Endangered and Threatened Wildlife and Plants; Final Rule To List the Devils River Minnow as Threatened

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AE 86

Endangered and Threatened Wildlife and Plants; Final Rule To List

the Devils River Minnow as Threatened

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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

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

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

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

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

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

reduced and fragmented due to habitat loss from dam construction,

spring dewatering, and other stream modifications. The numbers of

Devils River minnows collected during fish surveys over the past 25

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

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

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

the effects of both habitat modification and possibly predation by

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

We originally proposed to list the Devils River minnow as

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

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

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

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

Rio. We determine that the actions already accomplished under this

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

sufficiently to justify a threatened designation. This action will

implement Federal protection provided by the Act for the Devils River

minnow. We determine that designation of critical habitat for the

Devils River minnow is not prudent.

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

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

by appointment, during normal business hours at the Austin Ecological

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

78758.

FOR FURTHER INFORMATION CONTACT: Nathan Allan, Fish and Wildlife

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

512/490-0974.

SUPPLEMENTARY INFORMATION:

Background

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

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

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

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

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

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

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

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

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

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

morphological characteristics (Hubbs and Brown 1956), genetic markers

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

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

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

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

lateral stripe with double dashes extending through the eye to the

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

with prominent dark markings on scale pockets above the lateral line

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

and Brown 1956).

Little information is available on life history characteristics,

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

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

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

closely related species, are broadcast spawners with nonadhesive eggs

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

River minnows are as well.

General habitat associations for Devils River minnow have been

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

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

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

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

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

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

extended droughts and extreme flash floods (USGS 1989).

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

Texas streams where a mixture of fishes occur, including Mexican

peripherals, local endemics, and widespread North American fishes

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

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

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

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

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

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

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

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

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

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

Creek; Las Moras Creek near

[[Page 56597]]

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

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

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

collection efforts, the species has never been reported from the

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

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

is unknown.

A comprehensive assessment of the distribution of Devils River

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

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

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

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

samples from Las Moras Creek.

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

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

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

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

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

general shift in community structure toward fishes that tend to occupy

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

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

result of reduced stream flows from drought, exacerbated by human

modification of stream habitats, especially in Sycamore and Las Moras

creeks.

The most recent information from collections in 1997 and 1998

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

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

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

Del Rio.

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

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

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

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

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

from industrial and agricultural development (Contreras and Lozano

1994).

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

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

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

through rocky, limestone soils and shrubby vegetation characteristic of

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

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

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

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

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

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

County and Eldorado in Schleicher County, although the subsurface

hydrogeomorphology (underground water characteristics) of the region is

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

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

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

this groundwater supply is essential for the continued existence of the

Devils River minnow.

Areas where the Devils River minnow occurs are mostly in private

ownership. Exceptions include the Devils River State Natural Area

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

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

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

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

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

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

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

development beyond that necessary to support ranching operations.

The Devils River minnow is currently listed as a threatened species

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

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

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

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

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

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

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

ensure the continued existence of the species. Preliminary drafts of

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

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

to list the species. The Agreement includes a Conservation Strategy

(Strategy) to describe the specific procedures required for

conservation of the Devils River minnow. We carefully considered the

implementation to date of the conservation actions as described in the

Strategy and the effects of that implementation on removing threats to

the species when making the final listing determination for the Devils

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

implementation that have occurred to date.

The ten conservation actions that are included in the Strategy and

their implementation status are:

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

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

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

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

Creek and Dolan Creek in May, 1998.

(2) Maintain genetically representative, captive populations of

Devils River minnow at two fish hatchery facilities for reintroduction,

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

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

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

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

indicating that captive propagation is likely readily accomplished. We

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

develop captive propagation techniques for the species. We have secured

funding for our San Marcos National Fish Hatchery and Technology Center

to initiate this action in the very near future.

(3) Reintroduce Devils River minnows, reared in captive

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

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

being completed before reintroductions can be initiated.

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

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

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

of conservation of the natural environment in any future development

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

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

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

(5) Provide technical assistance to landowners on riparian

protection and management. Not yet initiated.

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

River area to develop methods and take appropriate actions (for

example,

[[Page 56598]]

regulation, education) to prevent the further establishment of exotic

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

yet initiated.

