

    Based on the current abundance of the Devils River minnow in San 

Felipe Creek, it appears that existing practices that could impact the 

aquatic habitat are not yet serious enough to significantly reduce the 

local population. Aquatic habitat conservation measures (such as water 

use conservation and water quality protection) in this section of San 

Felipe Creek could help ensure survival of the species there.

    In August 1998, San Felipe Creek experienced a very large flood, 

with flows estimated at over 100,000 cfs. This was the largest 

estimated peak flow on record (previous high was about 69,500 cfs). 

Although the Devils River minnow is adapted to withstand floods 

(Harrell 1978), the effects of this event are unknown as no collections 

have been made since the flood.

    As part of the Conservation Agreement, by September 2000, we agreed 

to improve the status of the Devils River minnow in San Felipe Creek by 

maintaining stable populations at Del Rio and restoring Devils River 

minnow in the headwater springs area at levels at least equal to 

historical population sizes. In addition, a finalized policy by the 

City of Del Rio for preservation of the San Felipe Creek watershed, 

development of a San Felipe Creek floodplain restoration plan (as 

response to the flood of August 1998), completion of a water 

conservation plan, and completion of a management plan for the golf 

course will reduce threats to the species.

    Other actions that may aid in conserving the Devils River minnow 

include reducing per capita water consumption, seeking alternative 

sources of water, preserving water quality, educating the public on the 

importance of the creek, and limiting population density adjacent to 

the creek. In addition, the City has agreed to consider the needs of 

the Devils River minnow and its habitat in the reconstruction of those 

portions of the creek that were damaged in the August 1998 flooding. 

These actions together will provide an opportunity to protect the 

existing populations and expand the available habitat for Devils River 

minnow in San Felipe Creek.

Sycamore Creek

    Sycamore Creek constitutes a relatively small portion of the range 

of the species. There is only one published account of Devils River 

minnow in this stream from one site, at the State Highway 277 crossing 

near the Rio Grande River (Garrett et al. 1992). Harrell (1980) 

references the species' occurrence there from an unpublished collection 

in the early 1970's (H. Harrell, pers. comm. 1997). Garrett et al. 

(1992) found only one individual of Devils River minnow at this 


    Sycamore Creek is an ungaged stream, and there is little 

information available on habitat conditions. However, the Devils River 

minnow in this stream is evidently very rare and faces increased risk 

of extirpation because of the apparent small population size. Devils 

River minnow in Sycamore Creek likely face potential threats from 

drought and habitat modification (Garrett et al., 1992). The 

Conservation Agreement is intended to restore Devils River minnow to 

Sycamore Creek and/or Las Moras Creek by September 2000. This effort 

will necessitate further assessment of limiting factors, threat 

abatement, and landowner cooperation.

Las Moras Creek

    Las Moras Creek represents the eastern extent of the range of the 

species. Although the populations there may have been restricted to the 

spring area in Brackettville, the number of fish in historical 

collections was relatively large (54 individuals were collected in 

1953) (Hubbs and Brown 1956). The natural spring system in 

Brackettville that supports Las Moras Creek is the location of the 

earliest collection of Devils River minnow. The species has not been 

collected from these springs since the 1950's and is believed to be 

extirpated from that stream, based on several sampling efforts in the 

late 1970's and 1980's (Smith and Miller 1986; Hubbs et al. 1991; 

Garrett et al. 1992).

    Habitat for the Devils River minnow was lost when the spring was 

altered by damming the outflow and removing streambank vegetation to 

create a recreational swimming pool. Garrett et al. (1992) reported 

that the creek

[[Page 56604]]

smelled of chlorine, indicating that the swimming pool may be 

maintained with chlorination (a toxin to fish). Garrett et al. (1992) 

also indicate that spring flow has been drastically reduced by drought 

and diversion of water for human consumption. The springs apparently 

ceased flowing in the 1960's and again in the 1980's (Garrett et al. 

1992). This combination of habitat loss and alteration and the 

resulting water quality problems appears to be the most likely cause 

for the apparent extirpation of the species from Las Moras Creek. The 

Conservation Agreement is intended to restore Devils River minnow to 

Las Moras Creek and/or Sycamore Creek by September 2000. This effort 

will necessitate further assessment of limiting factors, threat 

abatement, and landowner cooperation.


