46988 Federal Register / Vol. 73, No. 156 / Tuesday, August 12, 2008 / Rules and Regulations 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[FWS–R2–ES–2008–0018; 92210–1117– 

0000–B4] 

RIN 1018–AV25 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for the Devils River Minnow 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), designate 

critical habitat for the Devils River 

minnow (Dionda diaboli) under the 

Endangered Species Act of 1973, as 

amended (Act). In total, approximately 

26.5 stream kilometers (km) (16.5 stream 

miles (mi)) are within the boundaries of 

the critical habitat designation. The 

critical habitat is located in streams in 

Val Verde and Kinney Counties, Texas. 

DATES: This final rule becomes effective 

on September 11, 2008. 

ADDRESSES: This final rule and the final 

economic analysis are available on the 

Internet at http://www.regulations.gov 

and http://www.fws.gov/southwest/es/ 

AustinTexas/. Supporting 

documentation we used in preparing 

this final rule will be available for 

public inspection, by appointment, 

during normal business hours, at the 

U.S. Fish and Wildlife Service, Austin 

Ecological Services Field Office, 10711 

Burnet Road, Suite 200, Austin, TX 

78758; telephone 512–490–0057; 

facsimile 512–490–0974. 

FOR FURTHER INFORMATION CONTACT: 

Adam Zerrenner, Field Supervisor, 

Austin Ecological Services Field Office 

(see ADDRESSES section). Persons who 

use a telecommunications device for the 

deaf (TDD) may call the Federal 

Information Relay Service (FIRS) at 

800–877–8339, 7 days a week and 24 

hours a day. 

SUPPLEMENTARY INFORMATION: 

Background 

It is our intent to discuss only those 

topics directly relevant to the 

designation of critical habitat in this 

final rule. For more information on the 

Devils River minnow, refer to the 

proposed critical habitat rule published 

in the Federal Register on July 31, 2007 

(72 FR 41679), the final listing rule 

published in the Federal Register on 

October 20, 1999 (64 FR 56596), or the 

2005 Devils River Minnow Recovery 

Plan available online at www.fws.gov/ 

endangered/. More detailed information 

on Devils River minnow biology and 

ecology that is directly relevant to the 

designation of critical habitat is 

discussed under the Primary 

Constituent Elements section below. 

Previous Federal Actions 

The Devils River minnow was listed 

as threatened on October 20, 1999 (64 

FR 56596). Critical habitat was not 

designated for this species at the time of 

listing (64 FR 56606). On October 5, 

2005, the Forest Guardians, Center for 

Biological Diversity, and Save Our 

Springs Alliance filed suit against the 

Service for failure to designate critical 

habitat for this species (Forest 

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

28, 2006, a settlement was reached that 

requires the Service to re-evaluate our 

original prudency determination. The 

settlement stipulated that, if prudent, a 

proposed rule would be submitted to 

the Federal Register for publication on 

or before July 31, 2007, and a final rule 

by July 31, 2008. On July 31, 2007, we 

published a proposed rule to designate 

critical habitat for the Devils River 

minnow (72 FR 41679). We solicited 

data and comments from the public on 

the proposed rule. The comment period 

opened on July 31, 2007, and closed on 

October 1, 2007. On February 7, 2008, 

we published a notice announcing the 

availability of the draft economic 

analysis, a public hearing, and the 

reopening of the public comment period 

(73 FR 7237). A public hearing was held 

in Del Rio on February 27, 2008. This 

comment period closed on March 10, 

2008. For more information on previous 

Federal actions concerning the Devils 

River minnow, refer to the final listing 

rule published in the Federal Register 

on October 20, 1999 (64 FR 56596). 

Summary of Comments and 

Recommendations 

We requested comments from the 

public on the proposed designation of 

critical habitat for the Devils River 

minnow during two comment periods. 

The first comment period associated 

with the publication of the proposed 

rule (72 FR 41679) opened on July 31, 

2007, and closed on October 1, 2007. 

We also requested comments on the 

proposed critical habitat designation 

and associated draft economic analysis 

during a comment period that opened 

February 7, 2008, and closed on March 

10, 2008 (73 FR 7237). We held a public 

hearing in Del Rio on February 27, 2008; 

about 65 individuals were present. We 

contacted appropriate Federal, State, 

and local agencies; scientific 

organizations; and other interested 

parties and invited them to comment on 

the proposed rule and/or draft economic 

analysis during these two comment 

periods. 

During the first comment period, we 

received five comments directly 

addressing the proposed critical habitat 

designation. During the second 

comment period, we received 19 written 

comments (one was received between 

the first and second comment periods) 

and 10 verbal comments made at the 

public hearing addressing the proposed 

critical habitat designation or the draft 

economic analysis. We received no 

comments from the State of Texas or 

other Federal agencies beyond those 

provided by individuals as part of the 

peer review process. All substantive 

information provided during both 

public comment periods has been either 

incorporated directly into this final 

determination or addressed below. 

Peer Review 

In accordance with our policy 

published on July 1, 1994 (59 FR 

34270), we solicited expert opinions 

from seven knowledgeable individuals 

with scientific expertise that included 

familiarity with the species, the 

geographic region in which the species 

occurs, and conservation biology 

principles. During the first comment 

period, we received a response from all 

seven peer reviewers from which we 

requested comments. 

We reviewed all comments received 

from the public and the peer reviewers 

for substantive issues and new 

information regarding the designation of 

critical habitat for Devils River minnow, 

and we address them in the following 

summary. 

Peer Reviewer Comments 

(1) Comment: The rule should 

summarize the efforts to locate 

additional Devils River minnow habitats 

in other nearby streams and discuss the 

potential that additional habitats exist. 

Our Response: This information is 

available in the Range discussion in the 

‘‘Criteria Used To Identify Critical 

Habitat’’ section below. There have been 

efforts to locate the Devils River 

minnow outside of its known range, 

although those efforts have been limited 

by opportunity and access to some 

private lands. The rule states that while 

there could be additional stream 

segments within the known range that 

may be found to be occupied during 

future surveys, the best available 

information at this time supports only 

five stream segments (Devils River, San 

Felipe Creek, Sycamore Creek, Pinto 

Creek, and Las Moras Creek) known to 

be or to have been occupied by Devils 

River minnow in the United States. 


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(2) Comment: The primary constituent 

elements (PCEs) should more explicitly 

and strongly address the need for 

spring-fed baseflow, perhaps under PCE 

5 or as its own PCE. It may be 

appropriate to include the language 

noting a percentage of normal (i.e., 

average) monthly baseflow that should 

be sustained as a Devils River minnow 

PCE. 

Our Response: Our approach in 

describing the PCEs is to identify the 

physical and biological features that are 

essential to the conservation of the 

species and which may require special 

management considerations or 

protections. In this case the PCEs are the 

range of water depths and velocities 

needed by the species. Maintenance of 

spring flows is described in this final 

rule as the special management needed 

to provide the PCEs described, rather 

than a PCE itself. The Service does not 

have sufficient information to identify 

an estimate of specific spring flow, or 

percentages of flow, as required habitat 

conditions for the Devils River minnow. 

(3) Comment: The proposed rule notes 

that if groundwater aquifers are pumped 

beyond their ability to sustain levels 

supporting spring flows these streams 

will no longer provide habitat for the 

Devils River minnow. This is true 

unless water was pumped into the 

streams from wells. 

Our Response: PCE 2 is intentionally 

worded to include ‘‘permanent, natural 

flows from groundwater spring and 

seeps.’’ We believe the maintenance of 

natural stream flows is the best 

opportunity to ensure adequate habitat 

for the conservation of the Devils River 

minnow. Water provided to streams 

through artificial means, such as 

groundwater pumping, could eventually 

fail due to mechanical or human error 

and, therefore, is not a good substitute 

for natural stream flows. In addition, 

pumping water to supply streams is 

likely counterintuitive to the need to 

maintain groundwater levels high 

enough to sustain natural spring flows 

from groundwater aquifers. Stream 

flows are essential for the conservation 

of the species, and assuring a high 

probability of survival depends on 

natural flow conditions. 

(4) Comment: The range of stream 

velocities described in the PCE (1a) for 

Devils River minnow (0.3 to 1.3 feet/ 

second (9 to 40 cm/second)) may not be 

high enough to reflect conditions that 

are typically measured in Las Moras 

Creek (greater than 3 feet/second), 

although baseflow velocities can be in 

the 1 foot/second range. 

Our Response: The water velocities 

identified as a part of the PCEs were 

determined based on observational 

studies where Devils River minnows 

have been collected. There are often 

much higher velocities in the streams; 

however, the best available information 

indicates that the velocity range 

identified in the PCEs reflects the 

understanding that the species is most 

often found in slow to moderate water 

velocities. 

(5) Comment: The PCE (2) for water 

quality can be challenged in that not 

enough data have been measured 

regarding temperature, dissolved 

oxygen, conductivity, and salinity to set 

those levels. It is possible that areas 

with physical and chemical conditions 

other than those listed could support 

the Devils River minnow. 

Our Response: We recognize that the 

PCE for water quality parameters is 

based on limited observational data. 

However, we used the best available 

information to determine appropriate 

water quality elements. To the extent 

practicable, PCEs are intended to be 

quantifiable and measurable. We 

purposefully include a broad range of 

conditions to recognize that data are not 

sufficient to identify a more narrow 

range of parameters. The ranges 

provided represent the best available 

information. 

(6) Comment: There are potential 

consequences to the species from 

increased sedimentation and turbidity, 

via urban development in the watershed 

and the presence of abundant armored 

catfish (Hypostomus sp.) (disturbing 

substrate during feeding and excavation 

of shelter). These concerns should be 

extracted from a list of pollutants, 

which included suspended sediments, 

and identified individually. You should 

include a discussion of water clarity 

under the PCE for water depth and 

velocity. 

Our Response: We agree that turbidity 

from increased suspended solids and 

sedimentation of stream bottoms are 

important habitat concerns for Devils 

River minnow. We have revised the 

final rule (see ‘‘Water Quality’’ section 

below) to specifically mention this 

concern. We did not see a need to 

modify the language in the PCEs as we 

believe that listing suspended sediments 

as a pollutant is sufficient to capture 

these concerns. 

(7) Comment: While the aquifers that 

support the critical habitat streams are 

of high quality and free of pollution, the 

same can’t be said for the water quality 

of the creeks. Livestock and ranching 

activities occur throughout this area 

except along San Felipe Creek. Harrel 

(1978) notes that in the Devils River, 

larger deep ponds often contain silt 

composed of detritus and sheep and 

goat manure washed in by rains. 

Our Response: There have been water 

quality concerns expressed for San 

Felipe Creek due to the urbanization of 

the watershed. There also may have 

been previous effects from ranching 

activities on water quality in the creeks, 

particularly in the past when sheep and 

goat grazing was a more common land 

use. However, we found no data to 

support that water quality is 

significantly impacted by current 

ranching activities (Service 2005, p. 1.7–

4). 

(8) Comment: The final rule should 

state that maintaining water 

temperatures within acceptable ranges 

necessitates maintaining adequate 

aquifer protection and spring flows to 

streams. 

Our Response: We concur. The final 

rule was revised to reflect this comment 

in the ‘‘Water Quality’’ section below. 

We believe that management of 

groundwater aquifers is important to 

maintaining spring flows and is 

interrelated to maintaining water quality 

conditions, particularly water 

temperature in streams. 

(9) Comment: The data presented do 

not support an unequivocal statement 

that vegetation must be present for 

Devils River minnow to be successful. 

The Devils River minnow appears to 

survive in other areas without 

vegetation. 

Our Response: We recognize that 

Devils River minnow have been 

collected in areas of streams without 

significant vegetation. However, the 

majority of published information on 

the habitat use of the species 

(summarized in the ‘‘Space for 

Individual and Population Growth, 

Normal Behavior, and Cover’’ section 

below) leads us to believe that the best 

scientific data available are sufficient to 

warrant inclusion of aquatic vegetation 

as a PCE to provide important cover for 

the species. We have clarified our 

discussion in that section to reflect the 

fact that Devils River minnow have also 

been collected in areas without aquatic 

vegetation. 

(10) Comment: How can the special 

management needs identified in the 

proposed rule and the recovery plan be 

implemented without access through 

private property to all stream segments 

and their supporting watershed? 

Our Response: Most of the streams 

where the Devils River minnow occurs 

flow through private lands. The 

designation of critical habitat (or the 

species’ status as federally threatened) 

does not provide a right for anyone to 

access private property without 

landowner permission. However, 

through cooperative relationships, the 

Service and Texas Parks and Wildlife 


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Department (TPWD) have had 

consistent support from private 

landowners to provide access to various 

streams to further conservation of the 

Devils River minnow. We intend to 

continue to work with private 

landowners to seek their voluntary 

cooperation using incentive-based 

programs, such as Partners for Fish and 

Wildlife, for conserving this species and 

other listed species in Texas. 

(11) Comment: Discussions regarding 

nonnative species should include 

nonnative plants, such as hydrilla 

(Hydrilla verticillata), water hyacinth 

(Eichhornia spp.), giant river cane 

(Arundinaria gigantea), and salt cedar 

(Tamarix spp.), because they can impact 

hydrology and food sources for Devils 

River minnow. 

Our Response: The extent of potential 

impacts of nonnative plants to fish such 

as the Devils River minnow is not well 

documented. However, we recognize the 

concern that nonnative plants could 

affect Devils River minnow populations, 

and we have revised the final rule to 

reflect these concerns. We did not 

include salt cedar as a concern because 

we are not aware that it is present, or 

likely to become established, in the 

range of Devils River minnow. It is well 

established in nearby drainages on the 

Pecos River and Rio Grande and has had 

ample opportunity to become 

established in the Devils River and 

drainages farther east. We assume that 

conditions (soil differences and limited 

floodplains) are not conducive to salt 

cedar establishment. 

(12) Comment: Another concern 

related to nonnative species is the 

possible predation on Devils River 

minnow by armored catfish. Information 

was provided indicating the armored 

catfish in aquarium environments will 

prey on other fish. 

Our Response: We have included this 

information in the final rule in the 

‘‘Habitat Protected From Disturbance or 

Representative of the Historic 

Geographical and Ecological 

Distribution of a Species’’ section. 

(13) Comment: Petroleum exploration 

and development should be either 

added as one additional management 

consideration for the Devils River 

population or be specifically recognized 

in the discussion of pollution. While 

there have fortunately been no known 

impacts to date, inappropriate site 

development and drilling practices 

associated with current exploration 

activities have the potential to seriously 

impact water quality of the Devils River 

and, hence, to degrade this critical 

habitat. 

Our Response: We agree and the final 

rule has been updated to include this 

information in the ‘‘Special 

Management’’ section. 

(14) Comment: Six of the seven peer 

reviewers commented on our specific 

question of whether or not Las Moras 

Creek and Sycamore Creek are essential 

to the conservation of the species and 

should be included in the critical 

habitat designation. Three reviewers 

expressed specific support for including 

Las Moras and Sycamore creeks in the 

critical habitat designation for the 

following reasons: (1) To maintain 

suitable habitat within its range because 

if left undesignated, the PCEs currently 

present will fall out of range and 

potential use for the recovery of the 

species will be lost; (2) to protect 

genetic diversity within the range of the 

species; (3) including them may be 

important for future recovery efforts, 

based on metapopulation theory that 

unoccupied patches are not less 

important than occupied ones; (4) not 

including them as ecologically 

significant stream segments would be 

possibly detrimental to the species over 

time; and (5) if the creeks are 

determined not to provide essential 

habitat elements, they could be removed 

from the designation later or the habitat 

could be improved by future 

management. 

The other three reviewers did not call 

for the inclusion of Las Moras and 

Sycamore creeks in the designation. 

However, two reviewers stressed that 

recovery of the Devils River minnow 

would include restoring the species to 

these streams to maintain genetic 

diversity and population redundancy 

and encouraged us to continue to work 

on these efforts. One reviewer stated 

that Sycamore and Las Moras creeks do 

not have the necessary continuous flows 

required to maintain a population of the 

Devils River minnow and would 

support their inclusion if there were 

management options in place to 

maintain sufficient residual habitat 

during droughts. 

Our Response: In reviewing the 

comments received on this issue and the 

Recovery Plan for the Devils River 

minnow, we determined that Sycamore 

and Las Moras creeks are essential to the 

conservation of the Devils River 

minnow. Restoring populations in 

Sycamore and Las Moras creeks are 

important recovery goals for the species. 

For additional discussion of this topic, 

including relevant information from the 

Recovery Plan, see the ‘‘Criteria Used To 

Identify Critical Habitat’’ section below. 

However, upon further review, we 

determined that the benefits of 

excluding these two creeks outweigh the 

benefits of including them as critical 

habitat. Therefore, we have excluded 

Sycamore Creek and Las Moras Creek 

under section 4(b)(2) of the Act. For the 

full analysis, see the ‘‘Exclusions Under 

Section 4(b)(2) of the Act’’ section 

below. 

(15) Comment: The rule should 

recognize that, while not included in 

the lateral extent of the critical habitat, 

the condition of the riparian buffer 

beyond the normal wetted channel is 

important to the maintenance of water 

quality and low levels of fine 

sedimentation. 

Our Response: We agree that healthy 

riparian areas of native vegetation are 

important to maintaining the PCEs. For 

example, impacts to riparian areas that 

reduce native vegetation may lead to 

increased runoff of pollutants into the 

stream, thus degrading water quality 

and indirectly affecting the designated 

critical habitat. This is further discussed 

in the ‘‘Application of the Adverse 

Modification Standard’’ section. Unlike 

some other stream fishes, the Devils 

River minnow is not known to be 

dependent on high flow events or use 

flooded habitats in overbank areas for 

reproduction or rearing of young. 

Therefore, the floodplain is not known 

to contain the features essential for the 

conservation of the Devils River 

minnow and is not included in this final 

critical habitat designation. See the 

discussion in ‘‘Criteria Used To Identify 

Critical Habitat, f. Lateral Extent’’

section. 

(16) Comment: No studies cited in the 

proposed rule have shown that the 

Devils River minnow is tied to springmouth habitat. In fact, several studies 

point out that the species does not use 

such habitat but prefers more 

downstream areas of the streams away 

from the immediate outfall areas. This 

appears to be true in all three stream 

sections chosen for critical habitat. The 

data do not support the inclusion of the 

spring heads in critical habitat. 

Our Response: We disagree. While 

Devils River minnow can be common in 

areas just a few meters downstream of 

spring heads, the best available 

information suggests the PCEs and the 

fish are also found at the beginning of 

the streams in spring heads. Numerous 

collections have listed the springs 

themselves as locations for collecting 

Devils River minnow (see literature 

reviewed in Service 2005, p 1.4.1–1.4.5). 

Comments From the Public 

(17) Comment: The statement that the 

Devils River minnow does not occupy 

Sycamore Creek is unsubstantiated. 

Opportunities to sample for the species 

are very limited. 

Our Response: We did not intend to 

make a conclusive determination that 


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the Devils River minnow does not occur 

in Sycamore Creek. For the purpose of 

critical habitat designation, we 

considered a stream segment to be 

occupied at the time of listing if Devils 

River minnow has been found to be 

present by species experts within the 

last 10 years, or where the stream 

segment is directly connected to a 

segment with documented occupancy 

within the last 10 years (see section 

‘‘Criteria Used to Identify Critical 

Habitat’’ section below). The fish has 

not been collected in Sycamore Creek 

since 1989. We agree that collections are 

limited and more extensive sampling in 

the future may produce additional 

occurrence information in this 

watershed. 

(18) Comment: Stream flow records 

from the U.S. Geological Survey and 

International Boundary and Water 

Commission gauging station show that 

Pinto Creek has had ‘‘no flow’’ 59 

percent of the time as measured 

monthly between 1965 and 1996. Pinto 

Creek is an intermittent stream and does 

not supply the permanent, natural flows 

that are a pillar of the critical habitat 

definition. 

Our Response: We recognize that 

portions of Pinto Creek can be 

intermittent. The location of the stream 

gauge was moved to a far upstream 

location in 1981 (Ashworth and Stein 

2005, p. 18). Although portions of the 

stream will exhibit no flow during some 

times of the year, spring flows will 

continue providing aquatic habitat for 

the Devils River minnow at various 

locations downstream. Ashworth and 

Stein (2005, p. 19) found that the Pinto 

Creek is a gaining stream through much 

of the upper reaches, that is, it increases 

in volume downstream. A stream gauge 

at a stationary location does not reflect 

the longitudinal variation in stream 

flow. We observed this in the summer 

of 2006 when Service biologists visited 

Pinto Creek and found some reaches of 

the creek dry and other locations 

supported by spring flows. Fish were 

concentrated in these spring-fed 

stretches. 

To account for this variation, PCE 5 of 

this critical habitat designation includes 

areas within stream courses that may be 

periodically dewatered for short time 

periods, during seasonal droughts. 

These areas were found to be important 

as connective corridors. The Devils 

River minnow occurs in relatively short 

stream segments and, therefore, needs to 

be able to move unimpeded to access 

different areas within the stream to 

complete life history functions and find 

resources, such as food and cover. 

(19) Comment: The presence of the 

nonnative smallmouth bass 

(Micropterus dolomieu) is the only 

significant change in the Devils River 

and has caused many changes in the 

structure of the fish community. The 

Devils River should not be designated as 

critical habitat because the only factor 

affecting fish populations is being 

propagated and enhanced by Texas 

Parks and Wildlife Department (TPWD). 

Our Response: We do not know the 

full extent of specific impacts of the 

smallmouth bass on the Devils River 

minnow, but initial research results 

since the listing have not revealed that 

smallmouth bass are an obvious source 

of predation on Devils River minnow. 

TPWD manages the smallmouth bass 

fishery in the Devils River but no longer 

stocks the fish in the Devils River or 

Amistad Reservoir. It is unknown if a 

change in the management of this 

fishery would benefit the Devils River 

minnow. 

(20) Comment: Nonnative species, 

such as the smallmouth bass and 

armored catfish, deserve to be protected 

even though they are not native. They 

should be allowed to thrive for the 

benefit of the American people, 

consistent with the Service’s mission 

statement. 

Our Response: In the preamble to the 

Act, Congress recognized that 

endangered and threatened species of 

wildlife and plants ‘‘are of esthetic, 

ecological, educational, historical, 

recreational, and scientific value to the 

Nation and its people.’’ When humans 

introduce species outside of their 

natural range, they often have 

unintended and deleterious effects on 

native species. Nonnative species are 

one of the primary threats to many 

native species, sometimes contributing 

to their status as threatened or 

endangered. In these instances, we place 

a higher value on the conservation of 

the native species and often try to 

control the nonnative species to further 

the recovery of the listed species. We 

believe this is consistent with the intent 

of the Act. 

(21) Comment: Groundwater 

conservation districts override the ‘‘Rule 

of Capture’’ in groundwater law in 

Texas. Designating critical habitat is a 

way for the Federal government to gain 

control over water managed by State or 

local authorities. 

Our Response: We recognize that 

groundwater districts are intended to 

allow local management of groundwater 

in place of the rule of capture. 

Designating critical habitat is not 

intended to supersede surface or 

groundwater management by private, 

local, or State parties. If a Federal 

agency proposes an action that they 

determine may affect the Devils River 

minnow or its habitat (such as a change 

in stream flow rates), they are required 

under section 7 of the Act to consult 

with the Service. Since we are 

designating final critical habitat in areas 

presently occupied by the fish, this 

requirement to consult would exist even 

if we were not designating critical 

habitat. 

(22) Comment: The proposed rule’s 

concern for future groundwater 

withdrawals is not based on wellresearched and documented science on 

the connection, if any, between 

groundwater withdrawals in Pinto 

Valley and high quality water for the 

species in Pinto Creek. WaterTexas 

intends to convert groundwater in 

Kinney County historically used for 

agriculture to municipal use without 

increasing the overall amount of water 

pumped. Therefore, the statement in the 

proposed critical habitat rule that there 

are plans to significantly increase the 

amount of groundwater pumped is 

inaccurate in regard to plans by 

WaterTexas. 

Our Response: We did not attempt to 

connect any particular groundwater 

pumping areas, such as Pinto Valley, to 

the potential for impact of spring flows 

in Pinto Creek. Our concerns are 

consistent with experts in the field, 

such as the statements from studies by 

Ashworth and Stein (2005, p. 34): ‘‘Base 

flows of the rivers and streams that flow 

through Kinney and Val Verde Counties 

is [sic] principally generated from the 

numerous springs that occur in the 

headwaters of these surface drainages. 

Sustaining flow in these important 

rivers and streams is highly dependent 

on maintaining an appropriate water 

level in the aquifer systems that feed the 

supporting springs. Spring discharge 

rates can be negatively impacted by 

nearby wells if the pumping 

withdrawals lower the water table in the 

aquifer that contributes to the spring. If 

the water-level elevation drops below 

the elevation of the land surface at the 

point of spring discharge the spring will 

cease to flow.’’

The statement in this final critical 

habitat designation characterizes the 

expected overall trends for groundwater 

pumping in Kinney County (PWPG 

2006, pp. 3–13, 4–54) and is not 

intended to be specific to any particular 

groundwater development project. 

(23) Comment: The purpose of the 

Kinney County Groundwater 

Conservation District (KCGCD) 

Management Plan is to provide 

guidance to the KCGCD on how to 

manage the groundwater on a 

sustainable basis and yet beneficially 

use the groundwater without exploiting 


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or adversely affecting the natural flow of 

the intermittent streams. 

Our Response: The KCGCD has 

recently drafted a revised management 

plan including an estimate of future 

groundwater permits. Although the plan 

was not approved until after the close of 

the public comment period and 

therefore not considered in its entirety 

in this final rule, we recognize that the 

KCGCD intends to manage groundwater 

on a sustainable basis without adversely 

affecting natural stream flows. We 

understand that KCGCD is still 

collecting scientific information on the 

possible effects to stream flows of 

various permitting levels for the aquifers 

in Kinney County. We look forward to 

the results of the KCGCD’s 

implementation of their management 

plan and we intend to work 

cooperatively with the District to also 

collect information on the relationship 

of stream flows and aquatic habitat for 

the Devils River minnow, as called for 

in the recovery plan (Service 2005, p. 

2.4–4). 

(24) Comment: Current land-use 

activities authorized by the KCGCD in 

the form of groundwater permitting will 

allow such an unwarranted and 

unprecedented depletion of the 

groundwater resource that Pinto Creek, 

the sole remaining critical habitat for 

the Devils River minnow in Kinney 

County, will dry up—if not completely, 

then certainly to the point of no longer 

being suitable for the minnow. Any 

activity that would further threaten 

spring flows in Pinto Creek must not be 

allowed if the loss of the minnow in that 

creek is to be avoided. 

