Wednesday, February 19, 2003

Part II

Department of the Interior Fish and Wildlife Service

50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Silvery Minnow; Final Rule

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DEPARTMENT OF THE INTERIOR National Environmental Policy Act Rio Grande (Pflieger 1980). The silvery (NEPA) and a new proposed rule minnow is extirpated from the Pecos Fish and Wildlife Service designating critical habitat for the River and also from the Rio Grande silvery minnow. downstream of Elephant Butte Reservoir 50 CFR Part 17 DATES: This final rule is effective March and upstream of Cochiti Reservoir RIN 1018–AH91 21, 2003. (Bestgen and Platania 1991). The current ADDRESSES: Comments and materials distribution of the silvery minnow is Endangered and Threatened Wildlife received, as well as supporting limited to the Rio Grande between and Plants; Designation of Critical documentation used in the preparation Cochiti and Elephant Butte Habitat for the Rio Grande Silvery of this final rule, are available for public Reservoir. Throughout much of its Minnow inspection, by appointment, during historic range, the decline of the silvery normal business hours at the New minnow has been attributed to AGENCY: Fish and Wildlife Service, modification of the flow regime Interior. Ecological Services Field Office, 2105 Osuna Road NE, Albuquerque, NM (hydrological pattern of flows that vary ACTION: Final rule; notice of availability. 87113. seasonally in magnitude and duration, depending on annual precipitation SUMMARY: We, the U.S. Fish and You may obtain copies of the final patterns such as runoff from snowmelt) Wildlife Service (Service), designate rule, the economic analysis, or the final and channel drying resulting from critical habitat for the Rio Grande EIS from the field office address above impoundments, water diversion for silvery minnow (Hybognathus amarus) or by calling 505–346–2525. All agriculture, stream channelization, and (silvery minnow), an endangered documents are also available from our perhaps both interactions with non- species under the Endangered Species Web site at http://ifw2es.fws.gov/ native fish and decreasing water quality Act of 1973, as amended (Act). On June Library/. (Cook et al. 1992; Bestgen and Platania 6, 2002, we proposed that 212 miles If you would like copies of the regulations on listed wildlife or have 1991; Service 1999; Buhl 2001). (mi) (339 kilometers (km)) be designated Much of the species’ life history questions about prohibitions and as critical habitat for the silvery information detailed below comes from permits, contact the U.S. Fish and minnow. The silvery minnow critical studies conducted within the middle Wildlife Service, Division of habitat designation in the Rio Grande Rio Grande, the current range of the Endangered Species, P.O. Box 1306, extends from , Sandoval silvery minnow. Nevertheless, we Albuquerque, NM 87103. County, New Mexico (NM) downstream believe that our determinations for other to the utility line crossing the Rio FOR FURTHER INFORMATION CONTACT: areas outside of the middle Rio Grande, Grande, a permanent identified Field Supervisor, New Mexico but within the historic range of the landmark in Socorro County, NM, a Ecological Services Field Office (see silvery minnow, are consistent with the total of approximately 157 mi (252 km), ADDRESSES section above); telephone: data collected to date on the species’ referred to as the ‘‘middle Rio Grande.’’ 505–346–2525. Division of Endangered ecological requirements (e.g., Service The designation also includes the Species (see ADDRESSES section above); 1999). tributary Jemez River from Jemez telephone 505–248–6920; facsimile The role of the plains minnow Canyon Dam in NM to the upstream 505–248–6788. (Hybognathus placitus) in the decline boundary of Santa Ana Pueblo, which is SUPPLEMENTARY INFORMATION: and extirpation of the silvery minnow not included. The critical habitat from the Pecos River is uncertain; Background designation defines the lateral extent however, the establishment of the plains (width) as those areas bounded by The Rio Grande silvery minnow is minnow coincided with the existing levees or, in areas without one of seven species in the genus disappearance of the silvery minnow levees, 300 feet (ft) (91.4 meters (m)) of Hybognathus found in the from the Pecos River (Bestgen and riparian zone adjacent to each side of (Pflieger 1980). The species was first Platania 1991; Cook et al. 1992). Cook et the bankfull stage of the middle Rio described by Girard (1856) from al. (1992) believed that the non-native Grande. The Pueblo lands of Santo specimens taken from the Rio Grande plains minnow was introduced into the Domingo, Santa Ana, Sandia, and Isleta near Fort Brown, Cameron County, TX. Pecos drainage prior to 1964, and was within this area are not included in the It is a stout silvery minnow with probably the result of the release of final critical habitat designation. Except moderately small eyes and a small, ‘‘bait minnows’’ collected from the for these areas, the final remaining slightly oblique mouth. Adults may Arkansas River drainage. It is unclear, portion of the silvery minnow’s reach 3.5 inches (in) (90 millimeters however, if populations of the native occupied range in the middle Rio (mm)) in total length (Sublette et al. silvery minnow were depleted prior to Grande in NM is being designated as 1990). Its dorsal fin is distinctly pointed the introduction of the plains minnow, critical habitat. This publication also with the front of it located slightly or if the reduction and extirpation of the provides notice of the availability of the closer to the tip of the snout than to the silvery minnow was a consequence of final economic analysis and the final base of the tail. The fish is silver with the interactions between the two species Environmental Impact Statement (EIS) emerald reflections. Its belly is silvery (C. Hoagstrom, U.S. Fish and Wildlife for this final rule. white, its fins are plain, and barbels are Service, pers. comm. 2001). One theory This final rule and EIS are being absent (Sublette et al. 1990). is that the plains minnow may be more issued pursuant to a court order. On This species was historically one of tolerant of modified habitats and, November 21, 2000, the United States the most abundant and widespread therefore, was able to replace the silvery District Court for the District of New fishes in the Rio Grande Basin, minnow in the degraded reaches of the Mexico, in Middle Rio Grande occurring from Espan˜ ola, NM, to the Pecos River. Nevertheless, the plains Conservancy District v. Babbitt, 206 F. Gulf of Mexico (Bestgen and Platania minnow has experienced population Supp. 2d 1156 (D.N.M. 2000), set aside 1991). It was also found in the Pecos declines within its native range from the July 6, 1999, critical habitat River, a major tributary of the Rio highly variable water levels, unstable designation for the minnow and ordered Grande, from Santa Rosa, NM, streambeds, and fluctuating water us to issue both an EIS pursuant to the downstream to its confluence with the temperatures (Cross et al. 1985, cited in

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Taylor and Miller 1990). Although the Robinson 1959; Hubbs et al. 1977; salmoides), smallmouth bass (M. interactions (e.g., hybridization or Edwards and Contreras-Balderas 1991). dolomieu)) as these species were competition) between the silvery Prior to measurable human influence stocked into the reservoirs created by minnow and the introduced plains on the middle Rio Grande, starting in the (e.g., Cochiti Reservoir) minnow are believed by some to be one the 1300’s, (Biella and Chapman 1977), (Sublette et al. 1990). Once established, of the primary causes for the extirpation the Rio Grande was a perennially these species often completely replaced of the silvery minnow in the Pecos flowing, aggrading river with a shifting the native fish fauna (Propst et al. 1987; River, this hypothesis is unsubstantiated sand substrate. In general, the river was Propst 1999). (Hatch et al. 1985; Bestgen et al. 1989; slightly sinuous and braided, and freely Development of agriculture and the Cook et al. 1992). Currently, New migrated across the floodplain. Strong growth of cities within the historic Mexico State University is conducting evidence now suggests that the middle range of the silvery minnow resulted in research on the plains minnow and Rio Grande started drying up on a fairly a decrease in the quality of river water silvery minnow to determine if the two regular basis only after the development caused by municipal and agricultural species hybridize. These studies are of Colorado’s San Luis Valley in the runoff (i.e., sewage and pesticides) that ongoing and results should be available 1870’s. Prior to this, there are only two may have also adversely affected the in 2003 (C. Caldwell, U.S. Geological examples of its flow ceasing, during range and distribution of the silvery Survey, Biological Resources Division prolonged, severe droughts in 1752 and minnow. Historically there were four pers. comm. 2002). 1861. Over the past century, and other small native fish species (speckled Within its native range, the plains particularly in the last few decades, the chub (Macrohybopsis aestivalis); Rio minnow is sympatric (occurs at the middle Rio Grande has been frequently Grande shiner (Notropis jemezanus); same localities) with other species of dewatered, particularly in the river phantom shiner (Notropis orca); and Rio Hybognathus, but is separated reach from to the Grande bluntnose shiner (Notropis ecologically from them. For example, (Isleta reach) simus simus)) within the middle Rio the plains minnow is found in the main and the reach from San Acacia Grande that had similar reproductive river channel where the substrate is Diversion Dam to Elephant Butte attributes, but these species are now predominantly sand, whereas related Reservoir (San Acacia reach) (Middle either extinct or extirpated (Platania species such as the western silvery Rio Grande Conservancy District 1991). The various life history stages of the minnow (Hybognathus argyritis) (MRGCD) 1999; Scurlock and Johnson silvery minnow require shallow waters predominate in backwaters and 2001; Scurlock 1998). Decline of the species in the middle with a sandy and silty substrate that is protected areas with little to no current Rio Grande probably began in 1916 generally associated with a meandering and sand or silt substrate (Pflieger when the gates of river that includes sidebars, oxbows, 1997). Consequently, if the silvery were closed. Construction of the dam and backwaters (C. Hoagstrom, pers. minnow and plains minnow do not signaled the beginning of an era of dam comm, 2001; Bestgen and Platania 1991; hybridize, they may be ecologically construction on the mainstem Rio Platania 1991). However, physical segregated and able to co-exist. Grande that resulted in five major modifications to the Rio Grande over the The plains minnow and silvery mainstem dams within the silvery last century—including the construction minnow appear to have little in the way minnow’s historic range (Shupe and of dams, levees, and channelization of of behavioral or physiological isolating Williams 1988). These dams (Cochiti, the mainstem—have altered much of the mechanisms and may hybridize (Cook et Elephant Butte, Caballo, International habitat that is necessary for the species al. 1992); yet the combined effects of Amistad, and International Falcon) to persist (Service 1999). Channelization habitat degradation (i.e., modification of allowed manipulation and diversion of has straightened and shortened the flow regime, channel drying, water the river’s flow. Often this manipulation mainstem river reaches; increased the diversion, and stream channelization) severely altered the flow regime and velocity of the current; and altered may be another potential explanation likely precipitated the decline of the riparian vegetation, instream cover, and for the silvery minnow’s extirpation silvery minnow (Bestgen and Platania substrate composition (BOR 2001a). from the Pecos River (Bestgen and 1991). Water management and use has Adult silvery minnows occur in shallow Platania 1991; C. Hoagstrom, pers. resulted in a large reduction of suitable braided runs over sand substrate, but comm. 2001). We acknowledge that no habitat for the silvery minnow. Lack of rarely in habitat with substrate of gravel conclusive data exist to determine the water is likely the single most important or cobble (Platania 1991; Dudley and cause of extirpation of the silvery limiting factor for the survival of the Platania 1997; Platania and Dudley minnow from the Pecos River. species (Service 1999). Agriculture 1997; Remshardt et al. 2001). The silvery minnow has also been accounts for 90 percent of the water The silvery minnow is a pelagic extirpated from the Rio Grande consumption in the middle Rio Grande spawning species; i.e., its eggs flow in downstream of Elephant Butte (Bullard and Wells 1992). The average the water column. The silvery minnow Reservoir, NM, to the Gulf of Mexico, annual diversion of water in the middle is the only surviving small, native (TX), including the river reach Rio Grande by the MRGCD was 535,280 pelagic spawning minnow in the middle within Big Bend National Park (Hubbs acre-feet (af) for the period from 1975 to Rio Grande, and its range has been et al. 1977; Bestgen and Platania 1991). 1989 (U.S. Bureau of Reclamation (BOR) reduced to only 5 percent of its historic Reasons for the species’ extirpation in 1993). The silvery minnow historically extent. Although the silvery minnow is the lower Rio Grande are also uncertain. survived low flow periods because such a hearty fish, capable of withstanding The last documented collection of a events were infrequent and of lesser many of the natural stresses of the silvery minnow in the Big Bend area magnitude, and there were no diversion desert aquatic environment, most was 1961, but reexamination of that dams to restrict free movement of individual silvery minnows live only specimen revealed it was a plains silvery minnows in the river (59 FR one year (Bestgen and Platania 1991). minnow (Bestgen and Propst 1996). 36988). Concurrent with construction of Thus, a successful annual spawn is key Therefore, the last silvery minnow from the mainstem dams was an increase in to the survival of the species (Platania the lower Rio Grande was apparently the abundance of non-native fish and Hoagstrom 1996; Service 1999; collected in the late 1950s (Trevino- (largemouth bass (Micropterus Dudley and Platania 2001, 2002b). The

