[Federal Register Volume 64, Number 128 (Tuesday, July 6, 1999)]
[Rules and Regulations]
[Pages 36274-36290]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-16985]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17


Endangered and Threatened Wildlife and Plants; Final Designation 
of Critical Habitat for the Rio Grande Silvery Minnow

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat for the Rio Grande silvery minnow (Hybognathus 
amarus), a species federally listed as endangered under the authority 
of the Endangered Species Act of 1973, as amended (Act). This species, 
also referred to herein as silvery minnow or minnow, presently occurs 
only in the Rio Grande from Cochiti Dam downstream to the headwaters of 
Elephant Butte Reservoir, New Mexico, approximately five percent of its 
known historical range. Critical habitat overlays this last remaining 
portion of occupied range. It encompasses 262 kilometers (km) (163 
miles (mi)) of the mainstem Rio Grande from the downstream side of the 
State Highway 22 bridge crossing the Rio Grande immediately downstream 
of Cochiti Dam, to the crossing of the Atchison Topeka and Santa Fe 
Railroad near San Marcial, New Mexico.

EFFECTIVE DATES: This rule becomes effective August 5, 1999.

ADDRESSES: You may inspect the complete file for this rule at the U.S. 
Fish and Wildlife Service, New Mexico Ecological Services Field Office, 
2105 Osuna NE., Albuquerque, New Mexico 87113, by appointment, during 
normal business hours at the above address.

FOR FURTHER INFORMATION CONTACT: Field Supervisor, New Mexico 
Ecological Services Field Office (See ADDRESSES above).

SUPPLEMENTARY INFORMATION: 

Background

    The Rio Grande silvery minnow is one of seven species in the genus 
Hybognathus found in the United States (Pflieger 1980). The species was 
first described by Girard (1856) from specimens taken from the Rio 
Grande near Fort Brown, Cameron County, Texas. It is a stout silvery 
minnow with moderately small eyes and a small, slightly oblique mouth. 
Adults may reach 90 millimeters (mm) (3.5 inches (in)) in total length 
(Sublette et al. 1990). Its dorsal fin is distinctly pointed with the 
front of it located slightly closer to the tip of the snout than to the 
base of the tail. Life color is silver with emerald reflections. Its 
belly is silvery white; fins are plain; and barbels are absent 
(Sublette et al. 1990).
    This species was historically one of the most abundant and 
widespread fishes in the Rio Grande Basin, occurring from Espanola, New 
Mexico, to the Gulf of Mexico (Bestgen and Platania 1991). It was also 
found in the Pecos River, a major tributary of the Rio Grande, from 
Santa Rosa, New Mexico, downstream to its confluence with the Rio 
Grande (Pflieger 1980). It is completely extirpated from the Pecos 
River and from the Rio Grande downstream of Elephant Butte Reservoir 
(Bestgen and Platania 1991). Throughout much of its historical range, 
decline of the silvery minnow may be attributed to modification of 
stream discharge patterns and channel drying because of impoundments, 
water

[[Page 36275]]

diversion for agriculture, and stream channelization (Cook et al. 1992; 
Bestgen and Platania 1991).
    In the Pecos River, the silvery Minnow was replaced by the closely 
related, introducted plains minnow (H. placitus) (Hatch et al. 1985; 
Bestgen et al. 1989; Cook et al. 1992). It is believed the plains 
minnow was introduced into the Pecos drainage during 1968, probably the 
result of the release of ``bait minnows'' that were collected from the 
Arkansas River drainage. The displacement that ensured was complete in 
less than one decade (Cowley 1979). The plains minnow may be more 
tolerant of modified habitats and, therefore, able to replace the 
silvery minnow in the modified reaches of the Pecos River. It is also 
believed that the two species hybridized. Habitat alteration and 
resulting flow modification could have also contributed to extirpation 
of the species in the Pecos River.
    Decline of the species in the Middle Rio Grande probably began in 
1916 when the gates at Elephant Butte Dam were closed. Construction of 
the dam signaled the beginning of an era of main stream Rio Grande dam 
construction that resulted in five major main stem dams within the 
minnow's habitat (Shupe and Williams 1988). These dams allowed 
manipulation and diversion of the flow of the river. Often this 
manipulation resulted in the drying of reaches of river and elimination 
of all fish. Concurrent with construction of the main stream dams was 
an increase in the abundance of non-native and exotic fish species as 
these species were stocked into the reservoirs created by the dams 
(Sublette et al. 1990). Once established, these species often 
completely replaced the native fish fauna (Propst et al. 1987). 
Development of agriculture and the growth of cities within the 
historical range of the Rio Grande silvery minnow resulted in a 
decrease in the quality of water that may have also adversely affected 
the range and distribution of the species.
    Historically there were four other small native fish species that 
are now either extinct or extirpated from the middle Rio Grande; the 
silvery minnow is the only one surviving today and it has been reduced 
to only 5 percent of its historical range. Although the minnow is a 
hearty fish, capable of withstanding many of the natural stresses of 
the desert aquatic environment, the majority of the individual minnows 
live only one year. A healthy annual spawn is key to the survival of 
the species.
    The minnow's range has been so greatly restricted that the species 
is extremely vulnerable to a single naturally occurring chance event. 
The minnow prefers shallow waters with a sandy and silty substrate that 
is generally associated with a meandering river that includes sidebars, 
oxbows, and backwaters. However, physical modifications to the Rio 
Grande over the last century, including the construction of dams and 
channelization of the mainstem, have altered much of the historical 
habitat for the minnow. Channelization has straightened and shortened 
mainstem river reaches, increased the velocity of the current, and 
altered riparian vegetation, instream cover, and substrate composition. 
The spring runoff triggers the minnow's spawn and the eggs produced 
drift in the water column. Diversion dams prevent the minnow from 
subsequently being able to move upstream as waters recede or as the 
minnow approaches inhospitable habitat such as Elephant Butte 
Reservoir, where the waters are cold, deep and stocked with non-native 
predatory fish.
    During the irrigation season (March 1 to October 31), minnows often 
become stranded in the diversion channels where they may, although are 
unlikely to, survive for a while. As the water is used on the fields, 
the chance for survival of the minnow in the irrigation return flows in 
slim. Unscreened diversion dams also entrain both adult minnow, fry, 
and buoyant eggs. Perhaps even more problematic for the minnow are 
irrigation seasons in drought years, when most or all of the water may 
be diverted from the two lower-most segments of the river to meet 
irrigation and other needs. This diversion causes minnows to become 
stranded in dewatered segments of the river.
    Historically, the silvery minnow was able to withstand periods of 
drought primarily by retreating to pools and backwater refugia, and 
swimming upstream to repopulate upstream habitats. However, when the 
river dries too rapidly and dams prevent upstream movement, the minnow 
becomes trapped in dewatered reaches and generally dies. This becomes 
particularly significant for the silvery minnow below San Acacia 
diversion dam, where approximately 70 percent of the current population 
lives. In the river reaches above (north of) San Acacia Dam, return 
flows from irrigation and other diversions are returned back into the 
mainstem of the river, which assures a fairly consistent flow. However, 
at San Acacia Dam, one irrigation diversions are made the return flows 
continue in off-river channels until they enter Elephant Butt 
Reservoir.
    Furthermore, because the river is an aggrading system below San 
Acacia (i.e,. the river bottom is rising due to sedimentation), the bed 
of the river is now perched above the bed of the 80 km (50 mile) low 
flow conveyance channel, which is immediately adjacent and parallel to 
the river channel. Because of this physical configuration, waters in 
the mainstem of the river tend to be drained into the low flow 
conveyance channel.
    Seventy percent of the remaining minnow population resides between 
San Acacia diversion dam and the headwaters of elephant butte. In low 
water years in this reach, all the water in the stream may be diverted 
into the irrigation system or drained from the mainstem by the low flow 
conveyance channel. In effect, water is being conveyed to Elephant 
Butte reservoir through a bypass of the river in the San Acacia reach, 
resulting in a dry or drying Riverbed.
    The designation of critical habitat for the Rio Grande silvery 
minnow includes 262 river-km (163 river-mi) in the Middle Rio Grande 
which are the last miles of habitat occupied by the species. The 
designation involves the mainstem of the Rio Grande or the active river 
channel including the water column, and its associated channel 
morphology. Land on either side of, but not within, the designated 
critical habitat, lies within the administrative boundaries of the 
Middle Rio Grande Conservancy District. Other landowners, sovereign 
entities, and managers include: the pueblos of Cochiti, San Felipe, 
Santo Domingo, Santa Ana, Sandia, and Isleta; the U.S. Bureau of 
Reclamation (BOR); the Service; the U.S. Bureau of Land Management; New 
Mexico State Parks Division; New Mexico Department of Game and Fish; 
New Mexico State Lands Department; and the U.S. Army Corps of Engineers 
(Corps). The communities of Algodones, Bernalillo, Rio Rancho, 
Corrales, Albuquerque, Bosque Farms, Los Lunas, Belen, and Socorro also 
border the length of critical habitat in the Middle Rio Grande Valley.

