Federal Register / Vol. 72, No. 146 / Tuesday, July 31, 2007 / Proposed Rules 41679 

term (e.g., one year, 10 years, and 30 

years)? Please provide suggestions about 

how HHS/CDC could reduce or avoid 

the impact on small entities, and how 

those changes would affect the potential 

effectiveness of the rules. 

References 

1. Regulations on the importation of dogs 

and cats (42 CFR 71.51): http:// 

a257.g.akamaitech.net/7/257/2422/

05dec20031700/edocket.access.gpo.gov/

cfr_2003/octqtr/42cfr71.51.htm. 

2. Other animal-importation regulations 

(42 CFR 71.56) and orders: 

a. http://edocket.access.gpo.gov/2003/03- 

27557.htm 

b. http://www.cdc.gov/ncidod/monkeypox/ 

animals.htm 

c. http://www.cdc.gov/flu/avian/outbreaks/ 

embargo.htm 

d. http://www.cdc.gov/ncidod/sars/ 

civetembargo.htm 

Dated: April 16, 2007. 

Michael Leavitt, 

Secretary. 

Editorial Note: This document was 

received at the Office of the Federal Register 

on July 25, 2007. 

[FR Doc. E7–14623 Filed 7–30–07; 8:45 am] 

BILLING CODE 4163–18–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

RIN 1018–AV25 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for the Devils River Minnow 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), propose to 

designate critical habitat for the Devils 

River minnow (Dionda diaboli) under 

the Endangered Species Act of 1973, as 

amended (Act). In total, approximately 

73.5 stream kilometers (km) (45.7 stream 

miles (mi)) are within the boundaries of 

the proposed critical habitat 

designation. The proposed critical 

habitat is located along streams in Val 

Verde and Kinney Counties, Texas. 

DATES: We will accept comments from 

all interested parties until October 1, 

2007. We must receive requests for 

public hearings, in writing, at the 

address shown in the ADDRESSES section 

by September 14, 2007. 

ADDRESSES: If you wish to comment on 

the proposed rule, you may submit your 

comments and materials by any one of 

several methods: 

1. You may mail or hand-deliver 

written comments and information to 

Adam Zerrenner, Field Supervisor, U.S. 

Fish and Wildlife Service, Austin 

Ecological Services Field Office, 10711 

Burnet Road, Suite 200, Austin, TX 

78758. 

2. You may send comments by 

electronic mail (e-mail) to 

fw2_drm@fws.gov. Please see the Public 

Comments Solicited section below for 

file format and other information about 

electronic filing. 

3. You may fax your comments to the 

attention of Adam Zerrenner at 512–

490–0974. 

4. You may go to the Federal 

eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

Comments and materials received, as 

well as supporting documentation used 

in the preparation of this proposed rule, 

will be available for public inspection, 

by appointment, during normal business 

hours at the Austin Ecological Services 

Field Office, 10711 Burnet Road, Suite 

200, Austin, TX 78758; telephone 512–

490–0057. 

FOR FURTHER INFORMATION CONTACT: 

Adam Zerrenner, Field Supervisor, 

Austin Ecological Services Field Office, 

10711 Burnet Road, Suite 200, Austin, 

TX 78758; telephone 512–490–0057; 

facsimile 512–490–0974. Persons who 

use a telecommunications device for the 

deaf (TDD) may call the Federal 

Information Relay Service (FIRS) at 

800–877–8339, 7 days a week and 24 

hours a day. 

SUPPLEMENTARY INFORMATION: 

Public Comments Solicited 

We intend that any final action 

resulting from this proposal will be as 

accurate and as effective as possible. 

Therefore, comments or suggestions 

from the public, other concerned 

governmental agencies, the scientific 

community, industry, or any other 

interested party concerning this 

proposed rule are hereby solicited. 

Comments particularly are sought 

concerning: 

(1) The reasons habitat should or 

should not be designated as critical 

habitat under section 4 of the Act (16 

U.S.C. 1531 et seq.), including whether 

the benefit of designation would 

outweigh any threats to the species 

caused by designation such that the 

designation of critical habitat is 

prudent; 

(2) Specific information on the 

amount and distribution of Devils River 

minnow habitat, what areas should be 

included in the designation that were 

occupied at the time of listing that 

contain the features that are essential for 

the conservation of the species and why, 

and what areas that were not occupied 

at the listing are essential to the 

conservation of the species and why; 

(3) Information on the status of the 

Devils River minnow in Sycamore Creek 

and Las Moras Creek watersheds and 

information that indicates whether or 

not these areas should be considered 

essential to the conservation of the 

species; 

(4) Land use designations and current 

or planned activities in the subject areas 

and their possible impacts on proposed 

critical habitat; 

(5) Any foreseeable economic, 

national security, or other potential 

impacts resulting from the proposed 

designation and, in particular, any 

impacts on small entities and 

information about the benefits of 

including or excluding any areas that 

exhibit those impacts; and 

(6) Whether our approach to 

designating critical habitat could be 

improved or modified in any way to 

provide for greater public participation 

and understanding, or to assist us in 

accommodating public concerns and 

comments. 

You may submit comments and 

materials concerning this proposal by 

one of several methods (see ADDRESSES). 

Please include ‘‘Attn: Devils River 

minnow’’ in your e-mail subject header 

and your name and return address in 

the body of your message. If you do not 

receive a confirmation from the system 

that we have received your message, 

contact us directly by calling our Austin 

Ecological Services Field Office at 512–

490–0057. Please note that comments 

must be received by the date specified 

in the DATES section in order to be 

considered and that the e-mail address 

fw2_drm@fws.gov will be closed out at 

the termination of the public comment 

period. 

Before including your address, phone 

number, e-mail address, or other 

personal identifying information in your 

comment, you should be aware that 

your entire comment—including your 

personal identifying information—may 

be made publicly available at any time. 

While you can ask us in your comment 

to withhold your personal identifying 

information from public review, we 

cannot guarantee that we will be able to 

do so. 

Background 

It is our intent to discuss only those 

topics directly relevant to the 

designation of critical habitat in this 

proposed rule. For more information on 


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the Devils River minnow, refer to the 

final listing rule published in the 

Federal Register on October 20, 1999 

(64 FR 56596) or the 2005 Devils River 

Minnow Recovery Plan available online 

at http://www.fws.gov/endangered/. 

More detailed information on Devils 

River minnow biology and ecology that 

is directly relevant to designation of 

critical habitat is discussed under the 

Primary Constituent Elements section 

below. 

Description and Taxonomy 

The Devils River minnow (Dionda 

diaboli Hubbs and Brown) is a small 

fish first collected in 1951 (Hubbs and 

Brown 1956, p. 70). The Devils River 

minnow is recognized as a distinct 

species by the American Fisheries 

Society (Nelson et al. 2004, p. 70). 

Taxonomic validity is based on 

morphology (Hubbs and Brown 1956, p. 

69), genetic markers (Mayden et al. 

1992, p. 722), and chromosome 

differences (Gold et al. 1992, p. 221). 

Adult Devils River minnows reach 

sizes of 25–53 millimeters (mm) (1.0–2.1 

inches (in)) standard length. The fish 

has a wedge-shaped spot near the tail 

and a pronounced lateral stripe 

extending through the eye to the snout 

but without reaching the lower lip. The 

species has a narrow head and 

prominent dark markings on the scale 

pockets of the body above the lateral 

line, producing a crosshatched 

appearance when viewed from above 

(Hubbs and Brown 1956, pp. 69–70). 

The species occurs with other minnows, 

such as the closely related manantial 

roundnose minnow (Dionda argentosa). 

Distribution and Habitat 

The Devils River minnow is limited to 

short stretches of spring-fed stream 

tributaries of the Rio Grande in 

southwestern Texas and northeastern 

Mexico (Garrett et al. 1992, p. 259). In 

the United States, the fish has never 

been found outside of five streams in 

Val Verde and Kinney Counties, Texas. 

The Devils River minnow currently 

occurs in stretches of the Devils River, 

San Felipe Creek, and Pinto Creek. It 

has been extirpated from Las Moras 

Creek and has not been collected from 

Sycamore Creek since 1989 (Garrett et 

al. 1992, pp. 261–267; Garrett et al. 

2004, p. 435). There is little information 

available on the status of the Devils 

River minnow in Mexico. Historically, it 

was known to occur in the Rı ́o San 

Carlos and several streams in the Rı ́o 

Salado Drainage, in the State of 

Coahuila. Regulations at 50 CFR 

424.12(h) state that critical habitat shall 

not be designated within foreign 

countries or in other areas outside of 

United States jurisdiction. As such, 

geographical areas supporting the Devils 

River minnow in Mexico are not 

included in the proposed critical habitat 

designation. 

The Devils River minnow is found 

only in spring-fed streams (Brune 1981, 

pp. 274–275, 450–454; Garrett et al. 

1992, p. 259) with shallow to moderate 

depths and slow to moderate water 

velocity over gravel substrates. Within 

these streams, Devils River minnows are 

most often found within or nearby 

emergent aquatic plants (Garrett et al. 

2004, p. 437) or near similar structures 

created by stream bank vegetation that 

extends into the water (LopezFernandez and Winemiller 2005, p. 

249). 

Previous Federal Actions 

The Devils River minnow was listed 

as threatened on October 20, 1999 (64 

FR 56596). Critical habitat was not 

designated for this species at the time of 

listing (64 FR 56606). On October 5, 

2005, the Forest Guardians, Center for 

Biological Diversity, and Save Our 

Springs Alliance filed suit against the 

Service for failure to designate critical 

habitat for this species (Forest 

Guardians et al. v. Hall 2005). On June 

28, 2006, a settlement was reached that 

requires the Service to re-evaluate our 

original prudenct determination. The 

settlement stipulated that, if prudent, a 

proposed rule would be submitted to 

the Federal Register for publication on 

or before July 31, 2007, and a final rule 

by July 31, 2008. This proposed rule 

complies with the settlement agreement 

and with section 4(b)(2) of the Act. For 

more information on previous Federal 

actions concerning the Devils River 

minnow, refer to the final listing rule 

published in the Federal Register on 

October 20, 1999 (64 FR 56598). 

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 under 

section 3 of the Act means to use and 

the use of all methods and procedures 

that are necessary to bring any 

endangered species or threatened 

species to the point at which the 

measures provided pursuant to the Act 

are no longer necessary. 

Critical habitat receives protection 

under section 7(a)(2) of the Act through 

the prohibition against destruction or 

adverse modification of critical habitat 

with regard to actions carried out, 

funded, or authorized by a Federal 

agency. Section 7 of the Act requires 

consultation on Federal actions that 

may affect critical habitat. The 

designation of critical habitat does not 

affect land ownership or establish a 

refuge, wilderness, reserve, preserve, or 

other conservation area. Such 

designation does not allow government 

or public access to private lands. 

Section 7(a)(2) of the Act is a purely 

protective measure and does not require 

implementation of restoration, recovery, 

or enhancement measures. 

To be included in a critical habitat 

designation, the habitat within the 

geographical area occupied by the 

species must first have features that are 

essential to the conservation of the 

species. Critical habitat designations 

identify, to the extent known using the 

best scientific data available, habitat 

areas that provide essential life cycle 

needs of the species (i.e., areas on which 

are found the primary constituent 

elements, as defined at 50 CFR 

424.12(b)). 

Occupied habitat that contains the 

features essential to the conservation of 

the species meets the definition of 

critical habitat only if the essential 

features thereon may require special 

management considerations or 

protection. Thus, we do not include 

areas where existing management is 

sufficient to conserve the species. (As 

discussed below, such areas may also be 

excluded from critical habitat pursuant 

to section 4(b)(2) of the Act.) 

Unoccupied areas can be designated as 

critical habitat. However, when the best 

available scientific data do not 

demonstrate that the conservation needs 

of the species require additional areas, 

we will not designate critical habitat in 

areas outside the geographical area 

occupied by the species. 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

the best scientific and commercial data 

available. Further, the Service’s Policy 

on Information Standards Under the 

Endangered Species Act, published in 

the Federal Register on July 1, 1994 (59 

FR 34271), and Section 515 of the 

Treasury and General Government 

Appropriations Act for Fiscal Year 2001 

(P.L. 106–554; H.R. 5658), and the 

associated Information Quality 

Guidelines issued by the Service, 

provide criteria, establish procedures, 

and provide guidance to ensure that 


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decisions made by the Service represent 

the best scientific data available. They 

require Service biologists to the extent 

consistent with the Act and with the use 

of the best scientific data available, to 

use primary and original sources of 

information as the basis for 

recommendations to designate critical 

habitat. When determining which areas 

are critical habitat, a primary source of 

information is generally the listing 

package for the species. Additional 

information sources include the 

recovery plan for the species, articles in 

peer-reviewed journals, conservation 

plans developed by States and counties, 

scientific status surveys and studies, 

biological assessments, or other 

unpublished materials and expert 

opinion or personal knowledge. All 

information is used in accordance with 

the provisions of Section 515 of the 

Treasury and General Government 

Appropriations Act for Fiscal Year 2001 

(P.L. 106–554; H.R. 5658) and the 

associated Information Quality 

Guidelines issued by the Service. 

Habitat is often dynamic, and species 

may move from one area to another over 

time. Furthermore, we recognize that 

designation of critical habitat may not 

include all of the habitat areas that may 

eventually be determined to be 

necessary for the recovery of the 

species. For these reasons, critical 

habitat designations do not signal that 

habitat outside the designation is 

unimportant or may not be required for 

recovery. 

Areas that support populations, but 

are outside the critical habitat 

designation, will continue to be subject 

to conservation actions implemented 

under section 7(a)(1) of the Act and to 

the regulatory protections afforded by 

the section 7(a)(2) jeopardy standard, as 

determined on the basis of the best 

available information at the time of the 

action. Federally funded or permitted 

projects affecting listed species outside 

their designated critical habitat areas 

may still result in jeopardy findings in 

some cases. Similarly, critical habitat 

designations made on the basis of the 

best available information at the time of 

designation will not control the 

direction and substance of future 

recovery plans, habitat conservation 

plans, or other species conservation 

planning efforts if new information 

available to these planning efforts calls 

for a different outcome. 

Methods 

As required by section 4(b) of the Act, 

we use the best scientific data available 

in determining areas occupied at the 

time of listing that contain the features 

essential to the conservation of the 

Devils River minnow, and areas 

unoccupied at the time of listing that are 

essential to the conservation of the 

Devils River minnow, or both. In 

designating critical habitat for the Devils 

River minnow, we reviewed the relevant 

information available, including peerreviewed journal articles, unpublished 

reports, the Devils River Minnow 

Recovery Plan, the final listing rule, and 

unpublished materials (such as expert 

opinions). In February 2006, we sent 

information requests to a large number 

of experts and stakeholders (such as 

private landowners, Texas state 

government agencies, other Federal 

agencies, local governments, and 

nongovernmental organizations). 

