Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Devils River Minnow, 46988-47026 [E8-17985]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 73, Number 156 (Tuesday, August 12, 2008)]
[Rules and Regulations]
[Pages 46988-47026]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-17985]



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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



 Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for the Devils River Minnow; Final Rule

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

[[Page 46988]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R2-ES-2008-0018; 92210-1117-0000-B4]
RIN 1018-AV25


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Devils River Minnow

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat for the Devils River minnow (Dionda diaboli) under the 
Endangered Species Act of 1973, as amended (Act). In total, 
approximately 26.5 stream kilometers (km) (16.5 stream miles (mi)) are 
within the boundaries of the critical habitat designation. The critical 
habitat is located in streams in Val Verde and Kinney Counties, Texas.

DATES: This final rule becomes effective on September 11, 2008.

ADDRESSES: This final rule and the final economic analysis are 
available on the Internet at https://www.regulations.gov and https://
www.fws.gov/southwest/es/AustinTexas/. Supporting documentation we used 
in preparing this final rule will be available for public inspection, 
by appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Austin Ecological Services Field Office, 10711 Burnet 
Road, Suite 200, Austin, TX 78758; telephone 512-490-0057; facsimile 
512-490-0974.

FOR FURTHER INFORMATION CONTACT: Adam Zerrenner, Field Supervisor, 
Austin Ecological Services Field Office (see ADDRESSES section). 
Persons who use a telecommunications device for the deaf (TDD) may call 
the Federal Information Relay Service (FIRS) at 800-877-8339, 7 days a 
week and 24 hours a day.

SUPPLEMENTARY INFORMATION:

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat in this final rule. For more 
information on the Devils River minnow, refer to the proposed critical 
habitat rule published in the Federal Register on July 31, 2007 (72 FR 
41679), the final listing rule published in the Federal Register on 
October 20, 1999 (64 FR 56596), or the 2005 Devils River Minnow 
Recovery Plan available online at www.fws.gov/endangered/. More 
detailed information on Devils River minnow biology and ecology that is 
directly relevant to the designation of critical habitat is discussed 
under the Primary Constituent Elements section below.

Previous Federal Actions

    The Devils River minnow was listed as threatened on October 20, 
1999 (64 FR 56596). Critical habitat was not designated for this 
species at the time of listing (64 FR 56606). On October 5, 2005, the 
Forest Guardians, Center for Biological Diversity, and Save Our Springs 
Alliance filed suit against the Service for failure to designate 
critical habitat for this species (Forest Guardians et al. v. Hall 
2005). On June 28, 2006, a settlement was reached that requires the 
Service to re-evaluate our original prudency determination. The 
settlement stipulated that, if prudent, a proposed rule would be 
submitted to the Federal Register for publication on or before July 31, 
2007, and a final rule by July 31, 2008. On July 31, 2007, we published 
a proposed rule to designate critical habitat for the Devils River 
minnow (72 FR 41679). We solicited data and comments from the public on 
the proposed rule. The comment period opened on July 31, 2007, and 
closed on October 1, 2007. On February 7, 2008, we published a notice 
announcing the availability of the draft economic analysis, a public 
hearing, and the reopening of the public comment period (73 FR 7237). A 
public hearing was held in Del Rio on February 27, 2008. This comment 
period closed on March 10, 2008. For more information on previous 
Federal actions concerning the Devils River minnow, refer to the final 
listing rule published in the Federal Register on October 20, 1999 (64 
FR 56596).

Summary of Comments and Recommendations

    We requested comments from the public on the proposed designation 
of critical habitat for the Devils River minnow during two comment 
periods. The first comment period associated with the publication of 
the proposed rule (72 FR 41679) opened on July 31, 2007, and closed on 
October 1, 2007. We also requested comments on the proposed critical 
habitat designation and associated draft economic analysis during a 
comment period that opened February 7, 2008, and closed on March 10, 
2008 (73 FR 7237). We held a public hearing in Del Rio on February 27, 
2008; about 65 individuals were present. We contacted appropriate 
Federal, State, and local agencies; scientific organizations; and other 
interested parties and invited them to comment on the proposed rule 
and/or draft economic analysis during these two comment periods.
    During the first comment period, we received five comments directly 
addressing the proposed critical habitat designation. During the second 
comment period, we received 19 written comments (one was received 
between the first and second comment periods) and 10 verbal comments 
made at the public hearing addressing the proposed critical habitat 
designation or the draft economic analysis. We received no comments 
from the State of Texas or other Federal agencies beyond those provided 
by individuals as part of the peer review process. All substantive 
information provided during both public comment periods has been either 
incorporated directly into this final determination or addressed below.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we solicited expert opinions from seven knowledgeable 
individuals with scientific expertise that included familiarity with 
the species, the geographic region in which the species occurs, and 
conservation biology principles. During the first comment period, we 
received a response from all seven peer reviewers from which we 
requested comments.
    We reviewed all comments received from the public and the peer 
reviewers for substantive issues and new information regarding the 
designation of critical habitat for Devils River minnow, and we address 
them in the following summary.

Peer Reviewer Comments

    (1) Comment: The rule should summarize the efforts to locate 
additional Devils River minnow habitats in other nearby streams and 
discuss the potential that additional habitats exist.
    Our Response: This information is available in the Range discussion 
in the ``Criteria Used To Identify Critical Habitat'' section below. 
There have been efforts to locate the Devils River minnow outside of 
its known range, although those efforts have been limited by 
opportunity and access to some private lands. The rule states that 
while there could be additional stream segments within the known range 
that may be found to be occupied during future surveys, the best 
available information at this time supports only five stream segments 
(Devils River, San Felipe Creek, Sycamore Creek, Pinto Creek, and Las 
Moras Creek) known to be or to have been occupied by Devils River 
minnow in the United States.