Previous Federal Action

    On February 19, 1991, we mailed approximately 80 pre-proposal 
notification letters to the six Middle Rio Grande Indian pueblos, 
various governmental agencies, knowledgeable individuals, and the New 
Mexico Congressional delegation. The letter informed them of our intent 
to propose adding the Rio Grande silvery minnow to the Federal list of 
Endangered and Theratened Wildlife and Plants and solicited their 
comments and input. We were particularly interested in obtaining

[[Page 36276]]

additional status information or information concerning threats. On May 
22, 1991, a second informational letter was sent to the New Mexico 
Congressional delegation. Comments were received from the Service's 
Dexter, New Mexico, Fisheries Assistance Office; New Mexico Department 
of Game and Fish City of Albuquerque; Texas Parks and Wildlife 
Department; U.S. Department of the Interior, Office of Surface Mining; 
and the New Mexico Interstate Stream Commission. No commenters offered 
additional information concerning the status of the species or 
information concerning additional threats. Most commented that the 
range of the species had been severely reduced and that Federal listing 
should be considered. The response from the New Mexico interstate 
Stream Commission included a historical review of water development in 
the Middle Rio Grande Valley.
    The Rio Grande silvery minnow was included in our Animal Notice of 
Review (56 FR 58804; November 21, 1991) as a Category 1 candidate 
species. At that time, a Category 1 candidate species was one for which 
we had on file substantial information on biological vulnerability and 
threats to support a proposal to list it as an endangered or threatened 
species.
    On March 20, 1992, we held a meeting in Albuquerque, New Mexico, to 
explore with various interested governmental and private entities any 
existing or potential flexibility in water delivery schedules that 
might avoid de-watering the Rio Grande through the area containing the 
remaining habitat of the silvery minnow. We also requested that 
attendees provide any information that would add to the knowledge of 
the current distribution of the species. No New information concerning 
distribution, abundance, or threats to the species was provided. No 
flexibility in the management of water in the river or the timing or 
duration of flows was identified by any meeting participant.
    We proposed to list the Rio Grande silvery minnow as an endangered 
species with critical habitat on March 1, 1993 (58 FR 11821). The 
comment period, originally scheduled to close on April 30, 1993, was 
extended until August 25, 1993 (58 FR 19220; April 13, 1993). This 
extension allowed us to conduct public hearings and to receive 
additional public comments. Public hearings were held in Albuquerque 
and Socorro, New Mexico, on the evenings of June 2 and 3, 1993, 
respectively.
    After a review of all comments received in response to the proposed 
rule, we published the final rule to list the Rio Grande silvery minnow 
on July 20, 1994 (59 FR 36988). Section 4(a)(3) of the Act requires 
that, to the maximum extent prudent and determinable, the Secretary 
designate critical habitat at the time a species is determined to be 
endangered or threatened. Our regulations (50 CFR 424.12(a)(2)) state 
that critical habitat is not determinable if information sufficient to 
perform required analyses of the impacts of the designation is lacking 
or if the biological needs of the species are not sufficiently well 
known to permit identification of an area as critical habitat. At the 
time of listing the silvery minnow, we found that critical habitat was 
not determinable because there was insufficient information to perform 
the required analyses of the impacts of the designation.
    We contracted for an economic analysis of the proposed critical 
habitat designation in September 1994. Individuals and agencies were 
notified of the award of the contract on September 30, 1994. On October 
27, 1994, we held a meeting with the contractors, inviting 
representatives from the BOR and Corps, as the two Federal agencies 
with significant activities within the range of the silvery minnow and 
the proposed critical habitat; the pueblos of Cochiti, San Felipe, 
Isleta, Sandia, Santa Ana, and Santo Domingo; the Middle Rio Grande 
Conservancy District; the Rio Grande Compact Commission; the cities of 
El Paso, Texas and Albuquerque, New Mexico; the Elephant Butte 
Irrigation District; and the International Boundary and Water 
Commission. At the meeting, we and the contractors outlined the 
approach under consideration to determine if economic impacts arose 
from critical habitat designation and sought input to the process and 
participation from these entities. Following the meeting, a paper 
prepared by the consulting economists on their methodology for 
estimating economic effects of critical habitat designation was 
provided to all attendees.
    On November 3, 1994, letters soliciting any information considered 
germane to the economic analysis were sent to attendees of the October 
27, 1994, meeting. We scheduled two additional meetings to discuss and 
clarify any questions of the agencies and entities who were asked to 
provide information for the economic analysis. Non-Pueblo entities were 
invited to a June 21, 1995, meeting. At that meeting we reviewed the 
description and evaluation provided in the proposed rule of activities 
that might adversely modify critical habitat or that may be affected by 
such designation. To assist respondents in replying to our information 
request, the following topics identified in the proposed rule were 
discussed:
    Any action that would lessen the amount of the minimum flow or 
would significantly alter the natural flow regime;
    any activity that would extensively alter the channel morphology of 
the Rio Grande; and
    any activity that would significantly alter the water chemistry in 
the Rio Grande.
    Further, at that meeting we identified activities that may be 
affected by the designation to include construction, maintenance, and 
operation of diversion structures; use of the conveyance channel and 
other canals; and levee and dike construction and maintenance. As 
detailed below, we have since determined that activities likely to 
result in a finding of adverse modification of critical habitat for the 
silvery minnow are also likely to jeopardize the continued existence of 
the species.
    On June 22, 1995, a meeting was held solely for Pueblo 
representatives to discuss the proposed critical habitat and the 
process to be employed in determining economic effects of the 
designation with the content identical to that of the earlier meeting. 
No Pueblo representative attended.
    On July 5, 1995, potential respondent agencies and individuals were 
provided a copy of a previous report prepared on potential economic 
consequences of designating critical habitat for fish species in 
southern Oregon and northern California, in order to familiarize them 
with the type of approach to be utilized for the silvery minnow. On 
July 14, 1995, we sent a questionnaire to all known Federal entities in 
the area of proposed critical habitat seeking their input in developing 
information on the potential economic consequences of the proposed 
designation. The entities were specifically requested to evaluate two 
scenarios. The ``no designation'' scenario represented the conditions 
that would exist, given that the Rio Grande silvery minnow has been 
listed as an endangered species, but assuming there were no 
designations of critical habitat. The other was the ``proposed 
designation'' scenario, which represented conditions that would exist 
if proposed critical designation was made final. Any difference between 
activities was to be identified as the designation's impacts. Five 
Federal agencies did not respond to the questionnaire. Twelve responded 
that their actions would not change between

[[Page 36277]]

the two scenarios. One Federal agency, the BOR, responded that the 
designation of critical habitat for the silvery minnow in the middle 
Rio Grande Valley would have a limited impact on activities that it 
would conduct, authorize, permit, or fund over and above any impact 
derived from the listing of the species.
    Following the compilation and assessment of responses, the draft 
economic analysis was prepared and provided to us on February 29, 1996. 
The draft document was then provided to all interested parties on April 
26, 1996. That mailing included 164 individuals and agencies, all 
affected pueblos in the valley, all county commissions within the 
occupied range of the species, and an additional 54 individuals who had 
attended the public hearings on the proposed listing and who had 
requested that they be included on our mailing list. At that time we 
notified the public that, because of the Congressional moratorium and 
funding rescission on final listing actions and designations of 
critical habitat imposed by Public Law 104-6, no work would be 
conducted on the analysis or on the final decision concerning critical 
habitat. However, we solicited comments from the public and agencies on 
the economic analysis for use when such work resumed.
    On April 26, 1996, the moratorium was lifted. Following the waiver 
of the moratorium, we reactivated the listing program that had been 
shut down for over a year and faced a national backlog of 243 proposed 
species' listings. In order to address that workload, we published our 
listing Priority Guidance (LPG) for the remainder of Fiscal Year (FY) 
1996 (May 16, 1999; 61 FR 24722). That guidance prioritized all listing 
actions and identified the designation of critical habitat as the 
lowest priority upon which we would expend limited funding and staff 
resources. Subsequent revisions of the LPG for Fiscal Years 1997 (61 FR 
64475) and for 1998/1999 (63 FR 25502) retained critical habitat as the 
lowest priority.
    The processing of this final rule designating critical habitat for 
the minnow does not conform with our current LPG for FY 1998/1999. That 
guidance gives the highest priority (Tier 1) to processing emergency 
rules to add species to the Lists of Endangered and Threatened Wildlife 
and Plants; second priory (Tier 2) to processing final determinations 
on proposals to add species to the lists, processing new listing 
proposals, processing administrative findings on petitions (to add 
species to the lists, delist species, or reclassify listed species), 
and processing a limited number of proposed and final rules to delist 
or reclassify species; and third priority (Tier 3) to processing 
proposed and final rules designating critical habitat. Our Southwest 
Region is currently working on Tier 2 actions; however, we are 
undertaking this Tier 3 action in order to comply with the court order 
in Forest Guardians and Defenders of Wildlife v. Bruce Babbitt, CIV 97-
0453 JC/DIS, discussed below.
    On February 22, 1999, the United States District Court for the 
District of New Mexico in Forest Guardians and Defenders ordered us to 
publish a final determination with regard to critical habitat for the 
Rio Grande silvery minnow within 30 days of that order. The deadline 
was subsequently extended by the Court to June 23, 1999. This final 
rule is issued to comply with that order and has been crafted within 
the time constraints imposed by the Court's orders. The draft economic 
analysis performed for the critical habitat designation was drafted in 
1996 and represents data gathered from respondent entities about 4 
years ago. We reviewed the content of that draft report in the context 
of Service policy, comments received from the public, and any other new 
information.
    On April 7, 1999, we reopened the public comment period on the 
proposal to designate critical habitat and announced the availability 
of two draft documents, the draft Economic Analysis prepared in 1996, 
and a draft Environmental Assessment on the proposed action of 
designating critical habitat (64 FR 16890). Also on April 7, 1999, we 
mailed copies of the notice and the two draft documents to 
approximately 425 entities known to have an interest in the Rio Grande 
silvery minnow and its proposed critical habitat. The April 7, 1999, 
Federal Register notice also announced a public hearing to discuss and 
receive comments on the proposed designation. That hearing was held in 
Albuquerque, New Mexico, on April 29, 1999.
    Parallel to the process of reviewing the critical habitat proposal 
and the economic consequences of the designation, we initiated recovery 
planning for the silvery minnow. The Interagency Cooperative Policy 
Statement, issued jointly by us and the National Marine Fisheries 
Service on July 1, 1994 (59 CFR 34272), identified the minimization of 
social and economic impacts caused by implementing recovery actions as 
a priority of both Services. The Rio Grande Silvery Minnow Recovery 
Team was appointed pursuant to this guidance and includes both species 
and habitat experts and community and private interest stakeholders. 
Many of the representatives of agencies, municipalities, and private 
interests that were involved in the proposal to list and in the 
analysis of critical habitat are recovery team members. The draft Final 
Rio Grande Silvery Minnow Recovery Plan has been prepared and is 
currently under review.

Critical Habitat

    Section 4(a)(3) of the Act, as amended, 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. With 
this final rule, critical habitat is being designated for the RIO 
Grande silvery minnow.

Definition of Critical Habitat

    Critical habitat is defined in section 3(5)(A) 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.'' The term ``conservation,'' as defined in section 3(3) of 
the Act, means ``to use and the use of all methods and procedures which 
are necessary to bring an endangered species or threatened species to 
the point at which the measures provided pursuant to this Act are no 
longer necessary'' (i.e., the species is recovered and removed from the 
list of endangered and threatened species).
    We are required to base critical habitat designations upon the best 
scientific and commercial data available (50 CFR 424.12) after taking 
into account economic and other impacts of such designation. In 
designating critical habitat for the Rio Grande silvery minnow, we have 
reviewed the overall approach to the conservation of the silvery minnow 
undertaken by the local, State, Tribal, and Federal agencies operating 
within the Middle Rio Grande Valley since the species' listing in 1994, 
and the identified steps necessary for recovery outlined in the draft 
Final Rio Grande Silvery Minnow Recovery Plan (in review). We have also 
reviewed available information that pertains to the habitat 
requirements of this species, including material received during the

[[Page 36278]]

initial public comment period on the proposed listing and designation, 
the information received following the provision of the draft Economic 
Analysis to the public on April 26, 1996, and the comments and 
information provided during the 30-day comment period opened on April 
7, 1999, including the public hearing.