We have also reviewed available 

information that pertains to the habitat 

requirements of this species. We used a 

wide variety of sources of information, 

such as material included in reports 

submitted during section 7 

consultations; research published in 

peer-reviewed articles and presented in 

academic theses; research proposals and 

correspondence from technical experts; 

data and reports from other State and 

Federal agencies; unpublished data such 

as field notes and personal observations 

from field biologists; and regional 

Geographic Information System (GIS) 

coverages, including geodatabases 

provided by partner organizations, such 

as the City of Del Rio and The Nature 

Conservancy. 

We are proposing to designate critical 

habitat for the Devils River minnow in 

areas that were occupied at the time of 

listing, and that contain the physical 

and biological features essential to the 

conservation of the species arranged in 

the quantity and spatial characteristics 

necessary for conservation (see ‘‘Criteria 

Used to Identify Critical Habitat’’

section below). We are also proposing to 

designate critical habitat in areas 

unoccupied at the time of listing and 

determined to be essential to the 

conservation of the Devils River 

minnow. 

Primary Constituent Elements 

In accordance with section 3(5)(A)(i) 

of the Act and regulations at 50 CFR 

424.12, in determining which areas to 

propose as critical habitat, we consider 

those physical and biological features 

(primary constituent elements) that are 

essential to the conservation of the 

species, and within areas occupied by 

the species at the time of listing, that 

may require special management 

considerations and protection. These 

include, but are not limited to, space for 

individual and population growth and 

for normal behavior; food, water, air, 

light, minerals, or other nutritional or 

physiological requirements; cover or 

shelter; sites for breeding, reproduction, 

and rearing (or development) of 

offspring; and habitats that are protected 

from disturbance or are representative of 

the historic geographical and ecological 

distributions of a species. 

The specific physical and biological 

features essential to the conservation of 

the Devils River minnow, primary 

constituent elements (PCEs), are derived 

from the biological needs of the species 

as understood from studies of its biology 

and ecology, including but not limited 

to, Edwards et al. (2004), Garrett et al. 

(1992), Garrett et al. (2004), Gibson et al. 

(2004), Harrell (1978), Hubbs (2001), 

Hubbs and Garrett (1990), LopezFernandez and Winemiller (2005), 

Valdes Cantu and Winemiller (1997), 

and Winemiller (2003). 

Space for Individual and Population 

Growth, Normal Behavior, and Cover 

The Devils River minnow is a fish that 

occurs only in aquatic environments of 

small to mid-sized streams that are 

tributaries to the Rio Grande. The 

species spends its full life cycle within 

streams. The stream environment 

provides all of the space necessary to 

allow for individual and population 

growth, food, cover, and normal 

behaviors of the species. Quantitative 

studies of the specific micro-habitats 

used by any life stages of Devils River 

minnow in the wild have not been 

conducted. Studies of fish habitat 

within its range have found too few 

individuals of Devils River minnow to 

analyze specific habitat associations 

(Garrett et al. 1992, p. 266; Valdes Cantu 

and Winemiller 1997, p. 268; Robertson 

and Winemiller 2003, p. 119). However, 

observational studies have been 

conducted throughout its limited range 

that qualitatively defined stream 

conditions where Devils River minnows 

have been collected. 

General habitat descriptions of areas 

where Devils River minnow have been 

found include the following: ‘‘the area 

where spring runs enter the river’’

(Hubbs and Garrett 1990, p. 448); 

‘‘channels of fast-flowing water over 

gravel bottoms’’ (Garrett et al. 1992, p. 

259); ‘‘associated with water willow 

(Justicia americana) and other aquatic 

macrophytes over a gravel-cobble 

substrate’’ (Garrett et al. 2004, p. 437) 

(macrophytes are plants large enough to 

be seen without a microscope); and 

‘‘stream seeps’’ at sites that ‘‘had 

abundant riparian vegetation 

overhanging the banks’’ (LopezFernandez and Winemiller 2005, p. 

249). We based our determinations of 

the PCEs on the physical and biological 

features that have been measured in 


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streams where Devils River minnow 

occur. 

a. Water Depth and Velocity. Flowing 

water within streams is critical to 

provide living space for the Devils River 

minnow. All of the streams where the 

Devils River minnow is found are 

supported by springs that derive their 

discharge from underground aquifers, 

either the Edwards Aquifer or the 

Edwards-Trinity Aquifer (Brune 1981, 

pp. 274–277, 449–456; Edwards et al. 

2004, p. 256; Garrett et al. 1992, p. 261; 

Garrett et al. 2004, p. 439; Hubbs and 

Garrett 1990, p. 448; Lopez-Fernandez 

and Winemiller 2005, p. 249). The 

Devils River minnow has been 

associated within the stream channel 

with areas with slow to moderate 

velocities between 10 and 40 

centimeters (cm)/second (4 and 16 

inches (in)/second) (Winemiller 2003, p. 

13). The Devils River minnow is usually 

found in areas with shallow to moderate 

water depths between about 10 cm (4 in) 

and 1.5 meters (4.9 feet (ft)) (Garrett et 

al. 2004, p. 436). Appropriate water 

depths and velocities are required 

physical features for Devils River 

minnows to complete all life history 

functions. 

b. Cover. The presence of vegetative 

structure appears to be particularly 

important for the Devils River minnow. 

Garrett et al. (2004, p. 437) states that 

the species is most often found 

associated with emergent or submerged 

vegetation. Lopez-Fernandez and 

Winemiller (2005, p. 249) also found the 

Devils River minnow associated with 

stream banks having riparian vegetation 

that overhangs into the water column, 

presumably providing similar structure 

for the fish to use as cover. The 

structure provided by vegetation likely 

serves as cover for predator avoidance 

by the Devils River minnow and as a 

source of food where algae and other 

microorganisms may be attached. In 

controlled experiments in an artificial 

stream setting, minnows in the Dionda 

genus (the experiment did not 

distinguished between the Devils River 

minnow and the closely related 

manantial roundnose minnow) were 

found consistently associated with 

plants, and, in the presence of a 

predator, sought shelter in plant 

substrate habitat (Thomas 2001, p. 8). 

Also, laboratory observations by Gibson 

et al. (2004, p. 42) suggested that 

spawning only occurred when structure 

was provided in aquaria. Instream 

vegetative structure is an important 

biological feature for the Devils River 

minnow to avoid predation and 

complete other normal behaviors, such 

as feeding and spawning. 

c. Substrates. The Devils River 

minnow is most often associated with 

substrates (stream bottom) described as 

gravel and cobble (Garrett et al. 2004, p. 

436). Lopez-Fernandez and Winemiller 

(2005, p. 248) found the Devils River 

minnow associated with areas where the 

amounts of fine sediment on stream 

bottoms were low (less than 65 percent 

stream bottom coverage) (Winemiller 

2003, p. 13) and where there was low or 

moderate amounts of substrate 

embeddedness. The term embeddedness 

is defined by Sylte and Fischenich 

(2003, p. 1) as the degree to which fine 

sediments surround coarse substrates on 

the surface of a streambed. Low levels 

of substrate embeddedness and low 

amounts of fine sediment are physical 

stream features that provide interstitial 

spaces where microorganisms grow. 

These microorganisms are a component 

of the diet of the Devils River minnow 

(Lopez-Fernandez and Winemiller 2005, 

p. 250). We estimate substrate sizes for 

gravel-cobble between 2 and 10 cm (0.8 

and 4 in) in diameter (Cummins 1962, 

p. 495) are important for supporting 

food sources for the Devils River 

minnow. 

d. Stream Channel. The Devils River 

minnow occurs in the waters of stream 

channels that flow out of the Edwards 

Plateau of Texas. The streams contain a 

variety of mesohabitats for fish that are 

temporally and spatially dynamic 

(Harrell 1978, p. 60–61; Robertson and 

Winemiller 2003, p. 115). Mesohabitat 

types are stream conditions with 

different combinations of depth, 

velocity, and substrate, such as pools 

(stream reaches with low velocity and 

deep water), riffles (stream reaches with 

moderate velocity and shallow depths 

and some turbulence due to high 

gradient), runs (stream reaches with 

moderate depths and moderate 

velocities and a uniformly, flat stream 

bottom), and backwaters (areas in 

streams with little or no velocities along 

stream margins) (Parasiewicz 2001, p. 

7). These physical conditions in stream 

channels are mainly formed by large 

flood events that shape the banks and 

alter stream beds. Healthy stream 

ecosystems require intact natural stream 

banks (composed of sediments, rocks, 

and native vegetation) and stream beds 

(dynamically fluctuating from silt, sand, 

gravel, cobble, and bedrock). These 

physical features allow natural 

ecological processes in stream 

ecosystems to maintain habitat for 

Devils River minnow behaviors of 

feeding, breeding, and seeking shelter. 

Devils River minnow may move up 

and downstream to use diverse 

mesohabitats during different seasons 

and life stages, which could partially 

explain the highly variable sampling 

results assessing abundance of the fish 

(Garrett et al. 2002, p. 478). However, it 

is unknown to what extent Devils River 

minnow may move within occupied 

stream segments because no research on 

movement has been conducted. Linear 

movement (upstream or downstream) 

within streams may be important to 

allow fishes to complete life history 

functions and adjust to resource 

abundance, but this linear movement 

may often be underestimated due to 

limited biological studies (Fausch et al. 

2002, p. 490). The Devils River minnow 

occurs in relatively short stream 

segments and, therefore, needs to be 

able to move within the stream 

unimpeded to prevent population 

fragmentation. 

Food 

The Devils River minnow, like other 

minnows in the Dionda genus, has a 

long coiled gut for digesting algae and 

plants. Lopez-Fernandez and 

Winemiller (2005, p. 250) noted that 

Devils River minnow graze on algae 

attached to stream substrates (such as 

gravel, rocks, submerged plants, woody 

debris) and associated microorganisms. 

Thomas (2001, p. 13) observed minnows 

in the Dionda genus (the experiment did 

not distinguish between Devils River 

minnow and the closely related 

manatial roundnose minnow) feeding 

extensively on filamentous algae 

growing on rocks and plants in an 

artificial stream experiment. The 

specific components of the Devils River 

minnow diet have not been investigated, 

but a study is underway to identify 

stomach contents of the Devils River 

minnow in San Felipe Creek (Texas 

Parks and Wildlife Department (TPWD) 

2006, p. 1). An abundant aquatic food 

base is an essential biological feature for 

conservation of Devils River minnow. 

Water Quality 

The Devils River minnow occurs in 

spring-fed streams originating from 

groundwater. The aquifers that support 

these streams are of high quality, free of 

pollution and most human-caused 

impacts (Plateau Water Planning Group 

(PWPG) 2006, p. 5–9). This region of 

Texas has limited human development 

that would compromise water quality of 

the streams where Devils River 

minnows occur (San Felipe Creek may 

be an exception, see ‘‘Special 

Management Considerations or 

Protection’’ below). The watersheds are 

largely rural and have been altered to 

some extent by livestock grazing (cattle, 

sheep, and goats) for many decades 

(Brune 1981, p. 449). As part of statewide water planning efforts, the TPWD 


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proposed that all five streams within the 

range of the Devils River minnow 

(Devils River, San Felipe Creek, 

Sycamore Creek, Pinto Creek, and Las 

Moras Creek) be considered 

‘‘ecologically significant stream 

segments’’ for their biological function, 

hydrological function, exceptional 

aquatic life, and high aesthetic value 

(El-Hage and Moulton 2001, pp. 28–36, 

45–49). 

No specific studies have been 

conducted to determine water quality 

preferences or tolerances for Devils 

River minnow. However, because the 

species now occurs in only three 

streams, observations of water quality 

conditions in these streams are used to 

evaluate the needed water quality 

parameters for critical habitat. In 

addition, laboratory studies by Gibson et 

al. (2004, pp. 44–46) and Gibson and 

Fries (2005, pp. 299–303) have also 

provided useful information for the 

water quality conditions in captivity for 

Devils River minnow. 

a. Water temperature. Water 

temperatures from groundwater 

discharge at these springs are 

considered constant (Hubbs 2001, p. 

324). However, water temperatures 

downstream from springs vary daily and 

seasonally (Hubbs 2001, p. 324). Water 

temperatures have been measured in 

these stream segments to range from 

about 17 °C (degrees Celsius) to 29 °C 

(63 °F (degrees Fahrenheit) to 85 °F). 

Temperatures in the Devils River ranged 

from 17 °C to 27 °C (63 °F to 81 °F) 

(Lopez-Fernandez and Winemiller 2005, 

p. 248; Hubbs 2001, p. 312). 

Measurements in San Felipe Creek have 

ranged from 19 °C to 24 °C (66 °F to 75 

°F) (Hubbs 2001, p. 311; Winemiller 

2003, p. 13). Gibson and Fries (2005, p. 

296) had successful spawning by Devils 

River minnows at temperatures from 

about 18 °C to 24 °C (64 °F to 75 °F). 

Higher water temperatures are rare in 

Devils River minnow habitat, but 

temperatures up to 29 °C (84 °F) were 

recorded in Pinto Creek (Garrett et al. 

2004, p. 437). This stream segment has 

the lowest flow of those known to 

contain the Devils River minnow, 

resulting in higher temperatures. 

Maintaining water temperatures within 

an acceptable range in small streams is 

an essential physical feature for the 

Devils River minnow to allow for 

survival and reproduction. 

b. Water chemistry. Researchers have 

noted the need for high-quality water in 

habitats supporting the Devils River 

minnow (Garrett 2003, p. 155). Field 

studies at sites where Devils River 

minnow have been collected in 

conjunction with water quality 

measurements have documented that 

habitats contain the following water 

chemistry: dissolved oxygen levels are 

greater than 5.0 mg/l (milligrams per 

liter) (Hubbs 2001, p. 312; Winemiller 

2003, p. 13; Gibson et al. 2004, p. 44); 

pH ranges between 7.0 and 8.2 (Garrett 

et al. 2004, p. 440; Hubbs 2001, p. 312; 

Winemiller 2003, p. 13); conductivity is 

less than 0.7 mS/cm (microseimens per 

centimeter) and salinity is less than 1 

ppt (part per thousand) (Hubbs 2001, p. 