[[Page 46989]]

    (2) Comment: The primary constituent elements (PCEs) should more 
explicitly and strongly address the need for spring-fed baseflow, 
perhaps under PCE 5 or as its own PCE. It may be appropriate to include 
the language noting a percentage of normal (i.e., average) monthly 
baseflow that should be sustained as a Devils River minnow PCE.
    Our Response: Our approach in describing the PCEs is to identify 
the physical and biological features that are essential to the 
conservation of the species and which may require special management 
considerations or protections. In this case the PCEs are the range of 
water depths and velocities needed by the species. Maintenance of 
spring flows is described in this final rule as the special management 
needed to provide the PCEs described, rather than a PCE itself. The 
Service does not have sufficient information to identify an estimate of 
specific spring flow, or percentages of flow, as required habitat 
conditions for the Devils River minnow.
    (3) Comment: The proposed rule notes that if groundwater aquifers 
are pumped beyond their ability to sustain levels supporting spring 
flows these streams will no longer provide habitat for the Devils River 
minnow. This is true unless water was pumped into the streams from 
wells.
    Our Response: PCE 2 is intentionally worded to include ``permanent, 
natural flows from groundwater spring and seeps.'' We believe the 
maintenance of natural stream flows is the best opportunity to ensure 
adequate habitat for the conservation of the Devils River minnow. Water 
provided to streams through artificial means, such as groundwater 
pumping, could eventually fail due to mechanical or human error and, 
therefore, is not a good substitute for natural stream flows. In 
addition, pumping water to supply streams is likely counterintuitive to 
the need to maintain groundwater levels high enough to sustain natural 
spring flows from groundwater aquifers. Stream flows are essential for 
the conservation of the species, and assuring a high probability of 
survival depends on natural flow conditions.
    (4) Comment: The range of stream velocities described in the PCE 
(1a) for Devils River minnow (0.3 to 1.3 feet/second (9 to 40 cm/
second)) may not be high enough to reflect conditions that are 
typically measured in Las Moras Creek (greater than 3 feet/second), 
although baseflow velocities can be in the 1 foot/second range.
    Our Response: The water velocities identified as a part of the PCEs 
were determined based on observational studies where Devils River 
minnows have been collected. There are often much higher velocities in 
the streams; however, the best available information indicates that the 
velocity range identified in the PCEs reflects the understanding that 
the species is most often found in slow to moderate water velocities.
    (5) Comment: The PCE (2) for water quality can be challenged in 
that not enough data have been measured regarding temperature, 
dissolved oxygen, conductivity, and salinity to set those levels. It is 
possible that areas with physical and chemical conditions other than 
those listed could support the Devils River minnow.
    Our Response: We recognize that the PCE for water quality 
parameters is based on limited observational data. However, we used the 
best available information to determine appropriate water quality 
elements. To the extent practicable, PCEs are intended to be 
quantifiable and measurable. We purposefully include a broad range of 
conditions to recognize that data are not sufficient to identify a more 
narrow range of parameters. The ranges provided represent the best 
available information.
    (6) Comment: There are potential consequences to the species from 
increased sedimentation and turbidity, via urban development in the 
watershed and the presence of abundant armored catfish (Hypostomus sp.) 
(disturbing substrate during feeding and excavation of shelter). These 
concerns should be extracted from a list of pollutants, which included 
suspended sediments, and identified individually. You should include a 
discussion of water clarity under the PCE for water depth and velocity.
    Our Response: We agree that turbidity from increased suspended 
solids and sedimentation of stream bottoms are important habitat 
concerns for Devils River minnow. We have revised the final rule (see 
``Water Quality'' section below) to specifically mention this concern. 
We did not see a need to modify the language in the PCEs as we believe 
that listing suspended sediments as a pollutant is sufficient to 
capture these concerns.
    (7) Comment: While the aquifers that support the critical habitat 
streams are of high quality and free of pollution, the same can't be 
said for the water quality of the creeks. Livestock and ranching 
activities occur throughout this area except along San Felipe Creek. 
Harrel (1978) notes that in the Devils River, larger deep ponds often 
contain silt composed of detritus and sheep and goat manure washed in 
by rains.
    Our Response: There have been water quality concerns expressed for 
San Felipe Creek due to the urbanization of the watershed. There also 
may have been previous effects from ranching activities on water 
quality in the creeks, particularly in the past when sheep and goat 
grazing was a more common land use. However, we found no data to 
support that water quality is significantly impacted by current 
ranching activities (Service 2005, p. 1.7-4).
    (8) Comment: The final rule should state that maintaining water 
temperatures within acceptable ranges necessitates maintaining adequate 
aquifer protection and spring flows to streams.
    Our Response: We concur. The final rule was revised to reflect this 
comment in the ``Water Quality'' section below. We believe that 
management of groundwater aquifers is important to maintaining spring 
flows and is interrelated to maintaining water quality conditions, 
particularly water temperature in streams.
    (9) Comment: The data presented do not support an unequivocal 
statement that vegetation must be present for Devils River minnow to be 
successful. The Devils River minnow appears to survive in other areas 
without vegetation.
    Our Response: We recognize that Devils River minnow have been 
collected in areas of streams without significant vegetation. However, 
the majority of published information on the habitat use of the species 
(summarized in the ``Space for Individual and Population Growth, Normal 
Behavior, and Cover'' section below) leads us to believe that the best 
scientific data available are sufficient to warrant inclusion of 
aquatic vegetation as a PCE to provide important cover for the species. 
We have clarified our discussion in that section to reflect the fact 
that Devils River minnow have also been collected in areas without 
aquatic vegetation.
    (10) Comment: How can the special management needs identified in 
the proposed rule and the recovery plan be implemented without access 
through private property to all stream segments and their supporting 
watershed?
    Our Response: Most of the streams where the Devils River minnow 
occurs flow through private lands. The designation of critical habitat 
(or the species' status as federally threatened) does not provide a 
right for anyone to access private property without landowner 
permission. However, through cooperative relationships, the Service and 
Texas Parks and Wildlife