Our Response: We recognize this 

concern and we encourage the KCGCD 

to carefully consider the impacts on 

Pinto Creek of future groundwater use 

permitting. However, it is important to 

recognize that designation of Pinto 

Creek, or the other areas, as critical 

habitat for the Devils River minnow has 

no regulatory effect on non-Federal 

actions, such as permitting by a local 

groundwater district. 

(25) Comment: The KCGCD plans to 

permit total groundwater withdrawals 

that exceed the amount of groundwater 

available according to estimates by the 

Texas Water Development Board. The 

KCGCD does not consider impacts to the 

Devils River minnow, and the KCGCD 

may have already sanctioned 

withdrawals of sufficient amounts of 

groundwater to result in direct harm to 

the proposed critical habitat in Pinto 

Creek. 

Our Response: We understand there 

are important scientific uncertainties 

about the amount of groundwater 

available for sustained uses in Kinney 

County. We recognize that future 

increases in groundwater pumping 

could impact habitats of the Devils 

River minnow, and we encourage the 

KCGCD to consider habitat of the Devils 

River minnow and to provide stream 

flow monitoring efforts to ensure 

permitted pumping does not result in 

loss of stream habitat for Devils River 

minnow. However, unless there is a 

Federal nexus with groundwater 

pumping activities and a determination 

that a specific Federal action may affect 

the Devils River minnow, the critical 

habitat designation will not affect 

groundwater pumping. 

(26) Comment: A limit on impervious 

cover within the watersheds of the 

designated streams should be included 

in the section on Special Management 

Considerations and Protections. 

Impervious cover amounts in excess of 

10 to 15 percent within a watershed are 

known to increase storm runoff, which 

in turn causes the erosion of stream 

beds and the degradation of water 

quality as surface pollutants 

contaminate and warm the water in a 

stream. 

Our Response: We concur that 

limiting impervious cover in urban 

areas is one method to reduce future 

pollutant inputs to streams from 

contributing watersheds. The final 

critical habitat designation does not 

intend to provide this level of 

specificity for needed special 

management actions. There may be 

other management that could result in 

providing adequate water quality for the 

Devils River minnow in San Felipe 

Creek. This level of land planning is 

best done by a local governmental 

authority, such as a city or county. 

(27) Comment: The proposed rule 

includes brush-clearing in a list of 

activities that would significantly 

increase sediment deposition within the 

stream channel. This statement, taken 

out of context, is erroneous. Research 

has shown that brush control can lead 

to positive environmental benefits, 

including increased groundwater 

recharge. 

Our Response: The proposed rule 

indicated brush control and other landuse activities could affect Devils River 

minnow habitat. We have updated the 

final rule to more accurately reflect our 

understanding that the actual effects of 

specific activities, such as brush 

clearing, must be evaluated on a projectspecific basis. The impacts of any 

specific activity will depend on the 

location of the activity, and the extent 

to, and manner in, which the activity is 

carried out. 

We have also updated the final 

economic analysis to include a 

Statewide section 7 consultation in 2004 

that was completed with the Natural 

Resources Conservation Service (NRCS) 

for brush control actions funded under 

the 2002 Farm Bill. In that consultation, 

we found that, under most 

circumstances, brush control within the 

range of the Devils River minnow 

results in beneficial effects by increasing 

groundwater recharge and spring flows, 

as emphasized by this comment. 

(28) Comment: Land-use practices in 

the Devils River Unit have changed little 

over the past 50 years and are 

predominantly agrarian (agricultural) for 

livestock ranching and wildlife hunting. 

Stream flow and quality are not 

currently influenced by other outside 

factors, such as those from municipal, 

commercial, or industrial entities, but 

are only subject to natural variations. 

The Nature Conservancy and the State 

of Texas own large parcels of land along 

the river. Barring any unforeseen events, 

it does not appear that land use in the 

region will change significantly. 

Our Response: We agree that land use 

has changed little in the Devils River 

watershed in recent years, and current 

ranching and wildlife hunting are not 

considered a threat to the Devils River 

minnow or a concern for its habitat. 

However, we are concerned that the 

stream habitat will be affected in the 

future by other outside factors. The 

primary long-term potential threat of 

groundwater withdrawal is not 

necessarily related to land use. Other 

land-use considerations include the 

potential impacts to water quality from 

petroleum exploration and 

development. 

(29) Comment: One commenter stated 

that the Devils River minnow is 

thriving, particularly in the Devils 

River, under the current voluntary 

cooperation of private landowners, 

TPWD, and the Service. The species 

does not now satisfy the definition for 

an endangered or even threatened 

species under the Endangered Species 

Act (16 U.S.C. 1531 et seq.). Another 

commenter thought our action to 

designate critical habitat would lead to 

further action to declare it an 

endangered species. 

Our Response: We recognize the 

positive relationships that exist between 

our agency, TPWD, and private 

landowners in working together for the 

conservation of the Devils River 

minnow. We concur that various 

monitoring efforts in the Devils River 

have continued to find the population 

persisting, apparently in strong 

numbers. However, there is no available 

information that suggests the species is 

‘‘thriving’’ across its range. The Act 

requires designation of critical habitat 


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for species listed as either threatened or 

endangered, if we determine critical 

habitat to be prudent and determinable. 

As part of a process separate from 

designating critical habitat, the Service 

is now conducting a 5-year review on 

the status of the Devils River minnow 

rangewide to assess whether it is 

classified correctly as a threatened 

species. We requested information to 

assist with this review in a Federal 

Register notice on April 23, 2007 (72 FR 

20134). We have not yet completed this 

review, and we are always open to 

receiving new information on the status 

of this and all listed species. 

(30) Comment: The voluntary 

conservation agreement signed by the 

Service and TPWD in 1998 is working, 

and the Devils River Association renews 

our commitment to help with this 

agreement. Voluntary efforts on the 

Devils River have increased Devils River 

minnow habitat. The Service should 

continue this healthy voluntary 

cooperation. Designating critical habitat 

would terribly and irreparably damage 

the trust that we have gained over the 

last few years. 

Our Response: We appreciate and 

strongly support the voluntary 

cooperation that has been provided in 

the past by landowners along the Devils 

River. The conservation of this species 

depends on the cooperative efforts of 

private landowners and others. 

Although the 1998 conservation 

agreement has not been renewed or 

maintained as a formal conservation 

effort following the initial 5-year 

commitment, it has served as a 

foundation for cooperative efforts that, 

in part, resulted in the designation of 

the Devils River minnow as threatened 

rather than endangered. After 

conducting an analysis under section 

4(b)(2) of the Act, we concluded that the 

benefits of excluding the Devils River 

Unit from the final designation 

(including maintaining non-Federal 

partnerships) outweigh the benefits of 

inclusion (see ‘‘Exclusions under 

Section 4(b)(2)’’ section). 

(31) Comment: Private landowners 

and ranchers along the Devils River 

serve to maintain wide open spaces and 

ecosystem processes. Restrictions on 

private landowners from critical habitat 

designation could affect landowners’

livelihoods and result in land 

fragmentation and a cascading effect 

along the Devils River. This could result 

in the selling of smaller land parcels 

and cause the end of one of the most 

pristine ecosystems in the State. 

Our Response: We agree that 

maintaining large ranches intact is 

likely a beneficial situation for the 

Devils River minnow habitat. However, 

we do not foresee private landowner 

restrictions resulting from the final 

designation of critical habitat and do not 

believe that these concerns are likely to 

be realized. These widely held 

perceptions by landowners in the Devils 

River Unit, however, could result in 

anti-conservation incentives because 

furthering Devils River minnow 

conservation is seen as a risk to future 

economic opportunities or loss of 

private property rights. See our response 

to Comment 30 above. 

(32) Comment: The restrictions on 

landowners in the Devils River area will 

unduly burden landowners. Critical 

habitat will also impact whether or not 

you can use machinery for pushing 

cedar, constructing roads, clearing 

brush, grazing livestock excessively, and 

using off-road vehicles. 

Our Response: These activities are 

identified in the proposed and final 

rules as actions that could affect critical 

habitat, if they were carried out, funded, 

or permitted by a Federal agency and if 

they resulted in specific effects to the 

critical habitat area. The final critical 

habitat designation itself does not 

restrict landowners along the Devils 

River or elsewhere from carrying out 

these activities. See our response to 

Comment 27 for additional discussion 

of brush clearing. 

(33) Comment: Will critical habitat 

designation affect: (1) The right of the 

City of Del Rio to take water from San 

Felipe Springs or other groundwater 

sources; (2) the right of private 

landowners to take and use groundwater 

on their lands; (3) City, County, or State 

construction projects involving building 

or maintaining streets, highways, and 

other public facilities; (4) repair and 

maintenance activities on State 

Highway 163 in Val Verde County or the 

county road from State Highway 163 to 

F.M. 1024; (5) the rights of landowners 

to use and operate their lands for 

otherwise lawful purposes? What 

activities on non-Federal, public, or 

private lands will be affected by critical 

habitat designation? What impact will 

critical habitat designation have on 

Laughlin Air Force Base? 

Response: Critical habitat only affects 

activities where Federal agencies are 

involved and consultation under section 

7 of the Act is necessary. Critical habitat 

designation has no impact on private 

actions on private lands. Critical habitat 

does not create a requirement for 

specific land protection by non-Federal 

parties. The Devils River minnow 

occurs in streams primarily on nonFederal lands with little to no Federal 

agency involvement. Therefore, final 

critical habitat designation is not 

expected to change most ongoing or 

planned activities. 

The legal protections of critical 

habitat only apply during interagency 

consultation by Federal agencies under 

section 7 of the Act. Activities that are 

funded, permitted, or carried out by a 

Federal agency (such as a permit from 

the U.S. Army Corps of Engineers under 

section 404 of the Clean Water Act) on 

private or public lands that may affect 

a listed species or critical habitat 

undergo additional review for 

consideration of the listed species. 

Through an interagency consultation 

process, the Service advises Federal 

agencies whether the proposed actions 

would likely jeopardize the continued 

existence of the species or adversely 

modify its critical habitat. Results of 

these additional reviews rarely interfere 

with the ability of private or public 

entities to carry out otherwise lawful 

activities such as those described in this 

comment. 

We have only designated critical 

habitat in areas where the species 

occurs. In these areas, Federal agencies 

already have a responsibility for 

interagency consultation for actions that 

may affect the species. A review of the 

consultation history as part of the 

economic analysis (documented in 

Appendix A of the economic analysis) 

concluded that there have been very few 

consultations since the species was 

listed in 1999. To date, there has been 

no interagency consultation with 

Laughlin Air Force Base regarding the 

Devils River minnow. 

(34) Comment: I am concerned that by 

designating the San Felipe Creek as 

critical habitat, the people will suffer 

and not be able to use the creek as the 

City of Del Rio would like. The Devils 

River minnow should not dictate how 

the City of Del Rio uses San Felipe 

Creek, but you should work to eradicate 

river cane and the armored catfish to 

help the population of the fish grow. 

Our Response: People in Del Rio will 

continue to be able to use San Felipe 

Creek even though it has been 

designated as critical habitat. The 

conservation of the Devils River 

minnow has not limited the use of San 

Felipe Creek, and use is not likely to 

change with critical habitat. We will 

continue our ongoing cooperative efforts 

with the City of Del Rio to work on 

controlling exotic river cane and 

armored catfish, and on other 

conservation efforts. 

(35) Comment: There is suspicion that 

the Devils River minnow population in 

Pinto Creek was artificially introduced 

by private landowners and others at the 

headwaters of Pinto Creek. 


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Our Response: We have no 

information to indicate that the Devils 

River minnow in Pinto Creek is not a 

natural population. The reason for the 

recent discovery of Devils River 

minnow in Pinto Creek is because there 

was no prior sampling in upstream areas 

where the species occurs (Garrett et al. 

2004, p. 439). In addition, recent genetic 

studies of the Devils River minnow have 

found that the population in Pinto Creek 

is significantly different from the 

population in the Devils River (Conway 

et al. 2007, p. 9), suggesting that it is a 

natural population. 

(36) Comment: Many listed species in 

Texas and nationally do not have 

critical habitat designated. The Service 

has already had a final ruling that stated 

it would not be prudent to designate 

critical habitat for the Devils River 

minnow because it would not benefit 

the species (final listing rule in 1999, 64 

FR 56606). As stated in the Service’s 

July 26, 2005, letter to the Forest 

Guardians, critical habitat is not needed 

for the Devils River minnow. 

Our Response: We agree that 

designation of critical habitat is not 

likely to provide many benefits for the 

Devils River minnow since the 

designated area is likely to have few 

Federal actions that affect the species. 

However, the Act requires that we 

designate critical habitat following a 

specific methodology. The lawsuit 

brought by Forest Guardians (now 

WildEarth Guardians) and others 

necessitated that we reconsider the 

designation of critical habitat, resulting 

in this final rule. The reasoning that we 

used in 1999 to determine that the 

designation of critical habitat was not 

prudent was subsequently determined 

in other court cases not to be a valid 

justification. 

(37) Comment: All areas included in 

the proposed rule should be designated 

as critical habitat. The adequacy of 

existing or future conservation plans is 

not sufficient to warrant any exclusions 

of critical habitat. 

Our Response: We are excluding the 

Devils River Unit and Sycamore and Las 

Moras creeks from the critical habitat 

designation for Devils River minnow. 

After conducting analyses under section 

4(b)(2) of the Act, we concluded that the 

benefits of excluding the Devils River 

Unit and Sycamore and Las Moras 

creeks from the final designation 

(including maintaining non-Federal 

partnerships) outweigh the benefits of 

inclusion (see ‘‘Exclusions under 

Section 4(b)(2)’’ section). 

(38) Comment: Las Moras Creek is not 

the place to reintroduce Devils River 

minnow. Flooding in the city of 

Brackettville often causes pollution in 

the creek. The KCGCD does not have the 

scientific evidence to assure that Las 

Moras Creek will not go dry if 

groundwater is transported to San 

Antonio. 

Our Response: We are not proposing 

to reintroduce Devils River minnow to 

Las Moras Creek with this final critical 

habitat rule. Instead we are designating 

critical habitat for the species in 

portions of Pinto Creek and San Felipe 

Creek. We have determined not to 

designate Las Moras Creek as critical 

habitat. The concerns raised in this 

comment will need to be addressed in 

future cooperative plans to restore the 

Devils River minnow to Las Moras 

Creek. 

Comments Related to the Economic 

Analysis 

(39) Comment: The draft economic 

analysis (DEA) maintains that section 7 

consultations under the jeopardy 

standard and the adverse modification 

standard are not likely to have 

significantly different outcomes. This is 

not accurate, as the jeopardy standard 

does not protect unoccupied habitat. 

Moreover, destruction of occupied 

habitat may not meet the jeopardy 

standard if the Service determines that 

the destruction of a single population 

will not cause the species to go extinct 

or thwart its recovery. Alternatively, 

within critical habitat, the destruction of 

a single population or a portion thereof 

would certainly violate the Act’s 

prohibition of adverse modification. 

Our Response: It is true that it would 

be inappropriate to conclude that 

consultations under the jeopardy and 

adverse modification standards would 

not differ for unoccupied critical 

habitat; however, we have not included 

unoccupied areas in this final critical 

habitat designation (see ‘‘Criteria Used 

to Identify Critical Habitat’’ section 

below). Additionally, we recognize that 

the jeopardy and adverse modification 

standards are not equivalent and that it 

is possible in a general sense that a 

project may be determined to adversely 

modify critical habitat while also not 

resulting in jeopardy. However, the 

specific situation for the Devils River 

minnow does not present this case. For 

two of the units, no projects with a 

Federal nexus are anticipated, and for 

the third unit, the projects expected 

would generally be minor and not 

expected to affect an entire unit. 

Therefore, projects in the third unit 

would not likely result in adverse 

modification or jeopardy. Based on 

discussions among stakeholders, 

affected Federal agencies, and the 

Service, no new conservation measures 

are expected to occur as a result of 

consultations in areas designated as 

critical habitat for the Devils River 

minnow. Rather, current and forecast 

conservation measures for the species 

are a result of the listing of the Devils 

River minnow as a threatened species. 

The additional cost of consulting for 

adverse modification above the cost of 

consulting for jeopardy, in the amount 

of $64,000 (undiscounted) over 20 years, 

are quantified as incremental postdesignation impacts in the 

administrative costs appendix of the 

economic analysis. 

(40) Comment: The critical habitat 

proposal and the DEA fail to fully 

address the threat of climate change to 

the Devils River minnow, despite the 

fact that its southwestern aquatic habitat 

is in extreme peril from the climate 

crisis. 

Our Response: At this time, climate 

change has not been identified as an 

impact needing special management in 

the Devils River minnow critical habitat, 

as projections of specific impacts of 

climate change in this area are not 

currently available. As such, no 

conservation measures are expected in 

the reasonably foreseeable future that 

would directly address the threat of 

climate change to the Devils River 

minnow. Thus, the economic analysis 

does not quantify impacts associated 

with conservation measures for the 

Devils River minnow related to global 

climate change. 

(41) Comment: The potential impacts 

of future groundwater development for 

municipal use should not be ignored in 

the economic analysis. With the 

potential groundwater yields that could 

be produced for municipal use, it is 

recommended that the parameters used 

in performing the economic analysis be 

reexamined and revised to reflect the 

potential future impacts of pumping for 

municipal use. If these factors are 

ignored, it is conceivable that future 

limitations could impose unreasonable 

restrictions on groundwater 

development in the region, in turn 

resulting in significant economic 

impacts. 

Our Response: Section 3.2 of the final 

economic analysis (FEA) recognizes that 

any limitations on available future 

groundwater resource options for San 

Antonio or other municipalities wishing 

to export water from the critical habitat 

area would result in potentially 

substantial economic impacts on 

municipal users, presumably in terms of 

increased water prices occurring if 

supply is constrained, or as more costly 

options for water development are 

undertaken. However, due to the 

uncertainties with regard to linking 

specific groundwater withdrawals to 


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impacts on Devils River minnow 

habitat, future Federal involvement in 

potential water extraction projects, and 

any potential changes to those projects 

that could be requested by the Service 

as part of a consultation, the FEA is 

unable to quantify potential economic 

impacts of Devils River minnow 

conservation measures related to such 

groundwater extraction activities. The 

analysis does recognize that potential 

negative impacts on both the water 

suppliers and the end water users could 

occur should restrictions on water use 

be undertaken on behalf of the Devils 

River minnow. The analysis also points 

out that there have not been any 

consultations related to groundwater 

extraction and its effects on the Devils 

River minnow to date. 

(42) Comment: In Section 3.1 of the 

DEA, the quotation attributed to the 

document, ‘‘Texas Water Law,’’ Texas 

Water Resource Education, Texas A&M 

University, is not completely accurate 

with respect to Texas Law. While the socalled ‘‘Rule of Capture’’ continues to be 

the underlying basis of groundwater law 

in Texas, groundwater districts, and 

now, more importantly, Groundwater 

Management Areas (GMAs) play a major 

and superseding role in groundwater 

planning and management. In 

particular, House Bill 1763 from the 

79th Regular Session of the Texas 

Legislature created GMAs that now 

cover all of Texas, and together with 

groundwater districts, GMAs override in 

many respects the effects of the ‘‘Rule of 

Capture’’ as known and practiced in the 

past. 

Our Response: Section 3.1 of the FEA 

has been revised following receipt of 

this comment. This section now states 

the following: ‘‘Generally, groundwater 

in Texas is governed by the ‘rule of 

capture,’ that is, groundwater is the 

private property of the owner of the 

overlying land. However, a number of 

state-mandated groundwater 

conservation districts (GCDs) have the 

ability to regulate the spacing and 

production of groundwater wells. Each 

GCD falls within a larger Groundwater 

Management Area (GMA). Currently, 16 

GMAs exist in Texas spanning the 

state’s major and minor aquifers. In 

2005, the Texas State Legislature 

required that all GCDs in a given GMA 

meet annually to determine a future 

desired groundwater condition for their 

respective GMA. Based on the desired 

future condition specified by a given 

GMA, the Texas Water Development 

Board (TWDB) determines a managed 

available groundwater level for the 

GMA. Lands outside of GCDs are not 

subject to groundwater pumping 

regulations unless a landowner seeks 

state funding for a groundwater project. 

In this case, the specific project must be 

included in the GMA’s regional water 

plan. The total groundwater allotments 

permitted by the GMA must not exceed 

its managed available groundwater 

level.’’

(43) Comment: WaterTexas’ ongoing 

water exportation project is too 

preliminary to know for certain whether 

consultation with the Federal 

government above and beyond the U.S. 

Army Corps of Engineers (for Section 

404 permits under the Clean Water Act) 

will be necessary. With respect to 

WaterTexas’ planned water exportation 

project, WaterTexas does not see the 

KCGCD’s management plan revision 

currently underway as any sort of 

barrier to the commencement or further 

development of their current project. 

Our Response: Section 3.2 of the FEA 

has now been clarified to state that the 

WaterTexas project is too preliminary to 

know for certain whether or not 

consultation with the Federal 

government, other than the U.S. Army 

Corps of Engineers for a section 404 

permit, will be necessary. A statement 

has also been added to the FEA 

clarifying that ‘‘currently, WaterTexas 

does not expect the forthcoming KCGCD 

management plan to affect their ongoing 

groundwater exportation project.’’

(44) Comment: In section 3.2 

paragraph 86, the DEA states that 

‘‘supplementing San Antonio’s water 

supply would, among other things, ease 

water-related threats to other listed 

species within the Edwards Aquifer.’’

WaterTexas wishes to correct any 

perception that they believe their 

planned water exportation project will 

assist in directly reviving or rescuing 

any endangered species in any other 

area of Texas. 

Our Response: Section 3.2 of the FEA 

has been revised to clarify that one 

water company believes that its project 

may help to ease water-related threats to 

other species in the Edwards Aquifer. 

The section now states: ‘‘Grass Valley 

Water LP is proposing to export 22,000 

acre-feet annually to San Antonio from 

a 22,000-acre ranch in eastern Kinney 

County. The project would draw water 

from the Edwards Balcones Fault Zone, 

which according to the company, does 

not affect Las Moras Springs. Grass 

Valley Water LP has already invested a 

significant amount of resources into the 

project and believes that supplementing 

San Antonio’s water supply could, 

among other positive effects, ease waterrelated threats to other listed species 

within the Edwards Aquifer.’’

(45) Comment: Voluntary 

conservation plans, such as the City of 

Del Rio’s Management Plan for San 

Felipe Creek and the San Felipe Country 

Club Management Plan, should not be 

included in the economic baseline 

calculation in the EA. Due to the 

voluntary nature of these plans, the 

water quality protection measures 

described are not guaranteed to occur. 

As such, these voluntary measures 

might lower the perceived benefit to 

designating critical habitat by 

guaranteeing conservation, which, in 

reality, may or may not occur. 

Our Response: The FEA examines the 

impacts of restricting or modifying 

specific land uses or activities for the 

benefit of the species and its habitat 

within the areas considered for critical 

habitat designation. The analysis 

employs ‘‘without critical habitat’’ and 

‘‘with critical habitat’’ scenarios. The 

‘‘without critical habitat’’ scenario 

represents the baseline for the analysis, 

considering protections already 

accorded the Devils River minnow, 

voluntary or otherwise. The City of Del 

Rio’s Management Plan for San Felipe 

Creek and the San Felipe Country Club 

Management Plan were both developed 

in 2003 following a Conservation 

Agreement for the Devils River minnow 

between the Service, TPWD, and the 

City of Del Rio in 1998, prior to the 

species’ listing. Thus, the costs of 

developing these plans, and those 

conservation measures listed in the 

management plans that have already 

occurred or are planned to occur in the 

near future are included in the baseline. 

Impacts related to conservation 

measures discussed in the management 

plans that are not anticipated to occur 

in the foreseeable future are not 

quantified in the analysis. 

(46) Comment: The DEA failed to 

consider the entirety of potential effects 

of all Federal nexuses and ensuing 

regulatory actions on small businesses, 

in particular, private landowners and 

ranchers along the Devils River Unit. 

Pursuant to the 2002 Farm Bill, there are 

at least two NRCS programs that provide 

assistance to landowners to control 

brush. The proposed rule lists brushclearing as an ‘‘action that would 

significantly increase sediment 

deposition within the stream channel.’’

Potential brush-clearing consultations 

may delay actual brush-clearing to a 

point where landowners may miss the 

opportunity to carry out planned brush 

control activities for an entire year. 

Our Response: Section 2 of the FEA 

now clarifies that threats to water 

quality in Devils River minnow critical 

habitat may include sedimentation due 

to grazing, brush-clearing, road 

construction, channel alteration, offroad vehicle use, and other watershed 

activities in the rural Devils River, 


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Sycamore Creek, and Pinto Creek units. 

Section 2 of the FEA also includes a 

discussion of the concern that private 

brush-clearing activities conducted 

using funds from NRCS could be 

delayed to a point where landowners 

may miss the opportunity to carry out 

those activities for an entire year. The 

analysis examines a 2004 formal 

consultation between the Service and 

the NRCS regarding activities associated 

with implementation of the 2002 Farm 

Bill conservation programs and their 

effects on listed species in western 

Texas. This consultation, which focused 

on brush management treatment 

practices targeting control of honey 

mesquite (Prosopis glandulosa), salt 

cedar, Ashe juniper (Juniperus ashei), 

and redberry juniper (J. coahuilensis) 

concluded that the proposed brushclearing activities would benefit the 

Devils River minnow by increasing the 

base flow of the Devils River if the 

brush-control activities were part of 

brush management practices intended to 

improve the quality and quantity of 

water, improve range conditions, and 

improve the value of wildlife habitat. 

Thus, all brush removal activities 

receiving funding from the NRCS under 

the 2002 Farm Bill remained unaltered 

as a result of that consultation. The 

analysis concludes that few, if any, 

impacts on brush-clearing activities, 

even when supported by NRCS funds, 

appear likely to result from Devils River 

minnow conservation activities. 

(47) Comment: Several commenters 

requested that stigma effects be 

addressed in the economic analysis. 

One commenter stated that he believes 

this effect could significantly decrease 

and lower the land value of the land 

along the Devils River. The number 

could be anywhere from 2 to 10 million 

dollars of land devaluation impacts. 

Our Response: Section 1.3.2 of the 

FEA has been revised and expanded to 

respond to concerns over stigma effects 

related to the designation. The analysis 

recognizes that, in some cases, public 

perception of critical habitat designation 

may result in limitations of private 

property uses above and beyond those 

associated with anticipated project 

modifications and uncertainty related to 

regulatory actions. Public attitudes 

regarding the limits or restrictions of 

critical habitat can cause real economic 

effects to property owners, regardless of 

whether such limits are actually 

imposed. To the extent that potential 

stigma effects on real estate markets are 

probable and identifiable, these impacts 

are considered indirect, incremental 

impacts of the designation. 