    The only known historical locations of the Devils River minnow in 

Mexico are in the Rio San Carlos and three upper streams of the Rio 

Salado drainage. The Rio San Carlos is a small tributary of the Rio 

Grande located 27 km (17 mi) south of Ciudad Acuna. Only a few 

individuals have been collected from this location, once in 1968 

(University of Michigan Museum specimens, unpublished data, 1997) and 

again in 1974. The species has not been collected from this site since 

1974 and its status there is unknown (S. Contreras-Balderas, University 

of Nuevo Leon, in litt. 1997).

    The population of Devils River minnow in the Rio Salado drainage of 

northern Mexico represents a critical portion of the southern-most 

extent of the range. The Rio Salado is a tributary of the Rio Grande 

and is geographically distinct from the tributaries where the fish 

occurs in Texas. Collections of the species are limited to the Rio 

Sabinas, Rio San Juan, and Rio Alamo from about 8 km (5 mi) northwest 

of Muzquiz to about 12 km (7 mi) west of Nueva Rosita (S. Contreras-

Balderas, University of Nuevo Leon, in litt. 1997). Therefore, the 

known range of the species in the Rio Salado is about 30 km (20 mi). 

The most recent collections of Devils River minnow (31 individuals) 

from this area were in 1994 (S. Contreras-Balderas, University of Nuevo 

Leon, in litt. 1997).

    The Conservation Agreement includes the survey of Mexican streams 

that could potentially contain populations of Devils River minnow by 

September 2000. The likely condition of aquatic habitats in the Rio 

Salado Drainage in Mexico is extremely poor. Contreras and Lozano 

(1994) report that aquatic ecosystems in this region of Mexico face 

significant threats due to groundwater and surface water withdrawals, 

as well as air and water pollution. Watersheds in northern Mexico have 

been heavily impacted by land uses and industrial development (S. 

Contreras-Balderas, University of Nuevo Leon, in litt. 1997). The Rio 

Sabinas, in particular, has been noted for decreasing flows; and spring 

systems within Coahuila have been extensively exploited (Contreras and 

Lozano 1994). Contreras-Balderas (1987) considered the Devils River 

minnow in danger of extinction, and the species is currently listed by 

the Mexican government as endangered.


    Habitat loss and modification throughout a significant portion of 

the range of the Devils River minnow has resulted in both the 

fragmentation and contraction of the range of the species. The previous 

occurrences of known localities of Devils River minnow in Texas can be 

grouped into nine geographic areas, primarily associated with spring 

systems--five areas in the Devils River (lower Devils River, Dolan 

Falls, Baker's Crossing, Pecan Springs, Juno to Beaver Lake); two areas 

in San Felipe Creek (headwater springs and Del Rio); one area in 

Sycamore Creek; and one area in Las Moras Creek.

    Of these nine areas, the best available information confirms the 

existence of Devils River minnow in only Phillips Creek downstream from 

Baker's Crossing, Dolan Creek (about 20 km away from Phillips Creek), 

and San Felipe Creek in Del Rio. The known existence of only three 

localities, with one in an urban setting, makes the status of the 

species in the U.S. tenuous. However, actions in the Conservation 

Agreement implemented to date, plus future actions to be implemented 

according to an agreed-upon schedule, leads us to determine that 

threatened status is appropriate. Although detailed information is 

limited regarding the status of the species in Mexico, its legal status 

and degradation of aquatic habitats indicate it is endangered with 

extinction in that country.