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silvery minnow’s range has been so little supplemental water (water that is In some isolated pools, Smith and greatly restricted that the species is used to augment river flows) available. Hoagstrom (1997) and Smith (1999) extremely vulnerable to catastrophic Compounding this problem is stream documented complete mortality of events, such as a prolonged period of bed aggradation (i.e., the river bottom is silvery minnows in the middle Rio low or no flow (i.e., the loss of all rising due to sedimentation) below San Grande in both 1996 and 1997 during surface water) (59 FR 36988; Dudley and Acacia, NM, where the bed of the river prolonged periods of low or no flow. Platania 2001). is now perched above the bed of the low These studies documented both the In the middle Rio Grande, the spring flow conveyance channel (LFCC). The relative size of the isolated pool (i.e., runoff coincides with and may trigger LFCC is immediately adjacent to and estimated surface area and maximum the silvery minnow’s spawn (Platania parallels the Rio Grande for depth) in relation to pool longevity (i.e., and Hoagstrom 1996; Service 1999; approximately 75 mi (121 km) and was number of days the isolated pool Dudley and Platania 2001). For designed to expedite delivery of water existed) and the fish community within example, 1,850 cubic feet per second to Elephant Butte Reservoir, pursuant to isolated pools. Isolated pools found (cfs) of water was released from Cochiti the Rio Grande Compact of 1939. The during these conditions typically only Reservoir on May 13, 2002, to provide LFCC diverted water from the Rio lasted for about 48 hours before drying for silvery minnow spawning. Grande from 1959 to 1985. Because the up completely (Smith 1999). Those Following the release, a significant river bed is now above the LFCC, waters isolated pools that persisted longer than spawning event occurred in the middle in the mainstem of the river are drained 48 hours lost greater than 81 percent of Rio Grande. During a spawn, from the river bed into the LFCC. The their estimated surface area and greater semibuoyant (floating) eggs drift LFCC has the capacity to take than 26 percent of their maximum depth downstream in the water column (Smith approximately 2,000 cfs of the river’s within 48 hours. Moreover, isolated 1999; Dudley and Platania 2001) (see flow, via gravity. If natural river flow is pools receive no surface inflow, water ‘‘Primary Constituent Elements’’ section 2,000 cfs or less, the LFCC can dewater temperatures increase, and dissolved of this final rule for further information the Rio Grande from its heading at the oxygen decreases; depending on on spawning). However, diversion dams San Acacia Diversion Dam south to location, size, and duration of the are believed to act as instream barriers Elephant Butte Reservoir. prolonged recurring periods of low or and prevent silvery minnows from However, the LFCC has not been fully no flow, these factors may result in the moving upstream after hatching (Service operational since 1985 because of death of all fish (Tramer 1977; Mundahl 2001b; Dudley and Platania 2001; siltation of the lower end (i.e., stream 1990; Platania 1993b; Ostrand and 2002a). In fact, the continued bed aggradation) at Elephant Butte Marks 2000; Ostrand and Wilde 2001). downstream displacement and decline Reservoir. Even without water diversion Therefore, when periods of low or no of the silvery minnow in the middle Rio into the LFCC, seepage from the river to flow are longlasting (over 48 hours), Grande is well documented (Dudley and the LFCC is occurring and causing some complete mortality of silvery minnows Platania 2001). loss of surface flows in the river channel in isolated pools can occur. During the irrigation season Formation of isolated pools also (BOR 2001a). In effect, water is drained (approximately March 1 to October 31 of increases the risk of predation of silvery from the Rio Grande into the LFCC each year) in the middle Rio Grande, minnows in drying habitats. Predators, thereby resulting in water losses in the silvery minnow often become stranded primarily fish and birds, have been in the diversion channels (or irrigation reach from the San Acacia reach. During observed in high numbers in the middle ditches), where they are unlikely to some years this can result in prolonged Rio Grande, consuming fish in drying, survive (Smith 1999; Lang and recurring periods of low or no flow. isolated pools where those fish become Altenbach 1994). For example, when the It is believed that, historically, the concentrated and are more vulnerable to irrigation water in the diversion silvery minnow was able to withstand predation (J. Smith, pers. comm. 2001). channels is used on agricultural fields, periods of drought primarily by The potential for prolonged recurring the possibility for survival of silvery retreating to pools and backwater periods of low or no flow in the middle minnows in the irrigation return flows refugia, and swimming upstream to Rio Grande becomes particularly (excess irrigation water that flows from repopulate upstream habitats (Deacon significant for the silvery minnow below agricultural fields and is eventually and Minckley 1974; J. Smith, U.S. Fish the San Acacia Diversion Dam, where returned to the river) is low, because and Wildlife Service, pers. comm. most silvery minnows have been silvery minnows perish in canals 2001). Platania (1995) posits that after recently captured. In the river reach because of unsuitable habitat, prolonged recurring periods of low or above (north of) the San Acacia dewatering, or predation (Lang and no flow the silvery minnow may have Diversion Dam, return flows from Altenbach 1994). Unscreened diversion been able to repopulate downstream current irrigation operations and other dams also entrain (trap) silvery minnow habitat the following year because eggs activities are routed back into the fry (fish that have recently emerged drifted from upstream populations mainstem of the middle Rio Grande. At from eggs) and semibuoyant eggs (Smith (Platania 1995). Although able to times, this can provide a fairly 1998; 1999). However, some irrigation survive droughts historically through consistent flow in particular stretches of water is returned to the river via such movements, the present-day the Isleta reach. However, at the San irrigation waterways in the reach of the middle Rio Grande dries and dams Acacia Diversion Dam, once diversions middle Rio Grande from the Isleta reach, prevent upstream movement. As a result are made (i.e., to irrigation canals, as which helps sustain flow in certain silvery minnows can become trapped in well as seepage losses to the LFCC) the segments of this reach. Nevertheless, we dewatered reaches and may die in return flows continue in off-river do not have evidence that these isolated pools before the river becomes channels (with a few exceptions at riverside drains offer suitable refugia for wetted again. The inability of the Brown’s Arroyo and the 10-mile outfall the silvery minnow. population to find adequate refugia of the LFCC) until they enter Elephant Perhaps even more problematic for during prolonged recurring periods of Butte Reservoir. Thus, unlike in the the silvery minnow in the middle Rio low or no flow and to repopulate Isleta reach, the silvery minnow does Grande are drought years during the extirpated reaches creates a very not receive the benefit of irrigation irrigation season when there may be unstable population (Service 2001b). return flows in the San Acacia reach.

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Previous Federal Action program that had been shut down for We received approximately 40 We proposed to list the silvery over a year and faced a backlog of 243 comments during the EIS scoping minnow as an endangered species with proposed species listings. In order to process. During April 2001, we critical habitat on March 1, 1993 (58 FR address that workload, we published, on contracted with Industrial Economics 11821). The comment period, originally May 16, 1996, our Listing Priority Incorporated for an economic analysis scheduled to close on April 30, 1993, Guidance for the remainder of Fiscal and the Institute of Public Law at the was extended to August 25, 1993 (58 FR Year 1996 (61 FR 24722). That guidance University of New Mexico School of 19220; April 13, 1993). That extension identified the designation of critical Law for an EIS on the proposed critical allowed us to conduct public hearings habitat as the lowest priority upon habitat designation. Following the closing of the scoping and to receive additional public which we could expend limited funding and staff resources. Subsequent comment period, we outlined possible comments. Public hearings were held in revisions of the guidance for Fiscal alternatives for the EIS. We held a Albuquerque and Socorro, NM, on the Years 1997 (December 5, 1996; 61 FR meeting on September 12, 2001, to evenings of June 2 and 3, 1993, 64475) and for 1998–1999 (May 8, 1998; solicit input on the possible alternatives respectively. After a review of all 63 FR 25502) retained critical habitat as from the Rio Grande Silvery Minnow comments received in response to the the lowest priority for the listing Recovery Team (Recovery Team) and proposed rule, we published the final program within the Service. Thus, no other invited participants including rule to list the silvery minnow as work resumed on the economic individuals from the Carlsbad Irrigation endangered on July 20, 1994 (59 FR analysis. District, Fort Sumner Irrigation District, 36988). On February 22, 1999, in Forest the States of New Mexico and Texas, Section 4(a)(3) of the Act requires that Guardians v. Babbitt, Civ. No. 97–0453 and potentially affected Pueblos and the Secretary, to the maximum extent JC/DIS, the United States District Court Tribes. Following this meeting, we sent prudent and determinable, designate for the District of New Mexico ordered letters to the Recovery Team and other critical habitat at the time a species is us to publish a final determination with invited participants, including Tribal listed as endangered or threatened. Our regard to critical habitat for the silvery entities and resource agencies in NM regulations (50 CFR 424.12(a)(2)) state minnow within 30 days. The deadline and TX, to solicit any additional that critical habitat is not determinable was subsequently extended by the court information (particularly biological, if information sufficient to perform to June 23, 1999. On July 6, 1999, we cultural, social, or economic data) that required analyses of the impacts of the published a final designation of critical may be pertinent to the economic designation is lacking or if the biological habitat for the silvery minnow (64 FR analysis or EIS. We received 10 needs of the species are not sufficiently 36274), pursuant to the court order. comments in response to our requests well known to permit identification of On November 21, 2000, the United for additional information. We fully an area as critical habitat. At the time States District Court for the District of considered the information provided in the silvery minnow was listed, we New Mexico, in Middle Rio Grande the comment letters as we developed found that critical habitat was not Conservancy District v. Babbitt, 206 F. the alternatives analyzed in the draft determinable because there was Supp. 2d 1156 (D.N.M. 2000), set aside EIS, which included the proposed rule insufficient information to allow us to the July 6, 1999, critical habitat as our preferred alternative. perform the required analyses of the designation because we had not issued On June 6, 2002, we proposed that impacts of the designation. an EIS, hence we were ordered to issue 212 mi (339 km) be designated as We contracted for an economic both an EIS pursuant to the National critical habitat for the silvery minnow analysis of the proposed critical habitat Environmental Policy Act (NEPA) and a (67 FR 39206). The comment period for designation in September 1994, and a new proposed rule designating critical the proposed rule, draft EIS, and draft draft analysis was prepared and habitat for the silvery minnow. This Economic Analysis was originally provided to us on February 29, 1996. final rule and the EIS are being issued scheduled to close on September 4, The draft document was then provided pursuant to that court order. 2002, but was extended until October 2, to all interested parties on April 26, On April 5, 2001, we mailed 2002 (67 FR 57783). 1996. That mailing included 164 approximately 500 copies of a In this final rule, we determine that a individuals and agencies, all affected preproposal notification letter to the 6 river reach in the lower Rio Grande in Pueblos in the valley, all county middle Rio Grande Indian Pueblos Big Bend National Park downstream of commissions within the occupied range (Cochiti, Santo Domingo, San Felipe, the park boundary to the Terrell/Val of the species, and an additional 54 Santa Ana, Sandia, and Isleta), various Verde County line, TX (lower Rio individuals who had attended the governmental agencies, interested Grande), and a river reach in the middle public hearings on the proposed listing individuals, and the New Mexico Pecos River, from to and who had requested that they be Congressional delegation. The letter in De Baca, Chaves, and included on our mailing list, informed them of our intent to prepare Eddy Counties, NM (middle Pecos particularly for the economic analysis. an EIS for the proposed designation of River), are essential to the conservation At that time, we notified the public that, critical habitat for the silvery minnow of the silvery minnow. However, these because of a moratorium on final listing and announced public scoping meetings areas are not designated as critical actions and determinations of critical pursuant to NEPA. On April 17, 23, 24, habitat because of our analysis under habitat imposed by Public Law 104–6, and 27, 2001, we held public scoping section 4(b)(2) (see ‘‘Exclusions Under no work would be conducted on the meetings in Albuquerque, NM; Section 4(b)(2) of the Act’’ section of analysis or on the final decision Carlsbad, NM; Fort Stockton, TX; and this rule). This critical habitat concerning critical habitat. However, we Socorro, NM, respectively. We solicited designation includes the middle Rio solicited comments from the public and oral and written comments and input. Grande from Cochiti Dam to the utility agencies on the document for use at the We were particularly interested in line crossing the Rio Grande just east of time such work resumed. obtaining additional information on the the Bosque Well as demarcated on On April 26, 1996, the moratorium status of the species or information USGS Paraje Well 7.5 minute was lifted. Following the waiver of the concerning threats to the species. The quadrangle (1980), Socorro County, NM, moratorium, we reactivated the listing comment period closed June 5, 2001. with the Universal Transverse Mercator