The FEA finds that, in the case of the 

Devils River minnow critical habitat 

areas, it appears unlikely that critical 

habitat designation for the Devils River 

minnow will result in long-term stigma 

effects for property owners abutting 

designated stream segments. Unless a 

landowner receives Federal assistance 

or needs a Federal permit to carry out 

property management actions, no nexus 

exists that would compel a Federal 

action agency to consider requiring 

conservation measures for the species. 

For ongoing private land-use activities, 

such a nexus is expected to be rare. 

Further, recent land-use trends in 

critical habitat areas are a transition 

from ranching and agricultural uses to 

recreation and conservation-based land 

uses. In these cases, any perceptions 

that development activities may be 

limited in those areas could in fact 

increase the attractiveness of property in 

those areas. In either case, as the public 

becomes aware of the true regulatory 

burden imposed by critical habitat, any 

impact of the designation on property 

values would be expected to decrease. 

(48) Comment: The economic analysis 

states that it measures net economic 

costs, but it does not quantify benefits. 

Therefore, the Service cannot estimate 

the ‘‘net’’ impacts of critical habitat. 

Consequently, they cannot 

appropriately invoke section 4(b)(2) of 

the Act to exclude areas from its final 

critical habitat designation for the 

Devils River minnow. The commenter 

also states that benefits derived from 

conservation measures such as 

improving water quality, eliminating 

non-native species, and preserving/ 

maintaining ecosystem services also 

benefit human communities and have 

been captured in economic literature 

and should be considered in the DEA. 

The commenter notes that the costs of 

these conservation measures are 

attributed to baseline protections. 

Our Response: Where sufficient 

information is available, the FEA 

attempts to recognize and measure the 

net economic costs of species 

conservation efforts imposed on 

regulated entities and the regional 

economy as a result of critical habitat 

designation. That is, it attempts to 

measure costs imposed on landowners 

or other users of the resource net of any 

offsetting gains experienced by these 

individuals associated with these 

conservation efforts. 

The analysis does not attempt to 

assign a monetary value to broader 

social benefits that may result from 

species conservation. The primary 

purpose of the rulemaking is the 

potential to enhance conservation of the 

species. As stated in the FEA, and as 

quoted in the comment, ‘‘rather than 

rely on economic measures, the Service 

believes that the direct benefits of the 

Proposed Rule are best expressed in 

biological terms that can be weighed 

against the expected cost impacts of the 

rulemaking.’’ Thus, the Service utilizes 

cost estimates from the economic 

analysis as one factor against which 

biological benefits are compared during 

the 4(b)(2) weighing process. The 

Service agrees that, to the extent that 

additional social benefits such as 

improving water quality, eliminating 

non-native species, and preserving/ 

maintaining ecosystem services result 

from conservation measures for the 

Devils River minnow, these 

improvements could also benefit human 

communities. In this case, the DEA 

predicts that the incremental costs 

resulting from the proposed rule are 

solely administrative in nature. As the 

commenter points out, no new 

conservation measures are anticipated 

to result from the designation. 

Summary of Changes From the 

Proposed Rule 

In preparing the final critical habitat 

designation for the Devils River 

minnow, we reviewed and considered 

comments from the public and peer 

reviewers on the July 31, 2007, 

proposed designation of critical habitat 

(72 FR 41679) and on the draft 

economic analysis, made available on 

February 7, 2008 (73 FR 7237). As a 

result of comments received, we made 

the following changes to our proposed 

designation: 

(1) We updated the Required 

Determinations sections to incorporate 

updated analyses from the FEA. 

(2) We have excluded 47.0 stream km 

(29.2 stream mi) of stream within the 

Devils River Unit (Unit 1) proposed as 

critical habitat for Devils River minnow 

from the final designation (see the 

‘‘Exclusions under Section 4(b)(2) of the 

Act’’ section of this final rule for further 

details). 

(3) We determined, based upon the 

comments received and consistent with 

the recovery plan, that Sycamore and 

Las Moras creeks are essential to the 

conservation of the Devils River 

minnow. We are excluding these areas 

from critical habitat (see the 

‘‘Exclusions under Section 4(b)(2) of the 

Act’’ section of this final rule for further 

details). 

Critical Habitat 

Critical habitat is defined in section 3 

of the Act as: 

(1) The specific areas within the 

geographical area occupied by a species, 

at the time it is listed in accordance 

with the Act, on which are found those 

physical or biological features 


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(a) Essential to the conservation of the 

species and 

(b) Which may require special 

management consideration or 

protections; and 

(2) Specific areas outside the 

geographical area occupied by a species 

at the time it is listed, upon a 

determination that such areas are 

essential for the conservation of the 

species. 

Conservation, as defined under 

section 3 of the Act, means the use of 

all methods and procedures that are 

necessary to bring any endangered or 

threatened species to the point at which 

the measures provided under the Act 

are no longer necessary. 

Critical habitat receives protection 

under section 7 of the Act through the 

prohibition against Federal agencies 

carrying out, funding, or authorizing the 

destruction or adverse modification of 

critical habitat. Section 7(a)(2) of the Act 

requires consultation on Federal actions 

that may affect critical habitat. The 

designation of critical habitat does not 

affect land ownership or establish a 

refuge, wilderness, reserve, preserve, or 

other conservation area. Such 

designation does not allow the 

government or public to access private 

lands. Such designation does not 

require implementation of restoration, 

recovery, or enhancement measures by 

private landowners. Where a landowner 

requests Federal agency funding or 

authorization for an action that may 

affect a listed species or critical habitat, 

the consultation requirements of section 

7(a)(2) would apply, but even in the 

event of a destruction or adverse 

modification finding, the landowner’s 

obligation is not to restore or recover the 

species, but to implement reasonable 

and prudent alternatives to avoid 

destruction or adverse modification of 

critical habitat. 

For inclusion in a critical habitat 

designation, the habitat within the 

geographical area occupied by the 

species at the time of listing must 

contain the physical and biological 

features essential to the conservation of 

the species. Critical habitat designations 

identify, to the extent known using the 

best scientific data available, habitat 

areas that provide essential life cycle 

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

are found the primary constituent 

elements (PCEs) laid out in the 

appropriate quantity and spatial 

arrangement for the conservation of the 

species). 

Occupied habitat that contains the 

features essential to the conservation of 

the species meets the definition of 

critical habitat only if those features 

may require special management 

considerations or protection. 

Under the Act, we can designate 

critical habitat in areas outside the 

geographical area occupied by the 

species at the time it is listed only when 

we determine that the best available 

scientific data demonstrate that the 

designation of that area is essential to 

the conservation needs of the species. 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

the best scientific and commercial data 

available. Further, our Policy on 

Information Standards Under the 

Endangered Species Act (published in 

the Federal Register on July 1, 1994 (59 

FR 34271)), the Information Quality Act 

(section 515 of the Treasury and General 

Government Appropriations Act for 

Fiscal Year 2001 (Pub. L. 106–554; H.R. 

5658)), and our associated Information 

Quality Guidelines provide criteria, 

establish procedures, and provide 

guidance to ensure that our decisions 

are based on the best scientific data 

available. They require our biologists, to 

the extent consistent with the Act and 

with the use of the best scientific data 

available, to use primary and original 

sources of information as the basis for 

recommendations to designate critical 

habitat. 

When determining which areas 

should be designated as critical habitat, 

our primary source of information is 

generally the information developed 

during the listing process for the 

species. Additional information sources 

may include the recovery plan for the 

species, articles in peer-reviewed 

journals, conservation plans developed 

by States and counties, scientific status 

surveys and studies, biological 

assessments, or other unpublished 

materials and expert opinion or 

personal knowledge. 

Habitat is often dynamic, and species 

may move from one area to another over 

time. Furthermore, we recognize that 

designation of critical habitat may not 

include all of the habitat areas that we 

may eventually determine, based on 

scientific data not now available to the 

Service, are necessary for the recovery 

of the species. For these reasons, a 

critical habitat designation does not 

signal that habitat outside the 

designated area is unimportant or may 

not promote the recovery of the species. 

Areas that support populations, but 

are outside the critical habitat 

designation, will continue to be subject 

to conservation actions we implement 

under section 7(a)(1) of the Act. They 

are also subject to the regulatory 

protections afforded by the section 

7(a)(2) jeopardy standard, as determined 

on the basis of the best available 

scientific information at the time of the 

agency action. Federally funded or 

permitted projects affecting listed 

species outside their designated critical 

habitat areas may require consultation 

under section 7 of the Act and may still 

result in jeopardy findings in some 

cases. Similarly, critical habitat 

designations made on the basis of the 

best available information at the time of 

designation will not control the 

direction and substance of future 

recovery plans, habitat conservation 

plans (HCPs), or other species 

conservation planning efforts if 

information available at the time of 

these planning efforts calls for a 

different outcome. 

Primary Constituent Elements 

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

of the Act and regulations at 50 CFR 

424.12, in determining which areas 

occupied by the species at the time of 

listing to designate as critical habitat, 

we consider those physical and 

biological features essential to the 

conservation of the species that may 

require special management 

considerations or protection. We 

consider the physical or biological 

features to be the PCEs laid out in the 

appropriate quantity and spatial 

arrangement for the conservation of the 

species. The PCEs include, but are not 

limited to: 

(1) Space for individual and 

population growth and for normal 

behavior; 

(2) Food, water, air, light, minerals, or 

other nutritional or physiological 

requirements; 

(3) Cover or shelter; 

(4) Sites for breeding, reproduction, 

and rearing (or development) of 

offspring; and 

(5) Habitats that are protected from 

disturbance or are representative of the 

historic, geographical, and ecological 

distributions of a species. 

We derive the specific primary 

constituent elements required by the 

Devils River minnow from the biological 

needs of the species as understood from 

studies of its biology and ecology, 

including but not limited to, Edwards et 

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

et al. (2004), Gibson et al. (2004), Harrell 

(1978), Hubbs (2001), Hubbs and Garrett 

(1990), Lopez-Fernandez and 

Winemiller (2005), Valdes Cantu and 

Winemiller (1997), and Winemiller 

(2003). 

Space for Individual and Population 

Growth, Normal Behavior, and Cover 

The Devils River minnow is a fish that 

occurs only in aquatic environments of 

small to mid-sized streams that are 


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tributaries of the Rio Grande in south 

Texas and northern Mexico. The species 

spends its full life cycle within streams. 

The stream environment provides all of 

the space necessary to allow for 

individual and population growth, food, 

cover, and normal behaviors of the 

species. Studies of the specific microhabitats used by any life stages of Devils 

River minnow in the wild have not been 

conducted. Studies of fish habitat 

within its range have found too few 

individuals of Devils River minnow to 

analyze specific habitat associations 

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

and Winemiller 1997, p. 268; Robertson 

and Winemiller 2003, p. 119). However, 

observational studies have been 

conducted throughout its limited range 

that generally defined stream conditions 

where Devils River minnows have been 

collected. 

General habitat descriptions of areas 

where Devils River minnow have been 

found include the following: ‘‘the area 

where spring runs enter the river’’

(Hubbs and Garrett 1990, p. 448); 

‘‘channels of fast-flowing water over 

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

259); ‘‘associated with water willow 

(Justicia americana) and other aquatic 

macrophytes over a gravel-cobble 

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

(macrophytes are plants large enough to 

be seen without a microscope); and 

‘‘stream seeps’’ at sites that ‘‘had 

abundant riparian vegetation 

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

249). Stream seeps are specific sites 

along the stream where small amounts 

of water enter the stream from the 

ground. They are small springs, but may 

be less defined and more temporal. We 

based our determinations of the PCEs on 

the physical and biological features that 

have been measured in streams where 

Devils River minnow occur. 

a. Water Depth and Velocity. Flowing 

water within streams is critical to 

provide living space for the Devils River 

minnow. All of the streams where the 

Devils River minnow is found are 

supported by springs that derive their 

discharge from underground aquifers, 

either the Edwards Aquifer or the 

Edwards-Trinity Aquifer (Brune 1981, 

pp. 274–277, 449–456; Edwards et al. 

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

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

Garrett 1990, p. 448; Lopez-Fernandez 

and Winemiller 2005, p. 249). The 

Devils River minnow has been 

associated within the stream channel 

with areas with slow to moderate 

velocities between 10 and 40 

centimeters (cm)/second (4 and 16 

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

13). The Devils River minnow is usually 

found in areas with shallow to moderate 

water depths between about 10 cm (4 in) 

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

et al. 2004, p. 436). Appropriate water 

depths and velocities are required 

physical features for Devils River 

minnows to complete all life history 

functions. 

b. Cover. The presence of vegetative 

structure appears to be particularly 

important for the Devils River minnow. 

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

the species is most often found 

associated with emergent or submerged 

vegetation. Although some sites where 

Lopez-Fernandez and Winemiller (2005, 

p. 249) found Devils River minnow had 

little or no aquatic vegetation, they often 

found the Devils River minnow 

associated with stream banks having 

riparian vegetation that overhangs into 

the water column, presumably 

providing similar structure for the fish 

to use as cover. The structure provided 

by vegetation likely serves as cover for 

predator avoidance by the Devils River 

minnow and as a source of food where 

algae and other microorganisms may be 

attached. In controlled experiments in 

an artificial stream setting, minnows in 

the Dionda genus (the experiment did 

not distinguish between the Devils River 

minnow and the closely related 

manantial roundnose minnow) were 

found consistently associated with 

plants, and, in the presence of a 

predator, sought shelter in plant 

substrate habitat (Thomas 2001, p. 8). 

Also, laboratory observations by Gibson 

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

spawning only occurred when structure 

was provided in aquaria. Instream 

vegetative structure is an important 

biological feature for the Devils River 

minnow to avoid predation and 

complete other normal behaviors, such 

as feeding and spawning. 

c. Substrates. The Devils River 

minnow is most often associated with 

substrates (stream bottom) described as 

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

436). Lopez-Fernandez and Winemiller 

(2005, p. 248) found the Devils River 

minnow associated with areas where the 

amounts of fine sediment on stream 

bottoms were low (less than 65 percent 

stream bottom coverage) (Winemiller 

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

moderate amounts of substrate 

embeddedness. The term embeddedness 

is defined by Sylte and Fischenich 

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

sediments surround coarse substrates on 

the surface of a streambed. Low levels 

of substrate embeddedness and low 

amounts of fine sediment are physical 

stream features that provide interstitial 

spaces within cobble and gravel 

substrates where microorganisms grow. 

These microorganisms are a component 

of the diet of the Devils River minnow 

(Lopez-Fernandez and Winemiller 2005, 

p. 250). We estimate substrate sizes for 

gravel-cobble between 2 and 10 cm (0.8 

and 4 in) in diameter (Cummins 1962, 

p. 495) are important for supporting 

food sources for the Devils River 

minnow. 

d. Stream Channel. The Devils River 

minnow occurs in the waters of stream 

channels that flow out of the Edwards 

Plateau of Texas. The streams contain a 

variety of mesohabitats for fish that are 

temporally and spatially dynamic 

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

Winemiller 2003, p. 115). Mesohabitat 

types are stream conditions with 

different combinations of depth, 

velocity, and substrate, such as pools 

(stream reaches with low velocity and 

deep water), riffles (stream reaches with 

moderate velocity and shallow depths 

and some turbulence due to high 

gradient), runs (stream reaches with 

moderate depths, moderate velocities, 

and a uniformly flat stream bottom), and 

backwaters (areas in streams with little 

or no velocities along stream margins) 

(Parasiewicz 2001, p. 7). These physical 

conditions in stream channels are 

mainly formed by large flood events that 

shape the banks and alter stream beds. 

Healthy stream ecosystems require 

intact natural stream banks (including 

rocks and native vegetation) and stream 

beds (dynamically fluctuating from silt, 

sand, gravel, cobble, and bedrock). 

These physical features allow natural 

ecological processes in stream 

ecosystems, such as nutrient cycling, 

aquatic species reproduction and 

rearing of young, predator-prey 

interactions, and maintenance of habitat 

for Devils River minnow behaviors of 

feeding, breeding, and seeking shelter. 

Devils River minnow may move up 

and downstream to use diverse 

mesohabitats during different seasons 

and life stages, which could partially 

explain the highly variable sampling 

results assessing abundance of the fish 

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

is unknown to what extent Devils River 

minnow may move within occupied 

stream segments because no research on 

movement has been conducted. Linear 

movement (upstream or downstream) 

within streams may be important to 

allow fishes to complete life history 

functions and adjust to resource 

abundance, but this linear movement 

may often be underestimated due to 

limited biological studies (Fausch et al. 

2002, p. 490). The Devils River minnow 

occurs in relatively short stream 

segments and, therefore, needs to be 

able to move within the stream 

unimpeded to access different areas 


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within the stream to complete life 

history functions and find resources, 

such as food and cover. 

Food 

The Devils River minnow, like other 

minnows in the Dionda genus, has a 

long coiled gut for digesting algae and 

other plant material. Lopez-Fernandez 

and Winemiller (2005, p. 250) noted 

that Devils River minnows graze on 

algae attached to stream substrates (such 

as gravel, rocks, submerged plants, and 

woody debris) and associated 

microorganisms. Thomas (2001, p. 13) 

observed minnows in the Dionda genus 

(the experiment did not distinguish 

between Devils River minnow and the 

closely related manantial roundnose 

minnow) feeding extensively on 

filamentous algae growing on plants and 

rocks in an artificial stream experiment. 

The specific components of the Devils 

River minnow diet have not been 

investigated, but a study is underway to 

identify stomach contents of the Devils 

River minnow in San Felipe Creek 

(TPWD 2006, p. 1). An abundant aquatic 

food base of algae and other aquatic 

microorganisms attached to stream 

substrates is an essential biological 

feature for conservation of Devils River 

minnow. 

Water Quality 

The Devils River minnow occurs in 

spring-fed streams originating from 

groundwater. The aquifers that support 

these streams are of high quality and are 

free of pollution and most humancaused impacts (Plateau Water Planning 

Group (PWPG) 2006, pp. 5–9). This 

region of Texas has limited human 

development that would compromise 

water quality of the streams where 

Devils River minnows occur. San Felipe 

Creek may be an exception; see ‘‘Special 

Management Considerations or 

Protection’’ below. The watersheds are 

largely rural and were altered in the past 

to some extent by livestock grazing 

(cattle, sheep, and goats) for many 

decades (Brune 1981, p. 449), which 

may have caused some degradation in 

water quality. In recent years, land 

management has shifted away from 

sheep and goat grazing toward cattle 

grazing and recreational uses, such as 

hunting, that can promote maintenance 

of healthier grasslands (McCormick 

2008, p. 33). 

No specific studies have been 

conducted to determine water quality 

preferences or tolerances for Devils 

River minnow. However, because the 

species now occurs in only three 

streams, observations of water quality 

conditions in these streams are used to 

evaluate the needed water quality 

parameters for critical habitat. In 

addition, laboratory studies by Gibson et 

al. (2004, pp. 44–46) and Gibson and 

Fries (2005, pp. 299–203) have also 

provided useful information for the 

water quality conditions in captivity for 

Devils River minnow, as described in 

the following discussion. 

a. Water temperature. Water 

temperatures from groundwater 

discharge at these springs are 

considered constant (Hubbs 2001, p. 

324). However, water temperatures 

downstream from springs vary daily and 

seasonally (Hubbs 2001, p. 324). Water 

temperatures have been measured in 

these stream segments where Devils 

River minnow are found to range from 

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

(63 °F (degrees Fahrenheit) to 84 °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 minnow in laboratory settings 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). Pinto 

Creek generally has the lowest seasonal 

discharge rates (in other words, lower 

flows) of the streams known to contain 

the Devils River minnow, resulting in 

higher seasonal temperatures. Lower 

discharges during the summer can result 

in areas of shallow water with high 

levels of solar heat input leading to high 

water temperatures. Maintaining water 

temperatures within an acceptable range 

in small streams is an essential physical 

feature for the Devils River minnow to 

allow for survival and reproduction. 

Maintaining water temperatures within 

these ranges is interdependent on 

maintaining adequate spring flows to 

streams from groundwater aquifers, 

which generally discharge stable cooler 

water (Mathews 2007, p. 2). 

b. Water chemistry. Researchers have 

noted the need for high-quality water in 

habitats supporting the Devils River 

minnow (Garrett 2003, p. 155). Field 

studies at sites where Devils River 

minnow have been collected in 

conjunction with water quality 

measurements have documented that 

habitats contain the following water 

chemistry: dissolved oxygen levels are 

greater than 5.0 mg/l (milligrams per 

liter) (Hubbs 2001, p. 312; Winemiller 

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

pH ranges between 7.0 and 8.2 (Garrett 

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

Winemiller 2003, p. 13); conductivity is 

less than 0.7 mS/cm (microseimens per 

centimeter) and salinity is less than 1 

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

312; Winemiller 2003, p. 13; Garrett et 

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

45); and ammonia levels are less than 

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

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

chemistry within the observed ranges 

are essential physical features to 

provide habitat for normal behaviors of 

Devils River minnow. 

Garrett et al. (2004, pp. 439–440) 

highlighted the conservation 

implications of water quality when 

describing the distribution of Devils 

River minnow in Pinto Creek. The 

species is abundant in upstream 

portions of the creek and is abruptly 

absent at and downstream from the 

Highway 90 Bridge crossing. A different 

aquifer (Austin Chalk) feeds the lower 

portion of the creek (Ashworth and 

Stein 2005, p. 19), which results in 

changes in water quality (different 

measurements of water temperature, pH, 

ammonia, and salinity). Garrett et al. 

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

water quality also coincided with the 

occurrence of different fish species that 

were more tolerant of these changes in 

water quality parameters. 

c. Pollution. The Devils River minnow 

occurs only in habitats that are generally 

free of human-caused pollution. Garrett 

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

the addition of chlorine to Las Moras 

Creek for the maintenance of a 

recreational swimming pool may have 

played a role in the extirpation of Devils 

River minnow from that system. 

Unnatural addition of pollutants such as 

chlorine, copper, arsenic, mercury, and 

cadmium; human and animal waste 

products; pesticides; suspended 

sediments; and petroleum compounds 

and gasoline or diesel fuels will alter 

habitat functions and threaten the 

continued existence of Devils River 

minnow. Fish, particularly herbivores 

and bottom-feeders, such as the Devils 

River minnow, are most likely affected 

by aquatic pollutants because their food 

source (algae and other 

macroinvertebrates) can be particularly 

susceptible to pollutant impacts (Buzan 

1997, p. 4). Because Devils River 

minnow occurs in spring-fed waters that 

are generally free of sedimentation, 

protection from increased turbidity from 

suspended sediments or increased 

sedimentation from runoff are important 

to maintain suitable habitat (Robertson 

2007, pp. 2–3). Areas with waters free 

of pollution are essential physical 

features to allow normal behaviors and 

growth of the Devils River minnow and 


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to maintain healthy populations of its 

food sources. 

Sites for Breeding, Reproduction, and 

Rearing of Offspring 

The specific sites and habitat 

associated with Devils River minnow 

breeding and reproduction have not 

been documented in the wild. However, 

Gibson et al. (2004) studied preferred 

conditions for spawning by Devils River 

minnow in a laboratory setting. Gibson 

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

the species is a broadcast spawner (they 

release eggs and sperm into the open 

water), over unprepared substrates (they 

don’t build nests), and males display 

some territorial behavior. Broadcast 

spawning is the most common 

reproductive method in minnows 

(Johnston 1999, p. 22; Johnston and 

Page 1992, p. 604). Fertilized eggs of 

Devils River minnow were slightly 

adhesive (or became more adhesive with 

time) and tended to stick to gravels just 

below the surface of the substrate 

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

hatch less than one week after 

deposition (Gibson 2007, p. 1). There 

was little seasonality in spawning 

periods observed (Gibson et al. 2004, p. 

45–46), which is consistent with a 

species that lives in a relatively stable 

temperature environment, such as 

spring-fed streams with low seasonal 

temperature variations. Based on this 

information, it is likely the species can 

spawn during most of the year. This is 

supported by Garrett et al. (2004, p. 

437), who observed distinct breeding 

coloration of Devils River minnow (blue 

sheen on the head and yellow tint on 

body) in Pinto Creek in December 2001, 

and Winemiller (2003, p. 16), who 

found juveniles from early spring to late 

fall in San Felipe Creek. 

a. Substrate. Gibson and Fries (2005, 

p. 299) found that Devils River minnow 

preferred gravel for spawning substrate, 

with size ranging mostly from 2 to 3 cm 

(0.8 to 1.2 in) in diameter. Gravel and 

rock substrates are required physical 

features for spawning (depositing, 

incubating, and hatching) of Devils 

River minnow eggs. 

b. Cover. In laboratory experiments, 

Devils River minnow did not spawn in 

tanks until live potted plants 

(Vallisnaria spp. and Justicia spp.) were 

added; however, eggs were never found 

on the plants or other parts of the tank 

(Gibson et al. 2004, pp. 42, 43, 46). The 

plants apparently served as cover for the 

fish and allowed favorable conditions 

for spawning to occur. This condition is 

supported by observations in the wild 

that associates Devils River minnow 

with aquatic habitats where vegetative 

structure is present. This vegetative 

structure is a biological feature that is 

important for reproduction of Devils 

River minnow. 

Habitat Protected From Disturbance or 

Representative of the Historic 

Geographical and Ecological 

Distribution of a Species 

a. Nonnative Species. The 

introduction and spread of nonnative 

species have been identified as major 

factors in the continuing decline of 

native fishes throughout North America 

(Moyle et al. 1986, pp. 415–416) and 

particularly in the southwestern United 

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

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

1) concluded that nonnative species 

were a causal factor in 68 percent of the 

fish extinctions in North America in the 

last 100 years. For 70 percent of those 

fish still extant, but considered to be 

endangered or threatened, introduced 

nonnative species are a primary cause of 

the decline (Lassuy 1995, p. 392). 

Nonnative species have been referenced 

as a cause of decline in native Texas 

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

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

1991, p. 2). 

Aquatic nonnative species are 

introduced and spread into new areas 

through a variety of mechanisms, 

intentional and accidental, authorized 

and unauthorized. Mechanisms for 

nonnative fish dispersal in Texas 

include sport fish stocking (intentional 

and inadvertent, non-target species), 

aquaculture escapes, aquarium releases, 

and bait bucket releases (release of fish 

used as bait by anglers) (Howells 2001, 

p. 1). 