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Department (TPWD) have had consistent support from private landowners 
to provide access to various streams to further conservation of the 
Devils River minnow. We intend to continue to work with private 
landowners to seek their voluntary cooperation using incentive-based 
programs, such as Partners for Fish and Wildlife, for conserving this 
species and other listed species in Texas.
    (11) Comment: Discussions regarding nonnative species should 
include nonnative plants, such as hydrilla (Hydrilla verticillata), 
water hyacinth (Eichhornia spp.), giant river cane (Arundinaria 
gigantea), and salt cedar (Tamarix spp.), because they can impact 
hydrology and food sources for Devils River minnow.
    Our Response: The extent of potential impacts of nonnative plants 
to fish such as the Devils River minnow is not well documented. 
However, we recognize the concern that nonnative plants could affect 
Devils River minnow populations, and we have revised the final rule to 
reflect these concerns. We did not include salt cedar as a concern 
because we are not aware that it is present, or likely to become 
established, in the range of Devils River minnow. It is well 
established in nearby drainages on the Pecos River and Rio Grande and 
has had ample opportunity to become established in the Devils River and 
drainages farther east. We assume that conditions (soil differences and 
limited floodplains) are not conducive to salt cedar establishment.
    (12) Comment: Another concern related to nonnative species is the 
possible predation on Devils River minnow by armored catfish. 
Information was provided indicating the armored catfish in aquarium 
environments will prey on other fish.
    Our Response: We have included this information in the final rule 
in the ``Habitat Protected From Disturbance or Representative of the 
Historic Geographical and Ecological Distribution of a Species'' 
section.
    (13) Comment: Petroleum exploration and development should be 
either added as one additional management consideration for the Devils 
River population or be specifically recognized in the discussion of 
pollution. While there have fortunately been no known impacts to date, 
inappropriate site development and drilling practices associated with 
current exploration activities have the potential to seriously impact 
water quality of the Devils River and, hence, to degrade this critical 
habitat.
    Our Response: We agree and the final rule has been updated to 
include this information in the ``Special Management'' section.
    (14) Comment: Six of the seven peer reviewers commented on our 
specific question of whether or not Las Moras Creek and Sycamore Creek 
are essential to the conservation of the species and should be included 
in the critical habitat designation. Three reviewers expressed specific 
support for including Las Moras and Sycamore creeks in the critical 
habitat designation for the following reasons: (1) To maintain suitable 
habitat within its range because if left undesignated, the PCEs 
currently present will fall out of range and potential use for the 
recovery of the species will be lost; (2) to protect genetic diversity 
within the range of the species; (3) including them may be important 
for future recovery efforts, based on metapopulation theory that 
unoccupied patches are not less important than occupied ones; (4) not 
including them as ecologically significant stream segments would be 
possibly detrimental to the species over time; and (5) if the creeks 
are determined not to provide essential habitat elements, they could be 
removed from the designation later or the habitat could be improved by 
future management.
    The other three reviewers did not call for the inclusion of Las 
Moras and Sycamore creeks in the designation. However, two reviewers 
stressed that recovery of the Devils River minnow would include 
restoring the species to these streams to maintain genetic diversity 
and population redundancy and encouraged us to continue to work on 
these efforts. One reviewer stated that Sycamore and Las Moras creeks 
do not have the necessary continuous flows required to maintain a 
population of the Devils River minnow and would support their inclusion 
if there were management options in place to maintain sufficient 
residual habitat during droughts.
    Our Response: In reviewing the comments received on this issue and 
the Recovery Plan for the Devils River minnow, we determined that 
Sycamore and Las Moras creeks are essential to the conservation of the 
Devils River minnow. Restoring populations in Sycamore and Las Moras 
creeks are important recovery goals for the species. For additional 
discussion of this topic, including relevant information from the 
Recovery Plan, see the ``Criteria Used To Identify Critical Habitat'' 
section below.
    However, upon further review, we determined that the benefits of 
excluding these two creeks outweigh the benefits of including them as 
critical habitat. Therefore, we have excluded Sycamore Creek and Las 
Moras Creek under section 4(b)(2) of the Act. For the full analysis, 
see the ``Exclusions Under Section 4(b)(2) of the Act'' section below.
    (15) Comment: The rule should recognize that, while not included in 
the lateral extent of the critical habitat, the condition of the 
riparian buffer beyond the normal wetted channel is important to the 
maintenance of water quality and low levels of fine sedimentation.
    Our Response: We agree that healthy riparian areas of native 
vegetation are important to maintaining the PCEs. For example, impacts 
to riparian areas that reduce native vegetation may lead to increased 
runoff of pollutants into the stream, thus degrading water quality and 
indirectly affecting the designated critical habitat. This is further 
discussed in the ``Application of the Adverse Modification Standard'' 
section. Unlike some other stream fishes, the Devils River minnow is 
not known to be dependent on high flow events or use flooded habitats 
in overbank areas for reproduction or rearing of young. Therefore, the 
floodplain is not known to contain the features essential for the 
conservation of the Devils River minnow and is not included in this 
final critical habitat designation. See the discussion in ``Criteria 
Used To Identify Critical Habitat, f. Lateral Extent'' section.
    (16) Comment: No studies cited in the proposed rule have shown that 
the Devils River minnow is tied to spring-mouth habitat. In fact, 
several studies point out that the species does not use such habitat 
but prefers more downstream areas of the streams away from the 
immediate outfall areas. This appears to be true in all three stream 
sections chosen for critical habitat. The data do not support the 
inclusion of the spring heads in critical habitat.
    Our Response: We disagree. While Devils River minnow can be common 
in areas just a few meters downstream of spring heads, the best 
available information suggests the PCEs and the fish are also found at 
the beginning of the streams in spring heads. Numerous collections have 
listed the springs themselves as locations for collecting Devils River 
minnow (see literature reviewed in Service 2005, p 1.4.1-1.4.5).

Comments From the Public

    (17) Comment: The statement that the Devils River minnow does not 
occupy Sycamore Creek is unsubstantiated. Opportunities to sample for 
the species are very limited.
    Our Response: We did not intend to make a conclusive determination 
that

[[Page 46991]]