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(UTM) coordinates of UTM Zone 13: to a species solely on the basis of a Game and Fish’s Rock Lake State Fish 311474 E, 3719722 N, as referenced recovery plan), the information Hatchery, NM; and (6) the U.S. with the 1927 North American Datum contained in the Rio Grande Silvery Geological Survey Biological Resources (NAD27). The designation also includes Minnow Recovery Plan (Recovery Plan) Division’s Yankton Laboratory, SD (J. the tributary Jemez River from Jemez was considered in developing this Brooks, pers. comm., 2002). Progeny of Canyon Dam to the upstream boundary critical habitat designation. these fish are being used to augment the of Santa Ana Pueblo, which is not On July 1, 1994, the Recovery Team middle Rio Grande silvery minnow included (see the ‘‘Regulation was established by the Service pursuant population, but could also be used in Promulgation’’ section of this rule for to section 4(f)(2) of the Act and our future augmentation or reestablishment exact descriptions of boundaries of cooperative policy on recovery plan programs for the silvery minnow in critical habitat), and no other reaches participation, a policy intended to other river reaches (J. Remshardt, New within the historic range of the silvery involve stakeholders in recovery Mexico Fishery Resources Office, pers. minnow. We have also not included planning (July 1, 1994; 59 FR 34272). comm. 2001). four areas of the middle Rio Grande in Stakeholder involvement in the We have also salvaged and the critical habitat because of Tribal development of recovery plans helps transplanted silvery minnows within management plans and other relevant minimize the social and economic the middle Rio Grande in recent years issues (see ‘‘Relationship of Critical impacts that could be associated with (Service 1996, 1998, 1999, 2000, 2001, Habitat to Pueblo Lands under Section recovery of endangered species. 2002). Approximately 225,500 silvery 3(5)(A) and Exclusions Under Section Numerous individuals, agencies, and minnow larvae and adults have been 4(b)(2)’’ section of this rule). Therefore, affected parties were involved in the released (i.e., stockings from captive we are only designating some sections development of the Recovery Plan or bred fish or translocated from of the river reaches currently occupied otherwise provided assistance and downstream reaches) since May 1996 (J. by the silvery minnow. review (Service 1999). On July 8, 1999, Remshardt, U.S. Fish and Wildlife This final rule is selected as the we finalized the Recovery Plan (Service Service, pers. comm. 2001). For preferred alternative in the final EIS, 1999), pursuant to section 4(f) of the example, in late 2001, the University of pursuant to NEPA, which we were Act. New Mexico (UNM) released 11,900 required to prepare under court order The Recovery Plan recommends silvery minnows into the San Acacia from the United States District Court for recovery goals for the silvery minnow, Reach. In June 2002, we released 2,500 the District of New Mexico, in Middle as well as procedures to better marked silvery minnows within the Rio Grande Conservancy District v. understand the biology of the species. Angostura Reach. These fish were Babbitt, 206 F. Supp. 2d 1156 (D.N.M. The primary goals of the Recovery Plan marked to determine the movement of 2000). The two reaches referenced above are to: (1) Stabilize and enhance silvery minnows in the wild. Results of (i.e., middle Pecos River and lower Rio populations of silvery minnow and its studies of the effectiveness of these Grande) were also analyzed in the EIS habitat in the middle Rio Grande valley releases will be useful for evaluating and Economic Analysis. We followed and (2) reestablish the silvery minnow future efforts to reintroduce the species. the procedures required by the Act, in at least three other areas of its historic These results should be available in NEPA, and the Administrative range (Service 1999). The reasons for 2003 (R. Dudley and S. Platania, UNM, Procedure Act during this Federal determining that these three areas were pers. comm. 2002). rulemaking process. Therefore, we necessary for recovery include: (1) We have also continued working with solicited public comment on all reaches Consideration of the biology of the the Recovery Team since the Recovery identified in the proposed rule as species (e.g., few silvery minnows live Plan was finalized. We believe this essential, including whether any of more than 12 to 14 months, indicating critical habitat designation and our these or other areas should be excluded the age-1 fish (i.e., all fish born in 2000 conservation strategy (see ‘‘Exclusions from the final designation pursuant to that remain alive in 2001 would be age- Under Section 4(b)(2) of the Act’’ section 4(b)(2). As required by law, we 1 fish) are almost entirely responsible section below) are consistent with the have considered all comments received for perpetuation of the species); (2) the Recovery Plan (Service 1999). The on the proposed rule, the draft EIS, and factors in each reach that may inhibit or purpose of the Recovery Plan is to the draft economic analysis before enhance reestablishment and security of outline the research and data collection making this final determination. the species vary among areas; and (3) it activities that will identify measures to is unlikely that any single event would ensure the conservation of the silvery Recovery Plan simultaneously eliminate the silvery minnow in the wild. We believe this Restoring an endangered or minnow from three geographic areas critical habitat designation and our threatened species to the point where it (Service 1999). conservation strategy are consistent is recovered is a primary goal of our In accordance with the Recovery Plan, with the recommendations of the endangered species program. To help we have initiated a captive propagation Recovery Plan and Recovery Team. guide the recovery effort, we prepare program for the silvery minnow (Service recovery plans for most of the listed 1999; Brooks 2001). Silvery minnows Summary of Comments and species native to the United States. are currently being propagated at five Recommendations Recovery plans describe actions facilities in NM and one in South In the June 6, 2002, proposed rule, we considered necessary for conservation of Dakota (SD); one additional NM facility requested all interested parties to the species, establish criteria for will come on-line in 2003. We currently submit comments or information downlisting or delisting the species, and have silvery minnows housed at: (1) The concerning the designation of critical estimate time and cost for implementing Service’s Dexter National Fish Hatchery habitat for the silvery minnow (67 FR the recovery measures needed. and Technology Center, NM; (2) the 39206). During the comment period, we Although a recovery plan is not a Service’s Mora National Fish Hatchery held public hearings in Socorro and regulatory document (i.e., recovery and Technology Center, NM; (3) the City Albuquerque on June 25, and 26, 2002, plans are advisory documents because of Albuquerque’s Biological Park, NM; respectively. We published newspaper there are no specific protections, (4) the New Mexico State University, notices inviting public comment and prohibitions, or requirements afforded NM; (5) the New Mexico Department of announcing the public hearings in the