Effect of Critical Habitat Designation

    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. Regulations implementing this 
interagency cooperation provision 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 a listed species or to destroy or 
adversely modify its critical habitat. If a Federal action may affect a 
list species or its critical habitat, the responsible Federal agency 
must enter into formal consultation with the Service.
    The designation of critical habitat directly affects only Federal 
agencies, by prohibiting actions they fund, authorize, or carry out 
from destroying or adversely modifying critical habitat. Individuals, 
firms and other non--Federal entities are not affected by the 
designation of critical habitat so long as their actions do not require 
support by permit, license, funding, or other means from a Federal 
agency.
    An understanding of the interplay of jeopardy and adverse 
modification standards is necessary to evaluate the likely outcomes of 
consultation under section 7, and to evaluate the environmental, 
economic and other impacts of any critical habitat designation. 
Implementing regulations (50 CFR part 402) define ``jeopardize the 
continued existence of'' (a species) and ``destruction or adverse 
modification of'' (critical habitat) in virtually identical terms. 
``Jeopardize the continued existence of'' means to engage in an action 
``that reasonably would be expected * * * to reduce appreciably the 
likelihood of both the survival and recovery of a listed species.'' 
``Destruction or adverse modification'' means a direct or indirect 
alteration that ``appreciably diminishes the value of critical habitat 
for both the survival and recovery of a listed species.''
    Common to both definitions is an appreciable detrimental effect on 
both survival and recovery of a listed species. Thus, for most species, 
actions likely to result in destruction or adverse modification of 
critical habitat are nearly always found to jeopardize the species 
concerned, and in most cases the existence of a critical habitat 
designation does not materially affect the outcome of consultation. 
This is often in contrast to the public perception that the adverse 
modification standard sets a lower threshold for violation of section 7 
than the jeopardy standard. In fact, biological opinions that conclude 
that a Federal agency action is likely to adversely modify critical 
habitat but not to jeopardize the species for which it is designated 
are extremely rare historically and none have been issued in recent 
years.
    The duplicative nature of the jeopardy and adverse modification 
standards is true for the Rio Grande silvery minnow as well. Since the 
species was listed in 1994, there have been a number of consultations 
that included a determination of potential impacts to proposed critical 
habitat. Implementing regulations of the act found at 50 CFR 402.10 
direct that each Federal agency shall confer with the Service on any 
action which is likely to jeopardize the continued existence of any 
proposed species or result in the destruction or adverse modification 
of proposed critical habitat. No additional restrictions resulted from 
these conferences. We do not anticipate that when the designation is 
finalized we will need to impose additional restrictions relative to 
critical habitat that were not previously in place due to the listing 
of the species.
    In some cases, critical habitat may assist in focusing conservation 
activities by identifying areas that contain essential habitat features 
(primary constituent elements), regardless of whether they are 
currently occupied by the listed species. This alerts the public and 
land managing agencies to the importance of an area in the conservation 
of that species. Critical habitat also identifies areas that may 
require special management or protection.
    Section 4(b)(8) of the Act requires us to describe in any proposed 
or final regulation that designates critical habitat, those activities 
involving a Federal action that may adversely modify such habitat or 
that may be affected by such designation. Activities that may destroy 
or adversely modify critical habitat include those that alter the 
primary constituent elements (defined below) to an extent that the 
value of designated critical habitat for both the survival and recovery 
of the silvery minnow is appreciably reduced. We note that such 
activities may also jeopardize the continued existence of the species. 
Because the area that is being designated as critical habitat 
represents the remaining 5 percent of its historical range and is 
currently occupied by the species, loss of habitat that would result in 
a finding of adverse modification would also significantly reduce the 
likelihood of survival and recovery of the species, which is the 
definition of jeopardy.
    Federal activities that may be affected by critical habitat 
designation include construction, maintenance, and operation of 
diversion structures; management of the conveyance channel; and levee 
and dike construction and maintenance. Again, these types of activities 
have already been examined under consultation with us upon listing the 
species as endangered. No additional restrictions to these activities 
as a result of critical habitat designation are anticipated.
    Recent consultations undertaken with the BOR and Corps have 
recognized and allowed for occasional drying of portions of the lower 
reaches of the minnow's occupied habitat. We anticipate that, in times 
of severe water shortages, similar actions must be permissible after 
the designation of critical habitat becomes final, as long as a managed 
reduction ion surface flows allows the minnow to remain in the water 
column and retreat upstream, minimizing mortality. However, any such 
circumstance would require consultation under section 7 of the Act, and 
adequate monitoring would be required to ensure that the action would 
not result in jeopardy to the species, adversely modify its critical 
habitat, or result in unpermitted taking of individuals. See the 
discussion on Primary Constituent Elements and our response to Issue 
33, below.
    The minnow does not need a large quantity of water to survive but 
it does need some water. The minnow requires habitat with sufficient 
flows through the irrigation season to avoid excessive mortality in 
downstream reaches, plus a spike in flow in the late spring or early 
summer to trigger spawning, and a relatively constant winter flow. 
Alterations of the primary constituent elements are evaluated to 
determine whether Federal activities are destroying or adversely 
modifying critical habitat; the identification of primary constituent 
elements for the minnow is not intended to create a high-velocity, deep 
flowing river. The minnow does not require such habitat 
characteristics.

Primary Constituent Elements

    In identifying areas as critical habitat, 50 CFR 424.12 provides 
that we consider those physical and biological

[[Page 36279]]

attributes that are essential to a species' conservation, and that may 
require special management considerations or protection. Such physical 
and biological features, as outlined in 50 CFR 424.12, include, but are 
not limited to, the following:
    Space for individual and population growth, and for normal 
behavior;
    Food, water, or other nutritional or physiological requirements;
    Cover or shelter;
    Sites for breeding, reproduction, or rearing of offspring; and
    Habitats that are protected from disturbances or are representative 
of the historical geographical and ecological distributions of a 
species.
    Primary constituent elements of critical habitat required to 
sustain the Rio Grande silvery minnow include:
    Stream morphology that supplies sufficient flowing water to provide 
food and cover needed to sustain all life stages of the species;
    Water of sufficient quality to prevent water stagnation (elevated 
temperatures, decreased oxygen, carbon dioxide build-up, etc.); and
    Water of sufficient quality to prevent formation of isolated pools 
that restrict fish movement, foster increased predation by birds and 
aquatic predators, and congregate pathogens.
    All areas within the designated stretch of the Rio Grande are 
occupied by the Rio Grande silvery minnow. Areas within the designated 
stretch either contain, or are capable of containing, these primary 
constituent elements. Areas within the designated critical habitat that 
may not have minnows present at a given point in time are capable of 
supporting these constituent elements because habitat conditions can 
change rapidly in response to flows and other factors, such as the 
development of sand bars, shifting of islands within the channel, and 
creation and disappearance of pools.

Land Ownership

    The area designated as critical habitat for the Rio Grande silvery 
minnow is the only area where the species has been collected in the 
recent past and where it is currently known to exist. Within this 160 
mi (262 km) stretch of river, there are four identified reaches 
delineated to reflect the management of water and habitat. From its 
upstream end at the Highway 22 bridge to its downstream terminus at the 
railroad trestle, critical habitat is within the Cochiti, Angostura, 
Isleta, and San Acacia reaches.
    Critical habitat for the silvery minnow includes only the active 
channel of the mainstem Rio Grande. Ownership of the channel itself is 
unclear. However, most of the land in the middle river valley that 
abuts critical habitat is within the administrative boundaries of the 
Middle Rio Grande Conservancy District. The Middle Rio Grande 
Conservancy District is the subdivision of the State of New Mexico 
which provides for irrigation, flood control, and drainage of the 
Middle Rio Grande valley in New Mexico, from Cochiti Dam downstream 150 
mi (285 km) to the northern boundary of the Bosque del Apache del 
Apache National Wildlife Refuge. Within these 150 mi are also the lands 
of the communities of Algodones, Bernalillo, Corrales, Albuquerque, Los 
Lunas, Belen, Socorro, and a number of smaller incorporated and 
unincorporated communities. Within the upper third of the middle valley 
of the Rio Grande are six Indian pueblos: Cochiti, Santo Domingo, San 
Felipe, Santa Ana, Sandia, and Isleta. Approximately 45 river mi (86 
km) of critical habitat run through Pueblo lands.

Summary of Economic and Other Impacts

    The Act requires that we designate critical habitat after taking 
into consideration the economic impact, and any other relevant impact, 
of specifying any particular area as critical habitat. We may exclude 
an area from designation if the benefits of its exclusion outweigh the 
benefits of its inclusion in critical habitat, unless failure to 
designate the area would result in extinction of the species concerned. 
We utilized the draft economic analysis prepared for the proposed 
critical habitat designation, in addition to our assessment of other 
impacts, to assist in our determination of whether any incremental 
economic effects of designation exist beyond the effects of the 
listing. The draft economic analysis, along with comments and other 
information available to us, allowed us to assess the benefits of 
exclusion versus inclusion for the area identified in the proposed 
rule.