the Devils River minnow does not occur in Sycamore Creek. For the 
purpose of critical habitat designation, we considered a stream segment 
to be occupied at the time of listing if Devils River minnow has been 
found to be present by species experts within the last 10 years, or 
where the stream segment is directly connected to a segment with 
documented occupancy within the last 10 years (see section ``Criteria 
Used to Identify Critical Habitat'' section below). The fish has not 
been collected in Sycamore Creek since 1989. We agree that collections 
are limited and more extensive sampling in the future may produce 
additional occurrence information in this watershed.
    (18) Comment: Stream flow records from the U.S. Geological Survey 
and International Boundary and Water Commission gauging station show 
that Pinto Creek has had ``no flow'' 59 percent of the time as measured 
monthly between 1965 and 1996. Pinto Creek is an intermittent stream 
and does not supply the permanent, natural flows that are a pillar of 
the critical habitat definition.
    Our Response: We recognize that portions of Pinto Creek can be 
intermittent. The location of the stream gauge was moved to a far 
upstream location in 1981 (Ashworth and Stein 2005, p. 18). Although 
portions of the stream will exhibit no flow during some times of the 
year, spring flows will continue providing aquatic habitat for the 
Devils River minnow at various locations downstream. Ashworth and Stein 
(2005, p. 19) found that the Pinto Creek is a gaining stream through 
much of the upper reaches, that is, it increases in volume downstream. 
A stream gauge at a stationary location does not reflect the 
longitudinal variation in stream flow. We observed this in the summer 
of 2006 when Service biologists visited Pinto Creek and found some 
reaches of the creek dry and other locations supported by spring flows. 
Fish were concentrated in these spring-fed stretches.
    To account for this variation, PCE 5 of this critical habitat 
designation includes areas within stream courses that may be 
periodically dewatered for short time periods, during seasonal 
droughts. These areas were found to be important as connective 
corridors. The Devils River minnow occurs in relatively short stream 
segments and, therefore, needs to be able to move unimpeded to access 
different areas within the stream to complete life history functions 
and find resources, such as food and cover.
    (19) Comment: The presence of the nonnative smallmouth bass 
(Micropterus dolomieu) is the only significant change in the Devils 
River and has caused many changes in the structure of the fish 
community. The Devils River should not be designated as critical 
habitat because the only factor affecting fish populations is being 
propagated and enhanced by Texas Parks and Wildlife Department (TPWD).
    Our Response: We do not know the full extent of specific impacts of 
the smallmouth bass on the Devils River minnow, but initial research 
results since the listing have not revealed that smallmouth bass are an 
obvious source of predation on Devils River minnow. TPWD manages the 
smallmouth bass fishery in the Devils River but no longer stocks the 
fish in the Devils River or Amistad Reservoir. It is unknown if a 
change in the management of this fishery would benefit the Devils River 
minnow.
    (20) Comment: Nonnative species, such as the smallmouth bass and 
armored catfish, deserve to be protected even though they are not 
native. They should be allowed to thrive for the benefit of the 
American people, consistent with the Service's mission statement.
    Our Response: In the preamble to the Act, Congress recognized that 
endangered and threatened species of wildlife and plants ``are of 
esthetic, ecological, educational, historical, recreational, and 
scientific value to the Nation and its people.'' When humans introduce 
species outside of their natural range, they often have unintended and 
deleterious effects on native species. Nonnative species are one of the 
primary threats to many native species, sometimes contributing to their 
status as threatened or endangered. In these instances, we place a 
higher value on the conservation of the native species and often try to 
control the nonnative species to further the recovery of the listed 
species. We believe this is consistent with the intent of the Act.
    (21) Comment: Groundwater conservation districts override the 
``Rule of Capture'' in groundwater law in Texas. Designating critical 
habitat is a way for the Federal government to gain control over water 
managed by State or local authorities.
    Our Response: We recognize that groundwater districts are intended 
to allow local management of groundwater in place of the rule of 
capture. Designating critical habitat is not intended to supersede 
surface or groundwater management by private, local, or State parties. 
If a Federal agency proposes an action that they determine may affect 
the Devils River minnow or its habitat (such as a change in stream flow 
rates), they are required under section 7 of the Act to consult with 
the Service. Since we are designating final critical habitat in areas 
presently occupied by the fish, this requirement to consult would exist 
even if we were not designating critical habitat.
    (22) Comment: The proposed rule's concern for future groundwater 
withdrawals is not based on well-researched and documented science on 
the connection, if any, between groundwater withdrawals in Pinto Valley 
and high quality water for the species in Pinto Creek. WaterTexas 
intends to convert groundwater in Kinney County historically used for 
agriculture to municipal use without increasing the overall amount of 
water pumped. Therefore, the statement in the proposed critical habitat 
rule that there are plans to significantly increase the amount of 
groundwater pumped is inaccurate in regard to plans by WaterTexas.
    Our Response: We did not attempt to connect any particular 
groundwater pumping areas, such as Pinto Valley, to the potential for 
impact of spring flows in Pinto Creek. Our concerns are consistent with 
experts in the field, such as the statements from studies by Ashworth 
and Stein (2005, p. 34): ``Base flows of the rivers and streams that 
flow through Kinney and Val Verde Counties is [sic] principally 
generated from the numerous springs that occur in the headwaters of 
these surface drainages. Sustaining flow in these important rivers and 
streams is highly dependent on maintaining an appropriate water level 
in the aquifer systems that feed the supporting springs. Spring 
discharge rates can be negatively impacted by nearby wells if the 
pumping withdrawals lower the water table in the aquifer that 
contributes to the spring. If the water-level elevation drops below the 
elevation of the land surface at the point of spring discharge the 
spring will cease to flow.''
    The statement in this final critical habitat designation 
characterizes the expected overall trends for groundwater pumping in 
Kinney County (PWPG 2006, pp. 3-13, 4-54) and is not intended to be 
specific to any particular groundwater development project.
    (23) Comment: The purpose of the Kinney County Groundwater 
Conservation District (KCGCD) Management Plan is to provide guidance to 
the KCGCD on how to manage the groundwater on a sustainable basis and 
yet beneficially use the groundwater without exploiting

[[Page 46992]]