312; Winemiller 2003, p. 13; Garrett et 

al. 2004, p. 440; Gibson et al. 2004, p. 

45); and ammonia levels are less than 

0.4 mg/l (Hubbs 2001, p. 312; Garrett et 

al. 2004, p. 440). Streams with water 

chemistry within the observed ranges 

are essential physical features to 

provide habitat for normal behaviors of 

Devils River minnow. 

Garrett et al. (2004, pp. 439–440) 

highlighted the conservation 

implications of water quality when 

describing the distribution of Devils 

River minnow in Pinto Creek. The 

species is abundant in upstream 

portions of the creek and is abruptly 

absent at and downstream from the 

Highway 90 Bridge crossing. A different 

aquifer (Austin Chalk) feeds the lower 

portion of the creek (Ashworth and 

Stein 2005, p. 19), which results in 

changes in water quality (lower 

measurements of water temperature, pH, 

ammonia, and salinity). Garrett et al. 

(2004, p. 439) found that the change in 

water quality also coincided with the 

occurrence of different fish species that 

were more tolerant of lower values for 

these water quality parameters. 

c. Pollution. The Devils River minnow 

occurs only in habitats that are generally 

free of human-caused pollution. Garrett 

et al. (1992, pp. 266–267) suspected that 

the addition of chlorine to Las Moras 

Creek for the maintenance of a 

recreational swimming pool may have 

played a role in the extirpation of Devils 

River minnow from that system. 

Unnatural addition of pollutants such as 

copper, arsenic, mercury, and cadmium; 

human and animal waste products; 

pesticides; suspended sediments; 

petroleum compounds and gasoline or 

diesel fuels will alter habitat functions 

and threaten the continued existence of 

Devils River minnow. Fish, particularly 

herbivores and bottom-feeders, such as 

the Devils River minnow, are 

susceptible to the detrimental effects of 

aquatic pollutants (Buzan 1997, p. 4). 

Areas with waters free of pollution are 

essential physical features to allow 

normal behaviors and growth of the 

Devils River minnow and to maintain 

healthy populations of its food sources. 

Sites for Breeding, Reproduction, and 

Rearing of Offspring 

The specific sites and habitat 

associated with Devils River minnow 

breeding and reproduction have not 

been documented in the wild. However, 

Gibson et al. (2004) studied preferred 

conditions for spawning by Devils River 

minnow in a laboratory setting. Gibson 

et al. (2004, pp. 45–46) documented that 

the species is a broadcast spawner (they 

release eggs and sperm into the open 

water), over unprepared substrates (they 

don’t build nests), and males display 

some territorial behavior. Broadcast 

spawning is the most common 

reproductive method in minnows 

(Johnston 1999, p. 22; Johnston and 

Page 1992, p. 604). Fertilized eggs of 

Devils River minnow were slightly 

adhesive (or became more adhesive with 

time) and tended to stick to gravels just 

below the surface of the substrate 

(Gibson et al. 2004, p. 46). The eggs can 

hatch less than one week after 

deposition (Gibson 2007, p. 1). There 

was little seasonality in spawning 

periods observed (Gibson et al. 2004, p. 

45–46), which is consistent with a 

species that lives in a relatively stable 

temperature environment, such as 

spring-fed streams with low seasonal 

temperature variations. Based on this 

information, it is likely the species can 

spawn during most of the year. This is 

supported by Garrett et al. (2004, p. 

437), who observed distinct breeding 

coloration of Devils River minnow (blue 

sheen on the head and yellow tint on 

body) in Pinto Creek in December 2001, 

and Winemiller (2003, p. 16), who 

found juveniles from early spring to late 

fall in San Felipe Creek. 

a. Substrate. Gibson and Fries (2005, 

p. 299) found that Devils River minnow 

preferred gravel for spawning substrate, 

with size ranging mostly from 2 to 3 cm 

in diameter (0.8 to 1.2 in). Gravel and 

rock substrates are required physical 

features for spawning (depositing, 

incubating, and hatching) of Devils 

River minnow eggs. 

b. Cover. In laboratory experiments, 

Devils River minnow spawned in tanks 

with live potted plants (Vallisnaria spp. 

and Justicia spp.); however, eggs were 

never found on the plants or other parts 

of the tank (Gibson et al. 2004, pp. 42, 

43, 46). The plants apparently served as 

cover for the fish and allowed favorable 

conditions for spawning to occur. This 

condition is supported by observations 

in the wild that associate Devils River 

minnow with aquatic habitats where 

vegetative structure is present. This 

vegetative structure is a biological 

feature that is important for 

reproduction of Devils River minnow. 


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Habitat Protected From Disturbance or 

Representative of the Historic 

Geographical and Ecological 

Distribution of a Species 

a. Nonnative species. The 

introduction and spread of nonnative 

species have been identified as major 

factors in the continuing decline of 

native fishes throughout North America 

(Moyle et al. 1986, pp. 415–416) and 

particularly in the southwestern United 

States (Miller 1961, p. 397; Miller 1977, 

pp. 376–377). Williams et al. (1989, p. 

1) concluded that nonnative species 

were a causal factor in 68 percent of the 

fish extinctions in North America in the 

last 100 years. For 70 percent of those 

fish still extant, but considered to be 

endangered or threatened, introduced 

nonnative species are a primary cause of 

the decline (Lassuy 1995, p. 392). 

Nonnative species have been referenced 

as a cause of decline in native Texas 

fishes as well (Anderson et al. 1995, p. 

319; Hubbs 1990, p. 89; Hubbs et al. 

1991, p. 2). 

Aquatic nonnative species are 

introduced and spread into new areas 

through a variety of mechanisms, 

intentional and accidental, authorized 

and unauthorized. Mechanisms for 

nonnative fish dispersal in Texas 

include sport fish stocking (intentional 

and inadvertent, non-target species), 

aquaculture escapes, aquarium releases, 

and bait bucket releases (release of fish 

used as bait by anglers) (Howells 2001, 

p. 1). 

Within the range of the Devils River 

minnow, nonnative aquatic species of 

potential concern include: armored (or 

suckermouth) catfish (Hypostomus sp.) 

in San Felipe Creek (Lopez-Fernandez 

and Winemiller 2005, pp. 246–251); 

smallmouth bass (Micropterus 

dolomieu) in the Devils River (Thomas 

2001, p. 1); African cichlid 

(Oreochromis aureus) in San Felipe 

Creek (Lopez-Fernandez and Winemiller 

2005, p. 249) and Devils River (Garrett 

et al. 1992, p. 266); Asian snail 

(Melanoides tuberculata) and associated 

parasites (McDermott 2000, pp. 13–14); 

and Asian bivalve mollusk (Corbicula 

sp.) (Winemiller 2003, p. 25) in San 

Felipe Creek. Effects from nonnative 

species can include predation, 

competition for resources, altering of 

habitat, changing of fish assemblages 

(combinations of species), or 

transmission of harmful diseases or 

parasites (Aquatic Nuisance Species 

Task Force 1994, pp. 51–59; Baxter et al. 

2004, p. 2656; Howells 2001, pp. 17–18; 

Light and Marchetti 2007, pp. 442–444; 

Moyle et al. 1986, pp. 416–418). Studies 

have found effects from the armored 

catfish in San Felipe Creek, most likely 

due to competition for food (LopezFernandez and Winemiller 2005, p. 

250). The persistence of Devils River 

minnow in its natural range of habitats 

is dependent on areas that are devoid of 

harmful nonnative aquatic species or 

where nonnative aquatic species are at 

levels that allow healthy populations of 

the Devils River minnow. The absence 

of harmful nonnative species is an 

essential biological feature for 

conservation of the Devils River 

minnow. 

b. Hydrology. Natural stream flow 

regimes (both quantity and timing) are 

vital components to maintain ecological 

integrity in stream ecosystems (Poff et 

al. 1997, p. 769; Resh et al. 1988, pp. 

443–444). Aquatic organisms, like the 

Devils River minnow, have specific 

adaptations to use the environmental 

conditions provided by natural flowing 

systems and the highly variable stream 

flow patterns (Lytle and Poff 2004, p. 

94). As with other streams in the arid 

southwestern United States, streams 

where the Devils River minnow occurs 

can have large fluctuations in stream 

flow levels. In Texas, streams are 

characterized by high variation between 

large flood flows and extended period of 

low flows (Jones 1991, p. 513). Base 

flows in streams containing Devils River 

minnow are generally maintained by 

constant spring flows (Ashworth and 

Stein 2005, p. 4), but in periods of 

drought, especially in combination with 

groundwater withdrawals, portions of 

stream segments can be periodically 

dewatered. The occurrence of 

intermittent stream segments within the 

range of the Devils River minnow is 

most common in Pinto Creek (Ashworth 

and Stein 2005, Figure 13; Uliana 2005, 

p. 4; Allan 2006, p. 1). 

Although portions of stream segments 

included in this proposed designation 

may experience short periods of low or 

no flows (causing dry sections of 

stream), they are still important because 

the Devils River minnow is adapted to 

stream systems with some fluctuating 

water levels. Fish cannot persist in 

dewatered areas (Hubbs 1990, p. 89). 

However, Devils River minnows will 

use dewatered areas that are 

subsequently wetted as connective 

corridors between occupied or 

seasonally occupied habitat. Fausch et 

al. (2002, p. 490) notes in a review of 

movement of fishes related to 

metapopulation dynamics that, ‘‘Even 

small fishes may move long distances to 

repopulate rewetted habitats.’’

Preventing habitat fragmentation of fish 

populations is important in reducing 

extinction risks in rare species (Fagan 

2002, p. 3255). Areas within stream 

courses that may be periodically 

dewatered but that serve as connective 

corridors between occupied or 

seasonally occupied habitat and through 

which the species may move when the 

habitat is wetted are important physical 

features of Devils River minnow habitat. 

Flooding is also a large part of the 

natural hydrology of streams within the 

range of Devils River minnow. Large 

floods have been shown to alter fish 

community structure and fish habitat 

use in the Devils River (Harrell 1978, p. 

67) and in San Felipe Creek (Garrett and 

Edwards 2003, p. 787; Winemiller 2003, 

p. 12). Pearsons et al. (1992, p. 427) 

states that ‘‘Flooding is one of the most 

important abiotic factors that structure 

biotic assemblages in streams.’’ Floods 

provide flushing flows that remove fine 

sediments from gravel and provide 

spawning substrates for species like the 

Devils River minnow (Instream Flow 

Council 2002, p. 103; Poff et al. 1997, 

p. 775). Flooding is the physical 

mechanism that shapes stream channels 

by a process known as scour and fill, 

where some areas are scoured of fine 

sediments while fine sediments are 

redeposited in other areas (Gordon et al. 

1992, pp. 304–305; Poff et al. 1997, pp. 

771–772). This dynamic process is 

fundamental to maintaining habitat 

diversity in streams that ensure healthy 

ecosystem function (Lytle and Poff 

2004, pp. 96–99; Poff et al. 1997, pp. 

774–777). Allowing natural stream 

flows, particularly during flood events, 

is an essential physical feature to 

maintain stream habitats for Devils 

River minnow. 

Primary Constituent Elements for the 

Devils River Minnow 

Under the Act and its implementing 

regulations, we are required to identify 

the physical and biological features 

(PCEs) within the geographical area 

occupied by the species, which may 

require special management 

considerations or protections. 

Based on the above needs and our 

current knowledge of the life history, 

biology, and ecology of the species, we 

have determined that the Devils River 

minnow’s PCEs are: 

1. Streams characterized by: 

a. Areas with slow to moderate water 

velocities between 10 and 40 cm/second 

(4 and 16 in/second) in shallow to 

moderate water depths between 

approximately 10 cm (4 in) and 1.5 m 

(4.9 ft), near vegetative structure, such 

as emergent or submerged vegetation or 

stream bank riparian vegetation that 

overhangs into the water column; 

b. Gravel and cobble substrates 

ranging in size between 2 and 10 cm 

(0.8 and 4 in) with low or moderate 

amounts of fine sediment (less than 65 


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percent stream bottom coverage) and 

low or moderate amounts of substrate 

embeddedness; and 

c. Pool, riffle, run, and backwater 

components free of artificial instream 

structures that would prevent 

movement of fish upstream or 

downstream. 

2. High-quality water provided by 

permanent, natural flows from 

groundwater spring and seeps 

characterized by: 

a. Temperature ranging between 17 °C 

and 29 °C (63 °F and 84 °F); 

b. Dissolved oxygen levels greater 

than 5.0 mg/l; 

c. Neutral pH ranging between 7.0 and 

8.2; 

d. Conductivity less than 0.7 mS/cm 

and salinity less than 1 ppt; 

e. Ammonia levels less than 0.4 mg/ 

l; and 

f. No or minimal pollutant levels for 

copper, arsenic, mercury, and cadmium; 

human and animal waste products; 

pesticides; fertilizers; suspended 

sediments; petroleum compounds and 

gasoline or diesel fuels. 

3. Abundant aquatic food base 

consisting of algae attached to stream 

substrates and other associated 

microorganisms. 

4. Aquatic stream habitat either 

devoid of nonnative aquatic species 

(including fish, plants, and 

invertebrates) or in which such 

nonnative aquatic species are at levels 

that allow for healthy populations of 

Devils River minnows. 

5. Areas within stream courses that 

may be periodically dewatered for short 

time periods, during seasonal droughts, 

but otherwise serve as connective 

corridors between occupied or 

seasonally occupied areas through 

which the species moves when the area 

is wetted. 

This proposed designation is designed 

for the conservation of PCEs necessary 

to support the life history functions that 

were the basis for the proposal and the 

areas containing those PCEs. Because 

not all life history functions require all 

the PCEs, not all proposed critical 

habitat will contain all the PCEs. 

Special Management Considerations or 

Protections 

When designating critical habitat, we 

assess whether the occupied areas 

contain the features essential to the 

conservation of the species that may 

require special management 

considerations or protections. We 

provide a summary discussion below of 

the special management needs for the 

stream segments we have identified as 

occupied at the time of listing (Devils 

River and San Felipe Creek) and the 

area considered to be essential for the 

conservation of the Devils River 

minnow (Pinto Creek). For additional 

information regarding the threats to the 

Devils River minnow and the needed 

management strategies to address those 

threats, see the Devils River Minnow 

Recovery Plan (Service 2005, pp. 1.7–

1—1.7–7; 1.8–1—1.8–4; 2.5–1—2.5–5). 