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

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

initiated.

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

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

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

environment to determine ecological and life history requirements of

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

purchase and construction of the facilities necessary to do experiments

on the ecology of the species. Preliminary experiments have been

initiated.

(10) Determine predator/prey interactions between smallmouth bass

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

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

University and implementation of laboratory experiments discussed in

action number 9, above.

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

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

and clarified some specific milestones for accomplishing the goals of

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

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

agreed to by the three parties include:

(1) Have healthy, genetically representative captive stocks of

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

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

San Felipe Creek.

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

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

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

throughout its historical range and potential habitats in Mexico.

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

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

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

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

headwater springs area. This will be indicated by maintaining stable

population sizes of Devils River minnow at Del Rio and restoring

population sizes at least equal to those historically in the headwater

springs. In addition, implementation of conservation measures in San

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

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

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

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

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

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

River. This will be accomplished by establishing additional locations

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

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

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

potential limiting factors in this system, particularly the effects of

smallmouth bass and changes in stream flows.

We concur with many of the public comments that supported this

cooperative approach. This listing does not preclude continuation of

cooperative efforts between parties to the Agreement or continuing

efforts to implement the Conservation Strategy. As stated in the

introduction of the Agreement, we believe that full implementation of

the Strategy may ultimately reduce the threats to the Devils River

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

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

the species significantly improves such that recovery has occurred.

Previous Federal Action

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

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

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

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

the new critical habitat requirements set forth in the Endangered

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

reproposed the designation of critical habitat for the Devils River

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

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

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

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

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

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

listing had expired.

We included the Devils River minnow as a category 2 candidate

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

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

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

threatened or endangered status, but for which the available biological

information in our possession was insufficient to support listing the

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

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

minnow as a category 1 candidate in notices of review published

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

Category 1 taxa were those for which we had substantial biological

information on hand to support proposing to list the species as

threatened or endangered.

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

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

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

sufficient information to support listing are now recognized as

candidates. The Devils River minnow remained a candidate species in

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

September 19, 1997 (62 FR 49398).

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

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

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

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

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

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

days and announcing the availability of new information and the

Conservation Agreement (63 FR 54660).

The processing of this final rule conforms with our current listing

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

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

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

the listing status of outstanding proposed listings, resolving the

conservation status of candidate species, processing petitions, and

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

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

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

[[Page 56599]]

Summary of Comments and Recommendations

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

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

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

interested parties to submit factual reports or information that might

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

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

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

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

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

proposal after the original comment period closed. Updated information

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

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

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

of Del Rio was signed on September 2, 1998.

We contacted numerous Federal and State agencies, county and

municipal governments, scientific organizations, and private

individuals to request comments on the proposal. Newspaper notices

inviting public comment and announcing the public hearing were

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

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

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

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

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

written comments from the public and agency officials during both

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

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

One person submitted two comment letters. Therefore, comments were

received from 26 separate commenters on the proposal.

The following summary addresses the written and oral comments

received. These comments comprise a range of issues regarding the

proposal. Because multiple respondents offered similar comments in some

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

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

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

a position. Ten commenters expressed support for the Conservation

Agreement. The comments and our responses are as follows:

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

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

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

and Mexico.

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

Devils River minnow and its conservation with additional research. The

Conservation Agreement has additional research and monitoring as key

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

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

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

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

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

status for the Devils River minnow is warranted.

Comment 2: Numerous commenters requested that we accept the

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

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

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

Service Response: We agree that cooperative, voluntary efforts to

conserve this species that remove or reduce threats that preclude the

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

implementation of the conservation strategy activities that the

agreement calls for has not occurred. We signed the Conservation

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

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

extent to which the conservation actions outlined in the Conservation

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

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

determination. We strongly support the efforts of State and local

agencies taking active roles in the conservation of the Devils River

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

the potential to benefit the species. The actions already accomplished

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

implementing the remaining actions, were considered in the decision to

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

important conservation tool. Even though full implementation has not

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

that listing is still warranted, the Conservation Agreement will be

useful in facilitating and expediting the recovery of the Devils River

minnow.

Comment 3: Some commenters requested the listing decision be

delayed to allow the Conservation Agreement time to be implemented.