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following newspapers in NM: to the downstream boundary of Big designation is deficient in its omission Albuquerque Journal, Albuquerque Bend National Park, and the Pecos River of critical habitat in the ‘‘three other Tribune, Socorro Defensor Chieftain, from Sumner to Brantley Reservoir. areas within its historic range’’ as Sante Fe New Mexican, and Las Cruces Our Response: Our analysis of the required by the Recovery Plan. Our Sun. Transcripts of these hearings are following two areas—(1) the river reach proposal to not designate the lower Rio available for inspection (see ADDRESSES in the middle Pecos River, NM, from Grande as critical habitat has no factual section). The comment period was Sumner Dam to Brantley Dam in De basis. originally scheduled to close on Baca, Chaves, and Eddy Counties, NM; Our Response: It is important to note September 4, but was extended until and (2) the river reach in the lower Rio that we utilized the recommendations of October 2, 2002 (September 12, 2002; 67 Grande in Big Bend National Park the Recovery Team in the Recovery FR 57783). We contacted all appropriate downstream of the National Park Plan, consistent with this definition of State and Federal agencies, Tribes, boundary to the Terrell/Val Verde conservation, to conclude that the county governments, scientific County line, TX—finds that the benefits middle Rio Grande and the middle organizations, and other interested of excluding these areas from the Pecos River from Sumner Dam to parties and invited them to comment. designation of critical habitat outweigh Brantley Dam, NM, and the lower Rio On June 6, 2002, we hosted a the benefits of including them (see Grande from the upstream boundary of teleconference to provide a short ‘‘Exclusions Under Section 4(b)(2)’’ Big Bend National Park downstream presentation and answer questions by section). Although we believe these through the area designated as a wild reporters on all aspects of the proposed areas are essential to the conservation of and scenic river to the Terrell/Val Verde critical habitat designation, the draft the silvery minnow, these areas are not County line, TX, are ‘‘essential to the economic analysis, and draft EIS. We designated as critical habitat. conservation of’’ the silvery minnow. also provided notification of these It is critical to the recovery of the Although the middle Pecos River and documents through e-mail, telephone silvery minnow that we reestablish the the lower Rio Grande are not designated calls, letters, and news releases faxed species in areas outside of its current as critical habitat, we believe they are and/or mailed to affected elected occupied range. We believe that one of important for the recovery of the silvery officials, media outlets, local the goals of the Recovery Plan can be minnow. Thus, we concur with the jurisdictions, Tribes, and interest fulfilled by reestablishing the silvery Recovery Plan that reestablishment of groups. We also published all of the minnow in areas of its historic range the silvery minnow within additional associated documents on our Region 2 using the flexibility provided for in geographically distinct areas, within its Internet site following their release on section 10(j) of the Act. In order to historical range, is necessary to ensure June 6, 2002. achieve recovery for the silvery the minnow’s survival and recovery We solicited five independent experts minnow, we need assistance from local (Service 1999). However, recovery is not who are familiar with this species to stakeholders to ensure the success of achieved by designating critical habitat. peer review the proposed critical habitat reestablishing the minnow in areas of its The Act provides for other mechanisms designation. Only one of the peer historic range. Use of section 10(j) is that will provide for reestablishment of reviewers submitted comments, and meant to encourage local cooperation the minnow outside of the middle Rio these supported the proposed through management flexibility. Critical Grande and the eventual recovery of the designation. We also received a total of habitat is often viewed negatively by the silvery minnow. In addition, please see 34 oral and 54 written comments. Of the public since it is not well understood responses 1 and 44 for information oral comments, 10 supported critical and there are many misconceptions related to this particular issue. habitat designation and 24 opposed about how it affects private landowners (3) Comment: The Service appears to designation. Of the written comments, (E. Hein, U.S. Fish and Wildlife Service, be greatly concerned that critical habitat 17 supported critical habitat pers. comm, 2002). It is important for could jeopardize the trust and spirit of designation, 22 opposed designation, recovery of this species that we have the cooperation that has been established and 15 were neutral or provided support of the public when we move over the last several years because additional information. We reviewed all toward meeting the second recovery critical habitat designation would be comments received for substantive goal of reestablishing the species in viewed as an unwarranted and issues and new data regarding critical areas of its historic range. unwanted intrusion in the middle Pecos habitat and the silvery minnow, the The reasons why other areas of the and lower Rio Grande. However, the draft economic analysis, and the draft silvery minnow’s historic range were same arguments can be made in the EIS. In the following summary of issues not designated as critical habitat are middle Rio Grande. we address all comments received on all detailed within the ‘‘Reach-by-Reach Our Response: The middle Pecos and three documents during the comment Analysis’’ section below. If, in the lower Rio Grande are essential to the periods and public hearing testimony. future, we determine from information conservation of the silvery minnow. Comments of a similar nature are or analysis that those areas designated Still, the silvery minnow has been grouped into issues. in this final rule need further refinement extirpated from these areas of its or if we identify and determine historic range and we believe that the Issue 1: Biological Concerns additional areas to be essential to the appropriate means to potentially (1) Comment: Some commenters state conservation of the species and reestablish the species is through use of that the extent of critical habitat requiring special management or the 10(j) experimental population rule proposed by us is inadequate to address protection, we will evaluate whether a (see ‘‘Exclusions Under Section 4(b)(2)’’ survival and recovery of the species revision of critical habitat is warranted section). We also have not included (e.g., critical habitat for the silvery at that time. areas within the middle Rio Grande minnow should be expanded beyond (2) Comment: The current proposal where we believe adequate special the current proposal). for critical habitat for the silvery management is in place and because of Recommendations for additional areas minnow is contrary to the other relevant issues (see ‘‘Relationship designated include the Rio Grande from recommendations of the Rio Grande of Critical Habitat to Pueblo Lands Caballo to the NM-TX border, the area Silvery Minnow Recovery Team and the under Section 3(5)(A) and Exclusions from the confluence of the Rio Conchas Recovery Plan. The proposed Under Section 4(b)(2)’’ section).

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However, we determine that other areas primary constituent elements as the use of controlled propagation. This of the middle Rio Grande meet the described in this final rule provide for position is fully consistent with the Act. definition of critical habitat, and we did a flow regime that allows for short Moreover, there has been insufficient not exclude these areas under section periods of low or no flow. time to develop a captive propagation 4(b)(2) based upon economic or other The primary constituent elements management plan that captures the relevant impacts. identified below provide a qualitative majority of genetic variability of the We are actively involved with description of those physical and minnow in the wild to maximize the ensuring conservation benefits to the biological features necessary to ensure low genetic diversity in captively listed species within the middle Rio the conservation of the silvery minnow. propagated silvery minnows (Turner Grande by participating in a We did not identify quantitative 2002). collaborative working group to develop estimates of specific minimum We reviewed the best scientific and a long-term strategy/solution (Middle thresholds (e.g., minimum flows or commercial data available to determine Rio Grande Endangered Species Act depths), because we believe these that the silvery minnow should be Collaborative Program). We believe this estimates vary seasonally and annually, classified as an endangered species on type of cooperative program is an and by river reach within the designated July 20, 1994 (59 FR 36988). Procedures important opportunity to achieve and critical habitat. Thus, we believe these found at section 4(a)(1) of the Act, and facilitate conservation of the minnow, thresholds are appropriately regulations (50 CFR Part 424) issued to while allowing water activities to enumerated through section 7 implement the listing provisions of the continue. provisions 7(a)(1) and 7(a)(2) (e.g., see Act were followed. A species may be (4) Comment: It is well documented Service 2001b), which can be easily determined to be an endangered or that the Rio Grande has historically changed if new information reveals threatened species due to one or more gone dry. The current proposal to keep effects to critical habitat in a manner or of the five factors described in section the river running throughout the year is extent not previously considered (see 50 4(a)(1) of the Act. There is no evidence not reasonable, feasible, or necessary. CFR 402.16(b)). to suggest that the silvery minnow is You are attempting to create a habitat We based this final rule on the best recovered, and recovery goals outlined that has never existed. The proposed available scientific information, in the Recovery Plan have not yet been rule does not identify minimum flow including the recommendations in the met. Therefore, we do not agree that the requirements to maintain the primary Recovery Plan (Service 1999). We have silvery minnow is ‘‘doing very well in constituent elements. Critical habitat designated only river reaches that its current situation.’’ Additionally, the will only increase the ‘‘bureaucratic red currently contain the primary silvery minnow occupies less than 5 tape,’’ not silvery minnow habitat. constituent elements (described below) percent of its historic range, and the Our Response: Critical habitat during all or a part of the year and that likelihood of extinction from primarily focuses on the maintenance of are currently occupied by the minnow. catastrophic events is high because of its habitat features identified as primary We did not include river reaches where limited range (Hoagstrom and Brooks constituent elements. Critical habitat the current or potential suitability for does not serve to create these features the silvery minnow is unknown. 2000, Service 1999). where they do not currently exist. Consequently, we are not attempting to (6) Comment: In the proposed rule, We agree that some areas designated create habitat conditions or minimum the Service suggests that the primary as critical habitat within the middle Rio flow requirements, but rather, we will constituent elements for the silvery Grande have the potential for periods of review projects that have a Federal minnow and Pecos bluntnose shiner are low or no flow under certain conditions nexus to ensure that any proposed compatible. However, if this were the (see ‘‘Primary Constituent Elements’’ actions do not adversely affect the case, the silvery minnow would not be section). We also recognize that the current primary constituent elements to extirpated from the Pecos River. critical habitat designation specifically the extent that the designated critical Our Response: We continue to believe includes some areas that have lost flow habitat will be adversely modified or that the primary constituent elements periodically (MRGCD 1999; Scurlock destroyed. for the Pecos bluntnose shiner critical and Johnson 2001; Scurlock 1998). We (5) Comment: The silvery minnow is habitat (e.g., clean permanent water; a nevertheless believe these areas are doing very well in its current situation main river channel habitat with sandy essential to the conservation of the and is not vulnerable to a single substrate; and a low velocity flow silvery minnow because they likely catastrophic event. The captive breeding (February 20, 1987; 52 FR 5295)) are serve as connecting corridors for fish program is flourishing and it seems compatible with our conservation movement between areas of sufficient reasonable that you could release many strategy for repatriating the silvery flowing water (e.g., see Deacon and millions of silvery minnows each minnow. There are no conclusive data Minckley 1974; Eberle et al. 1993). spring. Therefore, you should not to substantiate any reasons for Additionally, we believe the designated condemn the river to support a species extirpation of the silvery minnow from critical habitat is essential for the that has an arbitrary designation and is the Pecos River. Primary constituent natural channel geomorphology (the not truly endangered. elements are those physical and topography of the river channel) to Our Response: The purpose of the Act biological habitat components that are maintain habitat, such as pools, by is to conserve listed species and the essential for the conservation of the removing or redistributing sediment ecosystems on which they depend. species, and are not determined based during high flow events (e.g., see Relegating a species to captivity does upon the species’ presence. The absence Simpson et al. 1982; Middle Rio Grande not conserve the ecosystem on which of silvery minnows from the Pecos River Biological Interagency Team 1993). they depend. Controlled propagation is does not mean that the minnow’s Therefore, we believe that the inclusion not a substitute for addressing factors primary constituent elements are not of an area that has the potential for responsible for an endangered or present. (Also refer to the ‘‘Background’’ periods of low or no flow as critical threatened species’ decline. Therefore, section for information on the role of the habitat will ensure the long-term our first priority is to recover wild plains minnow (Hybognathus placitus) survival and recovery of silvery populations in their natural habitat in the decline and extirpation of the minnow. As such, we believe that the wherever possible, without resorting to silvery minnow from the Pecos River).