B. Overutilization for Commercial, Recreational, Scientific, or 

Educational Purposes

    Overutilization is not considered a significant threat to the 

Devils River minnow. However, there is a potential for impacts should 

this species be harvested as a baitfish (either commercially or non-


C. Disease or Predation

    The Devils River minnow may be affected by the presence of 

introduced fishes within its range. Of special concern is the threat of 

predation by smallmouth bass, a game fish introduced to Amistad 

Reservoir in about 1975. The smallmouth bass is native to eastern North 

America but has been widely introduced as a sport fish to reservoirs 

and streams outside its natural range. It is believed smallmouth bass 

gained access to the upper portions of the Devils River (upstream of 

Dolan Falls) in the early to mid-1980's (Gary Garrett, TPWD, pers. 

comm. 1997). This species is now the dominant predator in the fish 

community of the Devils River. The TPWD is currently managing the 

Devils River as a trophy smallmouth bass fishery with size and catch 


    The Devils River minnow evolved in the presence of native fishes 

that consume other fishes, such as channel catfish (Ictalurus 

punctatus) and largemouth bass (Micropterus salmoides). The Devils 

River minnow has adapted to persist with these species. However, 

smallmouth bass are not native, are aggressive predators, and are known 

to impact other native fish communities (Taylor et al. 1984, Moyle 

1994). The Devils River minnow is within the size class of small fishes 

that are susceptible to predation by smallmouth bass. The scarcity of 

Devils River minnow in the Devils River (where smallmouth bass are 

prominent) and the abundance of Devils River minnow in San Felipe Creek 

(where smallmouth bass are not known to occur) provides circumstantial 

evidence of the likely impacts of this introduced predator. In 

addition, the small creeks where the Devils River minnow were recently 

found (Phillips and Dolan creeks) are also not known to contain 

smallmouth bass. The establishment of smallmouth bass in San Felipe, 

Phillips, or Dolan creeks is another potential threat to Devils River 

minnow in those locations.

    The tenth action in the Conservation Strategy includes a 

determination of the interactions between smallmouth bass and Devils 

River minnow. If results indicate that smallmouth bass are likely 

having negative effects on Devils River minnow populations, actions 

such as localized smallmouth bass removal efforts in conjunction with 

reintroductions of Devils River minnow will be considered. Long-term 

management of smallmouth bass in the Devils River will be addressed 

through regulations on catch and size limits to reduce abundance and 

modify population structures.

D. The Inadequacy of Existing Regulatory Mechanisms

    The Devils River minnow is listed as a threatened species by the 

State of

[[Page 56605]]

Texas. This provides some protection from collecting, as a permit is 

required to collect listed species in Texas. However, there are no 

State or local regulations to protect habitat for the conservation of 

the species. In addition, no regulations exist to prevent unintentional 

releases of exotic species by the baitfish industry and anglers.

    Limited State regulations administered by the TNRCC serve to 

protect in-stream flows for surface water rights and water quality for 

wildlife and human uses. However, these regulations were not designed 

to conserve habitat for native fishes and currently no minimum in-

stream flows are required on streams where Devils River minnow occur.

    Surface water rights along the Rio Grande in Texas and its U.S. 

tributaries are administered by the State of Texas. Groundwater 

withdrawals that could be affecting stream flows within the range of 

the Devils River minnow are unregulated. Texas courts have held that, 

with few exceptions, landowners have the right to take all the water 

that can be captured under their land (rule of capture). Therefore, 

there is little opportunity to protect groundwater reserves within 

existing regulations.

    State Water Quality Standards, though primarily concerned with 

protecting human health, may provide some protection to the Devils 

River minnow and its habitat. However, the sensitivity of Devils River 

minnow to any contaminants or water quality changes is unknown and 

could require more stringent standards than used for human health. The 

classification of the Devils River and San Felipe Creek under the Texas 

Surface Water Quality Standards requires maintenance of existing water 

quality. Sycamore and Las Moras creeks are not classified under these 


E. Other Natural or Manmade Factors Affecting Its Continued Existence

    Habitat loss throughout the range of the Devils River minnow has 

reduced the number of known locations to as few as three. The Devils 

River minnow is currently known to be common in only two locations, 

Phillips Creek and San Felipe Creek in Del Rio. However, actions 

identified in the Conservation Agreement that have been implemented to 

date have reduced the threat of extinction of the Devils River minnow.

    If Devils River minnow still occurs in other locations (such as 

Sycamore Creek, headwaters of San Felipe Creek, and the Devils River), 

the number of fish may be too small to constitute viable populations 

(Caughley and Gunn 1996). Small populations can lead to genetic erosion 

through inbreeding and are vulnerable to loss from random natural 

events, including population fluctuations (Meffe 1986). The 

Conservation Agreement is intended to improve population levels and 

distribution of Devils River minnow throughout its range to reduce 

these threats.

