FWS revises final critical habitat rule on Devils River Minnow in response to public comment
73 Fed. Reg. 46988 (Tuesday, August 12, 2008)(DEPARTMENT OF THE INTERIOR; Fish and Wildlife Service; 50 CFR Part 17; WS–R2–ES–2008–0018; 92210–1117–0000–B4 RIN 1018–AV25; Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Devils River Minnow; Final rule.)
The Devils River minnow is an algae-eating fish that spends its entire lifecycle only in pollution-free aquatic environments of small to mid-sized streams that are tributaries of the Rio Grande in south Texas and northern Mexico. General habitat descriptions of areas where Devils River minnow have been found include the following: ‘‘the area where spring runs enter the river’’; ‘‘channels of fast-flowing water over gravel bottoms... associated with water willow and other aquatic macrophytes (plants not needing a microscope) over a gravel-cobble substrate’’; and ‘‘stream seeps’’ where small amounts of water enter the stream from the ground at sites that ‘‘had abundant riparian vegetation overhanging the banks." Photo from FWSAustin TX Ecological Field Services Office.
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate critical habitat for the Devils River minnow (Dionda diaboli) under the Endangered Species Act of 1973, as amended (Act). In total, approximately 26.5 stream kilometers (km) (16.5 stream miles (mi)) are within the boundaries of the critical habitat designation. The critical habitat is located in streams in Val Verde and Kinney Counties, Texas. DATES: This final rule becomes effective on September 11, 2008.
HISTORY: The Devils River minnow was listed as threatened on October 20, 1999 (64 FR 56596). Critical habitat was not designated for this species at the time of listing (64 FR 56606). On October 5, 2005, the Forest Guardians, Center for Biological Diversity, and Save Our Springs Alliance filed suit against the Service for failure to designate critical habitat for this species (Forest Guardians et al. v. Hall 2005). On June 28, 2006, a settlement was reached that requires the Service to re-evaluate our original prudency determination. The settlement stipulated that, if prudent, a proposed rule would be submitted to the Federal Register for publication on or before July 31, 2007, and a final rule by July 31, 2008. See also ESA blawg (Feb. 10, 2008)
EXCERPT RE: EXCLUSION OF HABITAT: As a result of comments received, we made the following changes to our proposed designation... (2) We have excluded 47.0 stream km (29.2 stream mi) of stream within the Devils River Unit (Unit 1) proposed as critical habitat for Devils River minnow from the final designation (see the ‘‘Exclusions under Section 4(b)(2) of the Act’’ section of this final rule for further details)...
EXCERPT RE: EXCLUSION OF HABITAT (CONTINUED): During the second public comment period, at least 12 individuals (either landowners along the Devils River or representatives for those interests) commented negatively about the perceived effects of the designation of the Devils River Unit as critical habitat. They envisioned that the designation would restrict landowner activities, lead to a change in the status of the Devils River minnow from threatened to endangered, and result in a devaluation of land values in the area. We do not believe that these concerns are likely to be realized. We provide specific responses to these comments in the ‘‘Comments and Responses’’ sectionthat the designation of critical habitat should have little to no effect on landowner actions, is not a factor in the species’ status as threatened rather than endangered, and should not result in a stigma effect to decrease land values. However, these widely held perceptions by landowners in the Devils River Unit could result in anti-conservation incentives because furthering Devils River minnow conservation is seen as a risk to future economic opportunities or loss of private property rights.
In addition, we received specific comments from the President of The Devils River Association (a 164-member local landowner organization to promote balance between preservation of the Devils River ecosystem and the desire to use the river and respect private property rights). These comments specifically stated that the Devils River Unit should be excluded because the benefits of doing so outweighed the benefits of inclusion. The comments included a discussion of the importance of cooperation with landowners that has occurred in the past. The comment states that this action (designating the Devils River as critical habitat) ‘‘significantly decreases our interest to work cooperatively with USFWS.’’ The comment goes on to state that, ‘‘This action would terribly and, I am afraid, irreparably damage the trust that we have all built up over the last few years.’’
Losing landowner trust and cooperation would be a significant setback to recovery efforts for the Devils River minnow on the Devils River. The designation of critical habitat could reduce the likelihood that landowners will support and carry out conservation actions needed to implement the recovery plan. The recovery plan calls for the following actions: monitor the status of Devils River minnow; determine biological and life history requirements; identify specific habitat requirements; and manage Devils River minnow habitat (Service 2005, pp. 2.3– 1—2.4–6). All of these actions require the cooperation of private landowners. One practical aspect of landowner cooperation in this area is the need for access to locations on the Devils River to carry out many recovery actions. In the past, landowners on the Devils River have been open to allowing access to conduct studies and for monitoring efforts by TPWD, the Service, and others. This is important on the Devils River because public access is limited to only two small areas, one on the Devils River State Natural Area and one at the Highway 163 bridge crossing. Past efforts for monitoring the Devils River minnow populations and habitats benefited from landowners voluntarily permitting access on private property to collect valuable information. Field monitoring of the river conditions and fish populations is a vital component to the recovery of the Devils River minnow.
In the past, this non-Federal partnership was under the guidance of the 1998 Devils River Minnow Conservation Agreement. The purpose of this agreement was to expedite conservation measures needed to ensure the continued existence and facilitate recovery of the species prior to a final listing decision. Although the formal agreement expired in 2003 without renewal, the landowners along the Devils River have continued to cooperate with us and TPWD to further the agreement’s conservation goals (this was also highlighted in the public comments we received). Without this ongoing non-Federal partnership with private landowners, we expect that conservation opportunities for the species in the Devils River will be greatly reduced. We believe that maintaining non-Federal partnerships with local landowners on the Devils River is a substantial benefit of excluding the Devils River Unit from critical habitat designation and outweighs any benefits expected from including this unit in the designation. We anticipate that exclusion of this unit is likely to provide a superior level of conservation
KEITHINKING: Clearly, the public comment process can have powerful influence on an agency's ultimate action, and in this case, the ongoing history of private landowner conservation efforts coupled with hostile public comment on the proposed critical habitat designation led FWS to exclude sections of previously proposed critical habitat from the final designation.