The following special management 

needs apply to all three stream 

segments, Devils River, San Felipe 

Creek, and Pinto Creek, and will be 

further discussed for each stream 

segment in the Proposed Critical Habitat 

Designation below. 

a. Groundwater management. The 

waters that produce all three stream 

segments issue from springs that are 

supported by underground aquifers, 

generally some portion of the Edwards 

Trinity Aquifer (Ashworth and Stein 

2005, pp.16–33; Barker and Ardis 1996, 

pp. B5–B6; Brune 1981, pp. 274–277, 

449–456; Green et al. 2006, pp. 28–29; 

LBG-Guyton Associates 2001, pp. 5–6; 

PWPG 2006, pp. 3–5, 3–6, 3–30). 

Regional groundwater flow in this area 

is generally from north to south 

(Ashworth and Stein 2005, Figure 8). 

This aquifer is currently pumped to 

provide water for human uses including 

agricultural, municipal, and industrial 

(Ashworth and Stein 2005, p.1; Green et 

al. 2006, pp. 28–29; LBG-Guyton 

Associates 2001, pp. 22–27; PWPG 

2006, pp. 3–14, 3–15). Some parts of 

this aquifer have already experienced 

large water level declines due to a 

combination of pumping withdrawals 

and regional drought (Barker and Ardis 

1996, p. B50). There are a number of 

preliminary project plans to 

significantly increase the amount of 

groundwater pumped in this area to 

export it to other metropolitan centers 

(HDR Engineering Inc. 2001, p. 1–1; 

Khorzad 2002, p. 19; PWPG 2006, pp. 4–

54). If the aquifers are pumped beyond 

their ability to sustain levels that 

support spring flows, these streams will 

no longer provide habitat for the Devils 

River minnow (Ashworth and Stein 

2005, p.34; Edwards et al. 2004, p. 256; 

Garrett et al. 2004, pp. 439–440). Flow 

reductions can have indirect effects on 

fishes by impacting thermal regimes 

because higher water flow buffers 

against temperature oscillations (Hubbs 

1990, p. 89). 

Groundwater pumping that could 

affect stream flows within the Devils 

River minnow’s range is subject to 

limited management control. State 

agencies do not control groundwater. 

Groundwater resources in Texas are 

under the ‘‘Rule of Capture,’’ and 

groundwater use is not regulated by any 

State agency (Holladay 2006, p. 2; Potter 

2004, p. 9). The rule of capture 

essentially provides that groundwater is 

a privately owned resource and, absent 

malice or willful waste, landowners 

have the right to take all the water they 

can capture under their land without 

liability to neighboring landowners, 

even if in so doing they deprive their 

neighbors of the water’s use (Holladay 

2006, p. 2; Potter 2004, p. 1). 

Local groundwater conservation 

districts are the method for groundwater 

management in Texas (Caroom and 

Maxwell 2004, pp. 41–42; Holladay 

2006, p. 3). Most districts are created by 

action of the Texas Legislature (Lesikar 

et al. 2002, p. 13). The regulations 

adopted by local groundwater 

conservation districts vary across the 

State and often reflect local decisions 

based on regional preferences, geologic 

limitations, and the needs of citizens 

(Holladay 2006, p. 3). The Kinney 

County Groundwater Conservation 

District is a local authority with some 

regulatory control over the pumping and 

use of groundwater resources in Kinney 

County (Brock and Sanger 2003, p. 42–

44). Currently, there is no groundwater 

district in Val Verde County. It is not 

known whether groundwater districts, 

such as the one in Kinney County, will 

limit groundwater use and exportation 

to allow for conservation of surface 

water flows for environmental needs 

(Brock and Sanger 2003, p. 42–44; 

Caroom and Maxwell 2004, p. 47–48; 

Marbury and Kelly 2005, p. 9). The 

regional water plan for this area 

recognizes that groundwater needs to be 

managed for the benefit of spring flows 

(PWPG 2006, p. 3–30) and that 

groundwater use should be limited so 

that ‘‘base flows of rivers and streams 

are not significantly affected beyond a 

level that would be anticipated due to 

naturally occurring conditions’’

(Ashworth and Stein 2005, p. 34; PWPG 

2006, p. 3–8). Special management 

efforts are needed across the range of the 

Devils River minnow to ensure that 

aquifers are used in a manner that will 

sustain spring flows and provide water 

as an essential physical feature for the 

species. 

b. Nonnative species. Controlling 

existing nonnative species and 

preventing the release of new nonnative 

species are special management actions 

needed across the range of the Devils 

River minnow. The best tool for 

preventing new releases is education of 

the public on the problems associated 

with nonnative species (Aquatic 

Nuisance Species Task Force 1994, pp. 

16–17). Current nonnative species 

issues have been cited for possible 

impacts to the Devils River (smallmouth 

bass) and San Felipe Creek (armored 


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catfish) (Lopez-Fernandez and 

Winemiller 2005, p. 247; Thomas 2001, 

p. 1; Robertson and Winemiller 2001, p. 

220). The armored catfish may already 

be impacting Devils River minnows in 

San Felipe Creek through competition 

for common food resources of attached 

algae and associated microorganisms 

(Lopez-Fernandez and Winemiller 2005, 

p. 250). Hoover et al. (2004, pp. 6–7) 

suggest that nonnative catfishes in the 

family Loricaridae, like armored catfish, 

will impact stream systems and native 

fishes by competing for food with other 

herbivores, changing plant 

communities, bank erosion due to 

burrowing in stream banks for 

spawning, and incidentally ingesting 

fish eggs. Problem nonnative species 

have not been documented in Pinto 

Creek. Please see the above discussion 

in ‘‘Habitat Protected From Disturbance 

or Representative of the Historic 

Geographical and Ecological 

Distribution of a Species’’ for additional 

discussion of nonnative species. 

c. Pollution. Special management 

actions are needed to prevent point and 

nonpoint sources of pollution entering 

in the stream systems where the Devils 

River minnow occurs. Devils River and 

Pinto Creek are generally free of threats 

from obvious sources of pollution. San 

Felipe Creek is in an urban environment 

where threats from human-caused 

pollution are substantial. Potential for 

spill or discharge of toxic materials is an 

inherent threat in urban environments. 

In addition, there are little to few 

current controls in the City of Del Rio 

to minimize the pollutants that will run 

off into the creek during rainfall events 

from streets, parking lots, roof tops, and 

maintained lawns from private yards 

and the golf course (Winemiller 2003, p. 

27). All of these surfaces will contribute 

pollutants (for example, fertilizers, 

pesticides, herbicides, petroleum 

products) to the creek and potentially 

impact biological functions of the Devils 

River minnow. In addition, trash is 

often dumped into or near the creek and 

can be a source of pollutants. Special 

management by the City of Del Rio is 

needed (City of Del Rio 2006, p. 13) to 

institute best management practices for 

controlling pollution sources that enter 

the creek and maintain the water quality 

at a level necessary to support Devils 

River minnow. 

d. Stream channel alterations. The 

stream channels in the three streams 

where Devils River minnow occurs 

should be maintained in natural 

conditions, free of instream obstructions 

to fish movement and with intact stream 

banks of native vegetation. Devils River 

and Pinto Creek are generally free of 

stream channel alterations; however, 

San Felipe Creek has been altered by 

diversion dams, bridges, and armoring 

of stream banks (replacing native 

vegetation and soils with rock or 

concrete). Special management is 

needed in all three occupied streams to 

protect the integrity of the stream 

channels for the conservation of Devils 

River minnow habitat. 

Criteria Used To Identify Critical 

Habitat 

We are proposing to designate critical 

habitat for the Devils River minnow in 

areas that were occupied at the time of 

listing and contain sufficient PCEs to 

support life history functions essential 

for the conservation of the species, 

which may require special management 

considerations or protection. Critical 

habitat is also being proposed for areas 

not considered occupied at the time of 

listing, but subsequently discovered to 

be occupied and essential for the 

conservation of the Devils River 

minnow. 

Critical habitat is designated based on 

sufficient PCEs being present to support 

the life processes of the species. Some 

areas contain all PCEs and support 

multiple life processes. Some areas 

contain only a portion of the PCEs 

necessary to support the particular use 

of that habitat. 

a. Range. We evaluated the 

geographical range of the Devils River 

minnow, as described in the Recovery 

Plan (Service 2005, p. 1.4.1.1.4.5). There 

are five stream segments in the United 

States (all in Texas) that have ever been 

known to have been occupied by the 

Devils River minnow: (1) The Devils 

River (Val Verde County) from Beaver 

Lake downstream to near the confluence 

with the Rio Grande; (2) San Felipe 

Creek (Val Verde County) from the 

headsprings on the Lowe Ranch to 

downstream of the City of Del Rio; (3) 

Sycamore Creek (Val Verde/Kinney 

county boundary), only documented 

from the Highway 277 Bridge crossing; 

(4) Pinto Creek (Kinney County) from 

Pinto Springs downstream to 0.5 stream 

km (0.3 stream mi) upstream of the 

Highway 90 Bridge crossing; and (5) Las 

Moras Creek (Kinney County), only 

documented from the Las Moras Spring 

in the City of Brackettville. 

Each of these five stream segments 

has (or formerly had) isolated 

populations of Devils River minnow 

separated by long distances, unsuitable 

habitat, and/or large dams that prevent 

fish movements. Although each of these 

streams is a tributary to the Rio Grande, 

we do not expect any contemporary 

exchange of individuals between these 

stream segments. The Devils River 

minnow is generally associated with 

upstream reaches of these streams, and 

connectivity would require movement 

through downstream reaches, through 

the Rio Grande, and back upstream 

through uninhabited reaches. The 

Devils River minnow has not been 

documented in the Rio Grande, or any 

other of its tributaries in the United 

States in modern times (ContrerasBalderas et al. 2002, pp. 228–240; 

Edwards et al. 2002, p. 123; Garrett et 

al. 1992, pp. 261–265; Hoagstrom 2003, 

p. 95; Hubbs 1957, p. 93; Hubbs 1990, 

p. 90; Hubbs et al. 1991, p. 18; Trevin ̃ oRobinson 1959, p. 255). These stream 

reaches are considered unsuitable 

habitat (Garrett et al. 1992, p. 261) 

because the aquatic habitat is very 

different (larger volume, higher 

suspended sediments, different suite of 

native fishes) than the streams where 

the Devils River minnow is found. The 

presence of Amistad Reservoir and Dam 

has further isolated the Devils River 

stream segment from the other stream 

segments. While some exchange of 

individuals could have occurred across 

a geologic time scale, any natural 

exchange of individual Devils River 

minnows between currently occupied 

stream segments in modern times is 

unlikely because of habitat changes in 

the Rio Grande, nonnative species, and 

potential instream barriers. 

Lack of access to private property can 

limit opportunities to sample for the 

presence of Devils River minnow (such 

as occurred on Pinto Creek, see Garrett 

et al. (2004), p. 436) and may limit our 

ability to accurately determine the full 

range of the species. However, we do 

not expect any additional streams 

outside of the geographical range of the 

species to be occupied. There could be 

additional stream segments within the 

known range that may be found to be 

occupied during future surveys, but the 

best available information at this time 

supports only these five stream 

segments known to be or to have been 

occupied by Devils River minnow in the 

United States. 

b. Occupancy. For the purpose of this 

critical habitat designation, we consider 

a stream segment to be occupied if 

Devils River minnow has been found to 

be present by species experts within the 

last 10 years, or where the stream 

segment is directly connected to a 

segment with documented occupancy 

within the last 10 years (see Proposed 

Critical Habitat Designation for 

additional occupancy information). The 

life expectancy of Devils River minnow 

is assumed to be about 3 years, although 

individuals have lived 5 years in 

captivity (Gibson 2006, p. 1). Ten years 

is estimated to represent a time period 

that provides for at least three 


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generations and should allow for an 

adequate time to detect occupancy. 

Most stream segments have not been 

surveyed with a high degree of 

frequency, and this species can be 

difficult to detect, as even multiple 

samples within a short time in the same 

location by the same researcher can 

yield different results (Garrett et al. 

2002, p. 478). We have assessed the 

occupancy of stream segments based on 

the best survey information available. 

c. Areas occupied at the time of 

listing. At the time the Devils River 

minnow was listed as a threatened 

species, it was only confirmed to occur 

at two sites on the Devils River (small 

tributaries) and in San Felipe Creek in 

Del Rio, Texas (64 FR 56597). This 

species is reasonably expected to move 

throughout connected stream reaches, 

based on past and recent collection 

records from these streams (Garrett et al. 

2002, p. 478). Therefore, we determine 

there are two stream segments that were 

occupied at the time of listing: (1) Devils 

River from Pecan Springs to 

downstream of Dolan Falls (Garrett 

2006a, p. 4; Garrett 2007, p. 1); and (2) 

San Felipe Creek from the Head Spring 

to downstream through the City of Del 

Rio (Garrett 2006b, p. 1; Garrett 2007, 

p.1). The full extent of both stream 

segments is considered occupied, as 

surveys in the last 10 years have 

confirmed the species presence in the 

streams and the unit consists of 

contiguous habitat that allows fish 

movement throughout the stream. 

d. Primary constituent elements. We 

are proposing to designate the stream 

segments that were occupied at the time 

of listing and contain sufficient PCEs to 

support life history functions essential 

for the conservation of the species. Both 

of the stream segments occupied at the 

time of listing (Devils River and San 

Felipe Creek) contain sufficient PCEs to 

support life history functions essential 

for the conservation of the Devils River 

minnow. 

e. Areas not occupied at time of 

listing. Section 3(5)(A)(ii) of the Act 

allows for critical habitat to be 

designated in areas outside the 

geographical area occupied by the 

species at the time it is listed if those 

areas are essential for the conservation 

of the species. Three stream segments 

historically occupied by Devils River 

minnow but not considered occupied at 

the time of listing include Sycamore 

Creek, Pinto Creek, and Las Moras 

Creek. 

Sycamore Creek and Las Moras Creek 

are not currently occupied by the Devils 

River minnow. The last known 

occurrence of the species in these 

stream segments was 1989 for Sycamore 

Creek (Garrett et al. 1992, p. 265) and 

1955 for Las Moras Creek (Garrett et al. 

1992, p. 266; Hubbs and Brown 1956, 

pp. 70–71). Although recent 

publications continue to list Sycamore 

Creek as a stream where Devils River 

minnow may still occur (Garrett et al. 