    The construction of Amistad Dam has separated the two primary 

populations of Devils River minnow in Texas (Devils River and San 

Felipe Creek). This population fragmentation could have significant 

conservation implications (Gilpin 1987). Determining and monitoring the 

genetic structure of the different Devils River minnow populations will 

be needed to ensure the necessary genetic variation within and among 

populations is not lost (Meffe 1986; Minckley et al. 1991).

    Recent collections in 1997 from San Felipe Creek revealed for the 

first time the presence of armored catfish (Hypostomus sp.) (Gary 

Garrett, TPWD, in litt. 1997). This fish is an exotic species that has 

established a breeding population in the San Antonio River, Texas, and 

was cited as potentially competing with other Dionda species due to its 

food habitats (Hubbs et al. 1978). Although Dionda species are common 

in spring runs in Central Texas, they are now absent from these 

habitats in the San Antonio River, implying the potential displacement 

by the armored catfish (R.J. Edwards, University of Texas-Pan American, 

in litt. 1998). This could be a threat to Devils River minnow 

populations in San Felipe Creek.

    The future release (intentional or unintentional) of other fishes 

into areas inhabited by Devils River minnow is another potential 

threat. Live bait fish are commonly discarded into nearby waters by 

anglers, resulting in introductions of non-native species. This 

situation has occurred in many streams in the southwestern U.S. with 

considerable impacts to the native fish community (Moyle 1994). In 

addition, exotic fishes from aquariums could be introduced into local 

waters. Currently, only a small number of introduced fishes occur 

within the range of the Devils River minnow, but the potential for 

unintentional introductions is high because of the number of anglers on 

the Devils River and the urban setting of San Felipe Creek. Threats to 

the populations of Devils River minnow from possible introduction and 

establishment of non-native fishes include diseases, parasites, 

competition for food and space, predation, and hybridization. The 

Conservation Agreement has provisions for assessment and monitoring of 

exotic fishes throughout the range of the Devils River minnow.

    The overall decline in abundance of Devils River minnow could be 

the result of several cumulative factors. For example, subtle changes 

in stream flows could produce small shifts in habitat use that make the 

species more vulnerable to competition and predation by native 

predators and non-native smallmouth bass. In addition, long-term 

drought could have an effect on the habitat of the species, 

particularly when combined with impacts of human water use. This 

species has adapted to historical natural climatic variations (such as 

large floods and prolonged droughts). However, in conjunction with 

other threats to the species (primarily existing habitat loss and 

exotic predators), a drought could significantly increase the threat of 

extinction. The use of water supplies for human needs (municipal or 

agricultural) serves to worsen the effects of drought on the natural 


    We have carefully assessed the best scientific and commercial 

information available regarding the past, present, and future threats 

faced by this species in determining to make this final rule. 

Therefore, based on this evaluation, the most appropriate action is to 

list the Devils River minnow as threatened. The species currently 

inhabits a very limited range and the best scientific information 

available indicates a significant decline in range and abundance of the 


    Some new information was received since the proposal that suggested 

habitat loss in the upper reaches of the Devils River may be less 

severe than originally thought. This is because we originally 

characterized the habitat as historically a continuous flowing stream, 

when this upper reach may always have been intermittent; therefore, the 

habitat may have never been more than marginal. In addition, the 

discovery of two additional localities of Devils River minnow in 

tributaries to the Devils River provided information that populations 

are extant in the Devils River drainage. New information was also 

provided showing the presence of an additional exotic species in San 

Felipe Creek that presents a threat not mentioned in the proposed rule.

    The Conservation Agreement involving us, the TPWD, and the City of 

Del Rio provides commitments to work toward the recovery of the species 

through implementing the 10 actions described in the Conservation 

Strategy (see ``Background'' section of this rule). In addition, we 

have received confirmation from both TPWD and the City of Del Rio of 

their commitment to implement certain key actions of the

[[Page 56606]]

Agreement within the first two years of its signing. However, we can 

still only confirm three localities where the species remains in the 

U.S.; habitat loss has been considerable in the Devils River due to 

Amistad Dam and in Las Moras Creek; and the Conservation Agreement has 

not yet been fully implemented.