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

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

into account those actions of the Conservation Agreement that have been

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

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

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

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

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

additional Federal regulations over land and water use that would limit

private property rights.

Service Response: We do not foresee substantial impacts on private

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

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

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

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

are interested in working with landowners to develop cooperative

solutions to species conservation that avoid or minimize the need for

regulatory burdens on landowners.

Comment 5: Local and state governmental agencies could manage the

Devils River minnow better than the Federal government.

Service Response: Listing the species by the Federal government

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

contrary, we encourage State and local involvement in recovery of

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

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

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

offer any support where possible and needed.

Comment 6: No significant groundwater pumping has occurred in the

watershed since the 1960's.

Service Response: We took this comment into consideration in this

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

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

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

not have substantial information showing the level of pumping in and

around the Devils River watershed. This prevents any correlation of

streamflow with groundwater withdrawals. However,

[[Page 56600]]

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

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

that groundwater pumping could adversely affect habitat of the Devils

River minnow.

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

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

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

Lake to Pecan Springs.

Service Response: The information used in evaluating historical

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

International Boundary and Water Commission at the gage near Del Rio

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

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

analysis of hydrology on the Devils River.

We reevaluated all existing and new information concerning the

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

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

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

the Conservation Agreement is an analysis of the hydrology of the

Devils River and other streams supporting Devils River minnow to

determine if stream flows have declined over time.

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

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

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

of cedar and mesquite.

Service Response: We took this comment into consideration in this

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

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

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

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

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

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

watershed, could lead to increased runoff and decreased groundwater

recharge.

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

significant reason for the current decline in the species' distribution

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

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

runoff and decreased rates of recharge to the groundwater.

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

Devils River minnows collected from Beaver Lake or anywhere upstream of

Pecan Springs.

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

collected Devils River minnow in Beaver Lake. Voucher specimens are

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

contains 14 specimens and the 1974 sample contains 13 specimens of

Devils River minnow.

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

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

River minnow from Phillips Creek and Dolan Creek show they are

plentiful.

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

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

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

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

The collections at Dolan Creek are important because the only other

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

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

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

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

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

confirm three locations of the species throughout its historical range

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

Felipe Creek). Although population numbers are important, the

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

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

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

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

because of the introduction of smallmouth bass by TPWD.

Service Response: We agree that predation by smallmouth bass could

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

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

of the actions included in the Conservation Agreement (Conservation

Action #8).

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

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

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

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

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

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

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

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

populations of Devils River minnow to historical locations because some

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

minnow can be protected from extinction through conservation of the

remaining ecosystems upon which the species depends. The past habitat

destruction only serves to heighten the need for protection and

enhancement of suitable habitats remaining for the Devils River minnow.

Comment 13: The Natural Resources Conservation Service (NRCS)

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

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

The NRCS indicated that none of their programs adversely affected the

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

Service Response: We support the NRCS in assisting landowners with

ranching practices that may benefit Devils River minnow habitat.

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

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

listed species, even if that effect is beneficial, requires

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

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

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

the Act.

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

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

interstate commerce. Therefore, the Service lacks authority under the

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

United States Constitution to regulate the Devils River minnow.

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

Appeals for the District of Columbia Circuit (National Association of

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

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

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

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

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

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

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

in the State of Texas, is constitutional. We

[[Page 56601]]

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

threatened and direct its conservation and eventual recovery.

In addition to the reasons supporting the constitutionality of the

Act itself that were discussed in National Association of Homebuilders

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

River minnow habitat for agriculture and livestock production,

residential development and roads and highways are activities that

affect interstate commerce. The specimens of this species in museums

around the country directly traveled via the channels of interstate

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

interstate to study or observe the species. Finally, international

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

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

of Federal regulation.

Comment 15: The Service is intentionally making untrue,

nonscientific statements to serve a political agenda to list the Devils

River minnow.

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

conducted an objective evaluation of the scientific evidence available

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

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

have considered that new information as well. The information upon

which this decision is based has been peer reviewed by independent

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

(see discussion below).

Peer Review

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

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

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

other information to five independent specialists who have extensive

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

native fishes. Four of these specialists are currently employed at

universities conducting research on fishes and one reviewer is a

retired fishery biologist from a state agency, currently serving as

Executive Secretary of a scientific society specializing in native

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

request.