Regional Economic Profile

    The study area for the draft economic analysis included the strip 
of land adjacent to the Rio Grande, stretching from the Santa Fe 
metropolitan area, at the northern edge of the proposed designation to 
the El Paso, Texas metropolitan area, lying about 150 miles downstream 
from the southern terminus of the proposed critical habitat 
designation. This area embraces the designated habitat area and the 
majority of the economic activity that directly interacts with 
resources potentially affected by the designation. This area includes 
nine counties in two states and four metropolitan areas: Santa Fe, 
Albuquerque, Las Cruces, and El Paso. Albuquerque and El Paso, each 
with a population of about 650,000, are considerably larger than the 
others.
    Irrigated agriculture accounts for more than 80 percent of 
permitted water use in the Middle Rio Grande Valley. Total private-
sector employment in the agricultural industry in 1993 was 14,078, 
about two percent of total employment in the study area. Agricultural 
employment is a higher percentage of total employment in the two non-
metropolitan counties (Socorro and Sierra counties in the lower reaches 
of designated critical habitat) than in the metropolitan areas, and a 
higher percentage in the Las Cruces metropolitan area than in the other 
metropolitan areas. For the study area as a whole, growth in 
agricultural employment during the past decade did not keep pace with 
total employment. In 1993, proprietors and employees in the study 
area's agricultural industry earned income of about $269 million, or 
one percent of total income. Agricultural incomes in this area have 
grown more rapidly than incomes in other sectors during the past 
decade, largely because farm incomes were depressed throughout the 
nation in the early 1980s. Nonetheless, average earnings in the 
agricultural industry are approximately two-thirds of the overall 
average.
    These data indicate that the agricultural industry, the resource-
intensive industry primarily associated with the critical habitat of 
the silvery minnow, generally reflects the national trends for 
resource-intensive industries. In particular, the data indicate that 
nationwide this industry is a small component of the overall economy 
and it is not growing as rapidly as other sectors of the economy.
    Although from a geographic perspective the landscape surrounding 
the critical habitat for the silvery minnow is predominantly non-
metropolitan, the economy of the study area is highly concentrated in 
the area's four metropolitan centers: Santa Fe, Albuquerque, Las 
Cruces, and El Paso. Approximately 98 percent of the population in the 
study area resides in the counties that constitute the area's four 
metropolitan statistical areas. This percentage somewhat overstates the 
portion of the area's population that actually has a metropolitan 
residence, because these are large counties and each one contains both 
urban and non-urban residents.

[[Page 36280]]

Economic Impacts and Effects

    We reviewed and assessed the draft economic analysis report, which 
was based on questionnaires to Federal agencies. These questionnaires 
reported Federal agencies' own assessments of the extent to which they 
would alter their activities in response to critical habitat 
designation. Most agencies stated that the designation would have no 
effect. Only one agency, the BOR, indicated that it would alter its 
activities in response to the proposed designation of critical habitat 
for the minnow. Specifically, the BOR indicated that it would alter its 
river maintenance program in the proposed designated critical habitat 
area from just below Cochiti Dam to just above Elephant Butte 
Reservoir. Because of numerous uncertainties, however, the BOR was 
unable to give a specific estimate of the designation's potential 
impact on its river maintenance activities.
    The BOR's response to the questionnaire was their own 
interpretation of the ramifications of avoiding adverse modification of 
critical habitat. However, we believe that if the identified activities 
had an impact on the silvery minnow significant enough to result in a 
finding of adverse modification of the minnow's critical habitat, we 
would also find that those activities would jeopardize the continued 
existence of the species in the absence of designated critical habitat. 
Thus, the designation of critical habitat should not require any change 
in the activities identified by the Bureau that were not already 
changed due to the listing of the minnow, and no economic effects 
should flow from the designation itself.
    No Federal agency that commented during the April-May 1999, public 
comment period amended or added to its original response about impacts 
to its operations that would be caused by critical habitat. The BOR, in 
its May 7, 1999, comments, stated that the designation of critical 
habitat will likely have minimal impacts on that agency's Endangered 
Species Act-related activities.
    In summary, although the draft economic analysis provided to us 
identified a perceived economic impact of critical habitat designation, 
we consider this potential economic impact to be a result of the 
minnow's listing, not critical habitat designation. In addition, the 
BOR's original estimate of economic impacts resulting from critical 
habitat designation discussed ceasing river maintenance; an unlikely 
occurrence. It is more likely that the Bureau would employ different 
design and construction techniques to accomplish river maintenance 
objectives. We have concluded that there are no incremental economic 
effects associated with the designation of critical habitat above and 
beyond the effects of listing the species as endangered. We have thus 
determined that there are no areas within the proposed designation 
where the benefits of exclusion can be shown to outweigh any benefits 
of inclusion.

Secretarial Order 3206

    Secretarial Order 3206 was issued to clarify the responsibilities 
of the component agencies, bureaus, and offices of the Department of 
the Interior and the Department of Commerce, when actions taken under 
authority of the Act and associated implementing regulations affect, or 
may affect, Indian lands, Tribal trust resources, or the exercise of 
American Indian Tribal rights. In keeping with the trust responsibility 
and government-to-government relationships, we recognize our 
responsibility to consult with affected tribes and provide written 
notice to them as far in advance as practicable of conservation 
restrictions that we consider necessary to protect listed species.
    If a proposed conservation restriction is directed at a Tribal 
activity that could raise the potential issue of direct (directed) take 
under the Act, then meaningful government-to-government consultation 
shall occur, in order to strive to harmonize the Federal trust 
responsibility to Tribes, Tribal sovereignty, and the statutory 
missions of the Departments of the Interior and Commerce. In cases 
involving an activity that could raise the potential issue of an 
incidental take under the Act, Tribal notification shall include an 
analysis and determination that all of the following conservation 
standards have been met--(i) the restriction is reasonable and 
necessary for conservation of the species at issue; (ii) the 
conservation purpose of the restriction cannot be achieved by 
reasonable regulation of non-Indian activities; (iii) the measure is 
the least restrictive alternative available to achieve the required 
conservation purpose; (iv) the restriction does not discriminate 
against Indian activities, either as stated or applied; and (v) 
voluntary tribal measures are not adequate to achieve the necessary 
conservation purpose.
    Below we have specifically assessed the designation of critical 
habitat with respect to the five factors listed in Secretarial Order 
3206:
    1. The designation of critical habitat is required by law. The 
initial inclusion of reaches of the Rio Grande within or adjacent to 
Pueblo boundaries was based solely on biology and the contribution of 
those reaches of the river to the conservation of the species. 
Moreover, as discussed previously, critical habitat designation will 
impose no additional restrictions on activities on Indian lands beyond 
the prohibitions already in place against jeopardy and unpermitted 
taking of the species.
    2. In the process of designating critical habitat for the Rio 
Grande silvery minnow, specific biological criteria were applied to all 
potential river reaches. This critical habitat designation includes a 
continuous stretch of river that constitutes the remaining 5 percent of 
the historical range of the species, and that we consider essential to 
the silvery minnow's conservation. The contiguity of habitats within 
and among the different reaches of the Rio Grande and the importance of 
the linkage between upstream and downstream activities and habitats 
does not allow for the removal from designation of one river section 
from its adjacent upstream and downstream non-Indian counterparts 
without potentially decreasing the value of all sections. Additionally, 
because of the unique relationship existing between the pueblos and the 
non-Indian Middle Rio Grande Conservancy District (the District is 
obligated to deliver water to the pueblos; the pueblos are represented 
on the Board of the District), and the interdependence of Tribal and 
non-Tribal activities throughout the stretch of critical habitat lying 
within the District does not facilitate the separation of the two.
    3. The critical habitat as designated encompasses the last remnant 
of habitat still occupied by the silvery minnow (approximately 5 
percent of the species' historical habitat) and is considered the least 
amount available with which to achieve the survival and recovery of the 
species.
    4. The designation of critical habitat does not discriminate 
against Indian activities, either as stated or applied. The identified 
threats to the habitat of the Rio Grande silvery minnow were based on 
range-wide information that neither discriminated against nor favored 
particular land owners. Any ``restrictions'' which might be derived 
from the designation would have to arise from the obligation, under the 
Act, of Federal agencies to ensure that their actions do not result in 
the destruction or adverse modification of critical habitat. As stated 
in 1 (above), critical habitat does not create additional

[[Page 36281]]

restrictions because the areas are currently occupied, and no increased 
burdens have been identified.
    5. Voluntary Tribal measures are not adequate to achieve the 
necessary conservation purpose. Tribal representation has been included 
in the Rio Grande Silvery Minnow Recovery Team and we continue to work 
with individual pueblos when requested to provide expertise in the 
rehabilitation and maintenance of aquatic habitats on Pueblo lands. 
Santa Ana Pueblo has taken a leadership role in forming a broad 
interest-based consortium, which is seeking funding for recovery 
projects for the silvery minnow. In addition, Santa Ana is also 
actively pursuing habitat restoration within the Santa Ana Pueblo 
boundaries. Both Sandia Pueblo (which is north of Albuquerque on the 
Rio Grande) and Isleta Pueblo (which is immediately south of 
Albuquerque on the Rio Grande) have enacted EPA-approved water quality 
standards as authorized under the Clean Water Act.
    Because of the time constrains in rendering this final 
determination, we have had limited opportunity to engage in 
consultation with the pueblos adjacent to the designated critical 
habitat. However, on March 4, 1999, following the receipt of the court 
order, information was provided to Tribal representatives at the 
meeting of the Six Middle Rio Grande Basin Pueblos Coalition. Written 
comments to the proposed critical habitat designation for the Rio Grand 
silvery minnow were received from Sandia Pueblo (generally supporting 
the designation), Isleta Pueblo, and the Jicarilla Apache Tribe (both 
expressing concerns about the effects of the designation). On May 3, 
1999, the Service's Regional Director, the Department of the Interior's 
Office of the Regional Solicitor, and staff met with representatives of 
and legal counsel for the Pueblo of Santa Ana to discuss critical 
habitat designation and solicit input from the Pueblo. We will continue 
to provide assistance to and cooperate with pueblos abutting critical 
habitat at their request.