    An endangered species is defined under the Act as one that is in 

danger of extinction throughout all or a significant portion of its 

range. A threatened species is one that is likely to become an 

endangered species within the foreseeable future throughout all or a 

significant portion of its range. We have carefully examined the best 

scientific and commercial information available, and determine that 

threatened status is appropriate for the Devils River minnow.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as--(i) 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 (I) essential to the conservation 

of the species and (II) that may require special management 

considerations or protection and; (ii) 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 in section 3(3) of the Act 

means the use of all methods and procedures needed to bring the species 

to the point at which listing under the Act is no longer necessary.

    Section 4(a)(3) of the Act and implementing regulations (50 CFR 

424.12) require that, to the maximum extent prudent and determinable, 

the Secretary designate critical habitat at the time the species is 

determined to be endangered or threatened. Our regulations (50 CFR 

424.12(a)) state that designation of critical habitat is not prudent 

when one or both of the following situations exist--(1) The species is 

threatened by taking or other human activity, and identification of 

critical habitat can be expected to increase the degree of such threat 

to the species, or (2) such designation of critical habitat would not 

be beneficial to the species. We find that the designation of critical 

habitat for the Devils River minnow is not prudent due to lack of 


    The section 7 prohibitions against adverse modification of critical 

habitat apply to Federal actions only (see the ``Available Conservation 

Measures'' section of this rule). The watersheds in the U.S. in which 

the Devils River minnow occurs are almost entirely in private 

ownership, and no significant Federal actions affecting the species' 

habitat are likely to occur in the area. Therefore, the designation of 

critical habitat would provide little, if any, benefit to the species 

through section 7 of the Act.

    In addition, any Federal action that would cause adverse 

modification of critical habitat for the Devils River minnow likely 

would also cause jeopardy for areas where the species is known to 

occur. Under section 7, actions funded, authorized, and carried out by 

Federal agencies may not jeopardize the continued existence of a 

species or result in the destruction or adverse modification of 

critical habitat. To ``jeopardize the continued existence'' of a 

species is defined as an action that appreciably reduces the likelihood 

of its survival and recovery (50 CFR part 402). ``Destruction or 

adverse modification of critical habitat'' is defined as an appreciable 

reduction in the value of critical habitat for the survival and 

recovery of a species. Common to both definitions is an appreciable 

detrimental effect to both the survival and recovery of a listed 

species. In biological terms and in consultation practice, the jeopardy 

standard and the adverse modification standard are virtually identical 

for areas occupied by the species.

    For any listed species, an analysis to determine jeopardy under 

section 7(a)(2) would consider impacts to the species resulting from 

impacts to habitat. Therefore, an analysis to determine jeopardy would 

include an analysis closely parallel to an analysis to determine 

adverse modification of critical habitat. A Federal action that would 

adversely modify the species' habitat would also jeopardize the species 

(and vice versa). Specifically for the Devils River minnow, any 

modification to suitable habitat within the species' range also will 

substantially affect the species. Actions that may affect the habitat 

of the Devils River minnow include, but are not limited to--(1) 

Reduction of water flows from springs or streams, (2) Degradation of 

water quality, (3) Alteration of shallow, fast-flowing stream areas 

downstream from the outflow of springs, and (4) Construction of 

structures that interfere with instream movement of fishes. Given the 

imperiled status and narrow range of the Devils River minnow, it is 

likely that any Federal action that would destroy or adversely modify 

the species' critical habitat would also jeopardize its continued 


    Apart from section 7, the Act provides no additional protection to 

lands designated as critical habitat. Designating critical habitat does 

not create a park or preserve, and does not require or create a 

management plan for the areas where the species occurs; does not 

establish numerical population goals or prescribe specific management 

actions (inside or outside of critical habitat); and does not have a 

direct effect on areas not designated as critical habitat. A 

designation of critical habitat that includes private lands would only 

affect actions where a Federal nexus (such as Federal funding, 

authorization, or permit) is present and would not confer any 

substantial conservation benefit beyond that already provided through 

section 7 consultation.