All four reviewers indicated the proposal was consistent with the

information available in the scientific literature. Three of the

reviewers indicated that the proposal to list the Devils River minnow

was clearly supported by the scientific literature, emphasizing that

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

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

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

weakness in the available information. However, we believe that

sufficient surveys have been conducted to demonstrate a significant

range reduction for the Devils River minnow.

Summary of Factors Affecting the Species

After a thorough review and consideration of all information

available, we determine that the Devils River minnow should be

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

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

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

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

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

factors and their application to the Devils River minnow (Dionda

diaboli) are as follows:

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

of its Habitat or Range

Devils River

The Devils River is the largest segment of the historical

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

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

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

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

permanently lost as potential habitat due to inundation behind Amistad

Dam.

One of the most significant losses of Devils River minnow habitat

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

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

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

farther upstream when the reservoir level is high. Backwaters from

Amistad Dam have inundated the natural stream habitats, transforming

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

suitable for most native fishes, including Devils River minnow.

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

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

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

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

however, inundated these springs, eliminating the natural environment

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

created a physical barrier to fish movement that permanently separated

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

population in San Felipe Creek.

Habitat for the species may be affected by inconsistent spring

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

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

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

downstream of Pecan Springs (International Boundary and Water

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

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

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

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

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

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

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

published observational data. One of the earliest descriptions of the

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

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

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

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

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

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

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

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

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

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

these springs in 1971 and 1976.

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

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

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

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

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

Pecan Springs was the uppermost flowing surface water connected to the

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

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

characterized by

[[Page 56602]]

numerous rapids (citing Belisle and Josselet 1975).

The available information indicates that the flow of the Devils

River upstream of Pecan Springs is intermittent and is connected to

downstream surface flows only during wetter climatic conditions. The

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

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

This habitat is likely also naturally intermittent and may not have

been continuously occupied by the fish during recent time.

Observations in 1954 and 1955 suggested a significant increase in

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

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

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

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

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

susceptible to declines in groundwater levels.

Brune (1981) states that agricultural land use practices

(specifically the decline of grasses from livestock grazing) both

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

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

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

organic mulch that formerly functioned as a topsoil capable of

absorbing rainfall has been lost and replaced with barer soils that

enhance runoff and limit recharge.

Another cumulative factor may be the expansion of Ashe juniper

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

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

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

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

juniper has been cited as a factor that could affect rangeland

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

available to show that removal of juniper will produce increased

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

have not resulted in significant yields to groundwater or stream flows

(Thurow and Hester 1997).

Any decline of permanent discharge from springs is a significant

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

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

or significantly reduce recharge. The downstream portion of the Devils

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

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

groundwater reservoirs that support the remaining spring systems, the

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

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

Boundary and Water Commission, in litt. 1997).

When spring flows become seasonally intermittent, fish populations

are unable to use the stream to fulfill their life history

requirements. Declines in base flow of streams also affect fish

populations by reducing the total available habitat and thereby

intensifying competitive and predatory interactions. For Devils River

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

to exclusion from preferred habitats and increased mortality from

predation.

The eighth action listed in the Conservation Strategy of the

Agreement requires the analysis of past changes in flows throughout the

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

potential effects of flows on habitat for Devils River minnow.

Using relative abundance as an indicator, the Devils River minnow

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

River minnow was the fifth most abundant species of 18 species

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

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

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

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

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

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

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

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

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

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

maintained to verify these collections.

The decline in abundance within the Devils River can best be

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

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

1989, and none were collected in 1997.

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

from several locations on the Devils River from Pecan Springs

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

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

from additional surveys in 1998 found populations of Devils River

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

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

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

previous collections are recorded from Phillips Creek. Sampling in May

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

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

eleven species collected. Despite numerous collection efforts in Dolan

Creek, only one individual had previously been collected in this

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

collection of about 12 individuals.

The Conservation Agreement and subsequent commitments were designed

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

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

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

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

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

potential limiting factors in this system addressed, particularly the

effects of smallmouth bass and changes in stream flows.

San Felipe Creek

San Felipe Creek constitutes the second largest segment of

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

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

the four largest springs in Texas. Devils River minnow previously

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

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

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

springs in Del Rio.