2004, p. 435; Lopez-Fernandez and 

Winemiller, p. 247), we have a high 

degree of uncertainty as to the status of 

the fish in Sycamore Creek. Collections 

in 1999 and 2002 from the area of last 

known occurrence (in 1989) did not 

yield Devils River minnow (G. Garrett, 

TPWD, unpublished data 2002). In 

addition, Garrett et al. (1992) surveyed 

portions of Mud Creek (a tributary to 

Sycamore Creek) in 1989 but found no 

Devils River minnow. Additional 

surveys are needed to determine the 

current status of the fish in the 

Sycamore Creek watershed. Devils River 

minnow has not been collected from Las 

Moras Creek since the 1950s and is 

believed to be extirpated from the Las 

Moras Creek drainage. This conclusion 

is based on the absence of the species 

in sampling efforts from the late 1970s 

to 2002 (Smith and Miller 1986; Hubbs 

et al. 1991; Garrett et al. 1992; G. 

Garrett, unpublished data 2002). 

Restoring Devils River minnow to 

Sycamore Creek and Las Moras Creek 

may be important to achieve recovery 

goals for the species and optimize the 

chances of long-term species 

conservation (Service 2005, pp. 2.1–1—

2.2–3). Recovery criteria for Devils River 

minnow include having stable or 

increasing populations in both 

Sycamore Creek and Las Moras Creek, if 

reestablishment in Las Moras Creek is 

scientifically feasible. However, the 

feasibility of restoring populations in 

these areas is uncertain and the recovery 

plan advises additional assessment and 

landowner willingness will be necessary 

in both areas before restoration could 

occur. Therefore, based on the lack of 

information regarding the species status 

in Sycamore Creek, uncertainty of the 

potential for restoration in either stream 

segment, and the absence of data to 

demonstrate that the streams possess the 

PCEs, for the purposes of critical habitat 

designation, we have not included 

Sycamore Creek and Las Moras Creek in 

the proposed critical habitat 

designation. 

Due to the importance of these stream 

segments to the recovery of Devils River 

minnow, we solicit additional 

information and comments from 

interested parties on the distribution of 

Devils River minnow, specifically in the 

Sycamore Creek and Las Moras Creek 

watersheds. Information received, as 

well as supporting documentation will 

be used in the consideration of 

Sycamore Creek and Las Moras Creek’s 

inclusion in the final critical habitat 

designation. We may consider including 

Sycamore Creek and Las Moras Creek in 

our critical habitat designation if we 

receive additional information during 

the public comment period that leads to 

a determination that these stream 

segments are essential to the 

conservation of Devils River minnow. 

At the time of listing in 1999, 

previous fish surveys in Pinto Creek 

were limited to the locations of public 

access at highway bridge crossings and 

did not find the species present (Garrett 

et al. 1992, p. 260). In 2001, fish surveys 

in upstream areas of Pinto Creek 

discovered the previously unknown 

population of Devils River minnow 

(Garrett et al. 2004, p. 436–439). The 

species has been confirmed to occur 

from just upstream of the Highway 90 

Bridge crossing upstream to the origin of 

Pinto Creek at Pinto Springs (Garrett et 

al. 2004, p. 438–439). Since this stream 

segment is isolated from other occupied 

areas, this stream segment was likely 

occupied at the time of listing, but 

appropriate surveys had not been 

conducted to verify it. We find that the 

Pinto Creek stream segment is essential 

to the conservation of the Devils River 

minnow because preliminary analysis 

have shown significant genetic variation 

between Devils River minnow 

populations in Pinto Creek and the 

Devils River (Service 2006, p. 15). Also 

Pinto Creek provides the best source of 

Devils River minnows (due to proximity 

and habitat similarity) to implement 

possible future recovery actions if 

reestablishing the species into nearby 

Las Moras Creek proves feasible (Garrett 

et al. 2004, p. 440). 

f. Lateral Extent. The areas designated 

as critical habitat are designed to 

provide sufficient areas for breeding, 

non-breeding adults and rearing of 

juvenile Devils River minnow. In 

general, the PCEs of critical habitat for 

Devils River minnow include the spring 

heads and the wetted channel during 

average flow conditions of the stream 

segments. The Devils River minnow 

evolved in streams maintained by 

consistent flows from groundwater 

springs that varied little seasonally. 

Episodic floods, sometimes very large 

floods, are important for maintenance of 

the natural stream channel and fish 

communities (Harrell 1978, p. 67; 

Valdes Cantu and Winemiller 1997, pp. 

276–277); however, the streams do not 

have a regular seasonal pattern of 

flooding. As a result, the life history of 

the Devils River minnow is not 

dependent on high flow events and the 

inundation of overbank areas. Therefore, 

the floodplain is not known to contain 


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the features essential for the species’

conservation and is not included in the 

proposed critical habitat designation. 

We propose that this critical habitat 

designation include a lateral extent that 

is limited to the normal wetted channel 

of the streams proposed for inclusion. 

For the purposes of this proposal, the 

wetted channel is considered the width 

of the stream channel at bankfull stage. 

Bankfull stage is the height when stream 

flows just fill the stream to its banks 

before water spills out onto the adjacent 

floodplain (Gordon et al. 1992, pp. 305–

307). The stream discharge that reaches 

bankfull stage occurs 1 or 2 days each 

year and has a recurrence interval that 

averages 1.5 years (Leopold 1994, pp. 

129–141). This lateral extent will 

encompass the immediate streamside 

vegetation that can extend into the 

water column and provide vegetative 

structure, one of the PCEs. 

Summary. We are proposing to 

designate critical habitat in areas that 

we have determined were occupied at 

the time of listing, and that contain 

sufficient PCEs to support life history 

functions essential for the conservation 

of the species. Stream segments are 

proposed for designation based on 

sufficient PCEs being present to support 

the life processes of the species. Some 

stream segments contain all PCEs and 

support multiple life processes. Some 

stream segments contain only a portion 

of the PCEs necessary to support the 

particular use of that habitat. For stream 

segments that were not occupied at the 

time of listing, we evaluated whether 

those areas were essential to the 

conservation of the Devils River 

minnow. 

We find that two stream segments 

were occupied at the time of listing and 

contain sufficient PCEs to support life 

history functions essential for the 

conservation of the species: (1) Devils 

River from Pecan Springs to 

downstream of Dolan Falls, including 

short stretches of two tributaries, 

Phillips Creek and Dolan Creek, and (2) 

San Felipe Creek from the headsprings 

downstream through the City of Del Rio, 

include the outflow channels of East 

and West Sandia springs. We find that 

a third stream segment, Pinto Creek 

from Pinto Springs downstream to the 

Highway 90 Bridge crossing, was not 

known to be occupied at the time of 

listing, but was subsequently discovered 

to be occupied and is now considered 

to be essential for the conservation of 

the Devils River minnow for the reasons 

discussed above. 

Within this proposed rule, the critical 

habitat boundary is limited to bankfull 

width of the stream segments proposed 

for inclusion, at the height in which 

stream flows just fill the stream to its 

banks before water spills out onto the 

adjacent floodplain. The scale of the 

critical habitat maps prepared under the 

parameters for publication within the 

Code of Federal Regulations may not 

reflect the exclusion of developed areas 

such as buildings, paved areas, and 

other structures that lack PCEs for the 

Devils River minnow. Any such 

structures and the land under them 

inside critical habitat boundaries shown 

on the maps of this proposed rule are 

not proposed for designation as critical 

habitat. Therefore, Federal actions 

limited to these areas would not trigger 

section 7 consultation, unless they affect 

the species or PCEs in adjacent critical 

habitat. 

Proposed Critical Habitat Designation 

We are proposing three units as 

critical habitat for the Devils River 

minnow. The three units are: (1) Devils 

River Unit; (2) San Felipe Creek Unit; 

and (3) Pinto Creek Unit. All three areas 

are currently occupied by the Devils 

River minnow and constitute our best 

assessment of areas that meet the 

definition of critical habitat for the 

species. 

The proposed critical habitat areas 

include the stream channels up to 

bankfull width within the identified 

stream reaches. The stream beds of 

perennial streams and navigable waters 

(stream beds of at least 30 ft wide) in 

Texas are generally owned by the State, 

in trust for the public, while the lands 

alongside the streams can be privately 

owned (Riddell 1997, p. 7). We presume 

that the stream beds for all three stream 

segments being proposed for critical 

habitat are considered public. 

All distances reported in this proposal 

are estimated stream lengths calculated 

using geographic information system 

computer software (ArcGIS) 

approximating the stream channel 

(reported in stream km and stream mi). 

Stream channel lines were based on the 

National Hydrography Dataset and 7.5’

topographic quadrangle maps obtained 

from the U.S. Geological Survey. We 

made some minor adjustments using the 

2004 National Agriculture Imagery 

Program digital orthophotos obtained 

from the Texas Natural Resources 

Information System. The approximate 

length of each stream segment for each 

proposed critical habitat unit is shown 

in Table 1. 

TABLE 1.—PROPOSED CRITICAL HABITAT UNITS FOR THE DEVILS RIVER

MINNOW

Critical habitat unit * 

Total stream 

km 

(stream mi) 

1. Devils River Unit (includes 

Philips and Dolan creeks) 47.0 (29.2) 

2. San Felipe Creek Unit (includes outflow of East and 

West springs) .................... 9.0 (5.6) 

3. Pinto Creek Unit ............... 17.5 (10.9) 

Total .................................. 73.5 (45.7) 

* The stream beds of all three units being 

proposed for critical habitat are considered 

public, and owned by the state of Texas. 

The proposed critical habitat 

designation for Devils River minnow 

includes a total of 73.5 stream km (45.7 

stream mi). Below, we provide brief 

descriptions of the three units, and 

reasons why each meets the definition 

of critical habitat for the Devils River 

minnow. 

Unit 1: Devils River Unit 

Proposed Unit 1 consists of 

approximately 43.6 stream km (27.1 

stream mi) of the Devils River; 1.1 

stream km (0.7 stream mi) of Phillips 

Creek; and 2.3 stream km (1.4 stream 

mi) of Dolan Creek. Phillips Creek and 

Dolan Creek are small tributaries to the 

Devils River that contain PCEs and are 

occupied by the Devils River minnow. 

The proposed upstream boundary on 

the Devils River is at Pecan Springs. The 

proposed downstream boundary on the 

Devils River is 3.6 stream km (2.2 

stream mi) below Dolan Falls. Phillips 

Creek is included from the confluence 

with the Devils River to a point 1.1 

stream km (0.7 stream mi) upstream. 

Dolan Creek is included from the 

confluence with the Devils River 2.3 

stream km (1.4 stream mi) upstream to 

Dolan Springs. Including all three 

streams, the total distance in the 

proposed critical habitat in the Devils 

River Unit is approximately 47.0 stream 

km (29.2 stream mi). For specific 

coordinates of the boundaries for 

proposed critical habitat designation, 

please reference the unit descriptions in 

the Proposed Regulation Promulgation 

section below. 

The Devils River minnow was 

originally described from this unit in 

the 1950s (Hubbs and Brown 1956, p. 

70) and it has been continually 

occupied ever since (Harrell 1978, pp. 

64, 67; Garrett et al. 1992, p. 261, 

Service 2005, Appendix A). The Devils 

River minnow occupied this unit at the 

time of listing, though at only a few 

locations. Subsequent surveys by TPWD 


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have established current occupancy of 

this entire unit (Service 2005, Appendix 

A). The proposed upstream boundary of 

critical habitat represents the beginning 

of the permanent flow of the river (De 

La Cruz 2004, p. 1). The proposed 

downstream boundary, 3.6 stream km 

(2.2 stream mi) downstream of Dolan 

Falls, represents the downstream extent 

of collections of the Devils River 

minnow by TPWD (Garrett 2007, p. 1). 

The Devils River Unit contains one or 

more of the PCEs essential for 

conservation of the Devils River 

minnow. Special management in the 

Devils River Unit may be needed to 

control groundwater pumping to ensure 

spring flows are maintained and to 

prevent the introduction of nonnative 

species. See additional discussion above 

in the Special Management 

Considerations or Protections section. 

Areas proposed as critical habitat for 

Devils River minnow do not include 

lands adjacent to the stream channels. 

However, land ownership adjacent to 

the streams in the Devils River Unit is 

primarily private. Private ownership of 

the area includes The Nature 

Conservancy’s 1,943–ha (4,800–ac) 

Dolan Falls Preserve, which also 

includes river frontage on the Devils 

River and Dolan Creek. The Nature 

Conservancy has owned this area since 

1991 (The Nature Conservancy 2004, 9). 

The Nature Conservancy also holds 

conservation easements on about 66,800 

ha (about 165,000 ac) of private land 

along the Devils River or in the Devils 

River watershed (McWilliams 2006, p. 

1). The only public land adjacent to the 

streams of this unit is the State-owned 

Devils River State Natural Area 

(DRSNA) managed by the TPWD. 

Proposed critical habitat within the 

DRSNA includes about 1.6 stream km 

(1.0 stream mi) along the east bank of 

the Devils River and about 1.9 stream 

km (1.17 stream mi) along both banks of 

a portion of Dolan Creek. Yet, these 

adjacent public lands are not included 

in the proposed critical habitat 

designation. 

Unit 2: San Felipe Creek Unit 

Proposed Unit 2 consists of 

approximately 7.9 stream km (4.9 

stream mi) on San Felipe Creek; 0.8 

stream km (0.5 stream mi) of the outflow 

of San Felipe Springs West; and 0.3 

stream km (0.2 stream mi) of the outflow 

of San Felipe Springs East. The 

proposed upstream boundary on San 

Felipe Creek is the Head Springs located 

about 1.1 stream km (0.7 stream mi) 

upstream of the Jap Lowe Bridge 

crossing. The proposed downstream 

boundary on San Felipe Creek is in the 

City of Del Rio 0.8 stream km (0.5 

stream mi) downstream of the Academy 

Street Bridge crossing. The proposed 

unit includes the outflow channels of 

two springs San Felipe Springs West 

and San Felipe Springs East. These 

channels are included in the proposed 

critical habitat from their spring origin 

downstream to the confluence with San 

Felipe Creek. Including all three 

streams, the total distance in the 

proposed critical habitat in the San 

Felipe Creek Unit is approximately 9.0 

stream km (5.6 stream mi). For specific 

coordinates of the boundaries for 

proposed critical habitat designation, 

please reference the unit descriptions in 

the Proposed Regulation Promulgation 

section below. 

San Felipe Creek was occupied by the 

Devils River minnow at the time of 

listing and is still occupied (Hubbs and 

Brown 1956, p. 70; Garrett et al. 1992, 

pp. 261, 265; Service 2005, Appendix A; 

Lopez-Fernandez and Winemiller 2005, 

p. 249). Although limited survey data is 

available, we consider the entire unit 

occupied as the habitat is contiguous, 

allowing fish to move throughout the 

unit (Garrett 2006b, p. 1). The proposed 

boundaries of critical habitat include all 

areas where TPWD has collected Devils 

River minnow within the San Felipe 

Creek Unit (Garrett 2007, p. 1). 