    Because the Devils River minnow is predominantly found in streams 

flowing through private lands, the cooperation of private landowners is 

imperative to conserve the Devils River minnow. Designation of critical 

habitat on private lands could result in a detriment to the species. 

The regulatory effect of critical habitat designation is often 

misunderstood by private landowners, particularly those whose property 

boundaries are included within a general description of critical 

habitat for a species. In the past, landowners have mistakenly believed 

that critical habitat designation would prevent development and impose 

restrictions on the use of their private property. In some cases, 

landowners have believed that critical habitat designation is an 

attempt by the government to confiscate their private property. This 

misconception was evident from public comments received in 1980 on the 

proposed designation of critical habitat for the Devils River minnow. 

Several citizens indicated they strongly believed that by designating 

critical habitat, the Federal government would have the right to 

trespass on private property, control private land management actions, 

and even take ownership of private land for the species. As a result of 

this misunderstanding, fear of critical habitat designation has 

sometimes reduced private landowner cooperation in efforts to conserve 

species listed in Texas. For example, fear resulting from talk of 

possible designation of critical habitat for the golden-cheeked warbler 

(Dendroica chrysoparia) reduced private landowner cooperation in the 

management of the species. In addition, in the past landowners have 

specifically denied access to study sites for Devils River minnow 

(Hubbs and Garrett 1990, Garrett et al. 1992) due to fears of 


[[Page 56607]]

    Critical habitat designation can sometimes serve to highlight areas 

that may be in need of special management considerations or protection. 

However, in the case of the Devils River minnow the TPWD and local 

landowners are already aware of the areas in need of special management 

considerations or protection. Because this species was previously 

proposed for listing in 1978, and critical habitat proposed in 1980 

(due to amendements to the Act both proposals were withdrawn on 

September 30, 1980 (45 FR 64853)), the public has been aware of the 

distribution of the species and need for conservation for over 20 

years. Prior to and following publication of the 1998 proposed rule to 

list the Devils River minnow (critical habitat was not prudent in the 

1998 proposal (63 FR 14885)), we initiated an extensive public outreach 

effort to inform and educate the general public and interested parties 

within the range of the species. We sent out press releases to local 

newspapers, contacted elected officials, Federal, State, and county 

agencies, and interested parties, including private landowners. A 

public hearing was held in 1998, with over 40 people from the local 

public in attendance. The hearing included the sharing of information 

on areas important to the species. In addition, over the last two 

years, TPWD has participated in at least three meetings with affected 

private landowners (more than 30 individuals in attendance at each 

meeting) to inform them of the need for conservation of the species, as 

part of the development of the Conservation Agreement with the State 

and the City of Del Rio.

    We have evaluated the potential notification and education benefit 

offered by critical habitat designation and find that, for the Devils 

River minnow, there would be no additional benefit over the outreach 

associated with the proposal, current outreach for this final rule and 

interagency coordination processes currently in place. Notification and 

education can be conducted more effectively by working directly with 

landowners and communities through the recovery implementation process 

and, where a Federal nexus exists, through section 7 consultation and 

coordination. Critical habitat designation for the Devils River minnow 

would provide no additional notification or education benefit.

    In summary, we have determined that the designation of critical 

habitat for the Devils River minnow would not be beneficial to the 

species. For the Devils River minnow, the section 7 consultation 

process will produce a jeopardy analysis similar to an adverse 

modification analysis for critical habitat. We have already provided 

private landowners and State and Federal agencies with up-to-date 

information on important areas for the Devils River minnow and we plan 

to continue to do so. Finally, even if designation of critical habitat 

for the Devils River minnow would provide some small, incremental 

benefit to the species, that benefit is outweighed by the possible 

reduction in landowner cooperation that would facilitate the management 

and recovery of this species. Based on this analysis, we conclude that 

designation of critical habitat for the Devils River minnow is not 


Available Conservation Measures

    Conservation measures provided to species listed as endangered or 

threatened under the Act include recognition, recovery actions, 

requirements for Federal protection, and prohibitions against certain 

practices. Recognition through listing results in public awareness and 

conservation actions by Federal, State, and local agencies, private 

organizations, and individuals. The Act provides for possible land 

acquisition and cooperation with the States and requires that recovery 

actions be carried out for all listed species.