Summary of Comments

    Following the proposal to list the Rio Grand silvery minnow as an 
endangered species with critical habitat, we received comments from the 
public, scientific community, and management and regulatory agencies at 
the State and Federal levels concerning critical habitat. Additionally, 
following the provision of the draft Economic Analysis to the entities 
on our mailing list, we also received comments on the draft document 
and the economic impacts predicted by that document. Finally, during 
the public comment period opened from April 7 to May 7, 1999, we 
received a total of 94 comments concerning the proposal, the draft 
Economic Analysis document, and the draft Environmental Assessment. 
Thirty-two comments were provided orally at the public hearing, and we 
received 62 written comments. All comments on critical habitat and the 
draft documents, both oral and written, received during the comment 
period are addressed in the following summary. Comments of a similar 
nature are grouped into a number of general issues. Issues that were 
addressed in the final rule to list the Rio Grande silvery minnow may 
be found in that publication (59 FR 36988).
    Issue 1: Considerable discrepancy exists within the comments 
received related to geographical extent of the proposed designation. 
Some commenters stated that the extent of critical habitat proposed by 
the Service is inadequate to address survival and recovery of the 
species. Others asserted that there is no basis for excluding the river 
above Cochiti Reservoir (including the Colorado portions of the 
watershed) from designation. Still others recommended that additional 
reaches of the Rio Grande should be evaluated, such as the river 
between Elephant Butte and Caballo reservoirs and downstreams of 
Caballo Reservoir. Some commented that the reach of the Rio Grande 
below San Acacia, because of its known episodes of intermittency, 
should be removed from the proposal. Some commenters recommended that, 
because the reach upstream from San Acacia Cochiti Reservoir would 
appear to offer an opportunity to provide critical habitat for the 
silvery minnow without insurmountable adverse effects on water supply, 
that we do not designate as critical habitat the reach downstream from 
San Acacia. Some commenters stated that there were no east-west 
boundaries identified for critical habitat. Some commenters, 
misinterpreting the scale of the map prepared for critical habitat, 
interpreted the proposal to incorporate miles of terrestrial habitat 
bordering the river throughout the length of the Middle Rio Grande 
Valley.
    Service Response: The areas finalized as critical habitat in this 
rule meet the designation criteria in 50 CFR part 424. This designation 
of critical habitat is based on the last remaining area still occupied 
by the species. The Service considers this area in need of special 
management and protection and essential for the conservation of the 
species. The area designated includes the mainstem of the Rio Grande 
(comprised of the active river channel including the water column), and 
its associated channel morphology. Although some actions on lands 
within the floodplain of the river may affect critical habitat, these 
areas are not included within the designation.
    The river reach between San Acacia and Elephant Butte Reservoir is 
of primary importance because 70 percent of the population currently 
inhabits that reach. The river above Cochiti Dam was not a significant 
part of the species' historical range, is colder than the optimal 
temperature for silvery minnows, and is stocked with predatory non-
native fish. The area between Elephant Butte and Caballo reservoirs is 
also stocked with non-native fish, and its channel morphology is not 
conductive to silvery minnows. Finally, the river below Caballo 
Reservoir is not currently occupied by the species. As we progress 
through the recovery process for the Rio Grande silvery minnow, we may 
identify areas below the Caballo Reservoir, or other areas, that are 
suitable for reintroduction. Those areas would first have to be 
examined to determine why the minnow no longer occurs there, what 
remedial action would be necessary to reestablish the species, and 
whether remediation is feasible. However, until we have this 
information, we believe that the habitat essential to the silvery 
minnow's conservation is that which we originally proposed. If 
information becomes available that confirms that additional areas are 
essential for the species' conservation, we can revise the critical 
habitat designation. In addition, under section 4 of the Act, persons 
can petition the Service to modify the designation.
    Issue 2: The economic analysis for regional impacts must be able to 
assess the effects on regional income that result from changes in the 
natural resource supply such as water. An inter-industry general 
equilibrium resource assessment model that can account for true 
resource limits and interdependence in the regional economy should be 
utilized.
    Service Response: Because any finding of adverse modification of 
critical habitat will also result in a finding of jeopardy to this 
species, we have determined that there are no incremental economic 
effects above and beyond any effects associated with the listing of 
this species. Therefore, we believe that there is no need for further 
economic analysis as suggested by these commentors.
    Immediately following initiation of the draft economic analysis, we 
arranged a meeting for all interested

[[Page 36282]]

agencies to meet with the consulting economists and to discuss the 
approach and methodology that was to be utilized in the determination 
of economic impacts. Those commenters who expressed their desire to 
interact with the economists were invited to the meeting. A second 
meeting was also held with agencies prior to the provision of the 
questionnaire; interested parties were invited to these meetings and 
also provided informational copies of the questionnaire that was sent 
to Federal entities for response.
    Issue 3: We must evaluate the direct and indirect impacts of 
critical habitat. Indirect costs are associated with the societal 
implications on small communities in the middle Rio Grande valley 
dependent upon adequate flows from the Rio Grande to sustain the 
practice of irrigated agriculture. Designation of critical habitat 
could limit the ability of municipalities and other water providers in 
the middle valley to provide water to residents and affect the 
agricultural economy.
    Service Response: As indicated in the proposal, the designation of 
critical habitat would affect only Federal agency actions that would 
adversely modify or destroy that habitat. As stated previously, actions 
that would destroy or adversely modify critical habitat would also 
result in jeopardy to the species. The draft economic analysis 
discussed the possibility that cessation or alternation of Federal 
actions in order to avoid jeopardy to the species or adverse 
modification or destruction of critical habitat might affect water 
availability to irrigators, cities, and other water rights holders. It 
also stated that complete cessation might have far reaching impacts on 
the viability of conveyance structures linked to and dependent upon the 
maintenance of the channel of the Rio Grande. The draft economic 
analysis further included the BOR's estimates of increased costs of 
river maintenance, and possible loss of water caused by an equivalent 
reduction in river maintenance capability as a worst case scenario 
based on the Bureau's interpretation of critical habitat.
    In commenting on the draft report, the BOR has clarified that those 
actions under its control within the boundaries of critical habitat 
would not necessarily cease, rather the Bureau would likely employee 
different design and construction techniques to accomplish river 
maintenance objectives. Additionally, the BOR, in its commenting letter 
of May 7, 1999, said that the designation of critical habitat will 
likely have minimal impacts on that agency's Endangered Species Act-
related activities.
    Issue 4: The draft Economic Analysis is incomplete and flawed. The 
draft Environmental Assessment, relying on the conclusions of the 
economic analysis, is also flawed and inadequate. The Service should 
prepare a thorough economic analysis with necessary studies to 
adequately assess the requirements of the silivery minnow and the 
impact of the critical habitat designation. The Service is strongly 
encouraged to provide adequate time for public review and comment on 
studies to determine the impact of the critical habitat designation and 
a final rule should not be issued until this new information has been 
fully considered.
    Service Response We have reviewed the draft economic analysis, 
draft Environmental Assessment, and all comments relieved on those 
documents and the proposal to designate critical habitat. We considered 
all comments in the final preparation of this designation. We believe 
that designation of critical habitat will have no incremental effects 
beyond those resulting from listing the species as endangered. The 
absence of impacts attributable to critical habitat designation is 
clearly and adequately explained in both this final rule and in the 
environmental assessment prepared for this action. Further, while we 
welcome and encourage additional studies on the biological requirements 
of the silvery minnow, we believe the best available information has 
been used in defining the primary constituent elements necessary for 
the species' conservation.
    Issue 5: The Service should place the silvery minnow critical 
habitat designation on hold in order to establish a coordinating 
committee composed of interests above and below Elephant Butte 
Reservoir to develop a full-scale report on the existing data available 
on the silvery minnow, with several subcommittees, one of which would 
be charged with evaluation of the overall impact of the designation on 
other significant environmental interests.
    Service Response: The Act does not allow the indefinite suspension 
of determination of critical habitat. It does, however, allow for a 1-
year delay in designation if we find that critical habitat is not 
determinable. We stated in the final listing rule that we would need an 
additional year to determine the economic and other impacts of 
designation.
    The Act requires that we determine the extent of critical habitat 
and the economic and other relevant impacts of such a determination 
using the best scientific and commercial information available at that 
time. We believe that considerable information is available on the 
silvery minnow, including numerous scientific studies on the species 
and on the hydrology of the Rio Grande. In addition, a recovery plan 
has been drafted by a team of experts and is currently under review. 
This recovery plan represents a compilation and analysis of the 
existing data on the species and its habitat. Within the constraints 
imposed by the Act and, in this instance, time constraints from the 
Court, we have attempted to contact all knowledgeable and interested 
entities to gather information for use in the determination of critical 
habitat and in the analysis of the economic and other relevant impacts 
that might arise from its designation.
    Issue 6: The proposed rule provided no data or factors that were 
considered concerning economic and other impacts.
    Service Response: The proposed designation of critical habitat was 
based solely on biological information concerning the needs and 
potential conservation of the silvery minnow. Economic data were not 
required for the proposal, nor were the economic data developed at the 
time the proposed rule was published. The economic analysis of impacts 
from the proposed designation was initiated in September 1994. The 
draft economic analysis was shared with all interested parties in April 
1996, and its availability announced along with the reopening of the 
public comment period on the proposal in April 1999, giving interested 
parties ample opportunity to comment on the draft economic analysis.
    Issue 7: An Environmental Impact Statement is required and must be 
provided before critical habitat can be designated.
    Service Response: We have determined that an Environmental Impact 
Statement, as defined by the National Environmental Policy Act (NEPA) 
of 1969, need not be prepared in connection with actions under section 
4 of the Endangered Species Act, including designation of critical 
habitat. A notice outlining our reasons for this determination was 
published in the Federal Register on October 25, 1983 (48 FR 49244). 
However, the Tenth Circuit Court of Appeals ordered compliance with 
NEPA on critical habitat designation for two fish species in Catron 
County Board of Commissioners v. U.S. Fish and Wildlife Service, 75 
F.3d 1429 (10th Cir. 1996). Based on that decision, in order to comply 
with NEPA, we have completed an Environmental Assessment to delineate 
those environmental, socio-economic, and other relevant impacts