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(7) Comment: One of the most Our Response: There is no Issue 2: Procedural and Legal significant threats to native fish in the information in the scientific literature or Compliance southwestern United States is non- provided by biologists researching the (13) Comment: The U.S. Army Corps native fish; however, the Service did not silvery minnow to indicate that the of Engineers (Corps) should be held provide any information on whether species can either bury underground or responsible for the plight of the silvery non-native fish affect the silvery survive in the wet sand when the river minnow because they constructed minnow or its habitat. is dry. Available evidence indicates that Cochiti Dam and drastically altered the Our Response: In the proposed critical silvery minnows die only minutes after species’ habitat. habitat designation rule, we stated: being removed from water. Our Response: The effects of past and ‘‘Habitat alteration and loss, and non- ongoing human and natural factors native competition, predation, and other (11) Comment: The Service should leading to the current status of the effects are inextricably intertwined and consider the use of irrigation ditches to silvery minnow is called the have contributed substantially to the recover the silvery minnow. environmental baseline. The endangered status of the silvery minnow Our Response: Ephemeral or environmental baseline is a snapshot of (Service 1999; Dudley and Platania perennial irrigation canals and ditches, the species’ status at any point in time, 2001). Furthermore, habitat alteration including the LFCC (i.e., downstream of and is updated when we conduct a has been a significant contributor to the southern boundary of Bosque del section 7 biological opinion. No single non-native fish invasion, competition, Apache National Wildlife Refuge to the and adverse effects. In turn, non-native entity can be held responsible for the headwaters of Elephant Butte Reservoir) species have likely contributed status of the silvery minnow. However, do not offer suitable refugia and are not significantly to the inability of native the Corps is (as are many other entities) fish, such as the silvery minnow, to useful for conservation of the silvery included in the Middle Rio Grande persist in altered environments (Hubbs minnow because they do not contain the Endangered Species Act Collaborative 1990; Propst 1999)’’ (June 6, 2002; 67 FR primary constituent elements and the Program and is part of the long-term 39206). habitat is not sufficient to support viable solution to develop and implement (8) Comment: There is a notable lack populations of silvery minnow for activities to conserve the minnow. of data in your reports concerning the extended periods of time (see also BOR (14) Comment: We must specify in the plains minnow found within the middle 2001c). Silvery minnows found in final rule for critical habitat whether the Rio Grande. canals and ditches are believed to experimental population under section Our Response: Although the plains represent silvery minnows that became 10(j) of the Act would be essential or minnow was found infrequently in a entrapped due to the diversion of nonessential. survey of bait-fishing stores within the irrigation water from the mainstem Our Response: When we designate a Rio Grande Basin (Schmitt 1975), the middle Rio Grande. Nevertheless, we population as experimental, section plains minnow has never been are aware that a study is being 10(j) of the Act requires that we documented in the wild within the conducted by New Mexico State determine whether that population is middle Rio Grande (R. Dudley, University to evaluate the usefulness of either essential or nonessential to the continued existence of the species on American Southwest Ichthyological irrigation canals and ditches to the the basis of the best available Research Foundation, pers. comm., silvery minnow (Thompson 2002). We information. Any future recovery efforts, 2002; K. Bestgen, Colorado State will assess the results of this study including repatriation of the species to University, Larval Fish Laboratory, pers. when they are available. comm., 2002). The silvery minnow and areas of its historical range under plains minnow can be distinguished (12) Comment: Why does the Service section 10(j) of the Act, will be from each other by morphological and indicate that agricultural runoff is conducted in accordance with the genetic differences (Bestgen and Propst detrimental to the silvery minnow, pertinent sections of the Act, NEPA, and 1996; Cook et al. 1992). Therefore, we when the return flows are an important Federal rulemaking procedures. A believe that ‘‘a lack of data’’ is reflective source of water for the species? NEPA analysis is necessary to carefully of a lack of presence of the plains Our Response: We recognize that consider information concerning every minnow in the middle Rio Grande. under current irrigation operations, the significant environmental impact among (9) Comment: Critical habitat could delivery of irrigation water and all the alternatives and select a preferred result in the loss of flood pulses for uses associated return flows play an alternative. We find that nonessential such as periodic flooding of the bosque. important role in supporting fish designations garner wider and more meaningful public support. However, at Our Response: The silvery minnow survival in the lower reaches of the requires a spike in early spring to trigger this time we cannot determine the type river. The return flows also help to spawning (Platania and Dudley 2000). of 10(j) rule that may be proposed for provide water to meet Rio Grande Critical habitat will not result in the loss the minnow. Compact delivery obligations. Irrigation of this pulse of water. In fact, this (15) Comment: The establishment of hydrologic event could also periodically water deliveries to MRGCD and the six experimental populations is purely flood some areas of the bosque (bosque middle Rio Grande Pueblos provide speculative because according to the is the riparian areas adjacent to the Rio ‘‘carriage’’ water that facilitates the more Service’s regulations, the establishment Grande). efficient delivery of supplemental water of an experimental population requires (10) Comment: One commenter to benefit the silvery minnow. However, an agreement among the Service, believes the Service overlooked as noted in the background section, affected States, Federal agencies, and important information that silvery development of agriculture and the landowners. An agreement is unlikely to minnows can bury in the wet sand and growth of cities within the historic happen. survive extensive periods, especially range of the silvery minnow may have Our Response: We believe that the use when the river bed is dry. This resulted in a decrease in the quality of of section 10(j) will encourage local commenter states that when the river is river water through municipal and cooperation through management dry, silvery minnows have been found agricultural runoff (i.e., sewage and flexibility. Our regulations state that we by digging in the sand. pesticides). shall consult with appropriate State fish

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and wildlife agencies, local government for the District of New Mexico is Mexico as directed by Executive Order entities, affected Federal agencies, and currently under appeal in the Tenth 12114 because the designation of critical affected private landowners in Circuit Court of Appeals and a written habitat in the lower Rio Grande may developing and implementing decision has not been issued. On the have international implications. experimental population rules (50 CFR basis of the consultation history of the Our Response: We are not designating 17.81(d)). As noted above, any future silvery minnow, we do not anticipate critical habitat along the international recovery efforts, including that the voluntary supplemental water border in the lower Rio Grande. We did reintroduction of the species to areas of program discussed in responses to not consult with the State Department its historic range, will be conducted in comments 56 and 57 will change. and Mexico because we believe that the accordance with NEPA and the Act. Because we anticipate that action of designating critical habitat (16) Comment: Executive Orders supplemental flows to avoid destruction within the middle Rio Grande will not 12866 and 12988 appear to apply to the or adverse modification of critical have significant effects on the proposed designation of critical habitat. habitat will be similar, if not identical, environment outside the geographical Our Response: We again read through to what is currently required to avoid borders of the United States and its the comments and information provided jeopardizing the species, we do not territories. concerning Executive Orders 12866 believe that critical habitat will result in (21) Comments: The economic (‘‘Regulatory Planning and Review’’) additional flow requirements during analysis and proposed critical habitat and 12988 (‘‘Civil Justice Reform’’). consultation. Nevertheless, future demonstrate a complete disregard for While the commenter did not section 7 consultations will evaluate the unique culture and historic heritage adequately explain the rationale for why whether proposed actions jeopardize the associated with agriculture within the they believe our initial determinations continued existence of the silvery middle Rio Grande. in the proposed critical habitat minnow or adversely modify or destroy Our Response: As described in the designation were inadequate, we found critical habitat. Each consultation will final EIS, we are aware of the unique nothing to warrant changing our original be evaluated on a case-by-case basis heritage associated with agriculture determinations about the applicability following our regulations (50 CFR part within the middle Rio Grande. Still, the of these Executive Orders. 402). regulatory requirements associated with (17) Comment: How can critical (18) Comment: The Service should critical habitat do not apply to any habitat include the Isleta reach that the consider water table augmentation to agricultural activities, including farming District Court for the District of New satisfy the primary constituent elements or livestock grazing, or any other Mexico has determined could be dry? rather than flow augmentation. Habitat activity carried out on private land that The District Court order provides for the restoration activities need to move does not require and/or involve a potential draining of Heron Reservoir. If forward quickly because the Federal permit, authorization, or the current drought continues through supplemental water program cannot funding. Because the silvery minnow is 2003, potentially 75 percent of critical continue at the current level. listed as endangered, Federal agencies habitat could be dry. The court order Our Response: We appreciate these already are required to consult with us from the District Court changes all of the and other numerous suggestions we on any of their actions that are likely to previous analyses and conclusions received regarding special management adversely affect the species and to concerning critical habitat designation. considerations. Water table ensure that their actions do not The Service has not considered Judge augmentation and habitat restoration jeopardize the species’ continued Parker’s recent court order to provide activities may provide for the existence, regardless of whether critical water for the silvery minnow. The maintenance and improvement of one or habitat has been designated. Therefore, Service must consider and analyze all more of the primary constituent we do not believe the designation of sources of storage water that will now elements important for the species’ critical habitat for the silvery minnow be used for the silvery minnow. long-term conservation. These types of will result in any significant additional Our Response: On September 23, special management activities, as well regulatory burden on landowners or 2002, the District Court for the District as other measures to avoid or minimize affect the use of their private property. of New Mexico ordered the following: incidental take, will be reviewed during (22) Comment: No one was aware that (1) The BOR must provide sufficient consultations with Federal agencies. the silvery minnow was going to be flows of water for the remainder of 2002 (Refer to our response to comment 3 listed in 1994. Once a species is listed, to maintain a flow of 50 cfs at San above for information on the critical habitat appears to be an Acacia Diversion Dam, and to maintain collaborative working group.) unavoidable consequence. a flow in the Albuquerque Reach from (19) Comment: The Service should Our Response: On February 19, 1991, to Isleta consider the affidavits that were filed in about 80 prelisting proposal letters of Diversion Dam; (2) if necessary to meet September 2002, in response to the inquiry were mailed to various these flow requirements for the court case (Rio Grande Silvery Minnow governmental agencies, knowledgeable remainder of 2002, the BOR must v. Keys, Civ. No. 99–1320 JP/RLP–ACE). individuals, and the New Mexico release water from Heron Reservoir in These include: Dr. Thomas Wesche, Congressional delegation. On March 20, 2002; and (3) the Federal Government Subhas K. Shah, Sterling Grogan, Dr. 1992, we held a meeting in must compensate those, if any, whose Richard Valdez, Christopher S. Albuquerque, NM, with various contractual rights to water are reduced Altenbach, John Whipple, John M. interested governmental and private in order to meet the flow requirements Stomp III, Rolf-Schmidt-Peterson, F. Lee entities to explore existing or potential (Rio Grande Silvery Minnow v. Keys, Brown, and Walter G. Hines. flexibility in water delivery schedules Civ. No. 99–1320 JP/RLP–ACE). Our Response: We have considered that might avoid dewatering of the Rio In a court order issued October 16, the affidavits and found that none of the Grande within the range of the silvery 2002, the Tenth Circuit Court of information appears to contradict the minnow. In the March 1, 1993, Appeals stayed the District Court’s order relevant conclusions for this final proposed rule and associated (Rio Grande Silvery Minnow v. Keys, designation of critical habitat. notifications, all interested parties were Civ. No. 02–2254, 02–2255, 02–2267). (20) Comment: The Service needs to requested to submit factual reports or The court order from the District Court consult with the State Department and information that might contribute to the