    Section 7(a) of the Act, as amended, requires Federal agencies to 

evaluate their actions with respect to any species that is proposed or 

listed as endangered or threatened and with respect to its critical 

habitat, if any is being designated. Regulations implementing these 

interagency cooperation provisions of the Act are codified at 50 CFR 

part 402. Section 7(a)(2) requires Federal agencies to ensure that 

activities they authorize, fund, or carry out are not likely to 

jeopardize the continued existence of such a species or to destroy or 

adversely modify its critical habitat, if any has been designated. If a 

Federal action may affect a listed species or its critical habitat, the 

responsible Federal agency must enter into consultation with the 


    Although few Federal agency actions are anticipated, examples of 

those that may require consultation as described in the preceding 

paragraph include U.S. Army Corps of Engineers review and approval of 

activities such as the construction of roads, bridges, and dredging 

projects subject to section 404 of the Clean Water Act (33 U.S.C. 1344 

et seq.) and section 10 of the Rivers and Harbors Act of 1899 (33 

U.S.C. 401 et seq.) and U.S. Environmental Protection Agency 

authorization of discharges under the National Pollutant Discharge 

Elimination System. Other Federal agencies whose actions could require 

consultation include the Department of Defense, NRCS, the Federal 

Highways Administration, and the Department of Housing and Urban 


    In addition, section 7(a)(1) of the Act requires all Federal 

agencies to review the programs they administer and use these programs 

in furtherance of the purposes of the Act. All Federal agencies, in 

consultation with the Service, are to carry out programs for the 

conservation of endangered species and threatened species listed 

pursuant to section 4 of the Act.

    The Act and its implementing regulations set forth a series of 

general prohibitions and exceptions that apply to all endangered 

wildlife. The prohibitions, codified at 50 CFR 17.31, in part, make it 

illegal for any person subject to the jurisdiction of the U.S. to take 

(includes harass, harm, pursue, hunt, shoot, wound, kill, trap, 

capture, or collect, or to attempt any of these), import or export, 

ship in interstate commerce in the course of commercial activity, or 

sell or offer for sale in interstate or foreign commerce any listed 

species. It also is illegal to possess, sell, deliver, carry, 

transport, or ship any such wildlife that has been taken illegally. 

Certain exceptions apply to agents of the Service and State 

conservation agencies.

    Permits may be issued to carry out otherwise prohibited activities 

involving threatened wildlife under certain circumstances. Regulations 

governing permits are described in 50 CFR 17.22, 17.23, and 17.32. Such 

permits are available for scientific purposes, for the enhancement or 

propagation or survival of the species, or for incidental take in 

connection with otherwise lawful activities. For threatened species, 

there are also permits for zoological exhibition, educational purposes, 

or special purposes consistent with the purposes of the Act. 

Information collections associated with these permits are approved 

under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and assigned 

Office of Management and Budget clearance number 1018-0094. For 

additional information concerning these permits and associated 

requirements, see 50 CFR 17.32.

    It is our policy (59 FR 34272) to identify to the maximum extent 

practicable at the time a species is listed those activities that would 

or would not constitute a violation of section 9 of the Act. The intent 

of this policy is to increase public awareness of the effect of the 

listing on proposed and ongoing activities within a species' range. We

[[Page 56608]]

believe that, based on the best available information, the following 

actions will not likely result in a violation of section 9:

    (1) Normal livestock grazing and other standard ranching practices, 

such as improving rangeland native grass cover, that do not destroy or 

degrade Devils River minnow habitat;

    (2) Riparian restoration activities that improve the ecological 

health of native riparian zones along streams and springs, as long as 

construction activities do not impair Devils River minnow habitat;

    (3) Recreational activities such as swimming, canoeing, and 

fishing, as long as non-native fish or other exotic organisms are not 

used as bait and released to the stream, and the activities are 

conducted in such a way as to not damage habitat or negatively affect 

water quality; and

    (4) Actions that may affect Devils River minnow and are authorized, 

funded or carried out by a Federal agency when the action is conducted 

in accordance with an incidental take statement issued by us pursuant 

to section 7 of the Act.