Within the range of the Devils River 

minnow, nonnative aquatic species of 

potential concern include: armored (or 

suckermouth) catfish (Hypostomus sp.) 

in San Felipe Creek (Lopez-Fernandez 

and Winemiller 2005, pp. 246–251); 

smallmouth bass (Thomas 2001, p. 1), 

carp (Cyprinus carpio), goldfish 

(Carassius auratus), and redbreast 

sunfish (Lepomis auritus) (Edwards 

2007, p. 1) in the Devils River; African 

cichlid (Oreochromis aureus) in San 

Felipe Creek (Lopez-Fernandez and 

Winemiller 2005, p. 249) and Devils 

River (Garrett et al. 1992, p. 266); Asian 

snail (Melanoides tuberculata) and 

associated parasites (McDermott 2000, 

pp. 13–14) in San Felipe Creek; and 

Asian bivalve mollusk (Corbicula sp.) 

(Winemiller 2003, p. 25) in San Felipe 

Creek. Effects from nonnative species 

can include predation, competition for 

resources, altering of habitat, changing 

of fish assemblages (combinations of 

species), or transmission of harmful 

diseases or parasites (Aquatic Nuisance 

Species Task Force 1994, pp. 51–59; 

Baxter et al. 2004, p. 2656; Howells 

2001, pp. 17–18; Light and Marchetti 

2007, pp. 442–444; Moyle et al. 1986, 

pp. 416–418). Studies have suggested 

effects on the Devils River minnow from 

the armored catfish in San Felipe Creek, 

most likely due to competition for food 

(Lopez-Fernandez and Winemiller 2005, 

p. 250). Armored catfish may also be 

piscivorous and directly prey on Devils 

River minnow (Wiersema 2007, pp. 5–

6). Nonnative aquatic and riparian 

plants, such as hydrilla, water hyacinth, 

and giant river cane, also represent 

concerns for Devils River minnow from 

altering habitat conditions, food 

sources, and stream hydrology 

(Mathews 2007, p. 2). 

The absence of impacts from harmful 

nonnative species is an essential 

biological feature for the conservation of 

the Devils River minnow. The 

persistence of Devils River minnow in 

its natural habitat depends on either 

having areas devoid of harmful 

nonnative aquatic species or having 

areas where nonnative aquatic species 

are present, but with sufficiently low 

levels of impacts to allow for healthy 

populations of the Devils River minnow. 

b. Hydrology. Natural stream flow 

regimes (both quantity and timing) are 

vital components to maintaining 

ecological integrity in stream 

ecosystems (Poff et al. 1997, p. 769; 

Resh et al. 1988, pp. 443–444). Aquatic 

organisms, like the Devils River 

minnow, have specific adaptations to 

use the environmental conditions 

provided by natural flowing systems 

and the highly variable stream flow 

patterns (Lytle and Poff 2004, p. 94). As 

with other streams in the arid 

southwestern United States, streams 

where the Devils River minnow occurs 

can have large fluctuations in stream 

flow levels. In Texas, streams are 

characterized by high variation between 

large flood flows (occurring irregularly 

from rainfall events) and extended 

period of low flows (Jones 1991, p. 513). 

Base flows in streams containing Devils 

River minnow are generally maintained 

by constant spring flows (Ashworth and 

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

drought, especially in combination with 

groundwater withdrawals, portions of 

stream segments can be periodically 

dewatered. The occurrence of 

intermittent stream segments within the 

range of the Devils River minnow is 

most common in Pinto Creek (Ashworth 

and Stein 2005, Figure 13; Uliana 2005, 

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

Although portions of stream segments 

included in this designation may 

experience short periods of low or no 

flows (causing dry sections of stream), 

they are still important because the 


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Devils River minnow is adapted to 

stream systems with some fluctuating 

water levels. Fish cannot persist in 

dewatered areas (Hubbs 1990, p. 89). 

However, Devils River minnows will 

use dewatered areas that are 

subsequently wetted as connective 

corridors between occupied or 

seasonally occupied habitat. Fausch et 

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

movement of fishes related to 

metapopulation dynamics that, ‘‘Even 

small fishes may move long distances to 

repopulate rewetted habitats.’’

Preventing habitat fragmentation of fish 

populations is important in reducing 

extinction risks in rare species (Fagan 

2002, p. 3255). Areas within stream 

courses that may be periodically 

dewatered but that serve as connective 

corridors between occupied or 

seasonally occupied habitat and through 

which the species may move when the 

habitat is wetted are important physical 

features of Devils River minnow habitat. 

Flooding is also a large part of the 

natural hydrology of streams within the 

range of Devils River minnow. Large 

floods have been shown to alter fish 

community structure and fish habitat 

use in the Devils River (Harrell 1978, p. 

67) and in San Felipe Creek (Garrett and 

Edwards 2003, p. 787; Winemiller 2003, 

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

state that ‘‘Flooding is one of the most 

important abiotic factors that structure 

biotic assemblages in streams.’’ Floods 

provide flushing flows that remove fine 

sediments from gravel and provide 

spawning substrates for species like the 

Devils River minnow (Instream Flow 

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

p. 775). Flooding is the physical 

mechanism that shapes stream channels 

by a process known as scour and fill, 

where some areas are scoured of fine 

sediments while fine sediments are 

redeposited in other areas (Gordon et al. 

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

771–772). This dynamic process is 

fundamental to maintaining habitat 

diversity in streams that ensure healthy 

ecosystem function (Lytle and Poff 

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

774–777). Allowing natural stream 

flows, particularly during flood events, 

is an essential physical process to 

maintain stream habitats for Devils 

River minnow. 

Primary Constituent Elements for the 

Devils River Minnow 

Within the geographical area we know 

to be occupied by the Devils River 

minnow, we must identify the physical 

and biological features within the 

geographical area occupied by the 

Devils River minnow at the time of 

listing that are essential to the 

conservation of the species and which 

may require special management 

considerations or protections. The 

physical and biological features are 

those primary constituent elements 

(PCEs) laid out in a specific spatial 

arrangement and quantity to be essential 

to the conservation of the species. 

Based on the above needs and our 

current knowledge of the life history, 

biology, and ecology of the species, we 

have determined that the Devils River 

minnow’s PCEs are: 

(1) Streams characterized by: 

a. Areas with slow to moderate water 

velocities between 10 and 40 cm/second 

(4 and 16 in/second) in shallow to 

moderate water depths between 

approximately 10 cm (4 in) and 1.5 m 

(4.9 ft), near vegetative structure, such 

as emergent or submerged vegetation or 

stream bank riparian vegetation that 

overhangs into the water column; 

b. Gravel and cobble substrates 

ranging in diameter between 2 and 10 

cm (0.8 and 4 in) with low or moderate 

amounts of fine sediment (less than 65 

percent stream bottom coverage) and 

low or moderate amounts of substrate 

embeddedness; and 

c. Pool, riffle, run, and backwater 

components free of artificial instream 

structures that would prevent 

movement of fish upstream or 

downstream. 

(2) High-quality water provided by 

permanent, natural flows from 

groundwater springs and seeps 

characterized by: 

a. Temperature ranging between 17 °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; and petroleum compounds 

and gasoline or diesel fuels. 

(3) Abundant aquatic food base 

consisting of algae; attached to stream 

substrates; and other microorganisms 

associated with stream substrates. 

(4) Aquatic stream habitat either 

devoid of nonnative aquatic species 

(including fish, plants, and 

invertebrates) or in which such 

nonnative aquatic species are at levels 

that allow for healthy populations of 

Devils River minnows. 

(5) Areas within stream courses that 

may be periodically dewatered for short 

time periods, during seasonal droughts, 

but otherwise serve as connective 

corridors between occupied or 

seasonally occupied areas through 

which the species moves when the area 

is wetted. 

This final designation is designed for 

the conservation of PCEs necessary to 

support the life history functions that 

were the basis for the designation and 

the areas containing those PCEs in the 

appropriate quantity and spatial 

arrangement. Because not all life history 

functions require all the PCEs, not all 

critical habitat will contain all the PCEs. 

Special Management Considerations or 

Protections 

When designating critical habitat, we 

assess whether the areas occupied by 

the species at the time of listing contain 

the physical and biological features that 

are essential to the conservation of the 

species and that may require special 

management considerations or 

protections. We provide a summary 

discussion below of the special 

management needs for the Devils River, 

San Felipe Creek, and Pinto Creek 

stream segments. For additional 

information regarding the threats to the 

Devils River minnow and the needed 

management strategies to address those 

threats, see the Devils River Minnow 

Recovery Plan (Service 2005, pp. 1.7–1–

1.7–7; 1.8–1–1.8–4; 2.5–1–2.5–5). 

The following special management 

needs apply to all three stream 

segments, Devils River, San Felipe 

Creek, and Pinto Creek, and will be 

further discussed for each stream 

segment in the ‘‘Critical Habitat 

Designation’’ section below. 

a. Groundwater Management. The 

waters that produce all three stream 

segments issue from springs that are 

supported by underground aquifers, 

generally some portion of the EdwardsTrinity Aquifer or the Edwards Aquifer 

(Ashworth and Stein 2005, pp. 16–33; 

Barker and Ardis 1996, pp. B5-B6; 

Brune 1981, pp. 274–277, 449–456; 

Green et al. 2006, pp. 28–29; LBGGuyton Associates 2001, pp. 5–6; PWPG 

2006, pp. 3–5, 3–6, 3–30; USGS 2007, 

p.2). Regional groundwater flow in this 

area is generally from north to south 

(Ashworth and Stein 2005, Figure 8). 

These aquifers are currently pumped to 

provide water for human uses including 

agricultural, municipal, and industrial 

(Ashworth and Stein 2005, p. 1; Green 

et al. 2006, pp. 28–29; LBG-Guyton 

Associates 2001, pp. 22–27; PWPG 

2006, pp. 3–14, 3–15). Some parts of 

these aquifers have already experienced 

large water level declines due to a 

combination of pumping withdrawals 

and regional drought (Barker and Ardis 

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


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preliminary project plans to 

significantly increase the amount of 

groundwater pumped in this area to 

export it to other metropolitan centers 

(HDR Engineering Inc. 2001, p. 1–1; 

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

54). If the aquifers are pumped beyond 

their ability to sustain levels that 

support spring flows, these streams will 

no longer provide habitat for the Devils 

River minnow (Ashworth and Stein 

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

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

reductions can have indirect effects on 

fishes by impacting thermal regimes 

because higher water volumes buffers 

against temperature oscillations (Hubbs 

1990, p. 89). 

Groundwater pumping that could 

affect stream flows within the Devils 

River minnow’s range is subject to local 

management control. State or Federal 

agencies do not control groundwater. 

Local groundwater conservation 

districts and groundwater management 

areas are the method for groundwater 

management in Texas and essentially 

replace the rule of capture where they 

exist (Caroom and Maxwell 2004, pp. 

41–42; Holladay 2006, p. 3). Most 

districts are created by action of the 

Texas Legislature (Lesikar et al. 2002, p. 

13). The regulations adopted by local 

groundwater conservation districts vary 

across the State and often reflect local 

decisions based on regional preferences, 

geologic limitations, and the needs of 

citizens (Holladay 2006, p. 3). The 

KCGCD is a local authority with some 

regulatory control over the pumping and 

use of groundwater resources in Kinney 

County (Brock and Sanger 2003, p. 42–

44). The KCGCD intends to manage the 

groundwater in Kinney County on a 

sustainable basis and yet beneficially 

use the groundwater without exploiting 

or adversely affecting the natural flow of 

the intermittent streams, such as Pinto 

Creek. Additional scientific information 

is needed on the geology and hydrology 

in Kinney County to increase the 

knowledge on the relationships of 

groundwater and stream flows. 

The 16 groundwater management 

areas in Texas include all of the state’s 

major and minor aquifers. Each GMA is 

required to determine a future desired 

groundwater condition for their 

aquifers. Based on the desired future 

condition specified, the Texas Water 

Development Board determines a 

managed available groundwater level for 

the groundwater management area. 

Lands outside of a groundwater 

conservation district, such as Val Verde 

County, are not subject to groundwater 

pumping regulations unless a 

landowner seeks State funding for a 

groundwater project. In this case, the 

project must be included in the 

groundwater management area’s 

regional water plan. The total 

groundwater allotments permitted by 

the groundwater management area must 

not exceed its managed available 

groundwater level. Val Verde is 

Groundwater Management Area 7 and 

Kinney County is within Groundwater 

Management Areas 7 and 10. 

Currently, there is no groundwater 

district in Val Verde County. Absent a 

local groundwater district, groundwater 

resources in Texas are generally under 

the ‘‘Rule of Capture,’’ (Holladay 2006, 

p. 2; Potter 2004, p. 9) or subject to the 

groundwater management area plans. 

The rule of capture essentially provides 

that groundwater is a privately owned 

resource and, absent malice or willful 

waste, landowners have the right to take 

all the water they can capture under 

their land (Holladay 2006, p. 2; Potter 

2004, p. 1). The regional water plan 

adopted by the Plateau Regional Water 

Planning Group for this area recognizes 

that groundwater needs to be managed 

for the benefit of spring flows (PWPG 

2006, p. 3–30) and that groundwater use 

should be limited so that ‘‘base flows of 

rivers and streams are not significantly 

affected beyond a level that would be 

anticipated due to naturally occurring 

conditions’’ (Ashworth and Stein 2005, 

p. 34; PWPG 2006, p. 3–8). The Plateau 

Regional Water Plan is a non-regulatory 

water planning document for a 6-county 

area (including both Val Verde and 

Kinney counties) that maps out how to 

conserve water supplies, meet future 

water supply needs, and respond to 

future droughts. 

Special management efforts are 

needed across the range of the Devils 

River minnow to ensure that aquifers 

are used in a manner that will sustain 

spring flows and provide water as an 

essential physical feature for the 

species. We would like to work 

cooperatively with landowners, 

conservation districts, and others to 

assist in accomplishing these 

management needs. 

b. Nonnative Species. Controlling 

existing nonnative species and 

preventing the release of new nonnative 

species are special management actions 

needed across the range of the Devils 

River minnow. The best tool for 

preventing new releases is education of 

the public on the problems associated 

with nonnative species (Aquatic 

Nuisance Species Task Force 1994, pp. 

16–17). Current nonnative species 

issues have been cited for possible 

impacts to the Devils River (smallmouth 

bass) and San Felipe Creek (armored 

catfish) (Lopez-Fernandez and 

Winemiller 2005, p. 247; Thomas 2001, 

p. 1; Robertson and Winemiller 2001, p. 

220). The armored catfish may already 

be impacting Devils River minnows in 

San Felipe Creek through competition 

for common food resources of attached 

algae and associated microorganisms 

(Lopez-Fernandez and Winemiller 2005, 

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

suggest that nonnative catfishes in the 

family Loricariidae, such as armored 

catfish, will impact stream systems and 

native fishes by competing for food with 

other herbivores, changing plant 

communities, causing bank erosion due 

to burrowing in stream banks for 

spawning, incidentally ingesting fish 

eggs, and directly preying on native 

fishes (Wiersma 2007, p. 5). 

Problematic, nonnative species have not 

been documented in Pinto Creek. 

c. Pollution. Special management 

actions are needed to prevent point and 

nonpoint sources of pollution entering 

the stream systems where the Devils 

River minnow occurs. Devils River and 

Pinto Creek are generally free of threats 

from obvious sources of pollution. San 

Felipe Creek is in an urban environment 

where threats from human-caused 

pollution are substantial. Potential for 

spill or discharge of toxic materials is an 

inherent threat in urban environments. 

In addition, there are little to few 

current controls in the City of Del Rio 

to minimize the pollutants that will run 

off into the creek during rainfall events 

from streets, parking lots, roof tops, and 

maintained lawns from private yards 

and the golf course (Winemiller 2003, p. 

27). All of these surfaces will contribute 

pollutants (for example, fertilizers, 

pesticides, herbicides, petroleum 

products) to the creek and potentially 

impact biological functions of the Devils 

River minnow. In addition, trash is 

often dumped into or near the creek and 

can be a source of pollutants (City of Del 

Rio 2006, p. 11). Special management by 

the City of Del Rio is needed (City of Del 

Rio 2006, p. 13) to institute best 

management practices for controlling 

pollution sources that enter the creek 

and maintain the water quality at a level 

necessary to support Devils River 

minnow. 

Special management actions may be 

needed to ensure appropriate best 

management practices are used in the 

exploration and development of 

petroleum resources in the watersheds 

of the Devils River minnow, particularly 

the Devils River (Smith 2007, p. 1). This 

will ensure that site development and 

drilling practices do not impact 

groundwater or surface water quality in 

habitats of the Devils River minnow. 

d. Stream Channel Alterations. The 

stream channels in the three streams 

where Devils River minnow occurs 


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should be maintained in natural 

conditions, free of instream obstructions 

to fish movement and with intact stream 

banks of native vegetation. Devils River 

and Pinto Creek are generally free of 

stream channel alterations; however, 

San Felipe Creek has been altered by 

diversion dams, bridges, and armoring 

of stream banks (replacing native 

vegetation and soils with rock or 

concrete). Special management is 

needed in all three occupied streams to 

protect the integrity of the stream 

channels for the maintenance of the 

PCEs. 

Criteria Used To Identify Critical 

Habitat 

We are designating critical habitat for 

the Devils River minnow in areas that 

were occupied by the species at the time 

of listing and that contain PCEs in the 

quantity and spatial arrangement to 

support life history functions essential 

for the conservation of the species. We 

are also designating critical habitat in 

areas not considered to be occupied at 

the time of listing, but were 

subsequently discovered to be occupied 

and are essential for the conservation of 

the Devils River minnow. 

Critical habitat is designated based on 

sufficient PCEs being present to support 

the life processes of the species. Some 

areas contain all PCEs and support 

multiple life processes. Some areas 

contain only a portion of the PCEs 

necessary to support the particular use 

of that habitat. 

a. Range. We evaluated the 

geographical range of the Devils River 

minnow, as described in the Recovery 

Plan (Service 2005, p. 1.4.1–1.4.5). 

There are five stream segments in the 

United States (all in Texas) that have 

ever been known to have been occupied 

by the Devils River minnow: (1) The 

Devils River (Val Verde County) from 

Beaver Lake downstream to near the 

confluence with the Rio Grande; (2) San 

Felipe Creek (Val Verde County) from 

the headsprings on the Lowe Ranch to 

downstream of the City of Del Rio; (3) 

Sycamore Creek (Val Verde/Kinney 

county boundary), only documented 

from the Highway 277 Bridge crossing; 

(4) Pinto Creek (Kinney County) from 

Pinto Springs downstream to 0.5 stream 

km (0.3 stream mi) upstream of the 

Highway 90 Bridge crossing; and (5) Las 

Moras Creek (Kinney County), only 

documented from the Las Moras Spring 

in the City of Brackettville. 

Each of these five stream segments 

has (or formerly had) isolated 

populations of Devils River minnow 

separated by long distances, unsuitable 

habitat, or large dams that prevent fish 

movements. Although each of these 

streams is a tributary of the Rio Grande, 

we do not expect any contemporary 

exchange of individuals between these 

stream segments. The Devils River 

minnow is generally associated with 

upstream reaches of these streams, and 

connectivity would require movement 

through downstream reaches, through 

the Rio Grande, and back upstream 

through uninhabited reaches. The 

Devils River minnow has not been 

documented in the Rio Grande, or any 

other of its tributaries in the United 

States in modern times (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). The mainstem 

Rio Grande is considered unsuitable 

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

because the aquatic habitat is very 

different (larger volume, higher 

suspended sediments, different suite of 

native fishes) than the streams where 

the Devils River minnow is found. The 

presence of Amistad Reservoir and Dam 

has further isolated the Devils River 

stream segment from the other stream 

segments. While some exchange of 

individuals could have occurred across 

a geologic time scale, any natural 

exchange of individual Devils River 

minnows between currently occupied 

streams in modern times is unlikely 

because of habitat changes in the Rio 

Grande, nonnative species, and 

potential instream barriers. 

Lack of access to private property can 

limit opportunities to sample for the 

presence of Devils River minnow (such 

as occurred on Pinto Creek, see Garrett 

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

ability to accurately determine the full 

range of the species. However, we do 

not expect any additional streams 

outside of the known historical range of 

the species to be occupied. There could 

be additional stream segments within 

the known range that may be found to 

be occupied during future surveys, but 

the best available information at this 

time supports only these five stream 

segments known to be or to have been 

occupied by Devils River minnow in the 

United States. 

b. Occupancy. We have assessed the 

occupancy of streams based on the best 

survey information available. For the 

purpose of this critical habitat 

designation, we consider a stream 

segment to be occupied if Devils River 

minnow has been found to be present by 

species experts within the last 10 years, 

or where the stream segment is directly 

connected to a segment with 

documented occupancy within the last 

10 years (see the ‘‘Critical Habitat 

Designation’’ section for additional 

occupancy information). The life 

expectancy of Devils River minnow is 

assumed to be about 3 years, although 

individuals have lived 5 years in 

captivity (Gibson 2007, p. 1). This 

represents new information compared to 

the estimate of 2 years life expectancy 

from the recovery plan (Service 2005 p. 

2.2–3). Ten years is estimated to 

represent a time period that provides for 

at least three generations. We believe 

that a time period that provides for at 

least three generations allows adequate 

time to detect occupancy because the 

time period would encompass potential 

fluctuations in species abundance 

associated with seasonal or annual 

changes. Based on our biological 

expertise, it is reasonable to assume that 

combining life expectancy with 

environmental factors that may occur in 

a 10-year period will provide us with an 

indication of habitat occupancy. We 

expect a variety of environmental 

factors such as floods, droughts, and 

average precipitation and hydrologic 

conditions would be experienced over a 

10-year period. Most stream segments 

have not been surveyed with a high 

degree of frequency, and this species 

can be difficult to detect, as even 

multiple samples within a short time in 

the same location by the same 

researcher can yield different results 

(Garrett et al. 2002, p. 478). If Devils 

River minnow are not documented in a 

10-year period, which would encompass 

at least 3 generations and variable 

environmental conditions that could 

influence fish abundance and detect 

ability, we will consider that stream not 

occupied. 

c. Areas Occupied at the Time of 

Listing. At the time the Devils River 

minnow was listed as a threatened 

species, it was only confirmed to occur 

at two sites on the Devils River (small 

tributaries) and in San Felipe Creek in 

the City of Del Rio, Texas (64 FR 56597). 

This species is reasonably expected to 

move throughout connected stream 

reaches, based on past and recent 

collection records from these streams 

(Garrett et al. 2002, p. 478). Therefore, 

we determine there are two stream 

segments that were occupied at the time 

of listing: (1) Devils River from Pecan 

Springs to downstream of Dolan Falls 

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

and (2) San Felipe Creek from the Head 

Spring to downstream through the City 

of Del Rio (Garrett 2006b, p. 1; Garrett 

2007, p.1). The full extent of both 

stream segments is considered 

occupied, as surveys in the last 10 years 

have confirmed the species’ presence in 

the streams and the unit consists of 


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contiguous habitat that allows fish 

movement throughout the stream. 

Because no collections had been made 

in Pinto Creek prior to the time of 

listing, we have chosen to treat this 

stream as unoccupied for the purposes 

of this designation (see the description 

of Pinto Creek under ‘‘Areas Not 

Occupied at Time of Listing’’ section). 

d. Primary Constituent Elements. We 

are proposing to designate the stream 

segments that we have determined to be 

occupied at the time of listing and 

contain sufficient PCEs to support life 

history functions essential for the 

conservation of the species. Both of the 

stream segments occupied at the time of 

listing (Devils River and San Felipe 

Creek) contain sufficient PCEs to 

support life history functions essential 

for the conservation of the Devils River 

minnow. 

e. Areas Not Occupied at Time of 

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

allows for critical habitat to be 

designated in areas outside the 

geographical area occupied by the 

species at the time it is listed if those 

areas are essential for the conservation 

of the species. Three stream segments 

historically occupied by Devils River 

minnow but not considered occupied at 

the time of listing are Pinto Creek, 

Sycamore Creek, and Las Moras Creek. 

Pinto Creek. At the time of listing in 

1999, previous fish surveys in Pinto 

Creek were limited to the locations of 

public access at highway bridge 

crossings and did not find the species 

present (Garrett et al. 1992, p. 260). In 

2001, fish surveys were conducted in 

upstream areas of Pinto Creek that had 

not been sampled before; the surveys 

discovered a previously unknown 

population of Devils River minnow 

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

species has been confirmed to occur 

from just upstream of the Highway 90 

Bridge crossing further upstream to the 

origin of Pinto Creek at Pinto Springs 

(Garrett et al. 2004, pp. 438–439). Since 

this stream segment is isolated from 

other occupied areas, this stream 

segment was likely occupied at the time 

of listing, but appropriate surveys had 

not been conducted to verify it. We find 

that the Pinto Creek stream segment is 

essential to the conservation of the 

Devils River minnow because 

preliminary analysis has shown 

significant genetic variation between 

Devils River minnow populations in 

Pinto Creek and the Devils River 

(Conway et al. 2007, pp. 9–10). This 

makes Pinto Creek a unique population 

of Devils River minnow and an essential 

unit to maintain overall genetic 

diversity of the species to improve the 

likelihood of persistence in the future. 

In addition, maintaining a population in 

Pinto Creek is included in the recovery 

criteria (Service 2005, p. 2.1–2) and 

Pinto Creek provides the best source of 

Devils River minnows (due to proximity 

and habitat similarity) to implement 

possible future recovery actions if 

reestablishing the species into nearby 

Las Moras Creek proves feasible (Garrett 

et al. 2004, p. 440). As a result of this 

finding, it is not necessary to determine 

whether Pinto Creek was occupied at 

the time of listing for purposes of this 

particular rule. 

Sycamore Creek and Las Moras Creek. 

For the purposes of the designation of 

critical habitat, Sycamore Creek and Las 

Moras Creek are not currently 

considered occupied by the Devils River 

minnow (that is, they have not been 

collected in either stream in the last 10 

years). The last known occurrence of the 

species in these stream segments was 

1989 for Sycamore Creek (Garrett et al. 

1992, p. 265) and 1955 for Las Moras 

Creek (Garrett et al. 1992, p. 266; Hubbs 

and Brown 1956, pp. 70–71). Although 

recent publications continue to list 

Sycamore Creek as a stream where 

Devils River minnow may still occur 

(Garrett et al. 2004, p. 435; LopezFernandez and Winemiller 2005, p. 

247), we have a high degree of 

uncertainty as to the status of the fish 

in Sycamore Creek. Surveys in 1999 and 

2002 from the area of last known 

occurrence (in 1989) did not yield 

Devils River minnow (Service 2005, 

Appendix A). In addition, Garrett et al. 