The San Felipe Creek Unit contains 

one or more of the PCEs essential for 

conservation of the Devils River 

minnow. There are several unnatural 

barriers to fish movement that may 

currently segment the reaches within 

the City of Del Rio. Portions of the 

stream banks in the City have been 

significantly altered by arming with 

concrete and the invasion of an exotic 

cane (Arundo donax). However, much 

of the riparian area remains a functional 

part of the stream ecosystem, 

contributing to the physical and 

biological features of Devils River 

minnow habitat. Water quality in San 

Felipe Creek has been a concern due to 

the urban environment through which 

much of the creek flows. Potential for 

spill or discharge of toxic materials is an 

inherent threat in urban environments 

(City of Del Rio 2006, p. 13). The threats 

to the San Felipe Creek Unit that require 

special management include the 

potential for large-scale groundwater 

withdrawal and exportation that would 

impact spring flows, pollution from 

urban runoff, nonnative vegetation on 

stream banks, other nonnative species 

(such as the armored catfish), and 

potential new nonnative species 

introductions into the stream. 

Land ownership adjacent to the 

streams banks being proposed as critical 

habitat within the San Felipe Creek Unit 

includes private ranch lands from the 

Head Springs downstream to the City of 

Del Rio. Within the city limits, the City 

owns various tracts of land along the 

stream. Some of these areas are 

developed as public use parks and 

others have been recently obtained 

through a buyout program from the 

Federal Emergency Management Agency 

following damages from the 1998 flood 

(City of Del Rio 2006, pp. 5–6). Most of 

the City-owned property along the river 

appears to be on the east bank of the 

creek, while the west bank is primarily 

private-owned residences. The San 

Felipe Springs East and West and their 

immediate outflow channels are on a 

golf course, privately owned by the San 

Felipe Country Club. In all, we estimate 

that the City of Del Rio owns about 1.1 

stream km (0.7 stream mi) along both 

banks of the creek and spring outflow 

channels, mainly located downstream of 

the Highway 90 Bridge. Through the 

remainder of the City, we estimated the 

City owns about 2.2 stream km (1.4 

stream mi) along the east bank of San 

Felipe Creek in parcels fragmented by 

private holdings. These private and cityowned lands are not included in the 

proposed critical habitat designation. 

Unit 3: Pinto Creek Unit 

Proposed Unit 3 consists of 

approximately 17.5 stream km (10.9 

stream mi) on Pinto Creek. The 

proposed upstream boundary is Pinto 

Springs. The proposed downstream 

boundary is 100 m (330 ft) upstream of 

the Highway 90 Bridge crossing of Pinto 

Creek. For specific coordinates of the 

boundaries for proposed critical habitat 

designation, please reference the unit 

descriptions in the Proposed Regulation 

Promulgation section below. 

Pinto Creek was not considered 

occupied by Devils River minnow at the 

time of listing; however, Devils River 

minnows were documented in 2001 in 

upstream reaches of the creek where 

fish surveys had not been previously 

conducted (Garrett et al. 2004, p. 437). 

The Pinto Creek Unit is essential for the 

conservation of the Devils River 

minnow because fish from this stream 

show significant genetic variation from 

other populations (Service 2006, p. 15). 

Because of it’s proximity to Las Moras 

Creek and the genetic variation from the 

more western population, fish from 

Pinto Creek would be the likely source 

population for possible future 

reintroduction into formerly occupied 

areas (Garrett et al. 2004, p. 440). The 

proposed boundaries of critical habitat 

represent all the areas within Pinto 

Creek where Devils River minnow has 

been collected (Garrett et al. 2004, p. 

437–438). 


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Further, the Pinto Creek Unit contains 

one or more of the PCEs essential for 

conservation of the Devils River 

minnow. The main threat to the Pinto 

Creek Unit that requires special 

management is the potential for largescale groundwater withdrawal and 

exportation that would significantly 

impact spring flows. While nonnative 

species are not currently known to be a 

problem in Pinto Creek, preventing 

nonnative species from being 

introduced into the stream is an 

additional threat needing special 

management. Land ownership adjacent 

to the Pinto Creek unit is all private 

ranches; however, these private lands 

are not included in the proposed critical 

habitat designation. 

Effects of Critical Habitat Designation 

Section 7 Consultation 

Section 7(a)(2) of the Act requires 

Federal agencies, including the Service, 

to ensure that actions they fund, 

authorize, or carry out are not likely to 

destroy or adversely modify critical 

habitat. Decisions by the 5th and 9th 

Circuit Court of Appeals have 

invalidated our definition of 

‘‘destruction or adverse modification’’

(50 CFR 402.02) (see Gifford Pinchot 

Task Force v. U.S. Fish and Wildlife 

Service, 378 F.3d 1059 (9th Cir. 2004) 

and Sierra Club v. U.S. Fish and 

Wildlife Service et al., 245 F.3d 434, 

442F (5th Cir. 2001)), and we do not rely 

on this regulatory definition when 

analyzing whether an action is likely to 

destroy or adversely modify critical 

habitat. Under current national policy 

and the statutory provisions of the Act, 

we determine destruction or adverse 

modification is determined on the basis 

of whether, with implementation of the 

proposed Federal action, the affected 

critical habitat would remain functional 

(or retain the current ability for the PCEs 

to be functionally established) to serve 

its intended conservation role for the 

species. 

Section 7(a)(4) of the Act requires 

Federal agencies to confer with the 

Service on any action that is likely to 

jeopardize the continued existence of a 

species proposed for listing or result in 

destruction or adverse modification of 

proposed critical habitat. This is a 

procedural requirement only, as any 

conservation recommendations in a 

conference report or opinion are strictly 

advisory. However, once a species 

proposed for listing becomes listed, or 

proposed critical habitat is designated 

as final, the full prohibitions of section 

7(a)(2) apply to any discretionary 

Federal action. 

The primary utility of the conference 

procedures is to allow a Federal agency 

to maximize its opportunity to 

adequately consider species proposed 

for listing and proposed critical habitat 

and to avoid potential delays in 

implementing their proposed action 

because of the section 7(a)(2) 

compliance process, should we list 

those species or designate critical 

habitat. We may conduct conferences 

either informally or formally. We 

typically use informal conferences as a 

means of providing advisory 

conservation recommendations to assist 

the agency in eliminating conflicts that 

the proposed action may cause. We 

typically use formal conferences when 

we or the Federal agency believes the 

proposed action is likely to jeopardize 

the continued existence of the species 

proposed for listing or adversely modify 

proposed critical habitat. 

We generally provide the results of an 

informal conference in a conference 

report, while we provide the results of 

a formal conference in a conference 

opinion. We typically prepare 

conference opinions on proposed 

species or critical habitat in accordance 

with procedures contained at 50 CFR 

402.14, as if the proposed species were 

already listed or the proposed critical 

habitat was already designated. We may 

adopt the conference opinion as the 

biological opinion when the species is 

listed or the critical habitat is 

designated, if no substantial new 

information or changes in the action 

alter the content of the opinion (see 50 

CFR 402.10(d)). 

If a species is listed or critical habitat 

is designated, section 7(a)(2) of the Act 

requires Federal agencies to ensure that 

activities they authorize, fund, or carry 

out are not likely to jeopardize the 

continued existence of the species or to 

destroy or adversely modify its critical 

habitat. If a Federal action may affect a 

listed species or its critical habitat, the 

responsible Federal agency (action 

agency) must enter into consultation 

with us. As a result of this consultation, 

we document compliance with the 

requirements of section 7(a)(2) through 

our issuance of: (1) A concurrence letter 

for Federal actions that may affect, but 

are not likely to adversely affect, listed 

species or critical habitat; or (2) a 

biological opinion for Federal actions 

that may affect, and are likely to 

adversely affect, listed species or critical 

habitat. 

When we issue a biological opinion 

concluding that a project is likely to 

jeopardize the continued existence of a 

listed species or destroy or adversely 

modify critical habitat, we also provide 

reasonable and prudent alternatives to 

the project, if any are identifiable. 

‘‘Reasonable and prudent alternatives’’

are defined at 50 CFR 402.02 as 

alternative actions identified during 

consultation that can be implemented in 

a manner consistent with the intended 

purpose of the action, that can be 

implemented consistent with the scope 

of the Federal agency’s legal authority 

and jurisdiction, that are economically 

and technologically feasible, and that 

would, in the Director’s opinion, avoid 

jeopardizing the continued existence of 

the listed species or destroying or 

adversely modifying critical habitat. 

Reasonable and prudent alternatives can 

vary from slight project modifications to 

extensive redesign or relocation of the 

project. Costs associated with 

implementing a reasonable and prudent 

alternative are similarly variable. 

Regulations at 50 CFR 402.16 require 

Federal agencies to reinitiate 

consultation on previously reviewed 

actions in instances where we have 

listed a new species or subsequently 

designated critical habitat that may be 

affected and the Federal agency has 

retained discretionary involvement or 

control over the action (or the agency’s 

discretionary involvement or control is 

authorized by law). Consequently, some 

Federal agencies may request 

reinitiation of consultation with us on 

actions for which formal consultation 

has been completed, if those actions 

may affect subsequently listed species 

or designated critical habitat. 

Federal activities that may affect the 

Devils River minnow or its designated 

critical habitat will require section 7 

consultation under the Act. Activities 

on State, Tribal, local, or private lands 

requiring a Federal permit (such as a 

permit from the U.S. Army Corps of 

Engineers under section 404 of the 

Clean Water Act (33 U.S.C. 1251 et seq.) 

or a permit under section 10(a)(1)(B) of 

the Act from the Service) or involving 

some other Federal action (such as 

funding from the Federal Highway 

Administration, Federal Aviation 

Administration, or the Federal 

Emergency Management Agency) are 

also subject to the section 7 consultation 

process. Federal actions not affecting 

listed species or critical habitat, and 

actions on State, Tribal, local or private 

lands that are not federally funded, 

authorized, or permitted, do not require 

section 7 consultations. 

There are no Federal lands in the 

areas being proposed for critical habitat 

for Devils River minnow. Laughlin Air 

Force Base is located east of the City of 

Del Rio and obtains its municipal water 

from the City (which ultimately is 

withdrawn from the two San Felipe 

Springs). The Amistad National 


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Recreation Area, located around 

Amistad Reservoir, is owned by the 

National Park Service and includes the 

downstream portions of the Devils 

River, but is not included in the 

proposed critical habitat designation. 

Since the Devils River minnow was 

listed in 1999, two section 7 

consultations have occurred, both of 

which were associated with San Felipe 

Creek. One informal consultation was 

completed in 2001 with the 

Environmental Protection Agency for 

funding through the Texas Water 

Development Board to the City of Del 

Rio to upgrade the City’s water 

treatment and distribution facilities. The 

other (formal) consultation was 

completed in 2006 with the Federal 

Highway Administration, through the 

Texas Department of Transportation, to 

replace the Beddell Avenue Bridge over 

San Felipe Creek. Based on this 

consultation history, we anticipate few 

future Federal actions within the area 

proposed for critical habitat for Devils 

River minnow. 

Application of the ‘‘Adverse 

Modification’’ Standard for Actions 

Involving Effects to the Critical Habitat 

of the Devils River Minnow 

For the reasons described in the 

Director’s December 9, 2004 

memorandum, the key factor related to 

the adverse modification determination 

is whether, with implementation of the 

proposed Federal action, the affected 

critical habitat would continue to serve 

its intended conservation role for the 

species, or would retain its current 

ability for the PCEs to be functionally 

established. Activities that may destroy 

or adversely modify critical habitat are 

those that alter the PCEs to an extent 

that appreciably reduces the 

conservation value of critical habitat for 

the Devils River minnow is appreciably 

reduced. 

Section 4(b)(8) of the Act requires us 

to briefly evaluate and describe, in any 

proposed or final regulation that 

designates critical habitat, those 

activities involving a Federal action that 

may destroy or adversely modify such 

habitat, or that may be affected by such 

designation. 

Activities that, when carried out, 

funded, or authorized by a Federal 

agency, may affect critical habitat and 

therefore would result in consultation 

for the Devils River minnow include, 

but are not limited to: 

(1) Actions that would alter the 

natural flow regime, particularly the 

reduction of spring flows. These 

activities could include, but are not 

limited to, excessive groundwater 

pumping (significantly greater than 

current levels), water diversions from 

streams, and stream impoundments. 

These activities could reduce the 

amount of available habitat and space 

for normal behaviors of Devils River 

minnow, alter water quality as an 

indirect effect of reduced flows, alter the 

mesohabitat (pools, riffles, and runs) 

conditions necessary for Devils River 

minnow life history functions, and alter 

fish community dynamics to 

unnaturally favor species other than the 

Devils River minnow. 

(2) Actions that would reduce native 

aquatic vegetation or native vegetation 

along stream banks. These activities 

could include, but are not limited to, 

channelization of the stream, armoring 

stream banks (replacing native 

vegetation and soils with rock or 

concrete), dredging the stream bottom, 

introducing nonnative plants that would 

replace native vegetation, or introducing 

herbivorous nonnative species. Loss of 

aquatic vegetation would eliminate an 

important structural component of 

Devils River minnow habitat and could 

reduce the amount of available habitat 

for reproduction, growth, and feeding. 

(3) Actions that would significantly 

alter water quality or introduce 

pollutants into streams. Such activities 

could include, but are not limited to, 

release of chemicals, biological 

pollutants, or heated effluents (liquid 

waste products) into the surface water 

or connected groundwater at a point 

source or by dispersed release (nonpoint source). Sources of pollutants also 

include, but are not limited to, storm 

water runoff from urban development 

without adequate storm water controls; 

spill of hazardous chemicals into the 

creek or groundwater; or groundwater 

contamination by improperly drilled or 

maintained oil or gas wells. These 

activities could alter water conditions 

that are beyond the tolerances of the 

Devils River minnow or their food 

source and could result in direct or 

cumulative adverse effects to these 

individuals and their life cycles. 

(4) Actions that would significantly 

increase sediment deposition within the 

stream channel. Such activities could 

include, but are not limited to, excessive 

sedimentation from livestock grazing, 

road construction, channel alteration, 

brush clearing, off-road vehicle use, and 

other watershed and floodplain 

disturbances. These activities could 

eliminate or reduce the habitat 

necessary for the reproduction of Devils 

River minnow and could reduce the 

availability of food sources by affecting 

light penetration into the water column, 

filling in of stream beds with silt, or 

increasing the embeddedness of stream 

bottoms that reduces algae availability. 