    Activities we believe could potentially harm the Devils River 

minnow and result in ``take'' include, but are not limited to:

    (1) Unauthorized collecting or handling of the species;

    (2) Any activities that may result in destruction or significant 

alteration of habitat occupied by Devils River minnow including, but 

not limited to, the discharge of fill material, the diversion or 

alteration of spring and stream flows or withdrawal of groundwater to 

the point at which Devils River minnow are harmed, and the alteration 

of the physical channels within the spring runs and stream segments 

occupied by the species;

    (3) Discharge or dumping of pollutants such as chemicals, silt, 

household or industrial waste, or other material into the springs or 

streams occupied by Devils River minnow or into areas that provide 

access to the aquifer and where such discharge or dumping could affect 

water quality in spring outflows;

    (4) Herbicide, pesticide, or fertilizer application in or near the 

springs and/or stream segments containing the species;

    (5) Introduction of certain non-native species (fish, plants, and 

other) into occupied habitat of the Devils River minnow or areas 

connected to these habitats; and

    (6) Actions that may affect Devils River minnow and are authorized, 

funded or carried out by a Federal agency when the action is not 

conducted in accordance with an incidental take statement issued by us 

pursuant to section 7 of the Act.

    In the descriptions of activities above, a violation of section 9 

would occur if those activities occur to an extent that would result in 

``take'' of Devils River minnow. Not all of the activities mentioned 

above will result in violation of section 9 of the Act; only those 

activities that result in ``take'' of Devils River minnow would be 

considered violations of section 9. We recognize that a wide variety of 

activities would not harm the species, even if undertaken in the 

vicinity of the species' habitat. Questions regarding whether specific 

activities would likely constitute a violation of section 9 should be 

directed to the Field Supervisor, Austin Ecological Services Field 

Office (see ADDRESSES section). Requests for copies of the regulations 

regarding listed wildlife and inquiries about prohibitions and permits 

may be addressed to the U.S. Fish and Wildlife Service, Region 2, 

Division of Endangered Species, P.O. Box 1306, Albuquerque, New Mexico 

87103-1306 (telephone 505-248-6920; facsimile 505-248-6788).

National Environmental Policy Act

    We have determined that Environmental Assessments and Environmental 

Impact Statements, as defined under the authority of the National 

Environmental Policy Act of 1969, need not be prepared in connection 

with regulations adopted pursuant to section 4(a) of the Endangered 

Species Act of 1973, as amended. A notice outlining our reasons for 

this determination was published in the Federal Register on October 25, 

1983 (48 CFR 49244).

References Cited

    A complete list of all references cited herein, as well as others, 

is available upon request from the Austin Ecological Services Field 

Office (see ADDRESSES section).

    Author: The primary author of this final rule is Nathan Allan, Fish 

and Wildlife Service (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 

recordkeeping requirements, Transportation.

Regulation Promulgation

    Accordingly, part 17, subchapter B of chapter I, title 50 of the 

Code of Federal Regulations, is amended as set forth below:


    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; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.

    2. Amend section 17.11(h) by adding the following, in alphabetical 

order under ``FISHES'' to the List of Endangered and Threatened 

Wildlife to read as follows:

Sec. 17.11  Endangered and threatened wildlife.


                        Species                                                    Vertebrate

--------------------------------------------------------                        population where                                  Critical     Special

                                                            Historic range       endangered or         Status      When listed    habitat       rules

           Common name                Scientific name                              threatened


                  *                  *                  *                  *                    *                    *                *


                  *                  *                  *                  *                    *                    *                *

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

                  *                  *                  *                  *                    *                    *                *


[[Page 56609]]

    Dated: September 30, 1999.

Jamie Rappaport Clark,

Director, Fish and Wildlife Service.

[FR Doc. 99-27188 Filed 10-19-99; 8:45 am]