(1992, pp. 265–266) surveyed portions 

of Mud Creek (a tributary to Sycamore 

Creek) in 1989, but found no Devils 

River minnow. Additional surveys are 

needed to determine the current status 

of the fish in the Sycamore Creek 

watershed. Devils River minnow has not 

been collected from Las Moras Creek 

since the 1950s and is believed to be 

extirpated from the Las Moras Creek 

drainage. This conclusion is based on 

the absence of the species in sampling 

efforts from the late 1970s to 2002 

(Hubbs et al. 1991, p. 18; Garrett et al. 

1992, p. 266; Garrett et al. 2002, p. 479). 

In our proposed critical habitat 

designation for Devils River minnow we 

specifically requested information from 

the public and peer reviewers regarding 

whether or not Sycamore and Las Moras 

creeks should be considered essential 

for the conservation of the Devils River 

minnow (72 FR 41687). Additionally, 

these streams were also included in our 

draft economic analysis. We received 

several comments, including from 

multiple peer reviewers, encouraging us 

to include these streams in the critical 

habitat because of their importance in 

the recovery of the Devils River 

minnow. Three peer reviewers 

expressed specific support for including 

Las Moras and Sycamore creeks in the 

critical habitat designation for the 

following reasons: (1) To maintain 

suitable habitat within its range because 

if left undesignated, the PCEs currently 

present will fall out of range and 

potential use for the recovery of the 

species will be lost; (2) to protect 

genetic diversity within the range of the 

species; (3) including them may be 

important for future recovery efforts, 

based on metapopulation theory that 

unoccupied patches are not less 

important than the occupied ones; (4) 

not including them as ecologically 

significant stream segments would be 

possibly detrimental to the species over 

time; and (5) if the creeks are 

determined not to provide essential 

habitat elements, they could be removed 

from the designation later or the habitat 

could be improved by future 

management. Three peer reviewers did 

not call for the inclusion of Las Moras 

and Sycamore creeks in the designation. 

However, two of those peer reviewers 

stressed that recovery of the Devils 

River minnow would need to include 

restoring the species to these streams to 

maintain genetic diversity and 

population redundancy and encouraged 

us to continue to work on these efforts. 

Based on these comments and the 

guidance in the Devils River Minnow 

Recovery Plan we have determined 

these streams are essential for the 

conservation of the species. The 

delisting recovery criteria (1) in the 

Recovery Plan states that we have stable 

or increasing population trends for at 

least 10 years throughout the range of 

the Devils River (middle portion), San 

Felipe Creek, Sycamore Creek, and 

Pinto Creek and the species should be 

reestablished in Las Moras Creek, if 

scientifically feasible (Service 2005, p. 

iv). We explain in the following 

discussion our finding that these two 

streams are essential. However, we are 

excluding these areas from critical 

habitat because we find the benefits of 

excluding them outweigh the benefits of 

including them (see the ‘‘Exclusions 

under Section 4(b)(2) of the Act’’ section 

of this final rule for further details). 

Because the recovery objectives, 

criteria, and strategy include having 

populations of Devils River minnow in 

Sycamore Creek and Las Moras Creek (if 

reestablishment is technologically 

feasible) (Service 2005, pp. 2.1–1—2.2–

3), we find that these two streams are 

essential for the conservation of the 

Devils River minnow. Restoring Devils 

River minnow to Sycamore Creek and 

Las Moras Creek is important to 

achieving recovery goals for the species 


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and optimizes the chances of long-term 

species conservation because these 

creeks are isolated, vulnerable to 

threats, and therefore not likely to be 

naturally recolonized (Service 2005, p. 

2.2–2). As discussed in the recovery 

plan, the feasibility of restoring 

populations in these areas is uncertain 

and the recovery plan provides no 

information as to which specific reaches 

of the creeks could support the restored 

populations. The recovery plan advises 

additional assessment to develop an 

effective restoration strategy. 

Landowner willingness and cooperation 

will be necessary in both streams before 

restoration could occur and will require 

using tools specifically designed for 

restoration efforts, such as Safe Harbor 

Agreements and reintroduction as an 

experimental population under section 

10(j) of the Act. 

f. Lateral Extent. The areas designated 

as critical habitat are designed to 

provide sufficient areas for breeding and 

non-breeding adults and rearing of 

juvenile Devils River minnow. In 

general, the essential physical and 

biological features of critical habitat for 

Devils River minnow include the spring 

heads and the wetted channel during 

average flow conditions of the stream 

segments. The Devils River minnow 

evolved in streams maintained by 

consistent flows from groundwater 

springs that varied little seasonally. 

Episodic floods, sometimes very large 

floods, are important hydrological 

processes for maintaining the natural 

stream channels and fish communities 

(Harrell 1978, p. 67; Valdes Cantu and 

Winemiller 1997, pp. 276–277). 

However, the streams do not have a 

regular seasonal pattern of flooding. 

Unlike some other stream fishes, the 

Devils River minnow is not known to be 

dependent on high flow events or use 

flooded habitats in overbank areas for 

reproduction or rearing of young. 

Therefore, the floodplain is not known 

to contain the features essential for the 

conservation of the Devils River 

minnow and is not included in this 

critical habitat designation. 

The critical habitat designation 

includes a lateral extent that is limited 

to the normal wetted channel at 

bankfull discharge of the streams 

included in this designation. For the 

purposes of this designation, the wetted 

channel is considered the width of the 

stream channel at bankfull stage. 

Bankfull stage is the water height when 

stream flows just fill the stream to its 

banks before water spills out onto the 

adjacent floodplain (Gordon et al. 1992, 

pp. 305–307). The stream discharge that 

reaches bankfull stage occurs 1 or 2 days 

each year and has a recurrence interval 

that averages 1.5 years (Leopold 1994, 

pp. 129–141). The width of the lateral 

extent of critical habitat will vary 

depending on the stream geometry; 

however, it generally includes the 

immediate streamside vegetation that 

can extend into the water column and 

provide vegetative structure, one of the 

PCEs. 

The critical habitat areas include the 

stream channels up to bankfull width 

within the identified stream reaches. 

The stream beds of navigable waters 

(stream beds of at least 30 ft wide) in 

Texas are generally owned by the State, 

in trust for the public, while the lands 

alongside the streams can be privately 

owned (Kennedy 2007, p. 3; Riddell 

1997, p. 7). We believe that the bulk of 

the stream beds (including the small 

portion of the stream beds’ lateral extent 

that is not under water when streams 

are not at bankfull stage) for all stream 

segments included in the critical habitat 

are considered public property, owned 

by the State, for the purpose of this rule. 

Summary. We are designating critical 

habitat in areas that we have determined 

were occupied at the time of listing, and 

that contain sufficient PCEs to support 

life history functions essential for the 

conservation of the species. Stream 

segments are designated based on 

sufficient PCEs being present to support 

the life processes of the species. Some 

stream segments contain all PCEs and 

support multiple life processes. Some 

stream segments contain only a portion 

of the PCEs necessary to support the 

particular use of that habitat. For stream 

segments that were not occupied at the 

time of listing, we evaluated whether 

those areas were essential to the 

conservation of the Devils River 

minnow. 

We find that two stream segments 

were occupied at the time of listing and 

contain sufficient PCEs to support life 

history functions essential for the 

conservation of the species: (1) Devils 

River from Pecan Springs to 

downstream of Dolan Falls, including 

short stretches of two tributaries, 

Phillips Creek and Dolan Creek; and (2) 

San Felipe Creek from the headsprings 

downstream through the City of Del Rio, 

including the outflow channels of East 

and West Sandia springs. We find that 

a third stream segment, Pinto Creek 

from Pinto Springs downstream to the 

Highway 90 Bridge crossing, was 

subsequently discovered to be occupied 

after listing and, for purposes of this 

rule, is essential for the conservation of 

the Devils River minnow for the reasons 

discussed above. We also find that 

Sycamore Creek and Las Moras Creek 

are essential for the conservation of the 

Devils River minnow. 

Within this final rule, the critical 

habitat boundary is limited to bankfull 

width of the stream segments included 

in the designation, at the height in 

which stream flows just fill the stream 

to its banks before water spills out onto 

the adjacent floodplain. The scale of the 

critical habitat maps prepared under the 

parameters for publication within the 

Code of Federal Regulations may not 

reflect the exclusion of developed areas 

such as bridge pylons, concrete paving, 

and other similar structures that lack 

PCEs for the Devils River minnow. 

Areas under bridge pylons and concrete 

paving do not contain PCEs, and we are 

excluding them from the boundaries of 

critical habitat, although the structures 

are too small to digitally delete from 

maps at the scale that we used to 

delineate the critical habitat boundaries. 

Any such structures and the land under 

them inside critical habitat boundaries 

shown on the maps of this final rule are 

not designated as critical habitat. Some 

such structures likely exist only within 

the San Felipe Creek Unit. Therefore, 

Federal actions limited to these areas 

would not trigger section 7 consultation, 

unless they affect the species or PCEs in 

adjacent critical habitat. 

Final Critical Habitat Designation 

Five areas meet the definition of 

critical habitat for the Devils River 

minnow. The five areas are: (1) Devils 

River Unit; (2) San Felipe Creek Unit; 

(3) Pinto Creek Unit; (4) Sycamore 

Creek; and (5) Las Moras Creek. The 

Devils River, San Felipe Creek, and 

Pinto Creek units are currently occupied 

by the Devils River minnow and all five 

areas constitute our best assessment of 

areas that meet the definition of critical 

habitat for the species. 

All distances reported in this 

designation are estimated stream lengths 

calculated using geographic information 

system computer software (ArcGIS) 

approximating the stream channel 

(reported in stream km and stream mi). 

Stream channel lines were based on the 

National Hydrography Dataset and 7.5’

topographic quadrangle maps obtained 

from the U.S. Geological Survey. We 

made some minor adjustments using the 

2004 National Agriculture Imagery 

Program digital orthophotos obtained 

from the Texas Natural Resources 

Information System. The approximate 

length of each designated stream 

segment for each critical habitat unit is 

shown in Table 1. Critical habitat for 

Devils River minnow includes a total of 

73.5 stream km (45.7 stream mi) that 

meet the definition of critical habitat for 

this species. 


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TABLE 1—CRITICAL HABITAT UNITS FOR THE DEVILS RIVER MINNOW

Critical habitat unit * 

Stream km (stream 

mi) meeting the 

definition of 

critical habitat 

Stream km (stream 

mi) excluded from 

critical habitat 

Critical habitat 

stream km 

(stream mi) 

1. Devils River Unit (includes Philips and Dolan Creeks) ................................... 47.0 (29.2) 47.0 (29.2) 0 (0) 

2. San Felipe Creek Unit (includes outflow of East and West springs) .............. 9.0 (5.6) 0 (0) 9.0 (5.6) 

3. Pinto Creek Unit .............................................................................................. 17.5 (10.9) 0 (0) 17.5 (10.9) 

4. Sycamore Creek Unit ...................................................................................... 4.0 (2.5) 4.0 (2.5) 0 (0) 

5. Las Moras Creek Unit ..................................................................................... 18.8 (11.7) 18.8 (11.7) 0 (0) 

Total .............................................................................................................. 96.3 (59.9) 69.8 (43.4) 26.5 (16.5) 

* The stream beds of the units meeting the definition of critical habitat are considered public and owned by the State of Texas.

Below, we provide brief descriptions 

of the Devils River, San Felipe Creek, 

and Pinto Creek, Sycamore Creek, and 

Las Moras Creeks units and reasons why 

each meets the definition of critical 

habitat for the Devils River minnow. 

Unit 1: Devils River Unit 

Unit 1 consists of approximately 43.6 

stream km (27.1 stream mi) of the Devils 

River; 1.1 stream km (0.7 stream mi) of 

Phillips Creek; and 2.3 stream km (1.4 

stream mi) of Dolan Creek. Phillips 

Creek and Dolan Creek are small 

tributaries to the Devils River that 

contain the PCEs and are occupied by 

the Devils River minnow. The upstream 

boundary on the Devils River is at, and 

includes, Pecan Springs. The 

downstream boundary on the Devils 

River is 3.6 stream km (2.2 stream mi) 

below Dolan Falls. Phillips Creek is 

included in this unit from the 

confluence with the Devils River to a 

point 1.1 stream km (0.7 stream mi) 

upstream. Dolan Creek is included from 

the confluence with the Devils River 2.3 

stream km (1.4 stream mi) upstream to 

Dolan Springs. Including all three 

streams, the total distance in the Devils 

River Unit is approximately 47.0 stream 

km (29.2 stream mi). 

The Devils River minnow was 

originally described from this unit in 

the 1950s (Hubbs and Brown 1956, p. 

70), and it has been continually 

occupied ever since (Harrell 1978, pp. 

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

Service 2005, Appendix A). The Devils 

River minnow occupied this unit at the 

time of listing; at that time, the fish had 

been collected from only a few 

locations. Subsequent surveys by TPWD 

have established current occupancy of 

this entire unit (Service 2005, Appendix 

A). The upstream boundary of critical 

habitat represents the beginning of the 

permanent flow of the river (De La Cruz 

2004, p. 1). The downstream boundary, 

3.6 stream km (2.2 stream mi) 

downstream of Dolan Falls, represents 

the downstream extent of collections of 

the Devils River minnow by TPWD 

(Garrett 2007, p. 1). 

The Devils River Unit contains one or 

more of the PCEs essential for 

conservation of the Devils River 

minnow. Special management in the 

Devils River Unit may be needed to 

control groundwater pumping to ensure 

spring flows are maintained and to 

prevent the introduction of nonnative 

species. See additional discussion above 

in the ‘‘Special Management 

Considerations or Protections’’ section. 

Areas meeting the definition of 

critical habitat for Devils River minnow 

do not include lands adjacent to the 

stream channels. However, land 

ownership adjacent to the streams in the 

Devils River Unit is primarily private. 

Private ownership of the area includes 

The Nature Conservancy’s 1,943-ha 

(4,800-ac) Dolan Falls Preserve, which 

also includes river frontage on the 

Devils River and Dolan Creek. The 

Nature Conservancy has owned this area 

since 1991 (The Nature Conservancy 

2004, p. 9). The Nature Conservancy 

also holds conservation easements on 

about 66,800 ha (about 165,000 ac) of 

private land along the Devils River or in 

the Devils River watershed (McWilliams 

2006, p. 1). The only public land 

adjacent to the streams of this unit is the 

State-owned Devils River State Natural 

Area (DRSNA) managed by the TPWD. 

The portion of this unit within the 

DRSNA includes about 1.6 stream km 

(1.0 stream mi) along the east bank of 

the Devils River and about 1.9 stream 

km (1.17 stream mi) along both banks of 

a portion of Dolan Creek. 

As described below, we are excluding 

the Devils River Unit from the critical 

habitat designation for Devils River 

minnow (see the ‘‘Exclusions Under 

Section 4(b)(2)’’ section). 

Unit 2: San Felipe Creek Unit 

Unit 2 consists of approximately 7.9 

stream km (4.9 stream mi) on San Felipe 

Creek, 0.8 stream km (0.5 stream mi) of 

the outflow of San Felipe Springs West, 

and 0.3 stream km (0.2 stream mi) of the 

outflow of San Felipe Springs East. The 

upstream boundary on San Felipe Creek 

is the Head Springs located about 1.1 

stream km (0.7 stream mi) upstream of 

the Jap Lowe Bridge crossing. The 

downstream boundary on San Felipe 

Creek is in the City of Del Rio 0.8 stream 

km (0.5 stream mi) downstream of the 

Academy Street Bridge crossing. The 

unit includes the outflow channels of 

San Felipe Springs West and San Felipe 

Springs East. These channels are 

included in the critical habitat unit from 

their spring origin downstream to the 

confluence with San Felipe Creek. 

Including all three streams, the total 

distance included in the critical habitat 

in the San Felipe Creek Unit is 

approximately 9.0 stream km (5.6 

stream mi). For specific coordinates of 

the boundaries for the critical habitat 

designation, please reference to the unit 

descriptions in the Regulation 

Promulgation section below. 

San Felipe Creek was occupied by the 

Devils River minnow at the time of 

listing and is still occupied (Hubbs and 

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

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

Lopez-Fernandez and Winemiller 2005, 

p. 249). Although limited survey data 

are available, we consider the entire 

unit occupied because the habitat is 

contiguous, allowing fish to move in the 

upstream portions of the unit (Garrett 

2006b, p. 1). The boundaries of critical 

habitat include all areas where TPWD 

has collected Devils River minnow 

within the San Felipe Creek Unit 

(Garrett 2007, p. 1). 

The San Felipe Creek Unit contains 

one or more of the PCEs essential for 

conservation of the Devils River 

minnow. There are several unnatural 

barriers to fish movement that may 

currently segment the reaches within 

the City of Del Rio. Portions of the 

stream banks in the City of Del Rio have 

been significantly altered by arming 

with concrete and the invasion of an 

exotic cane (Arundo donax). However, 

much of the riparian area remains a 

functional part of the stream ecosystem, 


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contributing to the physical (for 

example, stream bank stabilization and 

water runoff filtration) and biological 

(for example, invertebrate communities 

using riparian vegetations and input of 

nutrient material from riparian 

vegetation) features of Devils River 

minnow habitat. Water quality in San 

Felipe Creek has been a concern due to 

the urban environment through which 

much of the creek flows. Potential for 

spill or discharge of toxic materials is an 

inherent threat in urban environments 

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

to the San Felipe Creek Unit that require 

special management include the 

potential for large-scale groundwater 

withdrawal and exportation that would 

impact spring flows, surface water 

diversion, pollution from urban runoff, 

nonnative vegetation on stream banks, 

other nonnative species (such as the 

armored catfish), and potential new 

nonnative species’ introductions into 

the stream. 

Land ownership adjacent to the 

streams areas being designated as 

critical habitat within the San Felipe 

Creek Unit includes private ranch lands 

from the Head Springs downstream to 

the City of Del Rio. Within the city 

limits, the City owns various tracts of 

land along the stream. Some of these 

areas are developed as public use parks 

and others have been recently obtained 

through a buyout program from the 

Federal Emergency Management Agency 

following damages from the 1998 flood 

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

the City-owned property along the creek 

appears to be on the east bank of the 

creek, while the west bank is primarily 

private-owned residences. The San 

Felipe Springs East and West and their 

immediate outflow channels are on a 

golf course, privately owned by the San 

Felipe Country Club. In all, we estimate 

that the City of Del Rio owns about 1.1 

stream km (0.7 stream mi) along both 

banks of the creek and spring outflow 

channels, mainly located downstream of 

the Highway 90 Bridge. Through the 

remainder of the City of Del Rio, we 

estimated the City of Del Rio owns 

about 2.2 stream km (1.4 stream mi) 

along the east bank of San Felipe Creek 

in parcels fragmented by private 

holdings. 

Unit 3: Pinto Creek Unit 

Unit 3 consists of approximately 17.5 

stream km (10.9 stream mi) on Pinto 

Creek. The upstream boundary is Pinto 

Springs. The downstream boundary is 

100 m (330 ft) upstream of the Highway 

90 Bridge crossing of Pinto Creek. For 

specific coordinates of the boundaries 

for the critical habitat designation, 

please reference the unit descriptions in 

the Regulation Promulgation section 

below. 

Pinto Creek was not considered 

occupied by Devils River minnow at the 

time of listing; however, Devils River 

minnows were documented in 2001 in 

upstream reaches of the creek where 

fish surveys had not been previously 

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

The Pinto Creek Unit is essential for the 

conservation of the Devils River 

minnow because fish from this stream 

show significant genetic variation from 

other populations (Service 2006, p. 15). 

Because of its proximity to Las Moras 

Creek and the genetic variation from the 

more western population, fish from 

Pinto Creek would be the likely source 

population for possible future 

reintroduction into formerly occupied 

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

The boundaries of critical habitat 

represent all the areas within Pinto 

Creek where Devils River minnow has 

been collected (Garrett et al. 2004, p. 

437–438). Further, the Pinto Creek Unit 

contains one or more of the PCEs 

essential for conservation of the Devils 

River minnow. The main threat to the 

Pinto Creek Unit that requires special 

management is the potential for largescale groundwater withdrawal that, in 

combination with nature hydrological 

variation, could significantly impact 

spring flows. While nonnative species 

are not currently known to be a problem 

in Pinto Creek, preventing nonnative 

species from being introduced into the 

stream is an additional threat needing 

special management. Land ownership 

adjacent to the Pinto Creek Unit is all 

private ranches. 

Unit 4: Sycamore Creek 

The documented habitat for Devils 

River minnow in Sycamore Creek is at 

the U.S. Highway 277 bridge (Garrett et 

al. 1992, p. 265). Based on this 

information, we have estimated a 

critical habitat area of 4 stream km 

(about 2.5 stream mi) encompassing this 

site. Garrett et al. (1992, p. 265–266) 

recognized that the majority of surface 

flow in the drainage comes from Mud 

Creek, an eastern tributary that 

confluences with Sycamore Creek 

approximately 3 stream km (about 2 

stream mi) upstream of the U.S. 

Highway 277 bridge crossing. The origin 

of the surface flows in Mud Creek is 

Mud Springs, located about 24 air km 

(about 15 air mi) north of U.S. Highway 

277 crossing of Sycamore Creek and 

north of the U.S. Highway 90 (Brune 

1981, p. 276). Despite collection efforts 

from Mud Creek, Devils River minnow 

has not been documented to occur there 

(Garrett et al. 1992, p. 266). 

Sycamore Creek was not considered 

occupied by Devils River minnow at the 

time of listing. Sycamore Creek is 

essential for the conservation of the 

Devils River minnow because it is 

identified as a necessary population to 

achieve recovery (Service 2005, p. 2.1–

2). The main threat to Sycamore Creek 

that requires special management is the 

potential for large-scale groundwater 

withdrawal that, in combination with 

natural hydrological variation, could 

significantly impact spring flows. While 

nonnative species are not currently 

known to be a problem in Sycamore 

Creek, preventing nonnative species 

from being introduced into the stream is 

an additional threat needing special 

management. Land ownership adjacent 

to Sycamore Creek is all private. 

Unit 5: Las Moras Creek 

The only confirmed habitat for Devils 

River minnow in Las Moras Creek is at 

the headwater spring on the grounds of 

Fort Clark in Brackettville based on 

collections in the 1950s (Garrett et al. 

1992, p. 266; Brune 1981, p. 275). Based 

on this information and the longitudinal 

distribution of the fish in Pinto Creek 

and San Felipe Creek, we estimate that 

the critical habitat extends 

approximately 18.8 stream km (about 

11.7 stream mi) downstream from Las 

Moras Spring to the Standard Pacific 

Railroad bridge crossing. 

Las Moras Creek was not considered 

occupied by Devils River minnow at the 

time of listing. Las Moras Creek is 

essential for the conservation of the 

Devils River minnow because it is 

identified as a necessary population to 

achieve recovery (Service 2005, p. 2.1–

2). The main threat to Las Moras Creek 

that requires special management is the 

potential for large-scale groundwater 

withdrawal that, in combination with 

natural hydrological variation, could 

significantly impact spring flows. 

Special management is also needed 

within the local watershed to maintain 

water quality and stream flows. While 

nonnative species are not currently 

known to be a problem in Las Moras 

Creek, preventing nonnative species 

from being introduced into the stream is 

an additional threat needing special 

management. Land ownership adjacent 

to Las Moras Creek includes the Fort 

Clark Springs Association in the upper 

portion of the reach and the remainder 

is all private. 

Effects of Critical Habitat Designation 

Section 7 Consultation 

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

Federal agencies, including the Service, 

to ensure that actions they fund, 


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authorize, or carry out are not likely to 

jeopardize the continued existence of a 

listed species or destroy or adversely 

modify designated critical habitat. 

Decisions by the Fifth and Ninth Circuit 

Court of Appeals have invalidated our 

definition of ‘‘destruction or adverse 

modification’’ (50 CFR 402.02) (see 

Gifford Pinchot Task Force v. U.S. Fish 

and Wildlife Service, 378 F. 3d 1059 

(9th Cir 2004) and Sierra Club v. U.S. 

Fish and Wildlife Service et al., 245 F.3d 

434, 442F (5th Cir 2001)), and we do not 

rely on this regulatory definition when 

analyzing whether an action is likely to 

destroy or adversely modify critical 

habitat. Under the statutory provisions 

of the Act, we determine destruction or 

adverse modification on the basis of 

whether, with implementation of the 

proposed Federal action, the affected 

critical habitat would remain functional 

(or retain the current ability for the PCEs 

to be functionally established) to serve 

its intended conservation role for the 

species. 

If a species is listed or critical habitat 

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

requires Federal agencies to ensure that 

activities they authorize, fund, or carry 

out are not likely to jeopardize the 

continued existence of the species or to 

destroy or adversely modify its critical 

habitat. If a Federal action may affect a 

listed species or its critical habitat, the 

responsible Federal agency (action 

agency) must enter into consultation 

with us. As a result of this consultation, 

we document compliance with the 

requirements of section 7(a)(2) through 

our issuance of: 

(1) A concurrence letter for Federal 

actions that may affect, but are not 

likely to adversely affect, listed species 

or critical habitat; or 

(2) A biological opinion for Federal 

actions that are likely to adversely affect 

listed species or critical habitat. 

When we issue a biological opinion 

concluding that a project is likely to 

jeopardize the continued existence of a 

listed species or destroy or adversely 

modify critical habitat, we also provide 

reasonable and prudent alternatives to 

the project, if any are identifiable. We 

define ‘‘Reasonable and prudent 

alternatives’’ at 50 CFR 402.02 as 

alternative actions identified during 

consultation that: 

• Can be implemented in a manner 

consistent with the intended purpose of 

the action, 

• Can be implemented consistent 

with the scope of the Federal agency’s 

legal authority and jurisdiction, 

• Are economically and 

technologically feasible, and 

• Would, in the Director’s opinion, 

avoid jeopardizing the continued 

existence of the listed species or 

destroying or adversely modifying 

critical habitat. 

Reasonable and prudent alternatives 

can vary from slight project 

modifications to extensive redesign or 

relocation of the project. Costs 

associated with implementing a 

reasonable and prudent alternative are 

similarly variable. 

Regulations at 50 CFR 402.16 require 

Federal agencies to reinitiate 

consultation on previously reviewed 

actions in instances where we have 

listed a new species or subsequently 

designated critical habitat that may be 

affected and the Federal agency has 

retained discretionary involvement or 

control over the action (or such 

discretionary involvement or control is 

authorized by law). Consequently, 

Federal agencies may sometimes need to 

request reinitiation of consultation with 

us on actions for which formal 

consultation has been completed, if 

those actions may affect subsequently 

listed species or designated critical 

habitat. 