[[Page 36283]]

arising from this designation. That Environmental Assessment resulted 
in a Finding of No Significant Impact for this action. Under NEPA, an 
Environmental Impact Statement is not required in instances where a 
Finding of No Significant Impact is made on an Environmental 
Assessment.
    Issue 8: Several commenters stated their concern that critical 
habitat would affect water rights. Other stated that while the proposed 
critical habitat is totally upstream of Elephant Butte. Reservoir, 
action taken in accordance with the proposal may decrease the amount 
and delivery of water available for use by the El Paso Water Utilities.
    Service Response: We have determined that any alternations of BOR 
activities due to the prohibition against destruction or adverse 
modification of critical habitat would also be required under the 
prohibition of jeopardy to the species. Thus, there are no additional 
impacts of critical habitat designation. Further, neither the listing 
of the species nor designation of crucial habitat can or will determine 
State water rights.
    Issue 9: The City of Albuquerque's wasterwater treatment facility 
discharges into the reach of the Rio Grande designated as critical 
habitat for the silivery minnow. To avoid significantly altering the 
water chemistry of the Rio Grande, the City of Albuquerque may have to 
remove the treated effluent entirely from the river, and to control and 
treat stormwater runoff.
    Service Response: The City of Albuquerque is correct in stating 
that the Environmental Protection Agency (EPA), as the Federal agency 
issuing a permit for the City's wasterwater treatment plant under the 
National Pollutant Discharge Elimination System, would be required to 
ensure that its action would not destroy or adversely modify critical 
habitat for the silvery minnow. However, the EPA would be required to 
ensure that its proposed action would not likely jeopardize the 
continued existence of the species. Given the similarity of the 
definition of jeopardy and destruction or adverse modification, no 
additional restrictions will result from designation of critical 
habitat.
    Issue 10: The designation of critical habitat will require 
continuous instream flow. The working of the primary constituent 
element to require a quantity of water sufficient to avoid isolated 
pools in the river equates to perennial bank to bank flows. The amount 
of water predicted for critical habitat is unobtainable.
    Service Response: We have made no determination that continuous 
bank-to-bank flow is or will be a requirement to avoid jeopardy to the 
species or adverse modification of critical habitat. (See discussion 
above under Effect of Critical Habitat Designation.) As an evolutionary 
product of arid southwest river systems such as the Rio Grande, the 
silvery minnow has adapted to low flow and intermittent flow 
conditions. However, complete dewatering of extensive reaches of the 
only section of river where it now exists are of great concern, 
particularly when the impacts of dewatering are combined with the 
inability of the silvery minnow to access stillflowing reaches upstream 
of diversion dams.
    We have made no prediction of the amount of water needed for 
maintenance of critical habitat. However, since the silvery minnow was 
listed and critical habitat proposed, the amount of water needed in 
low-water years to avoid jeopardy to the species ranged from about 
17,000 to 58,000 acre-feet, depending upon specific yearly conditions 
of water use, climate, water availability, and response of the silvery 
minnow to those river conditions. We do not anticipate that flow 
management necessary to avoid destruction or adverse modification of 
critical habitat will be different than what is currently required to 
avoid jeopardizing the species.
    Issue 11: The draft economic analysis displayed a bias against 
irrigated agriculture and flood control activities. It argues against 
irrigation subsidies even though society through its congressional 
representatives has made the decision that such subsidies provide 
important benefits to society.
    Service Response: We disagree with the commenter's interpretation 
that the report's presentation of economic values and commitments 
identified for irrigated agriculture and flood control is biased 
against these activities. The report does not argue for or against 
subsidies of any kind, it merely notes their existence within the 
context of economic analysis. The costs and revenues from agriculture 
in the Rio Grande valley are a matter of record, not generated by the 
authors of the report, but taken from published data of the U.S. 
Department of Commerce, Bureau of Economic Analysis, and the New Mexico 
Cooperative Extension Service.
    Issue 12: The draft Economic Analysis should have included some 
analysis to gauge the impacts if the United States' ability to comply 
with its treaty obligations to Mexico are compromised. Similarly, if 
the ability of New Mexico to deliver water to Elephant Butte is 
hampered, there will be drastic consequences for the water users in 
southern New Mexico and Texas.
    Service Response: We believe that there are alternatives in the 
delivery of water that will allow the United States and the State of 
New Mexico to comply with compact and treaty obligations without either 
jeopardizing the continued existence of the species or destroying or 
adversely modifying critical habitat. Some commenters are concerned 
that if water is transported in the river channel instead of the 
conveyance structures, additional water will be lost. However, we do 
not believe that the accounting of water transport or carriage losses 
is of sufficient accuracy and precision; the loss of salvaged surface 
water could be a loss to only one reach of the river, to the overall 
system, or merely transported subsurface to Elephant Butte. A better 
understanding of the hydrology and a more precise accounting system 
would also aid in the management of flow of the river.
    Issue 13: The amount of time and data available to agencies in 
responding to the economic questionnaire were insufficient to allow for 
more detailed reporting of economic effects.
    Service Responses: The initial contact with the identified agencies 
that might have actions affected by the designation of critical habitat 
was in October 1994. Coordination by both ourselves and the consulting 
economists continued with the agencies to clarify information needs, to 
provide examples of questionnaires utilized in and reports produced by 
other economic impact assessments of critical habitat, and to 
exhaustively discuss what would be considered the components of 
critical habitat and how adverse modification to those components might 
be analyzed by the Service. These efforts continued for over seven 
months. In June 1995, another meeting was held with all involved 
agencies invited to discuss the process, the information needs, the 
questionnaire, and the assessment parameters. It was only after that 
extensive period of coordination that the questionnaire was sent to the 
agencies for their response. The requested response time was 30 days; 
based on the discussions and meetings of the preceding seven months, we 
do not believe that the response time was unreasonably brief.
    Issue 14: The authors of the draft economic analysis cannot 
seriously consider the estimate of 4,000 acre-feet additional depletion 
to represent the actual impact of the designation of critical habitat.
    Service Response: The authors of the draft report utilized the 
information provided to them from the Federal

[[Page 36284]]

agencies who have been managing the Rio Grande for over 90 years. The 
quantity of 4,000 acre-feet was provided by the BOR. Although the BOR 
estimated that a potential loss of 4,000 acre feet of surface flow 
could be realized from the cessation of some of their river maintenance 
program, it is not known if this amount of water would be lost to the 
system entirely, or travel subsurface down the channel of the Rio 
Grande to arrive, in some quantity, at Elephant Butte Reservoir.
    Issue 15: If critical habitat is declared there is a real 
possibility that the BOR will be unable to perform periodic maintenance 
on the Rio Grande upstream from Elephant Butte Reservoir.
    Service Response: This concern was not voiced by the BOR. No data 
provided by the Bureau indicated that a complete cessation of periodic 
maintenance would occur if critical habitat were to be designated for 
the Rio Grande silvery minnow. We concur that river maintenance 
activities may need to be altered in order to avoid jeopardizing the 
species or destroying or adversely modifying critical habitat, but the 
resultant impacts in channel capacity, water conveyance efficiencies, 
or water conservation have not been provided by the Bureau for such 
alterations.
    Issue 16: The New Mexico Interstate Stream Commission commented 
that the prior appropriation doctrine in New Mexico does, to some 
extent, protect instream flows. New Mexico State law and the Rio Grande 
Compact both ensure delivery of water downstream through the Middle Rio 
Grande Valley to water users in the Rio Grande Project south of 
Elephant Butte Dam.
    Service Response: Both State law and the Rio Grande Compact require 
the delivery of water downstream. However, currently the water that is 
released during the irrigation season is native water plus any waters 
called for to meet irrigation, municipal, and industrial needs. 
Additional water to meet Compact deliveries are released during the 
non-irrigation months in accordance with instructions from the Compact 
Commission, which is composed of representatives from Colorado, New 
Mexico, and Texas. Alterations to this plan require consent of the 
Compact Commission. Release of additional Compact waters during the 
irrigation season would only be helpful to the minnow if the waters 
traveled down the riverbed. As discussed above, if water is not 
transported through the reach of river between San Acadia Dam and 
Elephant Butte Reservoir, increased water in the system may not result 
in increased wet habitat for the minnow.
    Issue 17: Critical habitat should not be designated until such time 
as a recovery plan has been developed for the silvery minnow that 
includes a determination that such designation is necessary for 
survival and recovery of the species.
    Service Response: A recovery plan has been drafted for the silvery 
minnow and the plan is being reviewed. Although we agree that it would 
be appropriate to make a detailed determination of habitat needs of 
listed species during the recovery planning process, the Endangered 
Species Act does not currently link the designation critical habitat to 
the development of the recovery plan. The Act requires that, to the 
maximum extent prudent and determinable, we designate critical habitat 
when it lists a species. If critical habitat is not considered 
determinable at the time a final rule is adopted to list a species, it 
must be designated ``to the maximum extent prudent'' within 1 
additional year. There is no provision in the Act to delay designation 
of critical habitat until such time as a recovery plan is prepared. The 
timing of this designation also is in compliance with a court order.
    Issue 18: The calculation of the value of the BOR's river 
maintenance program in the Middle Rio Grande is misleading. The river 
maintenance program has flood control and drainage purposes and 
benefits as well as water salvage benefits. The draft report did not 
evaluate the economic value of these benefits.
    Service Response: The BOR did not provide estimates of the value of 
the benefits identified by the commenter, nor did they provide data 
that would have allowed us to estimate the value of those benefits. 
Therefore, economists were not able to include the value of those 
benefits in the draft economic analysis.
    Issue 19: The BOR estimated that the proposed designation of 
critical habitat would cause the cost of continuing the current level 
of river maintenance in the Middle Rio Grande to increase by up to 40 
percent. This would mean that if funding for river maintenance 
activities remains stable or declines, what river maintenance 
activities in the Middle Rio Grande would be decreased. Reclamation did 
not estimate what percentage reduction in the river maintenance program 
might occur.
    Service Response: We assumed that if the Bureau estimated that 
costs might increase by 40 percent, an alternative scenario would be 
that activities might instead decrease by 40 percent. However, as 
discussed above, the Service has determined that any activities likely 
to result in destruction or adverse modification of critical habitat 
would also result in a finding of jeopardy to the species. Therefore, 
any changes in river maintenance activities are attributed to the 
listing of the silvery minnow, and are not a result of critical habitat 
designation.
    Issue 20: The draft Economic Analysis does not appear to present 
facts regarding the values of benefits of designating critical habitat 
for the silvery minnow. The discussion of recreational fishing benefits 
does not apply to this section of the Rio Grande.
    Service Response: In responding to the questionnaire, the BOR 
provided estimates of costs identified as resulting from the critical 
habitat designation, without the amelioration or perceived benefits. As 
stated previously, we have concluded that no additional restrictions 
will result from the designation of critical habitat. We also concur 
that recreational fishing in the mainstem of the Rio Grande within the 
boundaries of critical habitat is a minimal input to the regional 
economy. The draft Economic Analysis prepared for our use in 
determining effects presented some potential benefits to be derived 
from healthy riverine and riparian systems, but that draft did not 
quantify the benefits to be derived from designation; nor did it 
address any mitigative actions that might be employed or implemented to 
lessen the identified economic impacts.
    Issue 21: The minnow has not done well in stretches of the river 
that have perennial flowing water and has done quite well in some 
places that are seasonally dry.
    Service Response: Although we concur that the distribution of 
silvery minnow shows low members in areas now receiving flows year 
round (Cochiti and Albuquerque reaches) and high numbers in stretches 
of the river subject to low or no flows (Isleta and San Acacia 
reaches), we disagree with the conclusion that they are doing well in 
the seasonally dry reaches. The silvery minnows transported from 
upstream reaches to the Isleta and San Acacia stretches cannot regain 
the upstream habitat. They are blocked by the diversion dams. Their 
presence does not necessarily indicate that the species is doing well 
in the lower portions of the river. Their presence indicates that they 
are vulnerable to the dewatering of these important habitats.
    Issue 22: It is not water depletion that threatens the silvery 
minnow, but the structural changes that have narrowed and confined the 
channel.
    Service Response: We concur that it is not one action or factor 
that is solely responsible for the endangerment of the