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

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

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

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

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

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

information is available to discern why the populations of Devils River

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

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

reduction in

[[Page 56603]]

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

due to increased withdrawals could negatively affect the Devils River

minnow population in this location.

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

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

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

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

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

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

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

may be threatened with future habitat changes from continued urban

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

increased their flow since the filling of Amistad Reservoir. The

Reservoir is thought to increase flows from San Felipe Springs because

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

spring outlet. This situation places hydrostatic pressure on San Felipe

Springs through inundated spring openings within the reservoir (Brune

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

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

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

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

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

of Del Rio for municipal use.

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

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

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

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

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

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

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

their water treatment facility and provide a maximum of 20 million

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

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

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

treatment plant and associated facilities will provide some water

conservation because the existing system of water distribution and

storage leaks significantly. With additional water conservation

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

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

Water quality and contamination are inherent threats to the

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

studies by the Texas Natural Resource Conservation Commission (TNRCC;

1994) found elevated levels of nitrates, phosphates and orthophosphate

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

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

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

threats from catastrophic events such as contaminant spills could

adversely affect the species.

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

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

areas these actions may have limited the available habitat for Devils

River minnow.

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

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

aquatic habitat are not yet serious enough to significantly reduce the

local population. Aquatic habitat conservation measures (such as water

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

Felipe Creek could help ensure survival of the species there.

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

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

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

Although the Devils River minnow is adapted to withstand floods

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

have been made since the flood.

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

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

maintaining stable populations at Del Rio and restoring Devils River

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

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

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

development of a San Felipe Creek floodplain restoration plan (as

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

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

course will reduce threats to the species.

Other actions that may aid in conserving the Devils River minnow

include reducing per capita water consumption, seeking alternative

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

importance of the creek, and limiting population density adjacent to

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

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

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

These actions together will provide an opportunity to protect the

existing populations and expand the available habitat for Devils River

minnow in San Felipe Creek.

Sycamore Creek

Sycamore Creek constitutes a relatively small portion of the range

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

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

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

references the species' occurrence there from an unpublished collection

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

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

location.

Sycamore Creek is an ungaged stream, and there is little

information available on habitat conditions. However, the Devils River

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

of extirpation because of the apparent small population size. Devils

River minnow in Sycamore Creek likely face potential threats from

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

Conservation Agreement is intended to restore Devils River minnow to

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

will necessitate further assessment of limiting factors, threat

abatement, and landowner cooperation.

Las Moras Creek

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

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

spring area in Brackettville, the number of fish in historical

collections was relatively large (54 individuals were collected in

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

Brackettville that supports Las Moras Creek is the location of the

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

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

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

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

Garrett et al. 1992).

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

altered by damming the outflow and removing streambank vegetation to

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

that the creek

[[Page 56604]]

smelled of chlorine, indicating that the swimming pool may be

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

also indicate that spring flow has been drastically reduced by drought

and diversion of water for human consumption. The springs apparently

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

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

resulting water quality problems appears to be the most likely cause

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

Conservation Agreement is intended to restore Devils River minnow to

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

will necessitate further assessment of limiting factors, threat

abatement, and landowner cooperation.

Mexico

The only known historical locations of the Devils River minnow in

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

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

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

individuals have been collected from this location, once in 1968

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

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

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

of Nuevo Leon, in litt. 1997).

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

northern Mexico represents a critical portion of the southern-most

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

and is geographically distinct from the tributaries where the fish

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

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

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

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

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

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

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

Leon, in litt. 1997).

The Conservation Agreement includes the survey of Mexican streams

that could potentially contain populations of Devils River minnow by

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

Salado Drainage in Mexico is extremely poor. Contreras and Lozano

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

significant threats due to groundwater and surface water withdrawals,

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

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

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

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

systems within Coahuila have been extensively exploited (Contreras and

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

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

the Mexican government as endangered.

Range-Wide

Habitat loss and modification throughout a significant portion of

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

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

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

grouped into nine geographic areas, primarily associated with spring

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

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

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

Sycamore Creek; and one area in Las Moras Creek.