or adversely affecting the natural flow of the intermittent streams.
    Our Response: The KCGCD has recently drafted a revised management 
plan including an estimate of future groundwater permits. Although the 
plan was not approved until after the close of the public comment 
period and therefore not considered in its entirety in this final rule, 
we recognize that the KCGCD intends to manage groundwater on a 
sustainable basis without adversely affecting natural stream flows. We 
understand that KCGCD is still collecting scientific information on the 
possible effects to stream flows of various permitting levels for the 
aquifers in Kinney County. We look forward to the results of the 
KCGCD's implementation of their management plan and we intend to work 
cooperatively with the District to also collect information on the 
relationship of stream flows and aquatic habitat for the Devils River 
minnow, as called for in the recovery plan (Service 2005, p. 2.4-4).
    (24) Comment: Current land-use activities authorized by the KCGCD 
in the form of groundwater permitting will allow such an unwarranted 
and unprecedented depletion of the groundwater resource that Pinto 
Creek, the sole remaining critical habitat for the Devils River minnow 
in Kinney County, will dry up--if not completely, then certainly to the 
point of no longer being suitable for the minnow. Any activity that 
would further threaten spring flows in Pinto Creek must not be allowed 
if the loss of the minnow in that creek is to be avoided.
    Our Response: We recognize this concern and we encourage the KCGCD 
to carefully consider the impacts on Pinto Creek of future groundwater 
use permitting. However, it is important to recognize that designation 
of Pinto Creek, or the other areas, as critical habitat for the Devils 
River minnow has no regulatory effect on non-Federal actions, such as 
permitting by a local groundwater district.
    (25) Comment: The KCGCD plans to permit total groundwater 
withdrawals that exceed the amount of groundwater available according 
to estimates by the Texas Water Development Board. The KCGCD does not 
consider impacts to the Devils River minnow, and the KCGCD may have 
already sanctioned withdrawals of sufficient amounts of groundwater to 
result in direct harm to the proposed critical habitat in Pinto Creek.
    Our Response: We understand there are important scientific 
uncertainties about the amount of groundwater available for sustained 
uses in Kinney County. We recognize that future increases in 
groundwater pumping could impact habitats of the Devils River minnow, 
and we encourage the KCGCD to consider habitat of the Devils River 
minnow and to provide stream flow monitoring efforts to ensure 
permitted pumping does not result in loss of stream habitat for Devils 
River minnow. However, unless there is a Federal nexus with groundwater 
pumping activities and a determination that a specific Federal action 
may affect the Devils River minnow, the critical habitat designation 
will not affect groundwater pumping.
    (26) Comment: A limit on impervious cover within the watersheds of 
the designated streams should be included in the section on Special 
Management Considerations and Protections. Impervious cover amounts in 
excess of 10 to 15 percent within a watershed are known to increase 
storm runoff, which in turn causes the erosion of stream beds and the 
degradation of water quality as surface pollutants contaminate and warm 
the water in a stream.
    Our Response: We concur that limiting impervious cover in urban 
areas is one method to reduce future pollutant inputs to streams from 
contributing watersheds. The final critical habitat designation does 
not intend to provide this level of specificity for needed special 
management actions. There may be other management that could result in 
providing adequate water quality for the Devils River minnow in San 
Felipe Creek. This level of land planning is best done by a local 
governmental authority, such as a city or county.
    (27) Comment: The proposed rule includes brush-clearing in a list 
of activities that would significantly increase sediment deposition 
within the stream channel. This statement, taken out of context, is 
erroneous. Research has shown that brush control can lead to positive 
environmental benefits, including increased groundwater recharge.
    Our Response: The proposed rule indicated brush control and other 
land-use activities could affect Devils River minnow habitat. We have 
updated the final rule to more accurately reflect our understanding 
that the actual effects of specific activities, such as brush clearing, 
must be evaluated on a project-specific basis. The impacts of any 
specific activity will depend on the location of the activity, and the 
extent to, and manner in, which the activity is carried out.
    We have also updated the final economic analysis to include a 
Statewide section 7 consultation in 2004 that was completed with the 
Natural Resources Conservation Service (NRCS) for brush control actions 
funded under the 2002 Farm Bill. In that consultation, we found that, 
under most circumstances, brush control within the range of the Devils 
River minnow results in beneficial effects by increasing groundwater 
recharge and spring flows, as emphasized by this comment.
    (28) Comment: Land-use practices in the Devils River Unit have 
changed little over the past 50 years and are predominantly agrarian 
(agricultural) for livestock ranching and wildlife hunting. Stream flow 
and quality are not currently influenced by other outside factors, such 
as those from municipal, commercial, or industrial entities, but are 
only subject to natural variations. The Nature Conservancy and the 
State of Texas own large parcels of land along the river. Barring any 
unforeseen events, it does not appear that land use in the region will 
change significantly.
    Our Response: We agree that land use has changed little in the 
Devils River watershed in recent years, and current ranching and 
wildlife hunting are not considered a threat to the Devils River minnow 
or a concern for its habitat. However, we are concerned that the stream 
habitat will be affected in the future by other outside factors. The 
primary long-term potential threat of groundwater withdrawal is not 
necessarily related to land use. Other land-use considerations include 
the potential impacts to water quality from petroleum exploration and 
development.
    (29) Comment: One commenter stated that the Devils River minnow is 
thriving, particularly in the Devils River, under the current voluntary 
cooperation of private landowners, TPWD, and the Service. The species 
does not now satisfy the definition for an endangered or even 
threatened species under the Endangered Species Act (16 U.S.C. 1531 et 
seq.). Another commenter thought our action to designate critical 
habitat would lead to further action to declare it an endangered 
species.
    Our Response: We recognize the positive relationships that exist 
between our agency, TPWD, and private landowners in working together 
for the conservation of the Devils River minnow. We concur that various 
monitoring efforts in the Devils River have continued to find the 
population persisting, apparently in strong numbers. However, there is 
no available information that suggests the species is ``thriving'' 
across its range. The Act requires designation of critical habitat

[[Page 46993]]