(5) Actions that would significantly 

alter channel shape or geometry. Such 

activities could include, but are not 

limited to, channelization, 

impoundment, armoring stream banks, 

road and bridge construction, mining, 

dredging, and destruction of riparian 

vegetation. These activities may alter 

the natural pattern of available 

mesohabitats (pools, riffles, and runs). 

These actions can reduce the amount of 

habitat available for Devils River 

minnow to complete its normal life 

cycle and can give other species, 

especially nonnative species, 

competitive advantages. These actions 

can also lead to increased sedimentation 

and degradation in water quality to 

levels that are beyond the tolerances of 

the fish or their food sources. 

Exclusions 

Application of Section 4(b)(2) of the Act 

Section 4(b)(2) of the Act states that 

critical habitat shall be designated, and 

revised, on the basis of the best 

available scientific data after taking into 

consideration the economic impact, 

national security impact, and any other 

relevant impact, of specifying any 

particular area as critical habitat. The 

Secretary may exclude an area from 

critical habitat if he determines that the 

benefits of such exclusion outweigh the 

benefits of specifying such area as part 

of the critical habitat, unless he 

determines, based on the best scientific 

data available, that the failure to 

designate such area as critical habitat 

will result in the extinction of the 

species. In making that determination, 

the Congressional record is clear that 

the Secretary is afforded broad 

discretion regarding which factor(s) to 

use and how much weight to give to any 

factor. 

Under section 4(b)(2) of the Act, in 

considering whether to exclude a 

particular area from the designation, we 

must identify the benefits of including 

the area in the designation, identify the 

benefits of excluding the area from the 

designation, and then determine 

whether the benefits of exclusion 

outweigh the benefits of inclusion. If an 

exclusion is contemplated, then we 

must determine whether excluding the 

area would result in the extinction of 

the species. In the following sections, 

we address a number of general issues 

that are relevant to the exclusions we 

considered. In addition, the Service is 

conducting an economic analysis of the 

impacts of the proposed critical habitat 

designation and related factors, which 

will be available for public review and 

comment when it is complete. Based on 

public comment on that document, the 


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proposed designation itself, and the 

information in the final economic 

analysis, additional areas beyond those 

identified in this assessment may be 

excluded from critical habitat by the 

Secretary under the provisions of 

section 4(b)(2) of the Act. This is 

provided for in the Act and in our 

implementing regulations at 50 CFR 

424.19. 

Under section 4(b)(2) of the Act, we 

must consider all relevant impacts, 

including economic ones. The Service 

considers a number of factors in its 

section 4(b)(2) analysis. For example, 

the Service considers whether there are 

lands owned or managed by the 

Department of Defense (DOD) where 

there might be a national security 

impact. We also consider whether the 

landowners have developed any 

conservation plans for the area, or 

whether there are conservation 

partnerships that would be encouraged 

by an area being designated as, or 

excluded from critical habitat. We look 

at any Tribal issues, and consider the 

government-to-government relationship 

of the United States with Tribal entities. 

We also consider any social or economic 

impacts that might occur because of the 

designation. In this instance, we have 

determined that the lands within the 

proposed designation of critical habitat 

for Devils River minnow are not owned 

or managed by the Department of 

Defense, and the proposed designation 

does not include any Tribal lands or 

trust resources. 

At this time, we are not proposing any 

areas for exclusion from the final critical 

habitat designation under section 4(b)(2) 

of the Act; however, there are several 

ongoing conservation efforts related to 

habitat maintenance for the Devils River 

minnow (for example, see Garrett 2003, 

pp. 155–158; Karges 2003, pp. 147–148). 

Discussed below are conservation efforts 

and management plans that we may 

consider in our analysis of the benefits 

of inclusion and benefits of exclusion 

for certain proposed units from the final 

designation of critical habitat. 

Ongoing Conservation Efforts for 

Consideration Under Section 4(b)(2) of 

the Act 

(1) Conservation Area Plan and 

Conservation Easements by The Nature 

Conservancy in the Devils River 

watershed. The Nature Conservancy has 

a very active conservation program in 

the Devils River watershed (Karges 

2003, pp. 147–148). The Nature 

Conservancy has developed a 

Conservation Area Plan for the Devils 

River with goals of the plan including 

balancing the relative abundance of 

native and nonnative fish species and 

maintaining or enhancing the condition 

and beauty of riparian gallery 

woodlands (The Nature Conservancy 

2004, p. 6). Rivers, streams, and springs 

are recognized as viable conservation 

elements whose function can likely be 

sustained within natural variations, as 

long as large-scale groundwater mining 

does not occur (The Nature Conservancy 

2004, pp. 18–19). The Nature 

Conservancy owns about 1,943 ha 

(4,800 ac) and holds conservation 

easements on about 66,800 ha (about 

165,000 ac) of private land in the Devils 

River watershed (McWilliams 2006, p. 

1). 

(2) Management plans by the City of 

Del Rio and the San Felipe Creek 

Country Club. In 2003, the City of Del 

Rio and the San Felipe Creek Country 

Club each signed management plans for 

the protection of San Felipe Creek 

(Service 2005, Appendix C). The 

mission of the City’s plan is to ‘‘preserve 

and conserve the natural and cultural 

resources of the San Felipe Creek for the 

use and enjoyment of the present and 

future generations of Del Rio citizens 

and visitors.’’ Proposed actions include: 

converting lands obtained along the 

creek following the 1998 flood into 

passive parks; minimizing use of 

pesticides and fertilizers on City-owned 

lands along the creek; discouraging 

commercial development along the 

creek; preserving the natural water flow 

to the greatest extent possible; 

preserving stream banks in a natural 

state with buffer zones of native 

vegetation; public education; litter 

removal; and removal of nonnative 

plants, such as the river cane. The City 

has recently drafted a San Felipe Creek 

Master Plan (City of Del Rio, 2006, p.1) 

and intends to complete development of 

the plan in 2007. 

The Management Plan for San Felipe 

Country Club in Del Rio included 

objectives ‘‘to use environmentally 

sensitive techniques for managing and 

maintaining a high quality golf course 

for the benefit of users while also 

promoting natural diversity, and to 

protect and enhance the quality of San 

Felipe Creek and San Felipe Springs for 

the benefit of the Devils River minnow 

and the entire creek and riparian 

ecosystem.’’ Management actions 

included establishing no-mow buffer 

zones, using environmentally sensitive 

pest management solutions through an 

Integrated Pest Management Program, 

using fertilizers judiciously; removing 

noxious vegetation, maintaining out of 

play areas as native habitat, using 

irrigation water wisely, and retaining 

runoff from parking lots. 

(3) Kinney County Groundwater 

Conservation District. The Kinney 

County Groundwater Conservation 

District exists for the management of 

groundwater resources in Kinney 

County. This District passed its initial 

rules in 2002 (and modified them in 

2003) and is continuing to support 

groundwater research to determine 

aquifer boundaries and groundwater 

availability in Kinney County. 

(4) Watershed management planning. 

TPWD has initiated development of a 

stakeholder-lead watershed 

management plan for the range of the 

Devils River minnow in Val Verde and 

Kinney Counties. The intent of the plan 

is to protect, enhance, or restore 

essential habitat throughout the range of 

the federally threatened Devils River 

minnow and other species of concern in 

this area, and will define actions that 

will result in maintaining or increasing 

populations of these fishes. The plan 

has not yet been completed. 

Economics 

An analysis of the economic impacts 

of proposing critical habitat for the 

Devils River minnow is being prepared. 

We will announce the availability of the 

draft economic analysis as soon as it is 

completed, at which time we will seek 

public review and comment. At that 

time, copies of the draft economic 

analysis will be available for 

downloading from the Internet at http:// 

www.fws.gov/southwest/es/Library/, or 

by contacting the Austin Ecological 

Services Field Office directly (see 

ADDRESSES). 

Peer Review 

In accordance with our joint policy 

published in the Federal Register on 

July 1, 1994 (59 FR 34270), we will seek 

the expert opinions of at least three 

appropriate and independent specialists 

regarding this proposed rule. The 

purpose of such review is to ensure that 

our critical habitat designation is based 

on scientifically sound data, 

assumptions, and analyses. We will 

send copies of this proposed rule to 

these peer reviewers immediately 

following publication in the Federal 

Register. We will invite these peer 

reviewers to comment during the public 

comment period on the specific 

assumptions and conclusions regarding 

the proposed designation of critical 

habitat. 

We will consider all comments and 

information received during the 

comment period on this proposed rule 

during preparation of a final rulemaking 

determination. Accordingly, the final 

decision may differ from this proposal. 


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Public Hearings 

The Act provides for one or more 

public hearings on this proposal, if 

requested. Under section 4(b)(5)(e) of 

the Act, requests for public hearings 

must be made in writing at least 45 days 

following the publication of the 

proposed rule. We will schedule public 

hearings on this proposal, if any are 

requested, and announce the dates, 

times, and places of those hearings in 

the Federal Register and local 

newspapers at least 15 days prior to the 

first hearing. 

Persons needing reasonable 

accommodations to attend and 

participate in the public hearings 

should contact Adam Zerrenner, Field 

Supervisor, Austin Ecological Services 

Field Office at (512) 490–0057 as soon 

as possible. To allow sufficient time to 

process requests, please call no later 

than one week before the hearing date. 

Information regarding the proposal is 

available in alternative formats upon 

request. 

Clarity of the Rule 

Executive Order 12866 (Regulatory 

Planning and Review) requires each 

agency to write regulations and notices 

that are easy to understand. We invite 

your comments on how to make this 

proposed rule easier to understand, 

including answers to questions such as 

the following: (1) Are the requirements 

in the proposed rule clearly stated? (2) 

Does the proposed rule contain 

technical jargon that interferes with the 

clarity? (3) Does the format of the 

proposed rule (grouping and order of 

the sections, use of headings, 

paragraphing, and so forth) aid or 

reduce its clarity? (4) Is the description 

of the notice in the SUPPLEMENTARY

INFORMATION section of the preamble 

helpful in understanding the proposed 

rule? (5) What else could we do to make 

this proposed rule easier to understand? 

Send a copy of any comments on how 

we could make this proposed rule easier 

to understand to: Office of Regulatory 

Affairs, Department of the Interior, 

Room 7229, 1849 C Street, NW., 

Washington, DC 20240. You may e-mail 

your comments to this address: 

Exsec@ios.doi.gov. 

Required Determinations 

Regulatory Planning and Review 

In accordance with Executive Order 

12866, this document is a significant 

rule in that it may raise novel legal and 

policy issues, but it is not anticipated to 

have an annual effect on the economy 

of $100 million or more or affect the 

economy in a material way. Due to the 

tight timeline for publication in the 

Federal Register, the Office of 

Management and Budget (OMB) has not 

formally reviewed this rule. We are 

preparing a draft economic analysis of 

this proposed action, which will be 

available for public comment, to 

determine the economic consequences 

of designating the specific area as 

critical habitat. This economic analysis 

also will be used to determine 

compliance with Executive Order 

12866, Regulatory Flexibility Act, Small 

Business Regulatory Enforcement 

Fairness Act, Executive Order 12630, 

Executive Order 13211, and Executive 

Order 12875. 

Further, Executive Order 12866 

directs Federal Agencies promulgating 

regulations to evaluate regulatory 

alternatives (Office of Management and 

Budget, Circular A–4, September 17, 

2003). Pursuant to Circular A–4, once it 

has been determined that the Federal 

regulatory action is appropriate, then 

the agency will need to consider 

alternative regulatory approaches. Since 

the determination of critical habitat is a 

statutory requirement under the Act, we 

must then evaluate alternative 

regulatory approaches, where feasible, 

when promulgating a designation of 

critical habitat. 

In developing our designations of 

critical habitat, we consider economic 

impacts, impacts to national security, 

and other relevant impacts under 

section 4(b)(2) of the Act. Based on the 

discretion allowable under this 

provision, we may exclude any 

particular area from the designation of 

critical habitat provided that the 

benefits of such exclusion outweigh the 

benefits of specifying the area as critical 

habitat and that such exclusion would 

not result in the extinction of the 

species. As such, we believe that the 

evaluation of the inclusion or exclusion 

of particular areas, or combination 

thereof, in a designation constitutes our 

regulatory alternative analysis. 

The availability of the draft economic 

analysis will be announced in the 

Federal Register and in local 

newspapers so that it is available for 

public review and comments. The draft 

economic analysis can be obtained from 

our Web site at http://www.fws.gov/ 

southwest/es/Library/, or by contacting 

the Austin Ecological Services Field 

Office directly (see ADDRESSES). 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.) 

Under the Regulatory Flexibility Act 

(5 U.S.C. 601 et seq., as amended by the 

Small Business Regulatory Enforcement 

Fairness Act (SBREFA) of 1996), 

whenever an agency is required to 

publish a notice of rulemaking for any 

proposed or final rule, it must prepare 

and make available for public comment 

a regulatory flexibility analysis that 

describes the effects of the rule on small 

entities (small businesses, small 

organizations, and small government 

jurisdictions). However, no regulatory 

flexibility analysis is required if the 

head of the agency certifies the rule will 

not have a significant economic impact 

on a substantial number of small 

entities. The SBREFA amended the 

Regulatory Flexibility Act (RFA) to 

require Federal agencies to provide a 

statement of the factual basis for 

certifying that the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

At this time, the Service lacks the 

available economic information 

necessary to provide an adequate factual 

basis for the required RFA finding. 

Therefore, the RFA finding is deferred 

until we complete the draft economic 

analysis under section 4(b)(2) of the Act 

and Executive Order 12866. This draft 

economic analysis will provide the 

required factual basis for the RFA 

finding. Upon completion of the draft 

economic analysis, the Service will 

publish a notice of availability of the 

draft economic analysis of the proposed 

designation and reopen the public 

comment period for the proposed 

designation. The Service will include 

with the notice of availability, as 

appropriate, an initial regulatory 

flexibility analysis or a certification that 

the rule will not have a significant 

economic impact on a substantial 

number of small entities accompanied 

by the factual basis for that 

determination. The Service has 

concluded that deferring the RFA 

finding until completion of the draft 

economic analysis is necessary to meet 

the purposes and requirements of the 

RFA. Deferring the RFA finding in this 

manner will ensure that the Service 

makes a sufficiently informed 

determination based on adequate 

economic information and provides the 

necessary opportunity for public 

comment. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501), 

the Service makes the following 

findings: 

(a) This rule would not produce a 

Federal mandate. In general, a Federal 

mandate is a provision in legislation, 

statute, or regulation that would impose 

an enforceable duty upon State, local, or 

Tribal governments, or the private sector 

and includes both ‘‘Federal 

intergovernmental mandates’’ and 


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‘‘Federal private sector mandates.’’