Of these nine areas, the best available information confirms the

existence of Devils River minnow in only Phillips Creek downstream from

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

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

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

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

Agreement implemented to date, plus future actions to be implemented

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

threatened status is appropriate. Although detailed information is

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

and degradation of aquatic habitats indicate it is endangered with

extinction in that country.

B. Overutilization for Commercial, Recreational, Scientific, or

Educational Purposes

Overutilization is not considered a significant threat to the

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

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

commercially).

C. Disease or Predation

The Devils River minnow may be affected by the presence of

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

predation by smallmouth bass, a game fish introduced to Amistad

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

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

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

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

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

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

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

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

limits.

The Devils River minnow evolved in the presence of native fishes

that consume other fishes, such as channel catfish (Ictalurus

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

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

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

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

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

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

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

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

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

evidence of the likely impacts of this introduced predator. In

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

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

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

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

minnow in those locations.

The tenth action in the Conservation Strategy includes a

determination of the interactions between smallmouth bass and Devils

River minnow. If results indicate that smallmouth bass are likely

having negative effects on Devils River minnow populations, actions

such as localized smallmouth bass removal efforts in conjunction with

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

management of smallmouth bass in the Devils River will be addressed

through regulations on catch and size limits to reduce abundance and

modify population structures.

D. The Inadequacy of Existing Regulatory Mechanisms

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

State of

[[Page 56605]]

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

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

State or local regulations to protect habitat for the conservation of

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

releases of exotic species by the baitfish industry and anglers.

Limited State regulations administered by the TNRCC serve to

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

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

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

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

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

tributaries are administered by the State of Texas. Groundwater

withdrawals that could be affecting stream flows within the range of

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

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

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

there is little opportunity to protect groundwater reserves within

existing regulations.

State Water Quality Standards, though primarily concerned with

protecting human health, may provide some protection to the Devils

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

minnow to any contaminants or water quality changes is unknown and

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

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

Surface Water Quality Standards requires maintenance of existing water

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

standards.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

Habitat loss throughout the range of the Devils River minnow has

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

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

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

identified in the Conservation Agreement that have been implemented to

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

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

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

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

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

through inbreeding and are vulnerable to loss from random natural

events, including population fluctuations (Meffe 1986). The

Conservation Agreement is intended to improve population levels and

distribution of Devils River minnow throughout its range to reduce

these threats.

The construction of Amistad Dam has separated the two primary

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

Felipe Creek). This population fragmentation could have significant

conservation implications (Gilpin 1987). Determining and monitoring the

genetic structure of the different Devils River minnow populations will

be needed to ensure the necessary genetic variation within and among

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

Recent collections in 1997 from San Felipe Creek revealed for the

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

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

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

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

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

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

habitats in the San Antonio River, implying the potential displacement

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

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

populations in San Felipe Creek.

The future release (intentional or unintentional) of other fishes

into areas inhabited by Devils River minnow is another potential

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

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

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

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

addition, exotic fishes from aquariums could be introduced into local

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

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

unintentional introductions is high because of the number of anglers on

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

the populations of Devils River minnow from possible introduction and

establishment of non-native fishes include diseases, parasites,

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

Conservation Agreement has provisions for assessment and monitoring of

exotic fishes throughout the range of the Devils River minnow.

The overall decline in abundance of Devils River minnow could be

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

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

species more vulnerable to competition and predation by native

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

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

particularly when combined with impacts of human water use. This

species has adapted to historical natural climatic variations (such as

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

other threats to the species (primarily existing habitat loss and

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

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

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

environment.

We have carefully assessed the best scientific and commercial

information available regarding the past, present, and future threats

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

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

list the Devils River minnow as threatened. The species currently

inhabits a very limited range and the best scientific information

available indicates a significant decline in range and abundance of the

species.

Some new information was received since the proposal that suggested

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

severe than originally thought. This is because we originally

characterized the habitat as historically a continuous flowing stream,

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

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

discovery of two additional localities of Devils River minnow in

tributaries to the Devils River provided information that populations

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

provided showing the presence of an additional exotic species in San

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

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

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

through implementing the 10 actions described in the Conservation

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

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

their commitment to implement certain key actions of the

[[Page 56606]]

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

still only confirm three localities where the species remains in the

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

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

not yet been fully implemented.