for species listed as either threatened or endangered, if we determine 
critical habitat to be prudent and determinable.
    As part of a process separate from designating critical habitat, 
the Service is now conducting a 5-year review on the status of the 
Devils River minnow rangewide to assess whether it is classified 
correctly as a threatened species. We requested information to assist 
with this review in a Federal Register notice on April 23, 2007 (72 FR 
20134). We have not yet completed this review, and we are always open 
to receiving new information on the status of this and all listed 
species.
    (30) Comment: The voluntary conservation agreement signed by the 
Service and TPWD in 1998 is working, and the Devils River Association 
renews our commitment to help with this agreement. Voluntary efforts on 
the Devils River have increased Devils River minnow habitat. The 
Service should continue this healthy voluntary cooperation. Designating 
critical habitat would terribly and irreparably damage the trust that 
we have gained over the last few years.
    Our Response: We appreciate and strongly support the voluntary 
cooperation that has been provided in the past by landowners along the 
Devils River. The conservation of this species depends on the 
cooperative efforts of private landowners and others. Although the 1998 
conservation agreement has not been renewed or maintained as a formal 
conservation effort following the initial 5-year commitment, it has 
served as a foundation for cooperative efforts that, in part, resulted 
in the designation of the Devils River minnow as threatened rather than 
endangered. After conducting an analysis under section 4(b)(2) of the 
Act, we concluded that the benefits of excluding the Devils River Unit 
from the final designation (including maintaining non-Federal 
partnerships) outweigh the benefits of inclusion (see ``Exclusions 
under Section 4(b)(2)'' section).
    (31) Comment: Private landowners and ranchers along the Devils 
River serve to maintain wide open spaces and ecosystem processes. 
Restrictions on private landowners from critical habitat designation 
could affect landowners' livelihoods and result in land fragmentation 
and a cascading effect along the Devils River. This could result in the 
selling of smaller land parcels and cause the end of one of the most 
pristine ecosystems in the State.
    Our Response: We agree that maintaining large ranches intact is 
likely a beneficial situation for the Devils River minnow habitat. 
However, we do not foresee private landowner restrictions resulting 
from the final designation of critical habitat and do not believe that 
these concerns are likely to be realized. These widely held perceptions 
by landowners in the Devils River Unit, however, could result in anti-
conservation incentives because furthering Devils River minnow 
conservation is seen as a risk to future economic opportunities or loss 
of private property rights. See our response to Comment 30 above.
    (32) Comment: The restrictions on landowners in the Devils River 
area will unduly burden landowners. Critical habitat will also impact 
whether or not you can use machinery for pushing cedar, constructing 
roads, clearing brush, grazing livestock excessively, and using off-
road vehicles.
    Our Response: These activities are identified in the proposed and 
final rules as actions that could affect critical habitat, if they were 
carried out, funded, or permitted by a Federal agency and if they 
resulted in specific effects to the critical habitat area. The final 
critical habitat designation itself does not restrict landowners along 
the Devils River or elsewhere from carrying out these activities. See 
our response to Comment 27 for additional discussion of brush clearing.
    (33) Comment: Will critical habitat designation affect: (1) The 
right of the City of Del Rio to take water from San Felipe Springs or 
other groundwater sources; (2) the right of private landowners to take 
and use groundwater on their lands; (3) City, County, or State 
construction projects involving building or maintaining streets, 
highways, and other public facilities; (4) repair and maintenance 
activities on State Highway 163 in Val Verde County or the county road 
from State Highway 163 to F.M. 1024; (5) the rights of landowners to 
use and operate their lands for otherwise lawful purposes? What 
activities on non-Federal, public, or private lands will be affected by 
critical habitat designation? What impact will critical habitat 
designation have on Laughlin Air Force Base?
    Response: Critical habitat only affects activities where Federal 
agencies are involved and consultation under section 7 of the Act is 
necessary. Critical habitat designation has no impact on private 
actions on private lands. Critical habitat does not create a 
requirement for specific land protection by non-Federal parties. The 
Devils River minnow occurs in streams primarily on non-Federal lands 
with little to no Federal agency involvement. Therefore, final critical 
habitat designation is not expected to change most ongoing or planned 
activities.
    The legal protections of critical habitat only apply during 
interagency consultation by Federal agencies under section 7 of the 
Act. Activities that are funded, permitted, or carried out by a Federal 
agency (such as a permit from the U.S. Army Corps of Engineers under 
section 404 of the Clean Water Act) on private or public lands that may 
affect a listed species or critical habitat undergo additional review 
for consideration of the listed species. Through an interagency 
consultation process, the Service advises Federal agencies whether the 
proposed actions would likely jeopardize the continued existence of the 
species or adversely modify its critical habitat. Results of these 
additional reviews rarely interfere with the ability of private or 
public entities to carry out otherwise lawful activities such as those 
described in this comment.
    We have only designated critical habitat in areas where the species 
occurs. In these areas, Federal agencies already have a responsibility 
for interagency consultation for actions that may affect the species. A 
review of the consultation history as part of the economic analysis 
(documented in Appendix A of the economic analysis) concluded that 
there have been very few consultations since the species was listed in 
1999. To date, there has been no interagency consultation with Laughlin 
Air Force Base regarding the Devils River minnow.
    (34) Comment: I am concerned that by designating the San Felipe 
Creek as critical habitat, the people will suffer and not be able to 
use the creek as the City of Del Rio would like. The Devils River 
minnow should not dictate how the City of Del Rio uses San Felipe 
Creek, but you should work to eradicate river cane and the armored 
catfish to help the population of the fish grow.
    Our Response: People in Del Rio will continue to be able to use San 
Felipe Creek even though it has been designated as critical habitat. 
The conservation of the Devils River minnow has not limited the use of 
San Felipe Creek, and use is not likely to change with critical 
habitat. We will continue our ongoing cooperative efforts with the City 
of Del Rio to work on controlling exotic river cane and armored 
catfish, and on other conservation efforts.
    (35) Comment: There is suspicion that the Devils River minnow 
population in Pinto Creek was artificially introduced by private 
landowners and others at the headwaters of Pinto Creek.

[[Page 46994]]

    Our Response: We have no information to indicate that the Devils 
River minnow in Pinto Creek is not a natural population. The reason for 
the recent discovery of Devils River minnow in Pinto Creek is because 
there was no prior sampling in upstream areas where the species occurs 
(Garrett et al. 2004, p. 439). In addition, recent genetic studies of 
the Devils River minnow have found that the population in Pinto Creek 
is significantly different from the population in the Devils River 
(Conway et al. 2007, p. 9), suggesting that it is a natural population.
    (36) Comment: Many listed species in Texas and nationally do not 
have critical habitat designated. The Service has already had a final 
ruling that stated it would not be prudent to designate critical 
habitat for the Devils River minnow because it would not benefit the 
species (final listing rule in 1999, 64 FR 56606). As stated in the 
Service's July 26, 2005, letter to the Forest Guardians, critical 
habitat is not needed for the Devils River minnow.
    Our Response: We agree that designation of critical habitat is not 
likely to provide many benefits for the Devils River minnow since the 
designated area is likely to have few Federal actions that affect the 
species. However, the Act requires that we designate critical habitat 
following a specific methodology. The lawsuit brought by Forest 
Guardians (now WildEarth Guardians) and others necessitated that we 
reconsider the designation of critical habitat, resulting in this final 
rule. The reasoning that we used in 1999 to determine that the 
designation of critical habitat was not prudent was subsequently 
determined in other court cases not to be a valid justification.
    (37) Comment: All areas included in the proposed rule should be 
designated as critical habitat. The adequacy of existing or future 
conservation plans is not sufficient to warrant any exclusions of 
critical habitat.
    Our Response: We are excluding the Devils River Unit and Sycamore 
and Las Moras creeks from the critical habitat designation for Devils 
River minnow. After conducting analyses under section 4(b)(2) of the 
Act, we concluded that the benefits of excluding the Devils River Unit 
and Sycamore and Las Moras creeks from the final designation (including 
maintaining non-Federal partnerships) outweigh the benefits of 
inclusion (see ``Exclusions under Section 4(b)(2)'' section).
    (38) Comment: Las Moras Creek is not the place to reintroduce 
Devils River minnow. Flooding in the city of Brackettville often causes 
pollution in the creek. The KCGCD does not have the scientific evidence 
to assure that Las Moras Creek will not go dry if groundwater is 
transported to San Antonio.
    Our Response: We are not proposing to reintroduce Devils River 
minnow to Las Moras Creek with this final critical habitat rule. 
Instead we are designating critical habitat for the species in portions 
of Pinto Creek and San Felipe Creek. We have determined not to 
designate Las Moras Creek as critical habitat. The concerns raised in 
this comment will need to be addressed in future cooperative plans to 
restore the Devils River minnow to Las Moras Creek.