[[Page 36285]]

silvery minnow. The morphology of the channel, the quality of the water 
in the channel, and the provision of some flows to avoid dewatering are 
all important and, thus, have been identified as constituent elements 
of the species' critical habitat.
    Issue 23: In order to justify the determination of no difference 
between critical habitat and listing, the Service should limit the 
components of critical habitat so that there is no difference between 
critical habitat and listing.
    Service Response: We believe that the primary constituent elements 
identified for critical habitat--channel morphology, water quality, and 
water quantity--are the attributes needed in the river for the silvery 
minnow's survival and recovery. It is these attributes that we evaluate 
whether conducting section 7 consultation on the species with or 
without critical habitat.
    Issue 24: Critical habitat in the Middle Rio Grande is dependent on 
restoring the low-velocity flows at locations within some reaches of 
the Middle Rio Grande. The required habitat for the recovery of the Rio 
Grande silvery minnow in the Middle Rio Grande does not include the 
entire 163-mile segment from Cochiti Dam to the headwaters of Elephant 
Butte Reservoir, nor does it include the entire cross section of the 
river at the locations designated for critical habitat. Only those 
reaches below the present, modified, or future diversion structures 
should be considered in arriving at locations designated for the 
critical habitat for this species.
    Service Response: We concur that not every cross section of the 
river within the 163 miles of designated critical habitat may provide 
all constituent elements at any moment in time. However, within this 
relatively short reach of river, habitat conditions change in response 
to flows and other factors: sand bars develop, islands shift within the 
channel; pools are created and then filled in. The interconnectedness 
of the habitat is also vitally important to its value for the survival 
and recovery of the species. We believe that a continuum of habitat, 
rather than disjunct reaches, is the best way to maximize the 
probability of the species' survival and recovery.
    Issue 25: The Service is rushing to designate critical habitat with 
inadequate information; both Secretary of the Interior Bruce Babbitt 
and Service Director Jamie Rappaport Clark conceded that the Service 
has insufficient information to declare critical habitat for the minnow 
and that additional time is required. Judge Conway granted additional 
time and may grant even more time if an environmental impact statement 
is required.
    Service Response: The Act requires that, to the extent prudent, 
critical habitat be designated concurrently with a species' listing. 
Further, the Act requires that the designation be based on the best 
available information, even if the information is incomplete. Further, 
the court ordered us to make a determination concerning the designation 
of critical habitat within a specific time frame. This final rule, 
therefore, complies with both the Act and the court order. As we stated 
earlier, we have determined that an Environmental Impact Statement is 
not required for this action.
    Although there is always additional information we would like to 
have concerning a species, there has been considerable research done on 
the Rio Grande silvery minnow and on the hydrology of the Middle Rio 
Grande. In addition, a recovery plan has been prepared and is currently 
being reviewed, which compiles and analyzes the existing data for the 
species. In the preparation of this final rule designating critical 
habitat for the minnow, we used the best scientific and commercial data 
available.
    Issue 26: If it is the Fish and Wildlife Service's conclusion that 
there is little or no difference in benefit or effect between the No 
Action and Preferred Action alternatives, the Service should conclude 
that the designation of critical habitat for the Rio Grande silvery 
minnow is not needed at this time.
    Service Response: This final rule complies with the Act and the 
court order that we make a final determination on critical habitat for 
the Rio Grande silvery minnow. A more complete discussion of the 
Service's view on this designation is found in Effect of the Critical 
Habitat Designation above.
    Issue 27: The statement in the Economic Analysis that ``If the 
designation will have no impact on the activities of Federal agencies, 
then it will have no economic impact'' is not true. Although the 
designation of critical habitat only directly curtails the actions of 
Federal agencies, it does not follow that no private entities are 
affected by the Federal agencies' actions or lack thereof.
    Service Response: We acknowledge that private entities could be 
affected if Federal actions are curtailed by the designation of 
critical habitat. However, the Federal agencies responded that critical 
habitat would not or would very minimally affect their actions. Thus, 
we believe that there will be no change from what has occurred in the 
Federal arena for the past 4 years since the species was listed and 
critical habitat proposed. Critical habitat, based on the responses 
received from the Federal agencies, will not ``curtail'' their actions. 
Critical habitat will have no incremental affect on their actions over 
and above that resulting from listing of the Rio Grande silvery minnow.
    Issue 28: The economic report is not site-specific. An economic 
model that does not take local land and water use into account does not 
benefit the Fish and Wildlife Service.
    Service Responses: The economic analysis was specific to the Middle 
Rio Grande Valley and utilized all information provided by the Federal, 
State, and local, and Native American respondents operating in the 
valley. Baseline information concerning the regional economy was 
provided that dealt specifically with the Middle Rio Grande.
    Issue 29: Not only is the Fish and Wildlife Service's conclusion 
that Rio Grande silvery minnow population declines are due to habitat 
loss questionable, but the assertion that these declines are the result 
of agricultural dewatering between 1987 and 1992 are also suspect. Salt 
cedar and municipal and industrial water use could also be causative 
factors. The natural flow regime referenced in the proposed critical 
habitat designation has not existed since irrigation began in the basin 
over 800 years ago. The drying of the river for days, weeks, and months 
has been in place for at least 100 years.
    Service Responses: As indicated in the proposed and final rules to 
list the Rio Grande silvery minnow, the species is no longer found in 
95 percent of its historical range. This range-wide constriction 
predates the status of the species between 1987 and 1992 in the Middle 
Rio Grande Valley. We agree that many factors, in addition to 
diversions for agricultural use, that contribute to the dewatering of 
the river may be responsible for the imperiled status of the silvery 
minnow. The intensity of impact of diversions and water management has 
certainly grown with the ability to control the river. Diversions 800 
years ago did not have the capacity to affect the river to the extent 
that modern management structures can . As management and manipulation 
of the river have intensified in the past 100 years, not only in the 
Middle Rio Grande Valley, but throughout the range of the silvery 
minnow, the species has been lost from 95 percent of its historical 
range. Moreover, the contraction in the

[[Page 36286]]

minnows' range makes it must more vulnerable to adverse conditions 
locally, where previously it could have recolonized areas temporarily 
depopulated from areas where conditions were more favorable.
    Issue 30: The Fish and Wildlife Service found an economic impact 
arising from critical habitat for the Mexican spotted owl. For the Rio 
Grande silvery minnow, it found no effect attributable to critical 
habitat. On what basis has the Fish and Wildlife Service's 
interpretation of critical habitat and its associated impacts been 
modified?
    Service Response: There has been no modification, but we must judge 
the impacts of individual and specific critical designations based upon 
the case-specific information before us. The impacts can differ between 
species and habitats, based on the effects of designation on Federal 
activities. In the case of the Mexican spotted owl, effects were 
identified. In the case of the Rio Grande silvery minnow, we found no 
effects from designation. As we have gained more experience with 
critical habitat, it has become increasingly apparent that its 
designation has little, if any, influence on the outcome of section 7 
consultations. This has been true of consultations involving the 
silvery minnow that included a conference on proposed critical habitat. 
We do not anticipate that the outcome of section 7 consultations will 
be materially changed upon final critical habitat designation.
    Issue 31: The draft Environmental Assessment provides no 
clarification regarding whether or how the Service believes the 
designation of critical habitat will affect the BOR's operation of the 
San Juan-China Project and how such an action may impact trust 
resources, tribally-owned fee lands, or the exercise of tribal rights 
for the Jicarilla Apache Tribe.
    Service Response: We have been working with the BOR to manage flows 
for the Rio Grande silvery minnow since the species was listed and 
critical habitat was proposed. Those management scenarios involved 
consideration of the San Juan-Chama Project. We do not anticipate a 
change in that process with the final critical habitat designation, nor 
do we foresee an impact on trust resources, tribally-owned fee lands, 
or the exercise of tribal, rights for the Jicarilla Apache.
    Issue 32: The economic documents do not evaluate the economic 
impact of the constituent elements or of the various activities that 
may adversely affect critical habitat: channelization, impoundment, 
deprivation of substrate source and riparian destruction, and any 
activity that would significantly alter the water chemistry in the Rio 
Grande.
    Service Response: The economic analysis evaluated the effect 
critical habitat designation could be expected to have on the 
activities mentioned in this comment. The analysis of impacts of a 
particular action on critical habitat under section 7 will take into 
account the effects of that action on the primary constituent elements. 
Any consultation on the effects of an action on the species would also 
consider the effects on habitat attributes identified as the primary 
constituent elements.
    Issue 33: No attempt has been made to establish a relationship 
between abundance of Rio Grande silvery minnow and flow conditions.
    Service Response: It is correct that specific flow amounts needed 
for numeric population goals have not been identified. However, data 
are available to describe habitats, including flow conditions where 
most Rio Grande silvery minnows have been found. Additionally, data are 
available to show that a spring pulse is necessary for reproduction of 
the silvery minnow, and flows sufficient to produce low-velocity 
habitats are required for the young to survive and be recruited into 
the population. Flows are necessary to provide habitat to allow 
survival of this year's fish to next year so that they can spawn and 
thus contribute to the population. Investigations have not yet been 
conducted to determine the specific volume of a spring pulse to trigger 
spawning or to determine the amount of water and its rate of flow to 
ensure the provision of habitats for the survival of the species.
    Issue 34: The primary constituent elements of the critical habitat 
designation create hydrological operating criteria which add an 
entirely new component of regulation beyond those imposed by the 
listing of the minnow. In essence, the constituent elements require the 
entire length of the river designated as critical habitat to be wet 
from bank to bank at all times. Because of the carriage losses in the 
system, to attain a constant flow at San Marcial (just above Elephant 
Butte Reservoir) would require the release of a quantity of water 
upstream that would virtually destroy, rather than create habitat for 
the minnow, which tends to like low-flows over sandy river bottoms. The 
Service should also identify the source of the water to be used for the 
minnow.
    Service Response: The minnow does not need a large quantity of 
water but it does need some water to survive. We agree that the minnow 
could be sustained with low flows in the summer and late spring. In the 
spring and summer, runoff generally triggers spawning. The primary 
constituent elements we have described are intended to require the 
provision of these low flows to create habitat throughout the existing 
range of the species, not to change the hydrography to a raging, high 
flowing river.
    The Service has not stated the exact flow regime needed to sustain 
the minnow nor has it required a minimum cubic feet per second flow at 
any point in the river system. There are a multiplicity of variables to 
be taken into account at any given time on any point in the river and 
there may be an equal number of ways to solve the problem of ensuring 
adequate flows. Not only has the Recovery Team (which includes 
interested parties in addition to scientific experts) been meeting 
since the species was listed, but a number of different stakeholders 
continue to explore possible solutions to the problem. Potential 
solutions include establishing a conservation pool from which to draw 
in low-water years; conserving water which might then be used to 
support the minnow and other life in the river; creating and enhancing 
silvery minnow habitat upstream and increasing populations upstream; 
purchasing or leasing unused contract water for use in the mainstem; 
passing downstream during the irrigation season some of the water used 
to meet Compact deliveries; creating ways to get some flows returned to 
the mainstem of the river below the San Acacia Dam; and engaging in a 
full-scale water rights adjudication on the entire Rio Grande. To limit 
the methods of assuring the survival of the minnow--such as by 
requiring a stated minimum flow or a source of water--might not only 
have unintended consequences to the minnow and the ecosystem, but it 
might also prematurely limit development of other methods or 
combinations of methods for preventing jeopardy and adverse 
modification to the minnow and its critical habitat.