Federal activities that may affect the 

Devils River minnow or its designated 

critical habitat will require section 7 

consultation under the Act. Activities 

on State, Tribal, local, or private lands 

requiring a Federal permit (such as a 

permit from the U.S. Army Corps of 

Engineers under section 404 of the 

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

or a permit from us under section 10 of 

the Act) or involving some other Federal 

action (such as funding from the Federal 

Highway Administration, Federal 

Aviation Administration, or the Federal 

Emergency Management Agency) are 

examples of agency actions that may be 

subject to the section 7 consultation 

process. Federal actions not affecting 

listed species or critical habitat, and 

actions on State, Tribal, local or private 

lands that are not federally funded, 

authorized, or carried out, do not 

require section 7 consultations. 

There are no Federal lands in the 

areas we are designating as critical 

habitat for the Devils River minnow. 

Laughlin Air Force Base is located east 

of the City of Del Rio and obtains its 

municipal water from the City of Del 

Rio (which ultimately is withdrawn 

from the two San Felipe Springs). The 

Amistad National Recreation Area, 

located around Amistad Reservoir, is 

owned by the National Park Service and 

includes the downstream portions of the 

Devils River, but is not included in the 

critical habitat designation. 

Since the Devils River minnow was 

listed in 1999, one formal section 7 

consultation has occurred specifically 

concerning the species. That 

consultation was completed in 2006 

with the Federal Highway 

Administration, through the Texas 

Department of Transportation, to 

replace the Beddell Avenue Bridge over 

San Felipe Creek in the City of Del Rio. 

One substantial informal consultation 

was completed in 2001 with the 

Environmental Protection Agency for 

funding through the TWDB to the City 

of Del Rio to upgrade the City’s water 

treatment and distribution facilities. 

One programmatic consultation was 

completed with NRCS in 2004 

concerning USDA programs for brush 

management in the western portions of 

Texas. This consultation concluded that 

the proposed actions were likely to 

result in benefits to the Devils River 

minnow by improving instream flows in 

the streams where the species occurs. 

The nature of the proposed brush 

clearing was not considered to have 

adverse affects (such as sedimentation) 

to Devils River minnow. Seven other 

informal consultations have occurred in 

the range of the species since its listing 

in 1999 which only peripherally 

involved Devils River minnow. Since 

the listing we provided technical 

assistance on five other projects that 

considered Devils River minnow but 

had no effects on the species. Based on 

this consultation history, we anticipate 

similarly low numbers of future Federal 

actions within the area designated as 

critical habitat for Devils River minnow. 

Application of the ‘‘Adverse 

Modification’’ Standard 

The key factor related to the adverse 

modification determination is whether, 

with implementation of the proposed 

Federal action, the affected critical 

habitat would continue to serve its 

intended conservation role for the 

species, or would retain its current 

ability for the PCEs to be functionally 

established. Activities that may destroy 

or adversely modify critical habitat are 

those that alter the physical and 

biological features to an extent that 

appreciably reduces the conservation 

value of critical habitat for Devils River 

minnow. 

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

to briefly evaluate and describe, in any 

proposed or final regulation that 

designates critical habitat, activities 

involving a Federal action that may 

destroy or adversely modify such 

habitat, or that may be affected by such 

designation. 

Activities that, when carried out, 

funded, or authorized by a Federal 

agency, may affect critical habitat and 

therefore would result in consultation 

for the Devils River minnow include, 

but are not limited to: 


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(1) Actions that would alter the 

natural flow regime, particularly the 

reduction of spring flows. These 

activities could include, but are not 

limited to, excessive groundwater 

pumping (significantly greater than 

current levels), water diversions from 

streams, and stream impoundments. 

These activities could reduce the 

amount of available habitat and space 

for normal behaviors of Devils River 

minnow, alter water quality as an 

indirect effect of reduced flows, alter the 

mesohabitat (pools, riffles, and runs) 

conditions necessary for Devils River 

minnow life history functions, and alter 

fish community dynamics to 

unnaturally favor species other than the 

Devils River minnow. 

(2) Actions that would reduce native 

aquatic vegetation or native vegetation 

along stream banks. These activities 

could include, but are not limited to, 

channelization of the stream, armoring 

stream banks (replacing native 

vegetation and soils with rock or 

concrete), dredging the stream bottom, 

introducing nonnative plants that would 

replace native vegetation, or introducing 

herbivorous nonnative species. Loss of 

aquatic vegetation would eliminate an 

important structural component of 

Devils River minnow habitat (important 

for predator avoidance and spawning 

cues) and could reduce the amount of 

available habitat for reproduction, 

growth, and feeding. 

(3) Actions that would significantly 

alter water quality or introduce 

pollutants into streams. Such activities 

could include, but are not limited to, 

release of chemicals, biological 

pollutants, or heated effluents (liquid 

waste products) into the surface water 

or connected groundwater at a point 

source or by dispersed release (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 

sources and could result in direct or 

cumulative adverse effects to these 

individuals and their life cycles. 

(4) Actions that would significantly 

increase sediment deposition within the 

stream channel. Such activities could 

include, but are not limited to, excessive 

sedimentation from livestock grazing, 

road construction, channel alteration, 

brush clearing, off-road vehicle use, and 

other watershed and floodplain 

disturbances. Under some 

circumstances, these activities could 

eliminate or reduce the habitat 

necessary for the reproduction of Devils 

River minnow and could reduce the 

availability of food sources by affecting 

light penetration into the water column, 

filling in of stream beds with silt, or 

increasing the embeddedness of stream 

bottoms that reduces algae availability. 

The effects of any particular activity on 

Devils River minnow habitat must be 

evaluated on project-specific basis. The 

impacts of any specific activity will 

depend on the location, extent, and 

manner in which the activity is carried 

out. 

(5) Actions that would significantly 

alter channel shape or geometry. Such 

activities could include, but are not 

limited to, channelization, 

impoundment, armoring stream banks, 

road and bridge construction, mining, 

dredging, and destruction of riparian 

vegetation. These activities may alter 

the natural pattern of available 

mesohabitats (pools, riffles, and runs). 

These actions can reduce the amount of 

habitat available for Devils River 

minnow to complete its normal life 

cycle and can give other species, 

especially nonnative species, 

competitive advantages. These actions 

can also lead to increased sedimentation 

and degradation in water quality to 

levels that are beyond the tolerances of 

the fish or their food sources. 

Exclusions 

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

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

the Secretary must designate and revise 

critical habitat on the basis of the best 

available scientific data after taking into 

consideration the economic impact, 

national security impact, and any other 

relevant impact of specifying any 

particular area as critical habitat. The 

Secretary may exclude an area from 

critical habitat if he determines that the 

benefits of such exclusion outweigh the 

benefits of specifying such area as part 

of the critical habitat, unless he 

determines, based on the best scientific 

data available, that the failure to 

designate such area as critical habitat 

will result in the extinction of the 

species. In making that determination, 

the statute on its face, as well as the 

legislative history, are clear that the 

Secretary has broad discretion regarding 

which factor(s) to use and how much 

weight to give any factor. In the 

following sections, we address a number 

of general issues that are relevant to the 

exclusions we considered. 

Benefits of Designating Critical Habitat 

The process of designating critical 

habitat as described in the Act requires 

that the Service identify those lands on 

which are found the physical or 

biological features essential to the 

conservation of the species that may 

require special management 

considerations or protection, and those 

areas outside the geographical area 

occupied by the species at the time of 

listing that are essential to the 

conservation of the species. In 

identifying those lands, the Service 

must consider the recovery needs of the 

species, such that, on the basis of the 

best scientific and commercial data 

available at the time of designation, the 

habitat that is identified, if managed, 

could provide for the survival and 

recovery of the species. 

The identification of those areas that 

are essential for the conservation of the 

species and can, if managed, provide for 

the recovery of a species is beneficial. 

The process of proposing and finalizing 

a critical habitat rule provides the 

Service with the opportunity to 

determine the physical and biological 

features essential for conservation of the 

species within the geographical area 

occupied by the species at the time of 

listing, as well as to determine other 

areas essential to the conservation of the 

species. The designation process 

includes peer review and public 

comment on the identified physical and 

biological features and areas. This 

process is valuable to land owners and 

managers in developing conservation 

management plans for identified areas, 

as well as any other occupied habitat or 

suitable habitat that may not have been 

included in the Service’s determination 

of essential habitat. 

The consultation provisions under 

section 7(a)(2) of the Act constitute the 

regulatory benefits of critical habitat. As 

discussed above, Federal agencies must 

consult with us on actions that may 

affect critical habitat and must avoid 

destroying or adversely modifying 

critical habitat. Federal agencies must 

also consult with us on actions that may 

affect a listed species and refrain from 

undertaking actions that are likely to 

jeopardize the continued existence of 

such species. The analysis of effects to 

critical habitat is a separate and 

different analysis from that of the effects 

to the species. Therefore, the difference 

in outcomes of these two analyses 

represents the regulatory benefit of 

critical habitat. For some species, and in 

some locations, the outcome of these 

analyses will be similar, because effects 

to habitat will often also result in effects 

to the species. However, the regulatory 


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standard is different, as the jeopardy 

analysis looks at the action’s impact to 

survival and recovery of the species and 

the adverse modification analysis looks 

at the effects to the designated habitat’s 

contribution to conservation of the 

species. This will, in many instances, 

lead to different results, and different 

regulatory requirements. 

For 30 years prior to the Ninth 

Circuit’s decision in Gifford Pinchot, 

consistent with the 1986 regulations, we 

essentially combined the jeopardy 

standard with the standard for 

destruction or adverse modification of 

critical habitat when evaluating Federal 

actions that affected currently occupied 

critical habitat. However, the court of 

appeals ruled that the two standards are 

distinct and that adverse modification 

evaluations require consideration of 

impacts on species recovery. Thus, 

critical habitat designations may 

provide greater regulatory benefits to the 

recovery of a species than would listing 

alone. 

There are two limitations to the 

regulatory effect of critical habitat. First, 

a section 7(a)(2) consultation is required 

only where there is a Federal nexus (an 

action authorized, funded, or carried out 

by any Federal agency)—if there is no 

Federal nexus, the critical habitat 

designation of private lands itself does 

not restrict any actions that destroy or 

adversely modify critical habitat. 

Second, the designation only limits 

destruction or adverse modification. By 

its nature, the prohibition on adverse 

modification is designed to ensure that 

the conservation role and function of 

those areas that contain the physical 

and biological features essential to the 

conservation of the species or of 

unoccupied areas that are essential for 

the conservation of the species are not 

appreciably reduced. Critical habitat 

designation alone, however, does not 

require private property owners to 

undertake specific steps toward 

recovery of the species. 

Once an agency determines that 

consultation under section 7(a)(2) of the 

Act is necessary, the process may 

conclude informally when the Service 

concurs in writing that the proposed 

Federal action is not likely to adversely 

affect critical habitat. However, if the 

Service determines through informal 

consultation that adverse impacts are 

likely to occur, then formal consultation 

is initiated. Formal consultation 

concludes with a biological opinion 

issued by the Service on whether the 

proposed Federal action is likely to 

result in destruction or adverse 

modification of critical habitat. 

For critical habitat, a biological 

opinion that concludes in a 

determination of no destruction or 

adverse modification may contain 

discretionary conservation 

recommendations to minimize adverse 

effects to the physical and biological 

features essential to the conservation of 

the species, but it would not suggest the 

implementation of any reasonable and 

prudent alternative. We suggest 

reasonable and prudent alternatives to 

the proposed Federal action only when 

our biological opinion results in an 

adverse modification conclusion. 

As stated above, the designation of 

critical habitat does not require that any 

management or recovery actions take 

place on the lands included in the 

designation. Even in cases where 

consultation has been initiated under 

section 7(a)(2) of the Act, the end result 

of consultation is to avoid jeopardy to 

the species and/or adverse modification 

of its critical habitat, but not necessarily 

to manage critical habitat or institute 

recovery actions on critical habitat. 

Conversely, voluntary conservation 

efforts implemented through 

management plans institute proactive 

actions over the lands they encompass 

and are put in place to remove or reduce 

known threats to a species or its habitat; 

therefore, implementing recovery 

actions. We believe that in many 

instances the regulatory benefit of 

critical habitat is low when compared to 

the conservation benefit that can be 

achieved through conservation efforts or 

management plans. The conservation 

achieved through implementing Habitat 

Conservation Plans (HCPs), Safe Harbor 

Agreements, or experimental 

populations established under section 

10 of the Act or other habitat 

management plans is typically greater 

than would be achieved through 

multiple site-by-site, project-by-project 

section 7 consultations involving 

consideration of critical habitat. 

Management plans commit resources to 

implement long-term management and 

protection to particular habitat for at 

least one and possibly other listed or 

sensitive species. Section 7 

consultations only commit Federal 

agencies to prevent adverse 

modification to critical habitat caused 

by the particular project; they do not 

commit Federal agencies to provide 

conservation or long-term benefits to 

areas not affected by the proposed 

project. Thus, implementation of any 

HCP or management plan that 

incorporates enhancement or recovery 

as the management standard may often 

provide as much or more benefit than a 

consultation for critical habitat 

designation. 

Another benefit of including lands in 

critical habitat is that designation of 

critical habitat serves to educate 

landowners, State and local 

governments, and the public regarding 

the potential conservation value of an 

area. This helps focus and promote 

conservation efforts by other parties by 

clearly delineating areas of high 

conservation value for Devils River 

minnow. In general, critical habitat 

designation always has educational 

benefits; however, in some cases, it may 

be redundant with other educational 

effects. For example, HCPs have 

significant public input and may largely 

duplicate the educational benefits of a 

critical habitat designation. Including 

lands in critical habitat also would 

inform State agencies and local 

governments about areas that could be 

conserved under State laws or local 

ordinances. 

Recovery Benefits 

The process of designating critical 

habitat as described in the Act requires 

that the Service identify those lands on 

which are found the physical or 

biological features essential to the 

conservation of the species which may 

require special management 

consideration or protections and 

specific unoccupied areas that are 

determined to be essential for the 

conservation of the species. In 

identifying those lands, the Service 

must consider the recovery needs of the 

species, such that the habitat that is 

identified, if managed, could provide for 

the survival and recovery of the species. 

Furthermore, once critical habitat has 

been designated, Federal agencies must 

consult with the Service under section 

7(a)(2) of the Act to ensure that their 

actions will not adversely modify 

designated critical habitat or jeopardize 

the continued existence of the species. 

As noted in the Ninth Circuit’s Gifford 

Pinchot decision, the Court ruled that 

the jeopardy and adverse modification 

standards are distinct, and that adverse 

modification evaluations require 

consideration of impacts to the recovery 

of species. Thus, through the section 

7(a)(2) consultation process, critical 

habitat designations provide recovery 

benefits to species by ensuring that 

Federal actions will not destroy or 

adversely modify designated critical 

habitat. 

It is beneficial to identify those lands 

that are necessary for the conservation 

of the species and that, if managed 

appropriately, would further recovery 

measures for the species. The process of 

proposing and finalizing a critical 

habitat rule provides the Service with 

the opportunity to determine lands 

essential for conservation as well as 

identify the physical and biological 


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features essential for conservation on 

those lands. The designation process 

includes peer review and public 

comment on the identified features and 

lands. This process is valuable to 

landowners and managers in developing 

habitat management plans for identified 

lands, as well as any other occupied 

habitat or suitable habitat that may not 

have been included in the Service’s 

determination of essential habitat. 

However, the designation of critical 

habitat does not require that any 

management or recovery actions take 

place on the lands included in the 

designation. Even in cases where 

consultation has been initiated under 

section 7(a)(2) of the Act, the end result 

of consultation is to avoid jeopardy to 

the species and adverse modification of 

its critical habitat, but not specifically to 

manage remaining lands or institute 

recovery actions on remaining lands. 

Conversely, management plans institute 

proactive actions over the lands they 

encompass intentionally to remove or 

reduce known threats to a species or its 

habitat and, therefore, implement 

recovery actions. We believe that the 

conservation of a species and its habitat 

that could be achieved through the 

designation of critical habitat, in some 

cases, is less than the conservation that 

could be achieved through the 

implementation of a management plan 

that includes species-specific provisions 

and considers enhancement or recovery 

of listed species as the management 

standard over the same lands. 

Consequently, implementation of an 

HCP or management plan that considers 

enhancement or recovery as the 

management standard will often provide 

as much or more benefit than a 

consultation for critical habitat 

designation conducted under the 

standards required by the Ninth Circuit 

in the Gifford Pinchot decision. 

Conservation Partnerships on NonFederal Lands 

Most federally listed species in the 

United States will not recover without 

the cooperation of non-Federal 

landowners. More than 60 percent of the 

United States is privately owned 

(National Wilderness Institute 1995, p. 

2), and at least 80 percent of endangered 

or threatened species occur either 

partially or solely on private lands 

(Crouse et al. 2002, p. 720). Stein et al. 

(1995, p. 400) found that only about 12 

percent of listed species were found 

almost exclusively on Federal lands (90 

to 100 percent of their known 

occurrences restricted to Federal lands) 

and that 50 percent of federally listed 

species are not known to occur on 

Federal lands at all. 

Given the distribution of listed 

species with respect to land ownership, 

conservation of listed species in many 

parts of the United States is dependent 

upon working partnerships with a wide 

variety of entities and the voluntary 

cooperation of many non-Federal 

landowners (Wilcove and Chen 1998, p. 

1407; Crouse et al. 2002, p. 720; James 

2002, p. 271). Building partnerships and 

promoting voluntary cooperation of 

landowners is essential to our 

understanding the status of species on 

non-Federal lands, and necessary to 

implement recovery actions such as 

reintroducing listed species, habitat 

restoration, population monitoring, and 

habitat protection. 

Many non-Federal landowners derive 

satisfaction from contributing to 

endangered species recovery. We 

promote these private-sector efforts 

through the Department of the Interior’s 

Cooperative Conservation philosophy. 

Conservation agreements with nonFederal landowners (HCPs, safe harbor 

agreements, 10(j) experimental 

populations, other conservation 

agreements, easements, and State and 

local regulations) enhance species 

conservation by extending species 

protections beyond those available 

through section 7 consultations. In the 

past decade, we have encouraged nonFederal landowners to enter into 

conservation agreements, based on the 

view that we can achieve greater species 

conservation on non-Federal land 

through such partnerships than we can 

through regulatory methods (61 FR 

63854; December 2, 1996). 

Many private landowners, however, 

are wary of the possible consequences of 

encouraging endangered species to their 

property. Mounting evidence suggests 

that some regulatory actions by the 

Federal Government, while wellintentioned and required by law, can 

(under certain circumstances) have 

unintended negative consequences for 

the conservation of species on private 

lands (Wilcove et al. 1996, pp. 5–6; 

Bean 2002, pp. 2–3; Conner and 

Mathews 2002, pp. 1–2; James 2002, pp. 

270–271; Koch 2002, pp. 2–3; Brook et 

al. 2003, pp. 1639–1643). Many 

landowners fear a decline in their 

property value due to real or perceived 

restrictions on land-use options where 

threatened or endangered species are 

found. Consequently, harboring 

endangered species is viewed by many 

landowners as a liability. This 

perception results in anti-conservation 

incentives because maintaining habitats 

that harbor endangered species 

represents a risk to future economic 

opportunities (Main et al. 1999, pp. 

1264–1265; Brook et al. 2003, pp. 1644–

1648). 

According to some researchers, the 

designation of critical habitat on private 

lands significantly reduces the 

likelihood that landowners will support 

and carry out conservation actions 

(Main et al. 1999, p. 1263; Bean 2002, 

p. 2; Brook et al. 2003, pp. 1644–1648). 

The magnitude of this outcome is 

greatly amplified in situations where 

active management measures (such as 

reintroduction, fire management, and 

control of invasive species) are 

necessary for species conservation (Bean 

2002, pp. 3–4). The Service believes that 

the judicious exclusion of specific areas 

of non-federally owned lands from 

critical habitat designations can 

contribute to species recovery and 

provide a superior level of conservation 

than critical habitat alone. 

The purpose of designating critical 

habitat is to contribute to the 

conservation of threatened and 

endangered species and the ecosystems 

upon which they depend. The outcome 

of the designation, triggering regulatory 

requirements for actions funded, 

authorized, or carried out by Federal 

agencies under section 7(a)(2) of the 

Act, can sometimes be 

counterproductive to its intended 

purpose on non-Federal lands. Thus, the 

benefits of excluding areas that may be 

covered by effective partnerships or 

other conservation commitments can 

often be high. 

Benefits of Excluding Lands With HCPs 

or Other Management Plans From 

Critical Habitat 

The benefits of excluding lands with 

approved long-term management plans 

from critical habitat designation include 

relieving landowners, communities, and 

counties of any additional regulatory 

burden that might be imposed by a 

critical habitat designation. Many 

conservation plans provide conservation 

benefits to unlisted sensitive species. 

Imposing an additional regulatory 

review as a result of the designation of 

critical habitat may undermine these 

conservation efforts and partnerships in 

many areas. Designation of critical 

habitat within the boundaries of 

management plans that provide 

conservation measures for a species is a 

disincentive to entities currently 

developing these plans or contemplating 

them in the future, because one of the 

incentives for undertaking conservation 

is greater ease of permitting where listed 

species will be affected. Addition of a 

new regulatory requirement would 

remove a significant incentive for 

undertaking the time and expense of 

management planning. 


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A related benefit of excluding lands 

within management plans from critical 

habitat designation is the unhindered, 

continued ability it gives us to seek new 

partnerships with future plan 

participants, including States, Counties, 

local jurisdictions, conservation 

organizations, and private landowners, 

which together can implement 

conservation actions that we would be 

unable to accomplish otherwise. 

Designating lands within approved 

management plan areas as critical 

habitat would likely have a negative 

effect on our ability to establish new 

partnerships to develop these plans, 

particularly plans that address 

landscape-level conservation of species 

and habitats. By preemptively excluding 

these lands, we preserve our current 

partnerships and encourage additional 

conservation actions in the future. 

Furthermore, both HCP and Natural 

Community Conservation Plan (NCCP)–

HCP applications require consultation, 

which would review the effects of all 

HCP-covered activities that might 

adversely impact the species under a 

jeopardy standard, including possibly 

significant habitat modification (see 

definition of ‘‘harm’’ at 50 CFR 17.3), 

even without the critical habitat 

designation. In addition, all other 

Federal actions that may affect the listed 

species would still require consultation 

under section 7(a)(2) of the Act, and we 

would review these actions for possibly 

significant habitat modification in 

accordance with the definition of harm 

referenced above. 

The information provided in the 

previous section applies to all the 

following discussions of benefits of 

inclusion or exclusion of critical habitat. 

Exclusions Under Section 4(b)(2) of the 

Act 

We found that the public comments 

we received made a compelling case 

that excluding the Devils River Unit will 

provide for maintenance of positive 

relationships with private landowners 

along that stretch of river. These 

relationships are fundamental for 

implementing recovery actions for the 

Devils River minnow and outweigh the 

limited benefits that may occur from the 

designation of critical habitat there. 

Maintaining non-Federal partnerships 

in the other units in San Felipe Creek 

and Pinto Creek are of equal 

importance. However, as explained 

below, we believe that designation of 

critical habitat in those units does not 

put our non-Federal partnerships at risk 

and, therefore, no additional benefits for 

the Devils River minnow would be 

expected by excluding those units. 

We also found in this final rule that 

Sycamore Creek and Las Moras Creek 

are essential streams for the 

conservation of the Devils River 

minnow. However, both streams are 

located exclusively on non-Federal 

lands and will require significant 

cooperation with private landowners 

and implementation of cooperative 

tools, such as safe harbor agreements 

and experimental populations 

established under section 10(j) of the 

Act, to achieve the recovery goals for the 

Devils River minnow in these creeks as 

outlined in the Recovery Plan. These 

recovery actions would be potentially 

precluded if critical habitat were 

designated on these streams since we 

consider these areas not occupied and 

landowner cooperation is a necessary 

step in the restoration and 

reestablishment of the Devils River 

minnow to these two creeks. 

Devils River Unit 

Benefits of Inclusion 

The benefits of including lands in 

critical habitat can be regulatory, 

educational, or to aid in recovery of 

species as generally discussed in the 

‘‘Benefits of Designating Critical 

Habitat’’ section above. The following is 

our assessment of the estimated benefits 

for inclusion of the Devils River Unit. 

We expect only minimal regulatory 

benefits from the designation of critical 

habitat for the Devils River minnow. As 

explained in the final economic analysis 

(FEA) (p. A–1) and the ‘‘Effects of 

Critical Habitat Designation’’ section in 

this final rule, we have had very few 

section 7 consultations for this species 

since its listing, (one formal 

consultation, nine informal 

consultations, and five technical 

assistance events since 1999) and we 

foresee few section 7 consultations in 

the next 20 years. Appendix A in the 

FEA (p. A–5) estimates a total of 2 

formal consultations, 21 informal 

consultations, and 12 technical 

assistance events over the next 20 years 

throughout the range of the species. 

This is because there are few, if any, 

actions occurring with a Federal nexus 

within the range of the species that may 

affect the species or its habitat. The FEA 

found that no formal section 7 

consultations are likely to occur in the 

Devils River Unit in the next 20 years. 

Comments received during the public 

comment period indicated that oil and 

gas development in the Devils River 

watershed could adversely affect Devils 

River minnow habitat in the Devils 

River. However, we are not aware of a 

Federal nexus to oil and gas activities 

that would result in a section 7 

consultation and possible regulatory 

benefit of critical habitat. The lack of 

section 7 consultations results in very 

limited regulatory benefits for the 

designation of critical habitat in the 

Devils River Unit. 

We expect there may be some limited 

educational benefits associated with the 

designation of critical habitat. However, 

most people actively involved in water 

resource management in these areas 

likely already know the need for 

conservation of the Devils River 

minnow. Designating critical habitat 

could provide another opportunity to 

highlight these areas as important for 

the conservation of the species and 

provide more specific information on 

the physical and biological features that 

define habitat for the species. We expect 

the educational benefits to be especially 

limited in the Devils River Unit, where 

the few local landowners along the river 

have been engaged in Devils River 

minnow issues for the 30 years since the 

species was initially proposed for listing 

and the river proposed for critical 

habitat designation in 1978. Many of the 

families involved in Devils River 

minnow issues in 1978 are still 

involved. We therefore foresee very 

limited additional education value that 

the designation would be expected to 

offer to these landowners. 