Comments Related to the Economic Analysis

    (39) Comment: The draft economic analysis (DEA) maintains that 
section 7 consultations under the jeopardy standard and the adverse 
modification standard are not likely to have significantly different 
outcomes. This is not accurate, as the jeopardy standard does not 
protect unoccupied habitat. Moreover, destruction of occupied habitat 
may not meet the jeopardy standard if the Service determines that the 
destruction of a single population will not cause the species to go 
extinct or thwart its recovery. Alternatively, within critical habitat, 
the destruction of a single population or a portion thereof would 
certainly violate the Act's prohibition of adverse modification.
    Our Response: It is true that it would be inappropriate to conclude 
that consultations under the jeopardy and adverse modification 
standards would not differ for unoccupied critical habitat; however, we 
have not included unoccupied areas in this final critical habitat 
designation (see ``Criteria Used to Identify Critical Habitat'' section 
below). Additionally, we recognize that the jeopardy and adverse 
modification standards are not equivalent and that it is possible in a 
general sense that a project may be determined to adversely modify 
critical habitat while also not resulting in jeopardy. However, the 
specific situation for the Devils River minnow does not present this 
case. For two of the units, no projects with a Federal nexus are 
anticipated, and for the third unit, the projects expected would 
generally be minor and not expected to affect an entire unit. 
Therefore, projects in the third unit would not likely result in 
adverse modification or jeopardy. Based on discussions among 
stakeholders, affected Federal agencies, and the Service, no new 
conservation measures are expected to occur as a result of 
consultations in areas designated as critical habitat for the Devils 
River minnow. Rather, current and forecast conservation measures for 
the species are a result of the listing of the Devils River minnow as a 
threatened species. The additional cost of consulting for adverse 
modification above the cost of consulting for jeopardy, in the amount 
of $64,000 (undiscounted) over 20 years, are quantified as incremental 
post-designation impacts in the administrative costs appendix of the 
economic analysis.
    (40) Comment: The critical habitat proposal and the DEA fail to 
fully address the threat of climate change to the Devils River minnow, 
despite the fact that its southwestern aquatic habitat is in extreme 
peril from the climate crisis.
    Our Response: At this time, climate change has not been identified 
as an impact needing special management in the Devils River minnow 
critical habitat, as projections of specific impacts of climate change 
in this area are not currently available. As such, no conservation 
measures are expected in the reasonably foreseeable future that would 
directly address the threat of climate change to the Devils River 
minnow. Thus, the economic analysis does not quantify impacts 
associated with conservation measures for the Devils River minnow 
related to global climate change.
    (41) Comment: The potential impacts of future groundwater 
development for municipal use should not be ignored in the economic 
analysis. With the potential groundwater yields that could be produced 
for municipal use, it is recommended that the parameters used in 
performing the economic analysis be reexamined and revised to reflect 
the potential future impacts of pumping for municipal use. If these 
factors are ignored, it is conceivable that future limitations could 
impose unreasonable restrictions on groundwater development in the 
region, in turn resulting in significant economic impacts.
    Our Response: Section 3.2 of the final economic analysis (FEA) 
recognizes that any limitations on available future groundwater 
resource options for San Antonio or other municipalities wishing to 
export water from the critical habitat area would result in potentially 
substantial economic impacts on municipal users, presumably in terms of 
increased water prices occurring if supply is constrained, or as more 
costly options for water development are undertaken. However, due to 
the uncertainties with regard to linking specific groundwater 
withdrawals to

[[Page 46995]]

impacts on Devils River minnow habitat, future Federal involvement in 
potential water extraction projects, and any potential changes to those 
projects that could be requested by the Service as part of a 
consultation, the FEA is unable to quantify potential economic impacts 
of Devils River minnow conservation measures related to such 
groundwater extraction activities. The analysis does recognize that 
potential negative impacts on both the water suppliers and the end 
water users could occur should restrictions on water use be undertaken 
on behalf of the Devils River minnow. The analysis also points out that 
there have not been any consultations related to groundwater extraction 
and its effects on the Devils River minnow to date.
    (42) Comment: In Section 3.1 of the DEA, the quotation attributed 
to the document, ``Texas Water Law,'' Texas Water Resource Education, 
Texas A&M University, is not completely accurate with respect to Texas 
Law. While the so-called ``Rule of Capture'' continues to be the 
underlying basis of groundwater law in Texas, groundwater districts, 
and now, more importantly, Groundwater Management Areas (GMAs) play a 
major and superseding role in groundwater planning and management. In 
particular, House Bill 1763 from the 79th Regular Session of the Texas 
Legislature created GMAs that now cover all of Texas, and together with 
groundwater districts, GMAs override in many respects the effects of 
the ``Rule of Capture'' as known and practiced in the past.
    Our Response: Section 3.1 of the FEA has been revised following 
receipt of this comment. This section now states the following: 
``Generally, groundwater in Texas is governed by the `rule of capture,' 
that is, groundwater is the private property of the owner of the 
overlying land. However, a number of state-mandated groundwater 
conservation districts (GCDs) have the ability to regulate the spacing 
and production of groundwater wells. Each GCD falls within a larger 
Groundwater Management Area (GMA). Currently, 16 GMAs exist in Texas 
spanning the state's major and minor aquifers. In 2005, the Texas State 
Legislature required that all GCDs in a given GMA meet annually to 
determine a future desired groundwater condition for their respective 
GMA. Based on the desired future condition specified by a given GMA, 
the Texas Water Development Board (TWDB) determines a managed available 
groundwater level for the GMA. Lands outside of GCDs are not subject to 
groundwater pumping regulations unless a landowner seeks state funding 
for a groundwater project. In this case, the specific project must be 
included in the GMA's regional water plan. The total groundwater 
allotments permitted by the GMA must not exceed its managed available 
groundwater level.''
    (43) Comment: WaterTexas' ongoing water exportation project is too 
preliminary to know for certain whether consultation with the Federal 
government above and beyond the U.S. Army Corps of Engineers (for 
Section 404 permits under the Clean Water Act) will be necessary. With 
respect to WaterTexas' planned water exportation project, WaterTexas 
does not see the KCGCD's management plan revision currently underway as 
any sort of barrier to the commencement or further development of their 
current project.
    Our Response: Section 3.2 of the FEA has now been clarified to 
state that the WaterTexas project is too preliminary to know for 
certain whether or not consultation with the Federal government, other 
than the U.S. Army Corps of Engineers for a section 404 permit, will be 
necessary. A statement has also been added to the FEA clarifying that 
``currently, WaterTexas does not expect the forthcoming KCGCD 
management plan to affect their ongoing groundwater exportation 
project.''
    (44) Comment: In section 3.2 paragraph 86, the DEA states that 
``supplementing San Antonio's water supply would, among other things, 
ease water-related threats to other listed species within the Edwards 
Aquifer.'' WaterTexas wishes to correct any perception that they 
believe their planned water exportation project will assist in directly 
reviving or rescuing any endangered species in any other area of Texas.
    Our Response: Section 3.2 of the FEA has been revised to clarify 
that one water company believes that its project may help to ease 
water-related threats to other species in the Edwards Aquifer. The 
section now states: ``Grass Valley Water LP is proposing to export 
22,000 acre-feet annually to San Antonio from a 22,000-acre ranch in 
eastern Kinney County. The project would draw water from the Edwards 
Balcones Fault Zone, which according to the company, does not affect 
Las Moras Springs. Grass Valley Water LP has already invested a 
significant amount of resources into the project and believes that 
supplementing San Antonio's water supply could, among other positive 
effects, ease water-related threats to other listed species within the 
Edwards Aquifer.''
    (45) Comment: Voluntary conservation plans, such as the City of Del 
Rio's Management Plan for San Felipe Creek and the San Felipe Country 
Club Management Plan, should not be included in the economic baseline 
calculation in the EA. Due to the voluntary nature of these plans, the 
water quality protection measures described are not guaranteed to 
occur. As such, these voluntary measures might lower the perceived 
benefit to designating critical habitat by guaranteeing conservation, 
which, in reality, may or may not occur.
    Our Response: The FEA examines the impacts of restricting or 
modifying specific land uses or activities for the benefit of the 
species and its habitat within the areas considered for critical 
habitat designation. The analysis employs ``without critical habitat'' 
and ``with critical habitat'' scenarios. The ``without critical 
habitat'' scenario represents the baseline for the analysis, 
considering protections already accorded the Devils River minnow, 
voluntary or otherwise. The City of Del Rio's Management Plan for San 
Felipe Creek and the San Felipe Country Club Management Plan were both 
developed in 2003 following a Conservation Agreement for the Devils 
River minnow between the Service, TPWD, and the City of Del Rio in 
1998, prior to the species' listing. Thus, the costs of developing 
these plans, and those conservation measures listed in the management 
plans that have already occurred or are planned to occur in the near 
future are included in the baseline. Impacts related to conservation 
measures discussed in the management plans that are not anticipated to 
occur in the foreseeable future are not quantified in the analysis.
    (46) Comment: The DEA failed to consider the entirety of potential 
effects of all Federal nexuses and ensuing regulatory actions on small 
businesses, in particular, private landowners and ranchers along the 
Devils River Unit. Pursuant to the 2002 Farm Bill, there are at least 
two NRCS programs that provide assistance to landowners to control 
brush. The proposed rule lists brush-clearing as an ``action that would 
significantly increase sediment deposition within the stream channel.'' 
Potential brush-clearing consultations may delay actual brush-clearing 
to a point where landowners may miss the opportunity to carry out 
planned brush control activities for an entire year.
    Our Response: Section 2 of the FEA now clarifies that threats to 
water quality in Devils River minnow critical habitat may include 
sedimentation due to grazing, brush-clearing, road construction, 
channel alteration, off-road vehicle use, and other watershed 
activities in the rural Devils River,