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development of a final rule. The that were the basis for determining the Critical Habitat to Pueblo Lands under comment period originally scheduled to habitat to be critical.’’ Where no such Section 3(5)(A) and Exclusions Under close on April 30, 1993, was extended Federal agency action is involved, Section 4(b)(2)’’ section below). until August 25, 1993 (58 FR 19220), to critical habitat designation has no effect Additionally, we solicited comments or conduct public hearings and allow on private landowners, State, or Tribal suggestions from the public, other submission of additional comments. We activities. concerned governmental agencies, the also published notices of the proposed (24) Comment: How will critical scientific community, industry, or any listing in five local newspapers and habitat affect the City of Albuquerque’s other interested party concerning the mailed copies of the proposed rule to Drinking Water Project? reasons why any habitat should or list the silvery minnow as endangered to Our Response: Analysis of effects to should not be determined to be critical 148 different government agencies, listed species will be addressed in detail habitat as provided by section 4 of the private organizations, and interested during section 7 consultation between Act, including whether the benefits of individuals, including all counties the BOR and us. The section 7 excluding areas will outweigh the having lands that border on or were consultation will determine whether the benefits of including areas as critical within the area being proposed for City of Albuquerque’s Drinking Water habitat. We requested information on critical habitat designation. Two public Project jeopardizes the continued any lands included in the proposed rule hearings were also held. Prior to listing existence of the silvery minnow or for which there was special the silvery minnow as endangered, we adversely modifies or destroys critical management and protection in place fully met the requirements of the Act for habitat. As we have in the past, we will such that those lands could not be public notification. As discussed in the continue to work with the City of included as critical habitat. We ‘‘Previous Federal Action’’ section of Albuquerque on conservation issues for reviewed and considered all of the this rule, section 4 of the Act requires the silvery minnow (see our response to information and comments received and us to designate critical habitat at the comment 57 below). concluded that special management or time of listing, unless a determination is (25) Comment: The Service proposed protection is provided only for the made that such designation is not a 300-ft (91.4-m) lateral width for the management plans we received during prudent or not determinable. If a not boundary of critical habitat, but there is the comment period from the Pueblos of determinable determination is made, we no site specific information to Santo Domingo, Santa Ana, Sandia, and would have an additional year to make determine whether any particular area Isleta. Consequently, no other areas such a determination. even has a floodplain or whether the were determined to be not essential for (23) Comment: The proposed rule and floodplain, if present, extends 300 ft inclusion for the final critical habitat associated documents did not mention (91.4 m). designation. how critical habitat and section 7 Our Response: We recognize that the (27) Comment: The City of consultation may affect the National lateral width of riparian areas fluctuates Albuquerque requested that we exclude Pollution Discharge Elimination System, considerably in the middle Rio Grande. existing projects, facilities, and water quality issues, or flood control The 300-ft (91.4-m) lateral width structures within the designated critical structures. includes the riparian zone, if present, habitat. Our Response: The EIS analyzed the that is adjacent to each side of the Our Response: The City of impacts to the Albuquerque middle Rio Grande. We believe the Albuquerque did not provide a list Metropolitan Arroyo Flood Control riparian zone adjacent to the river describing the specific projects, Authority, National Pollution Discharge channel provides an important function facilities, or structures. However, some Elimination System (NPDES) for the protection and maintenance of existing facilities and structures are permitting, and other impacts on water the primary constituent elements and is excluded from the designation because quality (also see ‘‘Effect of Critical essential to the conservation of the they do not include the primary Habitat Designation’’ below). The final species. constituent elements. See response to EIS found that the silvery minnow will Developed lands within the 300-ft comment 25 and the ‘‘Regulation most likely be protected by existing (91.4-m) lateral width are not Promulgation’’ section of this rule for water quality standards, and that considered critical habitat because they specific exclusions. changes to current EPA discharge do not include the primary constituent (28) Comment: The designation of permitting activities are expected to be elements. These lands were specifically critical habitat will seize control of our minimal, although the possibility exists excluded from the designation and water through Federal regulations and for EPA’s consultations with us to include: developed flood control Federal courts. Elected officials and change as more becomes known about facilities, existing paved roads, bridges, State Engineers are constitutionally the water quality needs of the silvery parking lots, dikes, levees, diversion responsible for decisions on state water minnow. structures, railroad tracks, railroad management. It is important to note that section trestles, water diversion and irrigation Our Response: An area designated as 7(a)(2) of the Act requires that Federal canals outside of natural stream critical habitat is not a refuge or agencies ensure that actions they fund, channels, the low flow conveyance sanctuary for the species. Listed species authorize, or carry out are not likely to channel, active gravel pits, cultivated are protected by the Act whether or not result in the ‘‘destruction or adverse agricultural land, and residential, they are in an area designated as critical modification’’ of critical habitat. In our commercial, and industrial habitat. regulations at 50 CFR 402.02, we define developments. We published required destruction or adverse modification as (26) Comment: The Service only determinations in the proposed and ‘‘direct or indirect alteration that considered excluding the Cochiti or San final rules, including one in accordance appreciably diminishes the value of Acacia Reach. No other reaches were with Executive Order 13132, which critical habitat for both the survival and considered for exclusion within the considered whether this rule has recovery of a listed species. Such middle Rio Grande. significant Federalism effects (see alterations include, but are not limited Our Response: We did not include ‘‘Required Determinations’’ section to, alterations adversely modifying any four areas within the Angostura and below). We requested information from of those physical or biological features Isleta Reaches (see ‘‘Relationship of and coordinated development of the

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proposed and final rules with from representatives of Federal, State, section 7 consultation. The draft EIS appropriate resource agencies in NM Tribal, and local government agencies, noted that the Corps will likely propose and TX (e.g., during the EIS scoping and as well as some landowners. a design and develop a plan for proposed rule public comment period). (30) Comment: The amount of time construction that would permit levees to During the open comment period for the and information available were be rehabilitated without adversely proposed rule, we met on several insufficient for more detailed responses. modifying critical habitat. occasions with the New Mexico Our Response: On June 6, 2002, we It is also important to note that we Interstate Stream Commission (NMISC) published the proposed critical habitat have a special category of section 7 to further coordinate and address issues determination in the Federal Register consultation, and corresponding concerning the designation of critical (67 FR 39205), announced public regulations (50 CFR 402.05) called habitat for the silvery minnow. hearings, and invited public comment ‘‘Emergency Consultations.’’ The We do not anticipate that this for 90 days. The public hearings were consultation process does not affect the regulation will intrude on State policy held on June 25 and 26. These public ability of an agency to respond to or administration, change the role of the hearings were also announced in several emergency events such as levee failure Federal or State government, or affect newspapers (described above under the or fire. During emergency events, our fiscal capacity. For example, we have introduction of the ‘‘Summary of primary objective is to provide conducted two formal consultations, Comments and Recommendations’’ recommendations for minimizing one of which included a formal section). On June 6, we mailed the adverse effects to listed species without conference, with the Corps and BOR, proposed rule and information on how impeding response efforts. During and non-Federal entities over actions to obtain the draft economic analysis emergency events, protecting human life related to water operations on the and draft EIS to over 600 different and property comes first every time. middle Rio Grande (Service 2001b, interested parties. All of the documents Consequently, no constraints for 2002a). In our experience, the vast were also available at the hearings, from protection of listed species or their majority of such projects can be us by request, or by download from our critical habitat are ever recommended if successfully implemented with, at most, Web site. On August 28, we mailed a they place human lives or structures minor changes that avoid significant prepublication notice of the comment (e.g., houses) in danger. We are economic impacts to project period extension. The comment period currently working with many of our proponents. was subsequently extended and closed Federal partners to provide technical (29) Comment: Other than the initial on October 2, 2002. assistance, coordination, and, in some scoping letter, the City of Socorro or (31) Comment: The Service held instances, section 7 consultation for Bernalillo County was not contacted for public hearings only to fulfill a legal proactive projects to reduce the either development of the EIS or obligation and will not pay attention to potential for emergency events (e.g., economic analysis. Several other any public comment. wildland urban interface fuels commenters voiced concern that they Our Response: All comments management). were not directly contacted for their received, including oral comments (33) Comment: The designation of opinions on the economic impacts of provided at the public hearing, were critical habitat will impose section 9 critical habitat designation. carefully evaluated before we made a restrictions against taking of silvery Our Response: On April 5, 2001, the final determination. In fact, we used minnow in areas that do not currently Federal Register notice announcing special management plans received have those restrictions (e.g., within the public scoping meetings and during the public comment period and headwaters of Elephant Butte development of a draft EIS was mailed other relevant issues to determine Reservoir). to the Mayor of Socorro and the Socorro specific areas to not include for the final Our Response: Section 9 of the Act County Board of Commissioners and to critical habitat designation. prohibits the harm or harassment of Bernalillo County Commissioners. (32) Comment: Some commenters individuals of listed species. There are Moreover, on October 4, 2001, our EIS asked whether critical habitat no section 9 take prohibitions for contractor mailed letters to the designation would affect the building or critical habitat. Within the middle Rio Chairman of Socorro County Board of maintenance of flood control systems Grande, prohibitions against take are in Commissioners and the Bernalillo (e.g., levee) to protect the town of effect regardless of whether or not County Manager, and on August 22, Socorro and other areas within the critical habitat has been designated 2001, a letter was mailed to the Mayor designation. because we consider this area occupied of the City of Socorro requesting specific Our Response: Levees are specifically by the silvery minnow. Whether or not information for the development EIS. excluded from the designation (see a species has designated critical habitat, We did not receive any response to ‘‘Regulation Promulgation’’ section it is protected from any actions resulting these letters. Economic Analysis below). Since 1995, the Corps has in an unlawful take under section 9 of contractors utilized databases with entered into section 7 consultation with the Act. information provided by the County of us regarding its water operations, flood (34) Comment: The Service needs to Socorro. control and levee maintenance, bridge provide specific analyses on whether It was not feasible to contact every construction, section 404 permitting each reach contains or is void of potential stakeholder in order for us to under the Clean Water Act, and other primary constituent elements. The develop a draft economic analysis. We activities. Through this process, we constituent elements described are believe we were able to understand the have reviewed various Corps projects to vague and violate 50 CFR 424.12(c), lack issues of concern to the local ensure that the continued existence of sufficient detail and justification, and communities on the basis of our review the silvery minnow is not jeopardized should include a more specific of public comments submitted on the and that previously designated critical description that defines what proposed rule and draft economic habitat was not adversely modified or constitutes critical habitat. Several analysis, transcripts from public destroyed. Since the silvery minnow commenters were concerned that the hearings, and detailed discussions with was federally listed, no Corps projects mapping lacked precision for use by the 65 local governments. To clarify issues, have been stopped, delayed, or altered public and the critical habitat we solicited information and comments in a significant way resulting from boundaries are ambiguous and difficult