We expect few to no additional 

benefits to the recovery of the Devils 

River minnow as a result of the 

designation of critical habitat in the 

Devils River Unit. The habitat areas are 

outlined and the biological features are 

readily defined in the species’ recovery 

plan. With limited regulatory and 

educational benefits likely, we foresee 

no other tangible benefits to further 

recovery of the species as a result of the 

designation of critical habitat. 

Benefits of Exclusion 

Non-Federal Partnerships 

The distribution of the Devils River 

minnow is largely within private 

ownership, and, therefore, the 

management of its habitat has limited 

influence by Federal agency actions. As 

a result, partnerships with and among 

non-Federal organizations and private 

individuals are the key to conserving 

the Devils River minnow. The top 

priority task in the Devils River Minnow 

Recovery Plan, for example, includes 

‘‘Seek and maintain the cooperation of 

landowners’’ (Service 2005, p. 3.3–1). 

Therefore, we believe it is important to 

consider the potential benefits that will 

be realized by preserving our positive 

relationships with landowners and 

other non-Federal organizations if we 


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exclude an area from the final critical 

habitat designation. 

The need for strong partnerships on 

non-Federal lands for the conservation 

of the Devils River minnow is of 

heightened importance in the Devils 

River watershed. The remote, rural area 

is comprised of large private ranches 

with very limited influence by public 

activities. Land management to promote 

and conserve healthy watersheds, native 

riparian areas, and groundwater 

recharge and sustainable use depends 

on the voluntary actions of the private 

landowners. 

During the second public comment 

period, at least 12 individuals (either 

landowners along the Devils River or 

representatives for those interests) 

commented negatively about the 

perceived effects of the designation of 

the Devils River Unit as critical habitat. 

They envisioned that the designation 

would restrict landowner activities, lead 

to a change in the status of the Devils 

River minnow from threatened to 

endangered, and result in a devaluation 

of land values in the area. 

We do not believe that these concerns 

are likely to be realized. We provide 

specific responses to these comments in 

the ‘‘Comments and Responses’’ sectionthat the designation of critical habitat 

should have little to no effect on 

landowner actions, is not a factor in the 

species’ status as threatened rather than 

endangered, and should not result in a 

stigma effect to decrease land values. 

However, these widely held perceptions 

by landowners in the Devils River Unit 

could result in anti-conservation 

incentives because furthering Devils 

River minnow conservation is seen as a 

risk to future economic opportunities or 

loss of private property rights. 

In addition, we received specific 

comments from the President of The 

Devils River Association (a 164-member 

local landowner organization to 

promote balance between preservation 

of the Devils River ecosystem and the 

desire to use the river and respect 

private property rights). These 

comments specifically stated that the 

Devils River Unit should be excluded 

because the benefits of doing so 

outweighed the benefits of inclusion. 

The comments included a discussion of 

the importance of cooperation with 

landowners that has occurred in the 

past. The comment states that this 

action (designating the Devils River as 

critical habitat) ‘‘significantly decreases 

our interest to work cooperatively with 

USFWS.’’ The comment goes on to state 

that, ‘‘This action would terribly and, I 

am afraid, irreparably damage the trust 

that we have all built up over the last 

few years.’’

Losing landowner trust and 

cooperation would be a significant 

setback to recovery efforts for the Devils 

River minnow on the Devils River. The 

designation of critical habitat could 

reduce the likelihood that landowners 

will support and carry out conservation 

actions needed to implement the 

recovery plan. The recovery plan calls 

for the following actions: monitor the 

status of Devils River minnow; 

determine biological and life history 

requirements; identify specific habitat 

requirements; and manage Devils River 

minnow habitat (Service 2005, pp. 2.3–

1—2.4–6). All of these actions require 

the cooperation of private landowners. 

One practical aspect of landowner 

cooperation in this area is the need for 

access to locations on the Devils River 

to carry out many recovery actions. In 

the past, landowners on the Devils River 

have been open to allowing access to 

conduct studies and for monitoring 

efforts by TPWD, the Service, and 

others. This is important on the Devils 

River because public access is limited to 

only two small areas, one on the Devils 

River State Natural Area and one at the 

Highway 163 bridge crossing. Past 

efforts for monitoring the Devils River 

minnow populations and habitats 

benefited from landowners voluntarily 

permitting access on private property to 

collect valuable information. Field 

monitoring of the river conditions and 

fish populations is a vital component to 

the recovery of the Devils River 

minnow. 

In the past, this non-Federal 

partnership was under the guidance of 

the 1998 Devils River Minnow 

Conservation Agreement. The purpose 

of this agreement was to expedite 

conservation measures needed to ensure 

the continued existence and facilitate 

recovery of the species prior to a final 

listing decision. Although the formal 

agreement expired in 2003 without 

renewal, the landowners along the 

Devils River have continued to 

cooperate with us and TPWD to further 

the agreement’s conservation goals (this 

was also highlighted in the public 

comments we received). Without this 

ongoing non-Federal partnership with 

private landowners, we expect that 

conservation opportunities for the 

species in the Devils River will be 

greatly reduced. We believe that 

maintaining non-Federal partnerships 

with local landowners on the Devils 

River is a substantial benefit of 

excluding the Devils River Unit from 

critical habitat designation and 

outweighs any benefits expected from 

including this unit in the designation. 

We anticipate that exclusion of this unit 

is likely to provide a superior level of 

conservation than critical habitat 

designation. 

Conservation Efforts and Management 

Plans 

When performing the required 

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

to consider any potential exclusions of 

areas proposed for critical habitat, we 

considered planned or ongoing 

conservation efforts within the Devils 

River minnow’s range (described in the 

proposed rule, 72 FR 41692). We 

received no new information during the 

public comment periods on the 

existence of other plans or conservation 

efforts, beyond those discussed below in 

this section. We evaluated these ongoing 

conservation efforts based on whether 

excluding one or more critical habitat 

units might provide recovery benefits 

for the Devils River minnow. Each effort 

provides some opportunity to benefit 

the Devils River minnow. However, we 

are not excluding any areas based solely 

on these conservation efforts and 

management plans. 

The Nature Conservancy has a 

Conservation Area Plan (CAP) and 

several conservation easements in the 

Devils River Watershed. The CAP has 

significant goals for conserving the 

Devils River watershed and its 

implementation will provide benefits 

for the Devils River minnow. The 

Nature Conservancy has limited 

opportunity to implement the 

conservation strategies outside of the 

lands under their ownership or 

easement. Implementing the goals of the 

CAP will depend on the voluntary 

cooperation of the private landowners 

throughout the watershed. 

We support the past and ongoing 

conservation efforts by The Nature 

Conservancy and encourage their 

continued work. Without the voluntary 

cooperation of neighboring landowners, 

the local and State agencies, the efforts 

by The Nature Conservancy provide 

only minimal benefits for the Devils 

River minnow. We believe The Nature 

Conservancy will continue to work on 

conservation efforts with or without the 

designation of critical habitat, and there 

are no benefits to The Nature 

Conservancy’s ongoing conservation 

efforts by designating the Devils River 

Unit as critical habitat. However, there 

may be benefits accrued by excluding 

this unit from critical habitat if it 

increases The Nature Conservancy’s 

ability to work more successfully with 

private landowners. As discussed above 

in the ‘‘Benefits of Excluding Lands 

With HCPs or Other Management Plans 

From Critical Habitat’’ section, 

designating critical habitat in an area 

with existing management plans may 


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provide a disincentive for voluntary 

cooperation by private landowners. 

Therefore, to maintain landowner 

relationships, there could be some 

benefits to excluding the Devils River 

Unit. 

Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

In weighing the benefits of including 

versus the benefits of excluding the 

Devils River Unit, we find that the 

benefits of exclusion of these lands 

outweigh the benefits of inclusion of 

these lands in the critical habitat 

designation. This is based on the fact 

that there are very limited benefits to 

inclusion and substantial benefits from 

maintaining non-Federal partnerships 

by excluding this unit. Therefore, we 

find that excluding Devils River Unit is 

reasonable under the Secretary’s 

discretion for ‘‘other relevant impacts’’

under section 4(b)(2) of the Act. We 

believe the loss of non-Federal 

partnerships on the Devils River, as 

expressed in the public comments we 

received on the proposed rule, is a 

relevant impact. The cooperation of 

private landowners to provide access to 

the river and participate in other 

recovery actions is a vital component to 

conservation of the Devils River 

minnow, and this could be lost if we 

designate critical habitat. In contrast, 

the benefits of inclusion are, as noted 

above, likely to be minor because of 

very limited opportunities for additional 

education and the lack of any Federal 

nexus for section 7 consultations 

specific to Devils River minnow in the 

unit. Recovery of the Devils River 

minnow is best served by the exclusion 

of the Devils River Unit. 

Exclusion Will Not Result in Extinction 

of the Species 

We have determined that the 

exclusion of the Devils River Unit that 

includes 29.2 stream mi (47.0 stream 

km) from the final designation of critical 

habitat will not result in the extinction 

of Devils River minnow. As described 

above, all of the area we are excluding 

from critical habitat is occupied by the 

species, and consultations will still 

occur under section 7 of the Act if there 

is a Federal nexus, even in the absence 

of their designation as critical habitat. 

Application of the jeopardy standard of 

section 7 of the Act also provides 

assurances that the species will not go 

extinct in the absence of this 

designation. 

In summary, the benefits of including 

the Devils River Unit in the critical 

habitat designation for the Devils River 

minnow are few. The benefits of 

excluding this area from designated 

critical habitat are greater, and include 

maintaining important non-Federal 

partnerships. We find that the benefits 

of excluding this area from critical 

habitat designation outweigh the 

benefits of including this area and will 

not result in the extinction of the 

species. 

Sycamore Creek and Las Moras Creek 

Benefits of Inclusion 

We expect only minimal regulatory 

benefits from the designation of critical 

habitat for the Devils River minnow. As 

explained in the FEA (p. A–1) and the 

‘‘Effects of Critical Habitat Designation’’

section in this final rule, we have had 

very few section 7 consultations for this 

species since its listing (one formal 

consultation, nine informal 

consultations, and five technical 

assistance events since 1999) and we 

foresee few section 7 consultations in 

the next twenty years. Appendix A in 

the FEA (p. A–5) estimates a total of 2 

formal consultations, 21 informal 

consultations, and 12 technical 

assistance events over the next 20 years 

throughout the range of the species. 

This is because there are few, if any, 

actions occurring with a Federal nexus 

within the range of the species that may 

affect the species or its habitat. There 

are no Federal lands within the 

watersheds of Sycamore or Las Moras 

creeks and the FEA found no formal 

section 7 consultations are likely to 

occur in the area of Sycamore or Las 

Moras creeks in the next 20 years. The 

absence of expected section 7 

consultations suggests there are very 

limited regulatory benefits for the 

designation of critical habitat in 

Sycamore or Las Moras creeks. 

We expect there may be some limited 

educational benefits associated with the 

designation of critical habitat. However, 

most people actively involved in water 

resource management in these areas 

likely already know the need for 

conservation of the Devils River 

minnow. Both Sycamore and Las Moras 

creeks are highlighted in the Devils 

River Minnow Recovery Plan. The 

streams are located in Kinney County 

where we are already actively working 

with local officials on conservation 

issues for the Devils River minnow. 

Designating critical habitat could 

provide another opportunity to 

highlight these areas as important for 

the conservation of the species and to 

seek specific information on the 

physical and biological features that 

define habitat for the species in these 

creeks. However, as discussed above, we 

expect the educational benefits of 

designating critical habitat in Sycamore 

or Las Moras creeks would be minimal 

since the importance of these creeks and 

the need for further information is 

already highlighted in the recovery plan 

and in the rules and economic analysis 

associated with this designation. 

We expect few to no additional 

benefits to recovery of the Devils River 

minnow if critical habitat were 

designated in Sycamore or Las Moras 

creeks. With limited regulatory and 

educational benefits likely, we foresee 

no other tangible benefits to further 

recovery of the species as a result of the 

designation of critical habitat in these 

streams. 

Benefits of Exclusion 

As stated above and in the recovery 

plan, achieving recovery objectives for 

the Devils River minnow will include, 

if feasible, restoring populations in 

Sycamore and Las Moras creeks. We 

believe that the best way to achieve 

these objectives will be to use the 

authorities under section 10(j) of the Act 

to reestablish experimental populations 

or through safe harbor agreements. We 

believe that section 10(j) of the Act 

would be an appropriate tool to utilize 

in future restoration efforts. An 

overview of the process to establish an 

experimental population under section 

10(j) of the Act is described below. 

Alternately, developing voluntary safe 

harbor agreements under section 10 of 

the Act is another tool that would allow 

restoring these populations in a 

cooperative effort with local 

landowners. Developing safe harbor 

agreements, as described below will 

require extensive partnerships with 

non-Federal landowners. Either 

alternative to accomplish these recovery 

objectives would benefit from excluding 

the areas from critical habitat 

designation. 

Section 10(j) of the Act enables us to 

designate certain populations of 

federally listed species that are released 

into the wild as ‘‘experimental.’’ The 

circumstances under which this 

designation can be applied are the 

following: (1) The population is 

geographically separate from 

nonexperimental populations of the 

same species (e.g., the population is 

reintroduced outside the species’

current range but within its probable 

historic range); and (2) we determine 

that the release will further the 

conservation of the species. Section 

10(j) is designed to increase our 

flexibility in managing an experimental 

population by allowing us to issue a 

special rule that provides flexibility in 

how the experimental population is 

managed. In situations where we have 

experimental populations, portions of 


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the statutory section 9 prohibitions (e.g., 

harm, harass, capture) that apply to all 

endangered species and most threatened 

species may no longer apply, and a 

special rule can be developed that 

contains the specific prohibitions and 

exceptions necessary and appropriate to 

conserve that species. This flexibility 

allows us to manage the experimental 

population in a manner that will ensure 

that current and future land, water, or 

air uses and activities will not be 

unnecessarily restricted and that the 

population can be managed for recovery 

purposes. 

When we designate a population as 

experimental, section 10(j) of the Act 

requires that we determine whether that 

population is either essential or 

nonessential to the continued existence 

of the species, on the basis of the best 

available information. Nonessential 

experimental populations located 

outside National Wildlife Refuge System 

or National Park System lands are 

treated, for the purposes of section 7 of 

the Act, as if they are proposed for 

listing. Thus, for nonessential 

experimental populations, only two 

provisions of section 7 would apply 

outside National Wildlife Refuge System 

and National Park System lands: section 

7(a)(1), which requires all Federal 

agencies to use their authorities to 

conserve listed species, and section 

7(a)(4), which requires Federal agencies 

to informally confer with us on actions 

that are likely to jeopardize the 

continued existence of a proposed 

species. Section 7(a)(2) of the Act, 

which requires Federal agencies to 

ensure that their activities are not likely 

to jeopardize the continued existence of 

a listed species, would not apply except 

on National Wildlife Refuge System and 

National Park System lands. 

The flexibility gained by 

establishment of an experimental 

population through section 10(j) would 

be of little value if a designation of 

critical habitat overlaps it. This is 

because Federal agencies would still be 

required to consult with us on any 

actions that may adversely modify 

critical habitat. In effect, the flexibility 

gained from section 10(j) would be 

rendered useless by the designation of 

critical habitat. In fact, section 

10(j)(2)(C)(ii) of the Act states that 

critical habitat shall not be designated 

under the Act for any experimental 

population determined to be not 

essential to the continued existence of a 

species. 

We strongly believe that, in order to 

facilitate recovery for the Devils River 

minnow, we would need the flexibility 

provided for in section 10(j) of the Act 

to help ensure the success of 

reestablishing populations in Sycamore 

or Las Moras creeks. Use of section 10(j) 

is meant to encourage local cooperation 

through management flexibility. 

Because critical habitat is often viewed 

negatively by the public, as is the case 

here as discussed elsewhere in this rule 

(see Non-Federal Partnerships 

discussion above), we believe it is 

important and necessary for recovery of 

this species that we have the support of 

the public when we develop and 

implement recovery actions. 

Safe harbor agreements are another 

alternative that provide voluntary 

arrangements between us and 

cooperating non-Federal landowners. 

This policy’s main purpose is to 

promote voluntary management for 

listed species on non-Federal property 

while giving assurances to participating 

landowners that no additional future 

regulatory restrictions will be imposed. 

The agreements are intended to benefit 

endangered and threatened species, by 

creating or restoring habitat for the 

species, while giving landowners 

assurances from additional restrictions. 

As part of a safe harbor agreement, we 

issue an ‘‘enhancement of survival’’

permit under section 10 of the Act, to 

authorize any necessary future 

incidental take to provide participating 

landowners with assurances that no 

additional restrictions would be 

imposed as a result of their conservation 

actions. 

Developing future safe harbor 

agreements to facilitate restoration 

efforts for Devils River minnow in 

Sycamore and Las Moras creeks would 

require close cooperation with a number 

of private or non-Federal landowners. 

The negative perceptions of landowners 

regarding critical habitat, as described 

above, would most likely forestall any 

opportunity to engage landowners in 

Devils River minnow restoration using 

safe harbor agreements. Excluding these 

two streams from critical habitat 

provides better opportunities to work 

with landowners through safe harbor 

agreements to further restoration efforts 

of Devils River minnow. The ability to 

implement these conservation actions 

provides a clear benefit of excluding 

these streams from critical habitat 

designation. 

This voluntary approach is consistent 

with the actions identified in the 

Recovery Plan necessary to establish 

additional viable populations of Devils 

River minnow within its historic range 

(Service 2005, pp. 2.4–6—2.4–7). The 

recovery plan recognizes that, ‘‘Support 

of private landowners will be necessary 

to plan and implement reestablishment 

of the Devils River minnow’’ (Service 

2005, p. 2.4–6). The recovery plan also 

recognizes the need for landowner 

agreements (Recovery Action 2.1) to 

document landowner cooperation and a 

commitment to future conservation 

measures to ensure successful 

repatriation of the species (Service 2005, 

p. 2.4–6). Working with landowners in 

the future through either a establishing 

a section 10(j) experimental population 

or developing one or more safe harbor 

agreements would fulfill the anticipated 

recovery actions envisioned in the 

recovery plan. 

Engaging private citizens and local 

landowners in proactive, voluntary 

measures such as restoration through 

experimental populations or safe harbor 

agreements requires a high level of trust 

and cooperation with Federal agencies. 

We believe it is highly unlikely we will 

develop this level of cooperation if these 

streams were designated as critical 

habitat. The strong negative perceptions 

that are likely to persist if these lands 

were designated as critical habitat 

would prevent us from realizing these 

voluntary opportunities for restoration 

in the near future. Maintaining existing 

non-Federal partnerships and creating 

new ones are necessary recovery actions 

to conserve the Devils River minnow. 

We note that Texas Governor Rick Perry 

submitted a letter to us dated June 27, 

2008, indicating that he believes a 

cooperative method of land, water, and 

wildlife management is the best way to 

protect property rights and support 

healthy habitats and that critical habitat 

will do little to improve the habitat of 

the Devils River minnow. We believe 

this philosophy of cooperation between 

private landowners and the Service is 

consistent with the information in our 

analysis and is supported by the 

comments we received. 

The Devils River Minnow Recovery 

Plan also recognizes the need to develop 

and implement a reintroduction plan, 

including a captive propagation plan 

and a genetics management plan 

(estimated cost of $100,000 per the 

Recovery Plan) (Service 2005, p. 3.3.–3), 

as first steps in our restoration efforts 

(Service 2005, pp. 2.4–7—2.4–8). We’ve 

been working to collect the necessary 

information to develop these plans 

through research since 2000 with the 

captive stocks of Devils River minnows 

being maintained at our San Marcos 

National Fish Hatchery and Technology 

Center (Conway et al. 2007; Gibson et al. 

2004; Gibson and Fries, 2005; Service 

2005, p. 1.8–2). These scientific studies 

have provided important baseline 

biological data on the species through 

experiments on captive breeding 

techniques. This information will allow 

us to develop reintroduction plans and 

begin seeking funding and landowner 


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cooperation to put these recovery tools 

in place to implement restoration 

efforts. 

We have worked with local groups in 

the past to discuss the opportunities for 

restoration of the Devils River minnow 

in Las Moras Creek (Service 2005, p. 

1.8–2). The implementation schedule 

from the recovery plan anticipates that 

landowner agreements to restore Devils 

River minnow to former sites of 

occurrence would, depending on 

availability of funding and cooperation, 

occur between years 3 through 6 

following the approval of the recovery 

plan in 2005 (Service 2005, p. 3.3–2). 

The recovery plan estimates the cost of 

developing these agreements at $20,000. 

The recovery plan foresees the 

development and implementation of a 

reintroduction plan would occur in 

years 3 through 8 (Service 2005, p. 3.3–

1), at an estimated cost of $200,000. We 

are committed to continue to actively 

examine the opportunities for 

developing the necessary landowner 

agreements to implement the actions 

identified in the Devils River Minnow 

Recovery Plan. The Service’s lead field 

office for the Devils River minnow is 

also committed to using their funding 

through the Partners for Fish and 

Wildlife Program to work with 

landowners to develop and implement 

stream channel restoration projects if 

necessary. At the time of preparation of 

the Recovery Plan, the Service was not 

able to determine the cost of future 

restoration projects. 

Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

In weighing the benefits of including 

versus the benefits of excluding 

Sycamore and Las Moras creeks, we find 

that the benefits of exclusion of these 

streams outweigh the benefits of 

inclusion of these streams in the critical 

habitat designation. This is based on the 

facts that there are very limited benefits 

to inclusion and substantial benefits to 

exclusion from maintaining non-Federal 

partnerships and providing 

opportunities for using flexible tools for 

restoration of the species to these 

streams. Use of these tools (safe harbor 

agreements and section 10(j) of the Act) 

would not be possible or effective 

without landowner cooperation. 

Therefore, we find that excluding 

Sycamore Creek and Las Moras Creek is 

reasonable under the Secretary’s 

discretion for ‘‘other relevant impacts’’

under section 4(b)(2) of the Act. We 

believe the cooperation of private 

landowners to provide access to the 

river and participate in restoration 

actions under section 10 of the Act is a 

vital component to conservation of the 

Devils River minnow and these 

opportunities would be lost if critical 

habitat were designated. In contrast, the 

benefits of inclusion are, as noted above, 

likely to be minor because of limited 

opportunities for additional education 

and the lack of any Federal nexus for 

section 7 consultations specific to 

Devils River minnow in these two 

streams. Recovery of the Devils River 

minnow is best served by the exclusion 

of the Sycamore Creek and Las Moras 

Creek from critical habitat designation. 

Exclusion Will Not Result in Extinction 

of the Species 

We have determined that the 

exclusion of Sycamore Creek and Las 

Moras Creek from the final designation 

of critical habitat will not result in the 

extinction of Devils River minnow. As 

described above, we do not consider 

either of these streams to be currently 

occupied by the Devils River minnow. 

The species occurs in three other 

streams, two of which are being 

designated as critical habitat. Excluding 

these two streams will not affect 

conservation efforts ongoing throughout 

the currently occupied range of the 

species. We do not anticipate any loss 

of protection to the species or other 

impacts that would result from 

excluding these two streams from the 

designation of critical habitat. 

In summary, the benefits of including 

Sycamore and Las Moras creeks in the 

critical habitat designation for the 

Devils River minnow are few. The 

benefits of excluding these streams from 

being designated as critical habitat are 

greater, and include creating important 

non-Federal partnerships and 

opportunities for restoration of the 

populations using tools under section 

10 of the Act. We find that the benefits 

of excluding these two streams from 

critical habitat designation outweigh the 

benefits of including them and will not 

result in the extinction of the species. 

Therefore, these two streams are not 

included in the final critical habitat 

designation. 

Pinto Creek Unit 

We considered the exclusion of the 

Pinto Creek unit, but based on the 

record before us have elected not to 

exercise our discretion under section 

4(b)(2) of the Act to exclude this unit. 

We expect there may be some limited 

educational benefits associated with the 

designation of critical habitat. However, 

most people actively involved in water 

resource management in these areas 

likely already know the need for 

conservation of the Devils River 

minnow. Pinto Creek is highlighted in 

the Devils River Minnow Recovery Plan. 

The stream is located in Kinney County 

where we are already working with 

local officials on conservation issues for 

the Devils River minnow. Designating 

critical habitat could provide another 

opportunity to highlight these areas as 

important for the conservation of the 

species and provide more specific 

information on the physical and 

biological features that define habitat for 

the species. We expect the educational 

benefits of designating critical habitat in 

Pinto Creek would be minimal. 

We considered the Kinney County 

Groundwater Conservation District 

(KCGCD) draft management plan in our 

analysis. An updated management plan 

by the KCGCD was under development 

during completion of this final rule, and 

the final plan was approved after the 

close of the public comment period. We 

received comments from the KCGCD 

that the draft management plan would 

provide benefits to the Devils River 

minnow by managing groundwater on a 

sustainable basis without exploiting or 

adversely affecting the natural flow of 

the intermittent streams. We also 

received comments that groundwater 

pumping authorized by the KCGCD will 

result in adverse impact to Devils River 

minnow habitat in Pinto Creek. The 

KCGCD management plan was not 

approved until after the public comment 

period for this designation and, 

therefore, was not considered in its 

entirety as a basis for possible 

exclusion. We received comments from 

the KCGCD during the public comment 

period indicating that the future plan 

will likely provide spring flows in Pinto 

Creek. If so, it will be of great value to 

the conservation of the Devils River 

minnow and its habitat. We fully expect 

the KCGCD’s plan will be carried out 

with or without the designation of 

critical habitat for the Devils River 

minnow and we look forward to 

working with the KCGCD to conserve 

Devils River minnow habitats in Kinney 

County. Landowners in the District are 

under the authority of the KCGCD for 

pumping permits, and their compliance 

does not depend on their voluntary 

cooperation. Therefore, we do not 

expect landowner cooperation with the 

KCGCD to be influenced by the 

designation of critical habitat or the 

exclusion from critical habitat, of Pinto 

Creek. 

However, for all the reasons discussed 

above under the Devils River Unit, 

‘‘Benefits of Exclusion,’’ section, 

maintaining strong non-Federal 

partnerships with landowners along 

Pinto Creek are important. This unit 

flows only through private lands, and 

there is only one bridge crossing that 

provides very limited access, so 


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landowner cooperation here is also vital 

to accomplishing recovery tasks. In the 

past we have had good relationships 

with the landowners along Pinto Creek, 

and access has been provided upon 

request. Based on our current 

relationships with the landowners, 

particularly in the most upstream 

reaches, we do not expect that critical 

habitat designation in this unit will 

likely negatively impact those 

relationships. We received only one 

comment from a landowner on Pinto 

Creek. This landowner was concerned 

about the impacts of groundwater 

pumping on stream flows and did not 

express any concerns about the 

proposed designation of critical habitat. 