Required Determinations

    Regulatory Planning and Review. In accordance with Executive Order 
12866, this action was submitted for review by the Office of Management 
and Budget. This final rule identifies the areas being designated as 
critical habitat for the silvery minnow. The designation will not have 
an annual economic effect of $100 million. Our summary of the economic 
impacts of designation is discussed earlier in this final rule. This 
rule will create inconsistencies with other agencies' actions. This 
rule will

[[Page 36287]]

not materially affect entitlements, grants, user fees, loan programs, 
or the rights and obligations of their recipients. This rule will not 
raise novel legal or policy issues. Proposed and final rules 
designating critical habitat for listed species are issued under the 
authority of the Endangered Species Act of 1973, as amended (16 U.S.C. 
1531 et seq.). Critical habitat regulations are issued under procedural 
rules contained in 50 CFR part 424.
    Regulatory Flexibility Act (5 U.S.C. 601 et seq.). This rule will 
not have a significant economic effect on a substantial number of small 
entities as defined under the Regulatory Flexibility Act. As explained 
previously in the final rule, the designation will not have economic 
effects above and beyond the listing of the species. This is because 
the prohibition against destroying or adversely modifying critical 
habitat is essentially duplicative of the prohibition against 
jeopardizing the continued existence of the species, and therefore 
there are no additional economic effects that are not already incurred 
by the listing of the species.
    Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 
804(2)). This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rue does not have an 
annual effect on the economy of $100 million or more. As explained in 
this rule, we do not believe that the designation will have economic 
effects above and beyond the listing of the species. This rule will not 
cause a major increase in costs or prices for consumers, individual 
industries, Federal, State, or local government agencies, or geographic 
regions, because the designation will not have economic effects above 
and beyond the listing of the species. This rule does not have 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or the ability of U.S.-based enterprises to 
compete with foreign-based enterprises. Proposed and final rules 
designating critical habitat for listed species are issued under the 
authority of the Endangered Species Act of 1973, as amended (16 U.S.C. 
1531 et seq.). The prohibition against destruction or adverse 
modification of critical habitat applies only to actions authorized, 
funded, or carried out by Federal agencies. Competition, employment, 
investment productivity, innovation, or the ability of U.S.-based 
enterprises to compete with foreign-based enterprises are not affected 
by a final rule designating critical habitat for this or any other 
species.
    Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.). This rule 
will not significantly affect small governments because this rule will 
not place additional burdens on small governments beyond any burdens 
that may have been a result of listing the species as endangered. This 
rule will not produce a Federal mandate of $100 million or greater in 
any year, i.e. it is not a significant regulatory action under the 
Unfunded Mandates Reform Act.
    Takings. In accordance with Executive Order 12630, this rule does 
not have significant takings implications. A takings implication 
assessment is not required. This final rule will not ``take'' private 
property and will not alter the value of private property. Critical 
habitat designation is only applicable to Federal lands, or to private 
lands if a Federal nexus exists (i.e., if a Federal agency authorizes 
or funds an action on private land). The regulatory impacts of this 
rule are small to non-existent and will not result in a taking of 
private property rights.
    Federalism. This final rule will not affect the structure or role 
of states, and will not have direct, substantial, or significant 
effects on states as defined in Executive Order 12612. As previously 
stated, critical habitat is only applicable to Federal lands. Other 
lands only become subject to the provisions of critical habitat if a 
Federal nexus exists.
    Civil Justice Reform. In accordance with Executive Order 12988, the 
Office of the Solicitor has determined that the rule does not unduly 
burden the judicial system and does meet the requirements of sections 
3(a) and 3(b)(2) of the Order. The final designation of critical 
habitat for the Rio Grande silvery minnow has been reviewed 
extensively. Every effort has been made to ensure that the rule 
contains no drafting errors, provides clear standards, simplifies 
procedures, reduces burden, and is clearly written such that litigation 
risk is minimized.
    Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). This rule 
does not contain any information collection requirements for which 
Office of Management and Budget approval under the Paperwork Reduction 
Act is required.
    National Environmental Policy Act. It is our position that, outside 
the Tenth Circuit, environmental analyses as defined by the National 
Environmental Policy Act of 1969, (NEPA) need not be prepared in 
connection with listing species under the Endangered Species Act of 
1973, as amended. A notice outlining the Service's reasons for this 
determination was published in the Federal Register on October 25, 1983 
(48 FR 49244). This assertion was upheld in the courts of the Ninth 
Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), 
cert. Denied, 116 S. Ct. 698 (1996). However, when the range of the 
species includes States within the Tenth Circuit, such as that of the 
Rio Grande silvery minnow, the Service, pursuant to the Tenth Circuit 
ruling in Catron County Board of Commissioners v. U.S. Fish and 
Wildlife Service, 75 F.3d 1429 (10th Cir. 1996), is to undertake a NEPA 
analysis for critical habitat designations. We have completed that 
analysis through an Environmental Assessment and Finding of No 
Significant Impact.
    Government-to-Government Relationship with Tribes. In accordance 
with the President's memorandum of April 29, 1994, ``Government-to-
Government Relations with Native American Tribal Governments'' (59 FR 
22951) and 512 DM2:
    We understand that federally-recognized Indian Tribes maintain a 
Government-to-Government relationship with the United States. The 1997 
Secretarial Order on Native Americans and the Act clearly states that 
Tribal lands should not be designated unless absolutely necessary for 
the conservation of the species. According to the Secretarial Order, 
``Critical habitat shall not be designated in any such areas [an area 
that may impact Tribal trust resources] unless it is determined 
essential to conserve a listed species. In designating critical 
habitat, the Services shall evaluate and document the extent to which 
the conservation needs of a listed species can be achieved by limiting 
the designation to other lands.'' The designation of critical habitat 
for the Rio Grande silvery minnow contains Tribal lands belonging to 
the pueblos of Cochiti, San Felipe. Santo Domingo, Santa Ana, Sandia, 
and Isleta.
    On October 27, 1994, we held a meeting with the economic analysis 
contractors and invited Federal agencies, the pueblos of Cochiti, San 
Felipe, Isleta, Sandia, Santa Ana, and Santo Domingo, and other 
entities. At the meeting, the Service and our contractors outlined the 
approach under consideration to define the economic impacts of critical 
habitat designation and sought input to the process and participation 
from these entities. On June 22, 1995, a meeting was held solely for 
Pueblo representatives to discuss the proposed critical habitat and the 
process to be employed in determining economic effects of the 
designation with the content identical to that of the earlier meeting. 
No Pueblo representatives attended. Following the compilation and 
assessment of

[[Page 36288]]

responses to questionnaires, we transmitted the draft analysis to the 
pueblos on April 26, 1996. Finally, on March 4, 1999, we met with 
Pueblo officials to discuss the impending designation of critical 
habitat. Thus, we have sought to consult with tribes on Government to 
Government basis.

References Cited

    A complete list of all references cited herein, as well as 
others, is available upon request from the New Mexico Ecological 
Services Field Office (see ADDRESSES above).

    Author: The primary author of this final rule is Jennifer Fowler-
Propst (see ADDRESSES).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
record keeping requirements, Transportation.

Regulation Promulgation

    Accordingly, we amend part 17, subchapter B of chapter I, title 50 
of the Code of Federal Regulations as set forth below:

PART 17--(AMENDED)

    1. The authority citation for Part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.


Sec. 17.11  [Amended]

    2. Amend section 17.11(h) by revising the entry in the Critical 
habitat column of the entry for the minnow, Rio Grande silvery, under 
FISHES, to read ``17.95(e)''.
    3. Section 19.95(e) is amended by adding critical habitat of the 
Rio Grande silvery minnow (Hybognathus amarus), in the same 
alphabetical order as the species occurs in 17.11(h).


Sec. 17.95  Critical habitat--fish and wildlife.

* * * * *
    (e) * * *
* * * * *
    RIO GRANDE SILVERY MINNOW (Hybognathus Amarus).
    New Mexico: Socorro, Valencia, Bernalillo, and Sandoval 
Counties. Rio Grande from the downstream side of State highway 22 
bridge crossing of the Rio Grande, immediately downstream of Cochiti 
Dam, NW\1/4\ sec. 17, T. 16N., R. 15 E. of the New Mexico Meridian, 
extending downstream approximately 163 mi (260 km) to where the 
Atchison Topeka and Santa Fee Railroad crosses the river near San 
Marcial, Lat 33 deg.40'50'', long 106 deg.59'30'', Socorro County.
    Primary constituent elements for the Rio Grande silvery minnow 
include stream morphology that supplies sufficient flowing water to 
provide food and cover needed to sustain all life stages of the 
species; water of sufficient quality to prevent water stagnation 
(elevated temperatures, decreased oxygen, carbon dioxide build-up, 
etc); and water of sufficient quantity to prevent formation of 
isolated pools that restrict fish movement, foster increased 
predation by birds and aquatic predators, and congregate pathogens.

BILLING CODE 4310-55-M

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[GRAPHIC] [TIFF OMITTED] TR06JY99.004




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    Dated June 22, 1999.
Stephen C. Saunders,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 99-16985 Filed 6-30-99; 10:26 am]
BILLING CODE 4310-55-Cc