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to identify. Information is available for minnow, we believe the best available 34270), we sent the proposed rule to us to refine the 300-foot lateral width information has been used in defining five peer reviewers to solicit their expert including National Wetlands Inventory the primary constituent elements opinions. The purpose of such review is data. The Rio Grande Compact Engineer necessary for the species’ conservation. to ensure listing decisions are based on Advisor from the State of Colorado Nevertheless, we recognize that not all scientifically sound data, assumptions, submitted comments in October 2001 of the developed lands area within the and analyses. We received only one that suggested we use the ‘‘daily’’ boundaries of the designation will reply from our peer reviewers. The peer Elephant Butte Reservoir water line as contain the habitat components reviewer concluded that our proposal the lower terminus of critical habitat. essential to the conservation of the was scientifically sound. Comments submitted in October 2002 silvery minnow. For this reason, some (37) Comment: It does not appear that suggested that the boundary as proposed developed lands are excluded by your EIS analyzed evaporation losses would change from day to day and definition (see the ‘‘Regulation from restoration activities. create total chaos in the operation of Promulgation’’ section below). Our Response: This issue is discussed Elephant Butte Dam and Reservoir. We considered National Wetlands in the EIS. We concluded that the extent Our Response: The critical habitat Inventory data and other sources of to which riverine and riparian designation includes the middle Rio information to refine the lateral width of restoration results in a net gain or net Grande from Cochiti Dam to the utility the designation. Because of the dynamic loss to the water supply depends on the line crossing the Rio Grande with UTM nature of the Rio Grande and the design of the project. coordinates of UTM Zone 13: 311474 E, corresponding ephemeral nature of (38) Comment: Several commenters 3719722 N, just east of the Bosque Well wetland and riparian vegetation suggested that the San Acacia reach be demarcated on USGS Paraje Well 7.5 adjacent to the river (Middle Rio Grande excluded from the designation because minute quadrangle (1980), Socorro Biological Interagency Team 1993; of economic or other relevant impacts. County, NM. The designation also Taylor et al. 1999; BOR 2001c), we Our Response: This is described as includes the tributary Jemez River from believe that using National Wetlands alternative D in the EIS. The analysis in to the upstream Inventory or other data to select the the EIS found a lower likelihood that boundary of Santa Ana Pueblo, which is lateral width of critical habitat would habitat essential for the conservation of not included. (see the ‘‘Regulation not be consistent with our regulations the silvery minnow would be preserved Promulgation’’ section of this rule for (50 CFR 424.12(c)), which do not allow if this reach were excluded from the exact descriptions of boundaries of us to use ephemeral reference points. critical habitat designation. We also critical habitat). We believe that with Consequently, we are designating conclude in this final rule that this area the revision to the downstream terminus critical habitat using specific limits and is essential to the conservation of the of critical habitat, the boundary should reference points. silvery minnow because it likely serves be clear. Moreover, this final rule (35) Comment: Depletion of stored as connecting corridors for fish describes in the greatest detail possible water in reservoirs by supplemental movements between areas of sufficient the primary constituent elements water releases to benefit critical habitat flowing water (e.g., see Deacon and important to the silvery minnow. In will affect BOR’s ability to deliver water Minckley 1974; Eberle et al. 1993). addition, please see responses to to the MRGCD. Moreover, this reach is important comments 26 and 45 for information Our Response: According to BOR because the additional loss of any related to this particular issue. (2001c), the voluntary supplemental habitat that is currently occupied could In our proposal and this final rule, we water program for the silvery minnow is increase the likelihood of extinction indicate our belief that the primary not expected to have an adverse affect (Hoagstrom and Brooks 2000, Service constituent elements provide for a flow on the MRGCD. Thus, it is the Service’s 1999). regime that allows for short periods of understanding that BOR’s voluntary (39) Comment: Several commenters low or no flow. In the proposal, we also supplemental water program will be noted that the San Acacia reach has highlighted the difficulties in describing consistent with existing laws and historically experienced prolonged the existing conditions of areas with low contracts to ensure delivery of water to periods of low or no flow, but the or no flow and solicited further the MRGCD and to the six middle Rio construction of reservoirs has actually information to refine the primary Grande Pueblos (Cochiti, Santo benefitted the silvery minnow by constituent elements and how they Domingo, San Felipe, Santa Ana, allowing runoff to extend over a longer relate to the existing conditions (e.g., Sandia, and Isleta) (BOR 2001c). time period than was previously flow regime). We noted that flow Moreover, section 7 consultation has possible. requirements are dynamic and change been occurring regardless of critical Our Response: The construction and during the year and among years. The habitat designation because of the operation of reservoir dams has changed status of the species also contributes to Federal listing alone. We note that the natural flow regime of the river and specific flow requirements at specific despite one of the State’s worst droughts thus may affect the survival of the Rio areas or stream gages, for example. in 50 years, ‘‘the Rio Grande helped Grande silvery minnow. In the proposed Consultation under section 7, rather some farms grow bumper crops of alfalfa rule, we acknowledged the historic than regulation, is the proper procedure ***’’ (Albuquerque Tribune periods of drying in the middle Rio for outlining specific flow requirements. December 16, 2002). Grande and suggested that reservoirs During the comment period we (36) Comment: One commenter can facilitate management of water on requested, but did not receive, any believes that the proposed rule should the Rio Grande to avoid prolonged information that would either enable us be incontrovertible, but it is currently periods of low or no flow and provide to further refine the primary constituent laced with supposition and conjecture, sufficient flowing water during critical elements or conduct further analysis on and it contains no conclusive data. time periods, such as from May to whether particular reaches contained or Our Response: As required by section October (Service 2001a, 2001b). lacked one or more primary constituent 4(b)(2), the Service used the best Reservoirs and diversion dams have elements. Further, while we welcome available scientific and commercial fragmented the middle Rio Grande and and encourage additional studies on the data. In accordance with our policy prevented silvery minnows from biological requirements of the silvery published on July 1, 1994 (59 FR movement upstream after hatching

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(Service 2001b; Dudley and Platania elements would not trigger a section 7 available for review and public 2001; 2002a). Still, availability of flow is consultation unless those activities may comment concurrently with the likely not the only factor affecting the affect the silvery minnow or the primary proposed rule during the public silvery minnow (July 20, 1994; 59 FR constituent elements in the adjacent comment period. Based on the public 36988). critical habitat (see ‘‘Effect of Critical comments received during the open (40) Comment: The designation of Habitat Designation’’ section). comment period, a final EIS and final critical habitat within the middle Rio (43) Comment: The Service cannot Economic Analysis of critical habitat for Grande will Federalize the water substitute the proposed conservation the silvery minnow were completed. administration and usurp the powers of strategy for critical habitat; critical These documents and this final rule TX, NM, and Colorado to regulate their habitat triggers section 7 consultation, addressed or took into consideration water. whereas the proposed conservation information and concerns raised Our Response: Designation of critical strategy offers no protection to the through the comment period. Please habitat will not affect the authorities of silvery minnow. refer to the final EIS and final Economic TX, NM, and Colorado to regulate their Our Response: We believe that the Analysis. Copies of both the draft and water. In fact, critical habitat applies benefits of excluding the middle Pecos final EIS and the draft and final only to actions carried out, funded, or River and lower Rio Grande outweigh economic analysis are in the supporting permitted by the Federal Government. the benefits of their inclusion as critical record for this rulemaking and can be (41) Comment: The proposed rule habitat (see ‘‘Exclusions Under Section inspected or obtained by contacting the suggests that future section 7 4(b)(2) of the Act’’ section below). We New Mexico Ecological Services Field consultations regarding the critical conclude that the exclusion of these Office (refer to the ADDRESSES section of habitat designation will be analyzed on areas is consistent with the Recovery this rule). a case-by-case basis and can provide for Plan (Service 1999) and consistent with (46) Comment: The draft economic flexibility. However, one commenter our regulations (50 CFR 424.19), and analysis is not a full analysis. It is still was concerned that current that the added management flexibility an incremental analysis, and it is not in consultations will affect the outcome of provided under section 10(j) will be compliance with the recent Tenth future consultations, resulting in overly beneficial to the conservation of the Circuit Court ruling on the endangered restrictive measures. silvery minnow. Additionally, the southwestern willow flycatcher Our Response: Our regulations require adverse modification standard serves to (Empidonax traillii extimus) critical that we use the best scientific and preserve the status quo of critical habitat habitat. commercial data available for during section 7 consultations. But consultations (50 CFR 402.14(d)). This critical habitat, by itself, does not help Our Response: The economic analysis information is used to update and to reestablish minnows into areas where is a full analysis. Our standard best analyze the effects of past and ongoing they have been extirpated—a primary practice in economic analyses is to human and natural activities or events goal of the Recovery Plan for the apply an approach that measures costs, that have led up to the current status of minnow. benefits, and other impacts arising from the species and its habitat. One of the (44) Comment: If the lateral boundary a regulatory action against a baseline benefits of formal consultation is that of critical habitat extends from the scenario of the world without the we are required to provide an up-to-date bankfull stage, how does one determine regulation. Guidelines on economic biological status of the species or critical the point of bankfull stage when the Rio analyses, developed in accordance with habitat (i.e., environmental baseline), Grande is not at this stage? the recommendations set forth in which is used to evaluate a proposed Our Response: Bankfull stage is the Executive Order 12866 (‘‘Regulatory action. Consequently, the status of the point at which the river overflows its Planning and Review’’), for both the species or critical habitat influences the lowest bank, which is the elevation at Office of Management and Budget and outcome of a particular consultation which flow can be carried by the main the Department of the Interior, note the more than when that consultation is channel before spilling over into the appropriateness of the approach: ‘‘The conducted. floodplain. The bankfull stage is not baseline is the state of the world that (42) Comment: If the bankfull width defined by water, and can easily be would exist without the proposed of the middle Rio Grande increases, determined by visual or physical action. All costs and benefits that are would the additional area be considered indicators including: the top of the included in the analysis should be critical habitat? It is not clear which highest depositional features (e.g., point incremental with respect to this lands within the critical habitat bars), staining of rocks, exposed root baseline.’’ When viewed in this way, the boundary are considered critical habitat. hairs, and other features (Rosgen 1996). economic impacts of critical habitat Our Response: Lands are considered (45) Comment: The designation for designation involve evaluating the critical habitat when they are within the silvery minnow and related ‘‘without critical habitat’’ baseline critical habitat boundaries, contain one documents are flawed and inaccurate, versus the ‘‘with critical habitat’’ or more of the primary constituent contain numerous errors, and make scenario. Impacts of a designation equal elements, and require special improper assumptions. the difference, or the increment, management and protection. In this case Our Response: As previously between these two scenarios. Measured those boundaries are based in part on discussed, section 4(b)(2) of the Act and differences between the baseline and the the bankfull stage, which can easily be 50 CFR 424.19 require us to consider the scenario in which critical habitat is determined by visual or physical economic impact, and any other designated may include (but are not indicators including: the top of the relevant impact, of specifying any limited to) changes in land use, highest depositional features (e.g., point particular area as critical habitat. We environmental quality, property values, bars), staining of rocks, exposed root published our proposed designation of or time and effort expended on hairs, and other features (Rosgen 1996). critical habitat for the silvery minnow in consultations and other activities by Federal actions conducted in areas the Federal Register on June 6, 2002 (67 Federal landowners, Federal action within or outside the boundary of the FR 39206). The draft EIS and draft agencies, and, in some instances, State mapped critical habitat that do not economic analysis of the proposed and local governments and/or private contain any of the primary constituent critical habitat designation were made third parties. Incremental changes may