The KCGCD included as a public 

comment a resolution opposing the 

designation of critical habitat because 

they considered the Pinto Creek 

population of Devils River minnow 

introduced and stream flows there 

intermittent. They made no comment 

relative to any cooperation or potential 

that it would damage any future nonFederal partnership opportunities. We 

hope to build a strong partnership with 

the KCGCD in the future to work 

together to conserve spring flows in 

Pinto Creek. While the critical habitat 

designation may be perceived negatively 

by the KCGCD, we do not believe it will 

impact the long-term conservation 

efforts of the KCGCD. The KCGCD stated 

in their resolution that they were 

committed to maintaining natural flows 

in Pinto Creek. This is part of their 

authority to manage groundwater 

pumping through a permitting program. 

We believe the KCGCD will continue to 

strive toward maintaining spring flows 

whether or not the Pinto Creek Unit is 

included in the designation. Therefore, 

excluding the Pinto Creek Unit is not 

anticipated to provide benefits for 

Devils River minnow through 

preventing the loss of non-Federal 

partnerships in the Pinto Creek Unit. 

We received no other information 

during the comment period that would 

indicate there are additional benefits to 

excluding the Pinto Creek Unit. 

San Felipe Creek Unit 

We considered the exclusion of the 

San Felipe Creek Unit, but based on the 

record before us have elected not to 

exercise our discretion under section 

4(b)(2) of the Act to exclude this unit. 

There are some limited educational 

benefits for the designation of the San 

Felipe Creek Unit. Many local officials 

and agency personnel are already aware 

of the need for conservation of San 

Felipe Creek for the benefit of the Devils 

River minnow. However, educating the 

general public (citizens of Val Verde 

County and the City of Del Rio) is a 

continuing goal for the recovery of the 

species (related to water use 

conservation by the City of Del Rio and 

preventing water pollution in San 

Felipe Creek) and requires ongoing 

efforts to accomplish. Designation of 

critical habitat could help to elevate the 

awareness to the public of the 

importance of the conservation of San 

Felipe Creek. 

We considered the San Felipe Creek 

management plans by the City of Del 

Rio and the San Felipe Creek Country 

Club. These plans, signed in 2003, 

provide some conservation 

opportunities for the Devils River 

minnow in San Felipe Creek. However, 

to date, many of the actions in the plans 

have not been implemented. We have 

worked with the City of Del Rio to draft 

a new San Felipe Creek Master Plan, but 

this plan was not completed before the 

close of the comment period, and we do 

not know when it will be finalized. 

Most of the lands along San Felipe 

Creek are owned by the City of Del Rio. 

We do not expect the designation of 

critical habitat to have any bearing on 

the management of San Felipe Creek by 

the City of Del Rio. We have a good 

working relationship with the City of 

Del Rio, and we expect to continue this 

relationship. We received no indication 

from the City of Del Rio that designation 

of critical habitat would impact our 

relationship. We believe the City of Del 

Rio will continue to work toward 

completion and implementation of the 

master plan and conservation efforts for 

San Felipe Creek whether or not critical 

habitat is designated on San Felipe 

Creek. Therefore, we do not believe 

there are any benefits of excluding San 

Felipe Creek Unit based on these 

management plans and ongoing 

conservation efforts. 

Economic Analysis 

Section 4(b)(2) of the Act requires us 

to designate critical habitat on the basis 

of the best scientific information 

available and to consider the economic 

and other relevant impacts of 

designating a particular area as critical 

habitat. Section 4(b)(2) of the Act allows 

the Secretary to exclude areas from 

critical habitat for economic or other 

reasons if the Secretary determines that 

the benefits of such exclusion exceed 

the benefits of designating the area as 

critical habitat. However, this exclusion 

cannot occur if it will result in the 

extinction of the species concerned. 

Following the publication of the 

proposed critical habitat designation, 

we conducted an economic analysis to 

estimate the potential economic effects 

of the designation. The draft analysis 

(dated December 21, 2007) was made 

available for public review on February 

7, 2008 (73 FR 7237). We accepted 

comments on the draft analysis until 

March 10, 2008. Following the close of 

the comment period, a final analysis of 

the potential economic effects of the 

designation was developed taking into 

consideration the public comments and 

any new information. 

The economic analysis considers the 

potential economic effects of all actions 

relating to the conservation of Devils 

River minnow, including costs 

associated with sections 4, 7, and 10 of 

the Act, as well as those attributable to 

designating critical habitat. It further 

considers the economic effects of 

protective measures taken as a result of 

other Federal, State, and local laws that 

aid habitat conservation for Devils River 

minnow in areas containing the features 

essential to the conservation of the 

species. The analysis considers both 

economic efficiency and distributional 

effects. In the case of habitat 

conservation, efficiency effects generally 

reflect the ‘‘opportunity costs’’

associated with the commitment of 

resources to comply with habitat 

protection measures (such as lost 

economic opportunities associated with 

restrictions on land use). The economic 

analysis also addresses how potential 

economic impacts are likely to be 

distributed, including an assessment of 

any local or regional impacts of habitat 

conservation and the potential effects of 

conservation activities on small entities 

and the energy industry. This 

information can be used by the 

decision-makers to assess whether the 

effects of the designation might unduly 

burden a particular group or economic 

sector (see ‘‘Required Determinations’’

section below). Finally, the economic 

analysis looks retrospectively at costs 

that have been incurred since the date 

this species was listed as threatened 

(October 20, 1999; 64 FR 56596), and 

considers those costs that may occur in 

the 20 years following designation of 

critical habitat (i.e., coextensive costs, 

2008–2027). 

The economic analysis focuses on the 

direct and indirect costs of the rule. 

However, economic impacts to land-use 

activities can exist in the absence of 

critical habitat. These impacts may 

result from, for example, section 7 

consultations under the jeopardy 

standard, local zoning laws, State and 

natural resource laws, and enforceable 

management plans and best 

management practices applied by other 

State and Federal agencies. Economic 

impacts that result from these types of 

protections are not included in the 

analysis as they are considered to be 


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part of the regulatory and policy 

baseline. 

The economic analysis estimates 

potential economic impacts resulting 

from the implementation of Devils River 

minnow conservation efforts in three 

categories: (a) Water quality; (b) 

nonnative species; and (c) Devils River 

minnow sampling and monitoring. The 

final economic analysis estimates total 

pre-designation baseline impacts (8-year 

total from 1999 to 2007) to be $388,000, 

assuming a 3 percent discount rate, and 

$402,000, assuming a 7 percent discount 

rate. Post-designation baseline impacts 

over the next 20 years (2008 to 2027) are 

estimated to be $406,000, assuming a 3 

percent discount rate, and $300,000, 

assuming a 7 percent discount rate. The 

post-designation incremental impacts 

(2008 to 2027) are estimated to be 

$47,600, assuming a 3 percent discount 

rate, and $33,600, assuming a 7 percent 

discount rate. 

We evaluated the potential economic 

impact of this designation as identified 

in the economic analysis. Based on this 

evaluation, we believe that there are no 

disproportionate economic impacts that 

warrant exclusion under section 4(b)(2) 

of the Act at this time. The final 

economic analysis is available on the 

Internet at http://www.regulations.gov 

and http://www.fws.gov/southwest/es/ 

AustinTexas/ or upon request from the 

Austin Ecological Services Field Office 

(see ADDRESSES section). 

Required Determinations 

In our July 31, 2007, proposed rule 

(72 FR 41679), we indicated that we 

would defer our determination of 

compliance with several statutes and 

Executive Orders until the information 

concerning potential economic impacts 

of the designation and potential effects 

on landowners and stakeholders was 

available in the draft economic analysis. 

In this final rule, we affirm the 

information contained in the proposed 

rule concerning Executive Order (E.O.) 

13132, E.O. 12988, the Paperwork 

Reduction Act, the National 

Environmental Policy Act, and the 

President’s memorandum of April 29, 

1994, ‘‘Government-to-Government 

Relations with Native American Tribal 

Governments’’ (59 FR 22951). 

Regulatory Planning and Review 

The Office of Management and Budget 

(OMB) has determined that this rule is 

not significant and has not reviewed 

this rule under Executive Order 12866 

(E.O. 12866). OMB bases its 

determination upon the following four 

criteria: 

(a) Whether the rule will have an 

annual effect of $100 million or more on 

the economy or adversely affect an 

economic sector, productivity, jobs, the 

environment, or other units of the 

government. 

(b) Whether the rule will create 

inconsistencies with other Federal 

agencies’ actions. 

(c) Whether the rule will materially 

affect entitlements, grants, user fees, 

loan programs, or the rights and 

obligations of their recipients. 

(d) Whether the rule raises novel legal 

or policy issues. 

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

et seq.) 

Under the Regulatory Flexibility Act 

(RFA) (5 U.S.C. 601 et seq., as amended 

by the Small Business Regulatory 

Enforcement Fairness Act (SBREFA) (5 

U.S.C. 802(2)), whenever an agency 

must publish a notice of rulemaking for 

any proposed or final rule, it must 

prepare and make available for public 

comment a regulatory flexibility 

analysis that describes the effect of the 

rule on small entities (i.e., small 

businesses, small organizations, and 

small governmental jurisdictions). 

However, no regulatory flexibility 

analysis is required if the head of an 

agency certifies the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

SBREFA amended RFA to require 

Federal agencies to provide a 

certification statement of the factual 

basis for certifying that the rule will not 

have a significant economic impact on 

a substantial number of small entities. 

In this final rule, we are certifying that 

the critical habitat designation for 

Devils River minnow will not have a 

significant economic impact on a 

substantial number of small entities. 

The following discussion explains our 

rationale. 

According to the Small Business 

Administration (SBA), small entities 

include small organizations, such as 

independent nonprofit organizations, 

and small governmental jurisdictions, 

including school boards and city and 

town governments that serve fewer than 

50,000 residents, as well as small 

businesses (13 CFR 121.201). Small 

businesses include manufacturing and 

mining concerns with fewer than 500 

employees, wholesale trade entities 

with fewer than 100 employees, retail 

and service businesses with less than $5 

million in annual sales, general and 

heavy construction businesses with less 

than $27.5 million in annual business, 

special trade contractors doing less than 

$11.5 million in annual business, and 

agricultural businesses with annual 

sales less than $750,000. To determine 

if potential economic impacts to these 

small entities are significant, we 

considered the types of activities that 

might trigger regulatory impacts under 

this designation as well as types of 

project modifications that may result. In 

general, the term ‘‘significant economic 

impact’’ is meant to apply to a typical 

small business firm’s business 

operations. 

To determine if the rule could 

significantly affect a substantial number 

of small entities, we considered the 

number of small entities affected within 

particular types of economic activities 

(e.g., residential and commercial 

development and agriculture). We apply 

the ‘‘substantial number’’ test 

individually to each industry to 

determine if certification is appropriate. 

However, the SBREFA does not 

explicitly define ‘‘substantial number’’

or ‘‘significant economic impact.’’

Consequently, to assess whether a 

‘‘substantial number’’ of small entities is 

affected by this designation, this 

analysis considers the relative number 

of small entities likely to be impacted in 

an area. In some circumstances, 

especially with critical habitat 

designations of limited extent, we may 

aggregate across all industries and 

consider whether the total number of 

small entities affected is substantial. In 

estimating the number of small entities 

potentially affected, we also consider 

whether their activities have any 

Federal involvement. 

Designation of critical habitat only 

affects activities conducted, funded, or 

permitted by Federal agencies. Some 

kinds of activities are unlikely to have 

any Federal involvement and so will not 

be affected by critical habitat 

designation. In areas where the species 

is present, Federal agencies already are 

required to consult with us under 

section 7 of the Act on activities they 

fund, permit, or carry out that may 

affect Devils River minnow (see Section 

7 Consultation section). Federal 

agencies also must consult with us if 

their activities may affect critical 

habitat. Designation of critical habitat, 

therefore, could result in an additional 

economic impact on small entities due 

to the requirement to reinitiate 

consultation for ongoing Federal 

activities (see Application of the 

‘‘Adverse Modification’’ Standard 

section). 

Appendix B of the final economic 

analysis (FEA) examined the potential 

for Devils River minnow conservation 

efforts to affect small entities. The 

analysis was based on the estimated 

impacts associated with the proposed 

critical habitat designation. Based on 

the analysis, the potential for economic 

impacts of the designation on small 


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entities are expected to be borne 

primarily by the City of Del Rio and 

other miscellaneous small entities. The 

identities of these small entities are not 

known at this time but are expected to 

include local developers and private 

landowners that may represent third 

parties in section 7 consultations on the 

Devils River minnow in the future. The 

City of Del Rio and other miscellaneous 

small entities are expected to incur, at 

most, combined annualized 

administrative costs related to 

consultations for adverse modification 

of approximately $3,000, assuming a 3 

percent discount rate. This estimated 

$3,000 in combined annual 

administrative costs is not expected to 

have a significant impact on small 

entities, including the City of Del Rio. 

In addition, because the annualized 

post-designation incremental impacts 

expected for the City of Del Rio and 

other miscellaneous small entities are 

relatively small, no future indirect 

impacts associated with postdesignation incremental impacts are 

expected for the small businesses and 

entities included in this analysis. 

Small Business Regulatory Enforcement 

Fairness Act (5 U.S.C 801 et seq.) 

Under SBREFA, this rule is not a 

major rule. Our detailed assessment of 

the economic effects of this designation 

is described in the economic analysis. 

Based on the effects identified in the 

economic analysis, we believe that this 

rule will not have an annual effect on 

the economy of $100 million or more, 

will not cause a major increase in costs 

or prices for consumers, and will not 

have significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or the ability 

of U.S.-based enterprises to compete 

with foreign-based enterprises. Refer to 

the final economic analysis for a 

discussion of the effects of this 

determination (see ADDRESSES for 

information on obtaining a copy of the 

final economic analysis). 

Executive Order 13211—Energy Supply, 

Distribution, or Use 

On May 18, 2001, the President issued 

E.O. 13211 on regulations that 

significantly affect energy supply, 

distribution, or use. E.O. 13211 requires 

agencies to prepare Statements of 

Energy Effects when undertaking certain 

actions. OMB has provided guidance for 

implementing this E.O. that outlines 

nine outcomes that may constitute ‘‘a 

significant adverse effect’’ when 

compared without the regulatory action 

under consideration. The economic 

analysis finds that none of these criteria 

are relevant to this analysis. Thus, based 

on information in the economic 

analysis, energy-related impacts 

associated with Devils River minnow 

conservation activities within critical 

habitat are not expected. As such, the 

designation of critical habitat is not 

expected to significantly affect energy 

supplies, distribution, or use. Therefore, 

this action is not a significant energy 

action, and no Statement of Energy 

Effects is required. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

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

the Service makes the following 

findings: 

(a) This rule will not produce a 

Federal mandate. In general, a Federal 

mandate is a provision in legislation, 

statute, or regulation that would impose 

an enforceable duty upon State, local, or 

Tribal governments, or the private sector 

and includes both ‘‘Federal 

intergovernmental mandates’’ and 

‘‘Federal private sector mandates.’’

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

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

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or tribal governments’’

with two exceptions. It excludes ‘‘a 

condition of Federal assistance.’’ It also 

excludes ‘‘a duty arising from 

participation in a voluntary Federal 

program,’’ unless the regulation ‘‘relates 

to a then-existing Federal program 

under which $500,000,000 or more is 

provided annually to State, local, and 

tribal governments under entitlement 

authority,’’ if the provision would 

‘‘increase the stringency of conditions of 

assistance’’ or ‘‘place caps upon, or 

otherwise decrease, the Federal 

Government’s responsibility to provide 

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

governments ‘‘lack authority’’ to adjust 

accordingly. At the time of enactment, 

these entitlement programs were: 

Medicaid; Aid to Families with 

Dependent Children work programs; 

Child Nutrition; Food Stamps; Social 

Services Block Grants; Vocational 

Rehabilitation State Grants; Foster Care, 

Adoption Assistance, and Independent 

Living; Family Support Welfare 

Services; and Child Support 

Enforcement. ‘‘Federal private sector 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon the private sector, except (i) a 

condition of Federal assistance or (ii) a 

duty arising from participation in a 

voluntary Federal program.’’

The designation of critical habitat 

does not impose a legally binding duty 

on non-Federal government entities or 

private parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

destroy or adversely modify critical 

habitat under section 7. Non-Federal 

entities that receive Federal funding, 

assistance, permits, or otherwise require 

approval or authorization from a Federal 

agency for an action, may be indirectly 

impacted by the designation of critical 

habitat. However, the legally binding 

duty to avoid destruction or adverse 

modification of critical habitat rests 

squarely on the Federal agency. 

Furthermore, to the extent that nonFederal entities are indirectly impacted 

because they receive Federal assistance 

or participate in a voluntary Federal aid 

program, the Unfunded Mandates 

Reform Act would not apply, nor would 

critical habitat shift the costs of the large 

entitlement programs listed above on to 

State governments. 

(b) We do not believe that this rule 

will significantly or uniquely affect 

small governments because it will not 

produce a Federal mandate of $100 

million or greater in any year; that is, it 

is not a ‘‘significant regulatory action’’

under the Unfunded Mandates Reform 

Act. The designation of critical habitat 

imposes no obligations on State or local 

governments. By definition, Federal 

agencies are not considered small 

entities, although the activities they 

fund or permit may be proposed or 

carried out by small entities. As such, a 

Small Government Agency Plan is not 

required. 

Executive Order 12630—Takings 

In accordance with E.O. 12630 

(‘‘Government Actions and Interference 

with Constitutionally Protected Private 

Property Rights’’), we have analyzed the 

potential takings implications of critical 

habitat for the Devils River minnow in 

a takings implications assessment. 

Critical habitat designation does not 

affect landowner actions that do not 

require Federal funding or permits, nor 

does it preclude development of habitat 

conservation programs or issuance of 

incidental take permits to permit actions 

that do require Federal funding or 

permits to go forward. The takings 

implications assessment concludes that 

this final designation of critical habitat 

for Devils River minnow does not pose 

significant takings implications for 

lands within or affected by the 

designation. 

Federalism 

In accordance with E.O. 13132 

(Federalism), the final rule does not 

have significant Federalism effects. A 

Federalism assessment is not required. 

In keeping with Department of the 

Interior and Department of Commerce 


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policy, we requested information from, 

and coordinated development of, this 

final critical habitat designation with 

appropriate State resource agencies in 

Texas. The designation of critical 

habitat in areas currently occupied by 

the Devils River minnow is not likely to 

impose any additional restrictions to 

those currently in place and, therefore, 

has little incremental impact on State 

and local governments and their 

activities. The designation may have 

some benefit to these governments 

because the areas that contain the 

physical and biological features 

essential to the conservation of the 

species are more clearly defined, and 

the PCEs of the habitat necessary to the 

conservation of the species are 

specifically identified. This information 

does not alter where and what federally 

sponsored activities may occur. 

However, it may assist local 

governments in long-range planning 

(rather than having them wait for caseby-case section 7 consultation to occur). 

Civil Justice Reform 

In accordance with E.O. 12988 (Civil 

Justice Reform), the Office of the 

Solicitor has determined that the rule 

does not unduly burden the judicial 

system and that it meets the 

requirements of sections 3(a) and 3(b)(2) 

of the Order. We are designating critical 

habitat in accordance with the 

provisions of the Act. This final rule 

uses standard property descriptions and 

identifies the physical and biological 

features essential to the conservation of 

the species within the designated areas 

to assist the public in understanding the 

habitat needs of the Devils River 

minnow. 

Paperwork Reduction Act of 1995 

This rule does not contain any new 

collections of information that require 

approval by OMB under the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501 

et seq.). This rule will not impose 

recordkeeping or reporting requirements 

on State or local governments, 

individuals, businesses, or 

organizations. An agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

National Environmental Policy Act 

(NEPA) (42 U.S.C. 4321 et seq.) 

It is our position that, outside the 

Tenth Circuit, we do not need to 

prepare environmental analyses as 

defined by the NEPA in connection with 

designating critical habitat under the 

Act. We published a notice outlining 

our reasons for this determination in the 

Federal Register on October 25, 1983 

(48 FR 49244). This assertion was 

upheld in the courts of the Ninth Circuit 

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

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

116 S. Ct. 698 (1996)). 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994, 

‘‘Government-to-Government Relations 

with Native American Tribal 

Governments’’ (59 FR 22951), Executive 

Order 13175, and the Department of 

Interior’s manual at 512 DM 2, we 

readily acknowledge our responsibility 

to communicate meaningfully with 

recognized Federal Tribes on a 

government-to-government basis. We 

have determined that there are no tribal 

lands occupied at the time of listing that 

contain the features essential for the 

conservation of Devils River minnow, 

and no Tribal lands that are unoccupied 

areas that are essential for the 

conservation of the Devils River 

minnow. Therefore, we are not 

designating critical habitat for the Devils 

River minnow on Tribal lands. 

References Cited 

A complete list of all references cited 

in this rulemaking is available upon 

request from the Field Supervisor, 

Austin Ecological Services Field Office 

(see ADDRESSES). 

Author(s) 

The primary authors of this 

rulemaking are staff members of the 

Austin Ecological Services Field Office. 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Regulation Promulgation 

■ Accordingly, we amend part 17, 

subchapter B of chapter I, title 50 of the 

Code of Federal Regulations, as set forth 

below: 

PART 17—[AMENDED] 

■ 1. The authority citation for part 17 

continues to read as follows: 

Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 

1531–1544; 16 U.S.C. 4201–4245; Public Law 

99–625, 100 Stat. 3500; unless otherwise 

noted. 

■ 2. Amend § 17.11(h) by revising 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 

rules Common name Scientific name 

* * * * * * * 

FISHES

* * * * * * * 

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

* * * * * * * 

■ 3. Amend § 17.95(e) by adding an 

entry for ‘‘Devils River Minnow (Dionda 

diaboli)’’ in the same alphabetical order 

that the species appears in the table at 

§ 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 


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Federal Register / Vol. 73, No. 156 / Tuesday, August 12, 2008 / Rules and Regulations 47021 

minnow are the following habitat 

components: 

(i) Streams characterized by: 

(A) Areas with slow to moderate 

water velocities between 10 and 40 cm/ 

second (4 and 16 in/second) in shallow 

to moderate water depths between 

approximately 10 cm (4 in) and 1.5 m 

(4.9 ft), near vegetative structure, such 

as emergent or submerged vegetation or 

stream bank riparian vegetation that 

overhangs into the water column; 

(B) Gravel and cobble substrates 

ranging in diameter between 2 and 10 

cm (0.8 and 4 in) with low or moderate 

amounts of fine sediment (less than 65 

percent stream bottom coverage) and 

low or moderate amounts of substrate 

embeddedness; and 

(C) Pool, riffle, run, and backwater 

components free of artificial instream 

structures that would prevent 

movement of fish upstream or 

downstream. 

(ii) High-quality water provided by 

permanent, natural flows from 

groundwater spring and seeps 

characterized by: 

(A) Temperature ranging between 17 

°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; and petroleum compounds 

and gasoline or diesel fuels. 

(iii) An abundant aquatic food base 

consisting of algae attached to stream 

substrates and other microorganisms 

associated with stream substrates. 

(iv) Aquatic stream habitat either 

devoid of nonnative aquatic species 

(including fish, plants, and 

invertebrates) or in which such 

nonnative aquatic species are at levels 

that allow for healthy populations of 

Devils River minnows. 

(v) Areas within stream courses that 

may be periodically dewatered for short 

time periods, during seasonal droughts, 

but otherwise serve as connective 

corridors between occupied or 

seasonally occupied areas through 

which the species moves when the area 

is wetted. 

(3) Critical habitat does not include 

manmade structures (such as buildings, 

aqueducts, airports, roads, and other 

paved areas) and the land on which they 

are located existing on the effective date 

of this rule and not containing one or 

more of the primary constituent 

elements. 

(4) Critical habitat map units. Data 

layers defining map units were created 

in ArcGIS using the National 

Hydrography Dataset and 7.5’

topographic quadrangle maps obtained 

from U.S. Geological Survey to 

approximate stream channels and 

calculate distances (stream km and 

stream mi). We made some minor 

adjustments to stream channels using 

the 2004 National Agriculture Imagery 

Program digital orthophotos obtained 

from the Texas Natural Resources 

Information System. For each critical 

habitat unit, the upstream and 

downstream boundaries are described as 

paired geographic coordinates X, Y 

(meters E, meters N, UTM Zone 14, 

referenced to North American 

Horizontal Datum 1983). Additionally, 

critical habitat areas include the stream 

channels within the identified stream 

reaches and areas within these reaches 

up to the bankfull width. 

(5) Note: Index map of critical habitat 

units for the Devils River minnow 

follows: 

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(6) Unit 2: San Felipe Creek, Val 

Verde County, Texas. 

(i) Unit 2 consists of approximately 

7.9 stream km (4.9 stream mi) on San 

Felipe Creek, 0.8 stream km (0.5 stream 

mi) of the outflow of San Felipe Springs 

West, and 0.3 stream km (0.2 stream mi) 

of the outflow of San Felipe Springs 

East. The upstream boundary on San 

Felipe Creek is the Head Springs (UTM 

318813E, 3253702N) located about 1.1 

stream km (0.7 stream mi) upstream of 

the Jap Lowe Bridge crossing. The 

downstream boundary on San Felipe 

Creek is in the City of Del Rio 0.8 stream 

km (0.5 stream mi) downstream of the 

Academy Street Bridge crossing (UTM 

316317E, 3248147N). This unit includes 

the outflow channels from the origin of 

the two springs, San Felipe Springs 

West (UTM 317039E, 3250850N) and 

San Felipe Springs East (UTM 317212E, 

250825N), downstream to the 

confluence with San Felipe Creek. 

Including all three streams, the total 

distance in Unit 2 is approximately 9.0 

stream km (5.6 stream mi). 

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

Creek Unit, follows: 


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(7) Unit 3: Pinto Creek, Kinney 

County, Texas. 

(i) Unit 3 consists of approximately 

17.5 stream km (10.9 stream mi) on 

Pinto Creek. The upstream boundary is 

Pinto Springs (UTM 359372E, 

3254422N). The downstream boundary 

is 100 m (330 ft) upstream of the 

Highway 90 Bridge crossing of Pinto 

Creek (UTM 351163E, 3246179N). 

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

Unit, follows: 


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* * * * * Dated: July 29, 2008. 

Lyle Laverty, 

Assistant Secretary for Fish and Wildlife and 

Parks. 

[FR Doc. E8–17985 Filed 8–11–08; 8:45 am] 

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