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

danger of extinction throughout all or a significant portion of its

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

endangered species within the foreseeable future throughout all or a

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

scientific and commercial information available, and determine that

threatened status is appropriate for the Devils River minnow.

Critical Habitat

Critical habitat is defined in section 3 of the Act as--(i) The

specific areas within the geographical area occupied by a species, at

the time it is listed in accordance with the Act, on which are found

those physical or biological features (I) essential to the conservation

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

considerations or protection and; (ii) specific areas outside the

geographical area occupied by a species at the time it is listed, upon

a determination that such areas are essential for the conservation of

the species. ``Conservation'' as defined in section 3(3) of the Act

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

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

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

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

the Secretary designate critical habitat at the time the species is

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

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

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

threatened by taking or other human activity, and identification of

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

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

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

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

benefit.

The section 7 prohibitions against adverse modification of critical

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

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

the Devils River minnow occurs are almost entirely in private

ownership, and no significant Federal actions affecting the species'

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

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

through section 7 of the Act.

In addition, any Federal action that would cause adverse

modification of critical habitat for the Devils River minnow likely

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

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

Federal agencies may not jeopardize the continued existence of a

species or result in the destruction or adverse modification of

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

species is defined as an action that appreciably reduces the likelihood

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

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

reduction in the value of critical habitat for the survival and

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

detrimental effect to both the survival and recovery of a listed

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

standard and the adverse modification standard are virtually identical

for areas occupied by the species.

For any listed species, an analysis to determine jeopardy under

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

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

include an analysis closely parallel to an analysis to determine

adverse modification of critical habitat. A Federal action that would

adversely modify the species' habitat would also jeopardize the species

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

modification to suitable habitat within the species' range also will

substantially affect the species. Actions that may affect the habitat

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

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

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

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

structures that interfere with instream movement of fishes. Given the

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

likely that any Federal action that would destroy or adversely modify

the species' critical habitat would also jeopardize its continued

existence.

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

lands designated as critical habitat. Designating critical habitat does

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

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

establish numerical population goals or prescribe specific management

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

direct effect on areas not designated as critical habitat. A

designation of critical habitat that includes private lands would only

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

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

substantial conservation benefit beyond that already provided through

section 7 consultation.

Because the Devils River minnow is predominantly found in streams

flowing through private lands, the cooperation of private landowners is

imperative to conserve the Devils River minnow. Designation of critical

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

The regulatory effect of critical habitat designation is often

misunderstood by private landowners, particularly those whose property

boundaries are included within a general description of critical

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

that critical habitat designation would prevent development and impose

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

landowners have believed that critical habitat designation is an

attempt by the government to confiscate their private property. This

misconception was evident from public comments received in 1980 on the

proposed designation of critical habitat for the Devils River minnow.

Several citizens indicated they strongly believed that by designating

critical habitat, the Federal government would have the right to

trespass on private property, control private land management actions,

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

this misunderstanding, fear of critical habitat designation has

sometimes reduced private landowner cooperation in efforts to conserve

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

possible designation of critical habitat for the golden-cheeked warbler

(Dendroica chrysoparia) reduced private landowner cooperation in the

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

specifically denied access to study sites for Devils River minnow

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

regulation.

[[Page 56607]]

Critical habitat designation can sometimes serve to highlight areas

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

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

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

considerations or protection. Because this species was previously

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

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

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

distribution of the species and need for conservation for over 20

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

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

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

effort to inform and educate the general public and interested parties

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

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

agencies, and interested parties, including private landowners. A

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

public in attendance. The hearing included the sharing of information

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

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

private landowners (more than 30 individuals in attendance at each

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

part of the development of the Conservation Agreement with the State

and the City of Del Rio.

We have evaluated the potential notification and education benefit

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

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

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

interagency coordination processes currently in place. Notification and

education can be conducted more effectively by working directly with

landowners and communities through the recovery implementation process

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

coordination. Critical habitat designation for the Devils River minnow

would provide no additional notification or education benefit.

In summary, we have determined that the designation of critical

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

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

process will produce a jeopardy analysis similar to an adverse

modification analysis for critical habitat. We have already provided

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

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

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

for the Devils River minnow would provide some small, incremental

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

reduction in landowner cooperation that would facilitate the management

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

designation of critical habitat for the Devils River minnow is not

prudent.