These terms are defined in 2 U.S.C. 

658(5)–(7). ‘‘Federal intergovernmental 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or tribal governments’’

with two exceptions. It excludes ‘‘a 

condition of Federal assistance.’’ It also 

excludes ‘‘a duty arising from 

participation in a voluntary Federal 

program,’’ unless the regulation ‘‘relates 

to a then-existing Federal program 

under which $500,000,000 or more is 

provided annually to State, local, and 

tribal governments under entitlement 

authority,’’ if the provision would 

‘‘increase the stringency of conditions of 

assistance’’ or ‘‘place caps upon, or 

otherwise decrease, the Federal 

Government’s responsibility to provide 

funding,’’ and the State, local, or Tribal 

governments ‘‘lack authority’’ to adjust 

accordingly. At the time of enactment, 

these entitlement programs were: 

Medicaid; AFDC work programs; Child 

Nutrition; Food Stamps; Social Services 

Block Grants; Vocational Rehabilitation 

State Grants; Foster Care, Adoption 

Assistance, and Independent Living; 

Family Support Welfare Services; and 

Child Support Enforcement. ‘‘Federal 

private sector mandate’’ includes a 

regulation that ‘‘would impose an 

enforceable duty upon the private 

sector, except (i) a condition of Federal 

assistance or (ii) a duty arising from 

participation in a voluntary Federal 

program.’’

The designation of critical habitat 

does not impose a legally binding duty 

on non-Federal government entities or 

private parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

destroy or adversely modify critical 

habitat under section 7. While nonFederal entities that receive Federal 

funding, assistance, or permits, or that 

otherwise require approval or 

authorization from a Federal agency for 

an action may be indirectly impacted by 

the designation of critical habitat, the 

legally binding duty to avoid 

destruction or adverse modification of 

critical habitat rests squarely on the 

Federal agency. Furthermore, to the 

extent that non-Federal entities are 

indirectly impacted because they 

receive Federal assistance or participate 

in a voluntary Federal aid program, the 

Unfunded Mandates Reform Act would 

not apply, nor would critical habitat 

shift the costs of the large entitlement 

programs listed above on to State 

governments. 

(b) We do not believe that this rule 

would significantly or uniquely affect 

small governments because it would not 

produce a Federal mandate of $100 

million or greater in any year; that is, it 

is not a ‘‘significant regulatory action’’

under the Unfunded Mandates Reform 

Act. We do not anticipate that the 

designation of critical habitat will 

impose obligations on State or local 

governments. As such, a Small 

Government Agency Plan is not 

required. However, we will further 

evaluate this issue as we conduct our 

economic analysis and revise this 

assessment if appropriate. 

Executive Order 13211 

On May 18, 2001, the President issued 

an Executive Order (E.O. 13211; Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use) on regulations that 

significantly affect energy supply, 

distribution, and use. Executive Order 

13211 requires agencies to prepare 

Statements of Energy Effects when 

undertaking certain actions. While this 

proposed rule to designate critical 

habitat for the Devils River minnow is 

a significant regulatory action under 

Executive Order 12866, it is not 

expected to significantly affect energy 

supplies, distribution, or use. Therefore, 

this action is not a significant energy 

action, and no Statement of Energy 

Effects is required. 

Takings 

In accordance with Executive Order 

12630 (‘‘Government Actions and 

Interference with Constitutionally 

Protected Private Property Rights’’), we 

have analyzed the potential takings 

implications of designating critical 

habitat for the Devils River minnow in 

a takings implications assessment. The 

takings implications assessment 

concludes that this designation of 

critical habitat for the Devils River 

minnow would not pose significant 

takings implications. 

Federalism 

In accordance with Executive Order 

13132 (Federalism), the rule would not 

have significant Federalism effects. A 

Federalism assessment is not required. 

In keeping with Department of the 

Interior and Department of Commerce 

policy, we requested information from, 

and coordinated development of, this 

proposed critical habitat designation 

with appropriate State resource agencies 

in Texas. The designation of critical 

habitat in areas currently occupied by 

the Devils River minnow imposes no 

additional restrictions to those currently 

in place and, therefore, has little 

incremental impact on State and local 

governments and their activities. The 

designation may have some benefit to 

these governments in that the areas that 

contain the features essential to the 

conservation of the species are more 

clearly defined, and the PCEs of the 

habitat necessary to the conservation of 

the species are specifically identified. 

While making this definition and 

identification does not alter where and 

what federally sponsored activities may 

occur, it may assist these local 

governments in long-range planning 

(rather than have these governments 

wait for case-by-case section 7 

consultations to occur). 

Civil Justice Reform 

In accordance with Executive Order 

12988 (Civil Justice Reform), the Office 

of the Solicitor has determined that the 

rule does not unduly burden the judicial 

system and meets the requirements of 

sections 3(a) and 3(b)(2) of the Order. 

We have proposed designating critical 

habitat in accordance with the 

provisions of the Act. This proposed 

rule uses standard property descriptions 

and identifies the PCEs within the 

designated areas to assist the public in 

understanding the habitat needs of the 

Devils River minnow. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This rule does not contain any new 

collections of information that require 

approval by OMB under the Paperwork 

Reduction Act. This rule will not 

impose recordkeeping or reporting 

requirements on State or local 

governments, individuals, businesses, or 

organizations. An agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

National Environmental Policy Act 

It is our position that, outside the 

Tenth Circuit, we do not need to 

prepare environmental analyses as 

defined by the NEPA in connection with 

designating critical habitat under the 

Act. We published a notice outlining 

our reasons for this determination in the 

Federal Register on October 25, 1983 

(48 FR 49244). This assertion was 

upheld in the courts of the Ninth Circuit 

(Douglas County v. Babbitt, 48 F.3d 

1495 (9th Cir. Ore. 1995), cert. denied 

116 S. Ct. 698 (1996)).] 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994, 

‘‘Government-to-Government Relations 

with Native American Tribal 

Governments’’ (59 FR 22951), Executive 

Order 13175, and the Department of 

Interior’s manual at 512 DM 2, we 


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readily acknowledge our responsibility 

to communicate meaningfully with 

recognized Federal Tribes on a 

government-to-government basis. We 

have determined that there are no tribal 

lands occupied at the time of listing that 

contain the features essential for the 

conservation of Devils River minnow, 

and no Tribal lands that are unoccupied 

areas that are essential for the 

conservation of the Devils River 

minnow. Therefore, we are not 

proposing to designate critical habitat 

for the Devils River minnow on Tribal 

lands. 

References Cited 

A complete list of all references cited 

in this rulemaking is available upon 

request from the Field Supervisor, 

Austin Ecological Services Field Office 

(see ADDRESSES). 

Author(s) 

The primary author of this package is 

the Austin Ecological Services Field 

Office. 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Proposed Regulation Promulgation 

Accordingly, we propose to amend 

part 17, subchapter B of chapter I, title 

50 of the Code of Federal Regulations, 

as set forth below: 

PART 17—[AMENDED] 

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. In § 17.11(h), revise the entry for 

‘‘Minnow, Devils River’’ under 

‘‘FISHES’’ to read as follows: 

§ 17.11 Endangered and threatened 

wildlife. 

* * * * * 

(h) * * * 

Species 

Historic range 

Vertebrate population where endangered or threatened 

Status When listed Critical 

habitat 

Special 

range Common name Scientific name 

* * * * * * * 

FISHES

* * * * * * * 

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

* * * * * * * 

3. In § 17.95(e), add an entry for 

‘‘Devils River Minnow (Dionda 

diaboli)’’ in the same alphabetical order 

that the species appears in the table at 

§ 17.11(h) to read as follows: 

§ 17.95 Critical habitat—fish and wildlife. 

* * * * * 

(e) Fishes. 

* * * * * 

Devils River Minnow (Dionda diaboli) 

(1) Critical habitat units are depicted 

for Val Verde County and Kinney 

County, Texas, on the maps below. 

(2) The primary constituent elements 

of critical habitat for the Devils River 

minnow are the following habitat 

components: 

(i) Streams characterized by: 

(A) Areas with slow to moderate 

water velocities between 10 and 40 cm/ 

second (4 and 16 in/second) in shallow 

to moderate water depths between 

approximately 10 cm (4 in) and 1.5 m 

(4.9 ft), near vegetative structure, such 

as emergent or submerged vegetation or 

stream bank riparian vegetation that 

overhangs into the water column; 

(B) Gravel and cobble substrates 

ranging in size between 2 and 10 cm 

(0.8 and 4 in) with low or moderate 

amounts of fine sediment (less than 65 

percent stream bottom coverage) and 

low or moderate amounts of substrate 

embeddedness; and 

(C) Pool, riffle, run, and backwater 

components free of artificial instream 

structures that would prevent 

movement of fish upstream or 

downstream. 

(ii) High-quality water provided by 

permanent, natural flows from 

groundwater spring and seeps 

characterized by: 

(A) Temperature ranging between 17 

°C and 29 °C (63 °F and 84 °F); 

(B) Dissolved oxygen levels greater 

than 5.0 mg/l; 

(C) Neutral pH ranging between 7.0 

and 8.2; 

(D) Conductivity less than 0.7 mS/cm 

and salinity less than 1 ppt; 

(E) Ammonia levels less than 0.4 mg/ 

l; and 

(F) No or minimal pollutant levels for 

copper, arsenic, mercury, and cadmium; 

human and animal waste products; 

pesticides; fertilizers; suspended 

sediments; petroleum compounds and 

gasoline or diesel fuels. 

(iii) An abundant aquatic food base 

consisting of algae attached to stream 

substrates and other associated 

microorganisms. 

(iv) An aquatic stream habitat either 

devoid of nonnative aquatic species 

(including fish, plants, and 

invertebrates) or in which such 

nonnative aquatic species are at levels 

that allow for healthy populations of 

Devils River minnows. 

(v) Areas within stream courses that 

may be periodically dewatered for short 

time periods, during seasonal droughts, 

but otherwise as connective corridors 

between occupied or seasonally 

occupied areas through which the 

species moves when the area is wetted. 

(3) Critical habitat does not include 

manmade structures (such as buildings, 

aqueducts, airports, roads, and other 

paved areas) and the land on which they 

are located existing on the effective date 

of this rule and not containing one or 

more of the primary constituent 

elements. 

(4) Critical habitat map units. Data 

layers defining map units were created 

in ArcGIS using the National 

Hydrography Dataset and 7.5’

topographic quadrangle maps obtained 

from U.S. Geological Survey to 

approximate stream channels and 

calculate distances (stream km and 

stream mi). We made some minor 

adjustments to stream channels using 

the 2004 National Agriculture Imagery 

Program digital orthophotos obtained 

from the Texas Natural Resources 

Information System. For each critical 

habitat unit, the upstream and 

downstream boundaries are described as 

paired geographic coordinates X, Y 

(meters E, meters N, UTM Zone 14, 

referenced to North American 

Horizontal Datum 1983). Additionally, 

critical habitat areas include the stream 


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channels within the identified stream 

reaches and areas within these reaches 

up to the bankfull width. 

(5) Note: Overview of critical habitat 

units for the Devils River minnow (Map 

1) follows: 

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(6) Unit 1: Devils River Unit, Val 

Verde County, Texas. 

(i) Unit 1 consists of approximately 

43.6 stream km (27.1 stream mi) of the 

Devils River; 1.1 stream km (0.7 stream 

mi) of Phillips Creek; and 2.3 stream km 

(1.4 stream mi) of Dolan Creek. The 

upstream boundary on the Devils River 

is at Pecan Springs (UTM 289432E, 

3327875W). The downstream boundary 

on the Devils River is 3.6 stream km (2.2 

stream mi) below Dolan Falls (UTM 

306454E, 3304426N). Phillips Creek is 

included from the confluence with the 

Devils River to a point 1.1 stream km 

(0.7 stream mi) upstream (UTM 

295544E, 3316112N). Dolan Creek is 

included from the confluence with the 

Devils River to a point 2.3 stream km 

(1.4 stream mi) upstream to Dolan 

Springs (UTM 308084E, 3309223N). 

Including all three streams, the total 

distance in Unit 1 is approximately 47.0 

stream km (29.2 stream mi). 

(ii) Note: Map of Unit 1, Devils River 

Unit, (Map 2) follows: 


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(7) Unit 2: San Felipe Creek Unit, Val 

Verde County, Texas. 

(i) Unit 2 consists of approximately 

7.9 stream km (4.9 stream mi) on San 

Felipe Creek; 0.8 stream km (0.5 stream 

mi) of the outflow of San Felipe Springs 

West; and 0.3 stream km (0.2 stream mi) 

of the outflow of San Felipe Springs 

East. The upstream boundary on San 

Felipe Creek is the Head Springs (UTM 

318813E, 3253702N) located about 1.1 

stream km (0.7 stream mi) upstream of 

the Jap Lowe Bridge crossing. The 

downstream boundary on San Felipe 

Creek is in the City of Del Rio 0.8 stream 

km (0.5 stream mi) downstream of the 

Academy Street Bridge crossing (UTM 

316317E, 3248147N). This unit includes 

the outflow channels from the origin of 

the two springs, San Felipe Springs 

West (UTM 317039E, 3250850N) and 

San Felipe Springs East (UTM 317212E, 

250825N), downstream to the 

confluence with San Felipe Creek. 

Including all three streams, the total 

distance in Unit 2 is approximately 9.0 

stream km (5.6 stream mi). 

(ii) Note: Map of Unit 2, San Felipe 

Creek Unit, (Map 3) follows: 


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(8) Unit 3: Pinto Creek Unit, Kinney 

County, Texas. 

(i) Unit 3 consists of approximately 

17.5 stream km (10.9 stream mi) on 

Pinto Creek. The upstream boundary is 

Pinto Springs (UTM 359372E, 

3254422N). The downstream boundary 

is 100 m (330 ft) upstream of the 

Highway 90 Bridge crossing of Pinto 

Creek (UTM 351163E, 3246179N). 

(ii) Note: Map of Unit 3, Pinto Creek 

Unit, (Map 4) follows: 

* * * * * Dated: July 19, 2007. 

Todd Willens, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks. 

[FR Doc. 07–3678 Filed 7–30–07; 8:45 am] 

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