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

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

[[Page 36289]]

[GRAPHIC] [TIFF OMITTED] TR06JY99.004

[[Page 36290]]

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