Available Conservation Measures

Conservation measures provided to species listed as endangered or

threatened under the Act include recognition, recovery actions,

requirements for Federal protection, and prohibitions against certain

practices. Recognition through listing results in public awareness and

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

organizations, and individuals. The Act provides for possible land

acquisition and cooperation with the States and requires that recovery

actions be carried out for all listed species.

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

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

listed as endangered or threatened and with respect to its critical

habitat, if any is being designated. Regulations implementing these

interagency cooperation provisions of the Act are codified at 50 CFR

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

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

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

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

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

responsible Federal agency must enter into consultation with the

Service.

Although few Federal agency actions are anticipated, examples of

those that may require consultation as described in the preceding

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

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

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

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

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

authorization of discharges under the National Pollutant Discharge

Elimination System. Other Federal agencies whose actions could require

consultation include the Department of Defense, NRCS, the Federal

Highways Administration, and the Department of Housing and Urban

Development.

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

agencies to review the programs they administer and use these programs

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

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

conservation of endangered species and threatened species listed

pursuant to section 4 of the Act.

The Act and its implementing regulations set forth a series of

general prohibitions and exceptions that apply to all endangered

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

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

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

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

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

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

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

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

Certain exceptions apply to agents of the Service and State

conservation agencies.

Permits may be issued to carry out otherwise prohibited activities

involving threatened wildlife under certain circumstances. Regulations

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

permits are available for scientific purposes, for the enhancement or

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

connection with otherwise lawful activities. For threatened species,

there are also permits for zoological exhibition, educational purposes,

or special purposes consistent with the purposes of the Act.

Information collections associated with these permits are approved

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

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

additional information concerning these permits and associated

requirements, see 50 CFR 17.32.

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

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

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

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

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

[[Page 56608]]

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

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

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

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

degrade Devils River minnow habitat;

(2) Riparian restoration activities that improve the ecological

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

construction activities do not impair Devils River minnow habitat;

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

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

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

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

water quality; and

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

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

in accordance with an incidental take statement issued by us pursuant

to section 7 of the Act.

Activities we believe could potentially harm the Devils River

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

(1) Unauthorized collecting or handling of the species;

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

alteration of habitat occupied by Devils River minnow including, but

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

alteration of spring and stream flows or withdrawal of groundwater to

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

of the physical channels within the spring runs and stream segments

occupied by the species;

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

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

streams occupied by Devils River minnow or into areas that provide

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

water quality in spring outflows;

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

springs and/or stream segments containing the species;

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

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

connected to these habitats; and

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

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

conducted in accordance with an incidental take statement issued by us

pursuant to section 7 of the Act.

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

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

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

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

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

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

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

vicinity of the species' habitat. Questions regarding whether specific

activities would likely constitute a violation of section 9 should be

directed to the Field Supervisor, Austin Ecological Services Field

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

regarding listed wildlife and inquiries about prohibitions and permits

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

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

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

National Environmental Policy Act

We have determined that Environmental Assessments and Environmental

Impact Statements, as defined under the authority of the National

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

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

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

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

1983 (48 CFR 49244).

References Cited

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

is available upon request from the Austin Ecological Services Field

Office (see ADDRESSES section).

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

and Wildlife Service (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and

recordkeeping requirements, Transportation.

Regulation Promulgation

Accordingly, part 17, subchapter B of chapter I, title 50 of the

Code of Federal Regulations, is amended as set forth below:

PART 17--[AMENDED]

1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.

4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.

2. Amend section 17.11(h) by adding the following, in alphabetical

order under ``FISHES'' to the List of Endangered and Threatened

Wildlife to read as follows:

Sec. 17.11 Endangered and threatened wildlife.

--------------------------------------------------------------------------------------------------------------------------------------------------------

Species Vertebrate

-------------------------------------------------------- population where Critical Special

Historic range endangered or Status When listed habitat rules

Common name Scientific name threatened

--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * * * *

Fishes

* * * * * * *

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

* * * * * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 56609]]

Dated: September 30, 1999.

Jamie Rappaport Clark,

Director, Fish and Wildlife Service.

[FR Doc. 99-27188 Filed 10-19-99; 8:45 am]

BILLING CODE 4310-55-P