[[Page 46996]]

Sycamore Creek, and Pinto Creek units. Section 2 of the FEA also 
includes a discussion of the concern that private brush-clearing 
activities conducted using funds from NRCS could be delayed to a point 
where landowners may miss the opportunity to carry out those activities 
for an entire year. The analysis examines a 2004 formal consultation 
between the Service and the NRCS regarding activities associated with 
implementation of the 2002 Farm Bill conservation programs and their 
effects on listed species in western Texas. This consultation, which 
focused on brush management treatment practices targeting control of 
honey mesquite (Prosopis glandulosa), salt cedar, Ashe juniper 
(Juniperus ashei), and redberry juniper (J. coahuilensis) concluded 
that the proposed brush-clearing activities would benefit the Devils 
River minnow by increasing the base flow of the Devils River if the 
brush-control activities were part of brush management practices 
intended to improve the quality and quantity of water, improve range 
conditions, and improve the value of wildlife habitat. Thus, all brush 
removal activities receiving funding from the NRCS under the 2002 Farm 
Bill remained unaltered as a result of that consultation. The analysis 
concludes that few, if any, impacts on brush-clearing activities, even 
when supported by NRCS funds, appear likely to result from Devils River 
minnow conservation activities.
    (47) Comment: Several commenters requested that stigma effects be 
addressed in the economic analysis. One commenter stated that he 
believes this effect could significantly decrease and lower the land 
value of the land along the Devils River. The number could be anywhere 
from 2 to 10 million dollars of land devaluation impacts.
    Our Response: Section 1.3.2 of the FEA has been revised and 
expanded to respond to concerns over stigma effects related to the 
designation. The analysis recognizes that, in some cases, public 
perception of critical habitat designation may result in limitations of 
private property uses above and beyond those associated with 
anticipated project modifications and uncertainty related to regulatory 
actions. Public attitudes regarding the limits or restrictions of 
critical habitat can cause real economic effects to property owners, 
regardless of whether such limits are actually imposed. To the extent 
that potential stigma effects on real estate markets are probable and 
identifiable, these impacts are considered indirect, incremental 
impacts of the designation.
    The FEA finds that, in the case of the Devils River minnow critical 
habitat areas, it appears unlikely that critical habitat designation 
for the Devils River minnow will result in long-term stigma effects for 
property owners abutting designated stream segments. Unless a landowner 
receives Federal assistance or needs a Federal permit to carry out 
property management actions, no nexus exists that would compel a 
Federal action agency to consider requiring conservation measures for 
the species. For ongoing private land-use activities, such a nexus is 
expected to be rare. Further, recent land-use trends in critical 
habitat areas are a transition from ranching and agricultural uses to 
recreation and conservation-based land uses. In these cases, any 
perceptions that development activities may be limited in those areas 
could in fact increase the attractiveness of property in those areas. 
In either case, as the public becomes aware of the true regulatory 
burden imposed by critical habitat, any impact of the designation on 
property values would be expected to decrease.
    (48) Comment: The economic analysis states that it measures net 
economic costs, but it does not quantify benefits. Therefore, the 
Service cannot estimate the ``net'' impacts of critical habitat. 
Consequently, they cannot appropriately invoke section 4(b)(2) of the 
Act to exclude areas from its final critical habitat designation for 
the Devils River minnow. The commenter also states that benefits 
derived from conservation measures such as improving water quality, 
eliminating non-native species, and preserving/maintaining ecosystem 
se