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be either positive (benefits) or negative Because of the potential uncertainty Government-to-Government basis. (costs). about the benefits and economic costs Section 4(b)(2) of the Act requires us to In New Mexico Cattle Growers Ass’n resulting from critical habitat gather information regarding the v. U.S. Fish and Wildlife Service, 248 designations, we believe it is reasonable designation of critical habitat and the F.3d 1277, however, the Tenth Circuit to estimate the upper bounds of the cost effects thereof from all relevant sources, recently held that the baseline approach of project modifications on the basis of including Indian Pueblos and Tribes. to economic analysis of critical habitat the benefits and economic costs of We were available to confer with the designations used by us for the project modifications that would be affected Indian Pueblos and Tribes southwestern willow flycatcher required by consultation under the during the comment period for this designation was ‘‘not in accord with the jeopardy standard. It is important to proposed rule. Recognizing our Federal language or intent of the ESA.’’ In note that the inclusion of impacts trust responsibility, we met with the particular, the court was concerned that attributable co-extensively to the listing following Pueblos and Tribes (some we had failed to analyze any economic does not convert the economic analysis meetings were to provide technical impact that would result from the into a tool to be considered in the assistance and are not considered designation, because it took the position context of a listing decision. As the Government-to-Government in the economic analysis that there was court reaffirmed in the southwestern consultations): Jicarilla Apache Nation no economic impact from critical willow flycatcher decision, ‘‘the ESA (October 22, 2001; January 9 and 25, habitat that was incremental to, rather clearly bars economic considerations 2002; March 7, 2002), San Juan than merely co-extensive with, the from having a seat at the table when the (December 11, 2001; February 25, 2002; economic impact of listing the species. listing determination is being made.’’ September 6, 2002), Isleta (July 25, We had therefore assigned all of the The other baseline, the lower boundary 2002; August 8 20, 2002), Sandia possible impacts of critical habitat baseline, will be a more traditional (October 22, 2001; February 12, 2002; designation to the listing of the species, rulemaking baseline. The economic September 25, 2002), Santa Ana without acknowledging any uncertainty analysis attempts to provide our best (December 11, 2001; July 9 and 10, in this conclusion or considering such analysis of which of the effects of future 2002; August 2 and 6, 2002; September potential impacts as transaction costs, section 7 consultations actually result 13, 2002), Santo Domingo (August 8, reinitiations, or indirect costs. The court from the regulatory action under review 2002), and Taos Pueblos (April 2, 2002; rejected the baseline approach (i.e., the critical habitat designation). September 11, 2002; October 23, 2002) incorporated in that designation. These costs will in most cases be the to discuss how they might be affected by In our analysis, we addressed the costs of additional consultations, the designation of critical habitat or Tenth Circuit’s concern that we give reinitiated consultations, and additional other issues related to the Act. We meaning to the Act’s requirement of project modifications that would not provided technical assistance to Santo considering the economic impacts of have been required under the jeopardy Domingo, Santa Ana, Sandia, and Isleta critical habitat designation by standard alone, as well as costs resulting Pueblos in the development of their acknowledging the uncertainty of from uncertainty and perceptional management plans (see ‘‘Relationship of assigning certain post-designation impacts on markets. The final economic Critical Habitat to Pueblo Lands under economic impacts (particularly section analysis provides a detailed study Section 3(5)(A) and Exclusions Under 7 consultations) as having resulted from concerning the baseline and potential Section 4(b)(2)’’ section of this rule either the listing or the designation. We incremental effects of the designation of below). believe that for many species the critical habitat for the silvery minnow, The designation of critical habitat is designation of critical habitat has a and we believe it is in compliance with not anticipated to impact Indian Trust relatively small economic impact, the Tenth Circuit’s decision in New Assets, which are legal interests in particularly in areas where Mexico Cattle Growers Ass’n v. U.S. assets held in trust by the United States consultations have been ongoing with Fish and Wildlife Service, 248 F.3d Government for Tribes and Pueblos. respect to the species. This is because 1277. Water rights are considered an Indian the majority of the consultations and Trust Asset. For an impact to occur, the associated project modifications, if any, Issue 3: Tribal and Pueblo Concerns designation of critical habitat would already consider habitat impacts and, as (47) Comment: The Service is legally need to diminish the Tribe’s access to or a result, the process is not likely to mandated to have Government-to- the value of any Indian Trust Asset. For change significantly as a result of the Government consultations with affected example, the BOR recently indicated designation of critical habitat. Tribes and Pueblos. The designation that the six middle Rio Grande Pueblos Nevertheless, we recognize that the will affect the trust assets of Tribes and would receive prior and paramount nationwide history of consultations on Pueblos. Will the designation of critical water deliveries through November 15, critical habitat is not broad, and, in any habitat affect the Pueblos of Taos, San 2002, and that future deliveries of prior particular case, there may be Juan, or the Jicarilla Apache Nation? and paramount water for the six middle considerable uncertainty whether an Our Response: In accordance with Rio Grande Pueblos will also be impact results from the critical habitat Secretarial Order 3206, ‘‘American ensured. Prior and paramount water designation or the listing alone. We also Indian Tribal Rights, Federal-Tribal deliveries are not dependent on, and are understand that the public wants to Trust Responsibilities, and the not expected to affect, supplemental know more about the kinds of costs Endangered Species Act’’ (June 5, 1997); water deliveries for the silvery minnow section 7 consultations impose and the President’s memorandum of April (BOR 2002). We also do not believe that frequently believes that critical habitat 29, 1994, ‘‘Government-to-Government other Tribes or Pueblos (e.g., Taos and designation could require additional Relations with Native American Tribal San Juan Pueblos, Jicarilla Apache project modifications. Therefore, the Governments’’ (May 4, 1994; 59 FR Nation) outside of the critical habitat final economic analysis incorporates 22951); Executive Order 13175; and the designation will be affected. We believe two baselines. One addresses the Department of the Interior’s requirement that the consultation history of the impacts of critical habitat designation at 512 DM 2, we recognize the need to silvery minnow demonstrates that that may be ‘‘attributable co- consult with Federally recognized previous section 7 consultations have extensively’’ to the listing of the species. Indian Pueblos and Tribes on a not affected or impaired Indian Pueblo

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and Tribal trust resources within the sale or lease) possible under existing Agency%20Agreement.htm). Based on area we are designating as critical Federal or State law? these and other data, the final Economic habitat (e.g., see Service 2001b). During Our Response: The Economic Analysis estimates that the average consultation, measures taken to avoid Analysis assumed that water resources transaction cost is likely $333 and $183 destruction or adverse modification of in NM are limited, which is for the Rio Grande and Pecos, critical habitat will likely be similar if demonstrated by an active market in respectively. Consequently, the not identical to what is currently which water rights move between estimated transaction costs would be required to avoid jeopardizing the willing buyers and sellers within the approximately 7 to 10 percent of the silvery minnow. Consequently, we do confines of State and Federal total price of an acre-foot. These not believe that critical habitat will regulations. From 1976 to 2000, the estimates do not change our required result in requirements during purchasers of water rights in the middle determinations below. consultation, and do not believe critical Rio Grande were generally (53) Comment: The Service should habitat will affect Indian Trust Assets. municipalities (61 percent of have used the Upper Rio Grande Water (48) Comment: The Service purchasers); however, other sectors Operations Model (URGWOM) to completely omits Pueblos from the participate as buyers in this market as determine the amount of supplemental analysis under the Regulatory well. During the same time frame, the water to meet the target flow of 50 cfs Flexibility Act. sellers of water rights in the middle Rio at the San Marcial Floodway gage. The Our Response: We are certifying that Grande were primarily agriculture (90 Service did not use the best scientific this final rule will not have a significant percent of sellers) reflecting the fact that and commercial data available because effect on a substantial number of small the majority of the water rights (as you failed to engage the State of New entities, including Indian Tribes and measured by total volume of water Mexico and use their expertise, data, Pueblos (see ‘‘Required Determinations’’ reflected in these rights) are currently and models. Our Response: On September 5, 2001, section below). held in the agriculture sector. Given we invited the NMISC to participate in (49) Comment: Critical habitat will these data, it was assumed that any water provided to the silvery minnow the development of the EIS as a require the maintenance of river flows by supplementing present water flow cooperating agency. On October 3, 2001, which will adversely affect Pueblos by conditions would come from currently the NMISC accepted our invitation. On limiting the amount of water available. held irrigation water rights because April 9, 2002, the Service requested the Pueblos may have substantial unused these tend to have greater flexibility expert review of the preliminary water rights. If critical habitat limits than water rights for municipal or predecisional draft EIS and preliminary depletions, the designation would commercial uses. Thus, the economic predecisional draft economic analysis disproportionately affect Pueblos. analysis focused on the area within the from the NMISC, as a cooperating Our Response: We do not anticipate middle Rio Grande for providing agency. We requested the review that the designation of critical habitat supplemental water, and did not because the NMISC has jurisdiction by will alter the administration of the consider interstate transfers of water. In law or special expertise over water supplemental water program. Thus, general, our economic analyses consider resources and environmental impacts delivery of water to middle Rio Grande the impacts within the geographic area involved with the Service’s action of contractors and Pueblos is ensured being proposed as critical habitat. For designating critical habitat. We (BOR 2001c). Environmental justice- example, in this case the economic specifically requested that the review related impacts of preferred alternatives analysis considered the area proposed focus on the accuracy of information for critical habitat designation are as critical habitat in the middle Rio and analyses as described in the draft discussed in Chapter 4 of the EIS. Grande, as well as the other two areas documents. On April 25, 2002, the Nothing in the final rule or the EIS is found to be essential to the conservation NMISC requested additional intended to preclude new depletions of the minnow (i.e., middle Pecos River information from the Service and our resulting from the exercise of senior and Lower Rio Grande). While interstate contractors. During the open comment Indian water rights. In addition, please water rights transfers (i.e., sale or lease) period for the proposed rule, we met on see response to comment 48 for may be possible under existing Federal July 2 and 22, 2002, with the NMISC to information related to this particular or State law, we concluded that such further coordinate the designation of issue. transfers were beyond the scope of our critical habitat and clarify the additional Issue 4: Other Relevant Issues economic analysis. information requested. Nevertheless, we (52) Comment: The Economic could not rely on data from URGWOM (50) Comment: The Service has Analysis severely underestimates the to develop the final rule because the continued to ignore the economic costs associated with providing 40,000 information has yet to be submitted. consequences of designating critical af of supplemental water because it did A focal point of discussions with the habitat for the silvery minnow on the not estimate transaction costs associated NMISC was the use of URGWOM for Pecos River. with the purchase or lease of water estimating the amount of supplemental Our Response: The Pecos River is not rights. water needed to maintain flows in the designated as critical habitat for the Our Response: Easter et al. (1999) middle Rio Grande. During these silvery minnow. found that transaction costs associated meetings and in a July 16, 2002, letter, (51) Comment: In the Economic with purchase or lease of water rights we indicated that on the basis of Analysis, why is it assumed that all the must be kept low for an effective water discussions between our contractor and water required to meet supplemental market. For example, they estimated the NMISC, and according to the May 9, flows will all come from NM that transaction costs range from about 2002, notes from the URGWOM Steering agriculture? The Rio Grande flows $17 to $190 per af. Another example Committee meeting, we understood that through three states, so why will the indicates that a 10 percent commission URGWOM was still being calibrated and burden of ensuring the survival of the is common for completing the sale or validated. It was also our understanding silvery minnow be placed upon the lease of a water right in NM (Turner that URGWOM and the relevant input water users in the middle Rio Grande? 2002a; http://www.waterbank.com/ and output data have not been tested by Are interstate water rights transfers (i.e., Agreements/ all the cooperating agencies for the

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Upper Rio Grande Water Operations amount of supplemental water that is (56) Comment: Future supplemental Review EIS and would not be made required to maintain flows specified by water will not be available in the middle publicly available until this occurs. As the biological opinion on the middle Rio Rio Grande as it was from 1996 to 2002. noted in the April 11, and September Grande. Our Response: As with all biological opinions, if the Federal action agency, 12, 2002, notes from the URGWOM Our Response: From our experience, (i.e., the BOR in the June 29, 2001, Steering Committee meetings: (1) The it is nearly impossible to guarantee biological opinion) cannot meet the consensus of the Steering Committee continuous flow in the middle Rio measures described in the biological members was that the latest version of Grande at all times of the year, URGWOM should not be released until opinion that must be undertaken, regardless of the extremity of it has been tested and is ready for public reinitiation of formal consultation is conditions. As a result, our analysis use; (2) the data and results for various required. In the middle Rio Grande, if calculates the annual deficit of water model runs were not totally successful, supplemental water is not available to below the required minimum flow in but furthered the model debugging, meet target flows contained in a testing, and evaluation; (3) the middle the 95th percentile and the 50th biological opinion, then reinitiation of Rio Grande valley water depletions are percentile worst-case (e.g., driest) year. consultation would be required. modeled too high; (4) the water This calculation results in an average Reinitiation of consultation has no planning model is currently simplistic annual deficit of 40,427 af/year in the bearing on the designation of critical and rough; and (5) water operations middle Rio Grande. This estimate of habitat for the silvery minnow. modeling is still undergoing supplemental water is within the range (57) Comment: The designation will troubleshooting, repairs, and of other estimates of supplemental water steal water from an already drought- enhancements. Thus, we conclude that required to maintain instream flow in stricken area. Critical habitat will URGWOM is not available for use in the the middle Rio Grande. Since 1996, the devastate the farming culture. economic analysis. BOR has leased water each year to Our Response: The maintenance of Nevertheless, during the July 22, maintain instream flow during this dry river flows has been implemented 2002, meeting with the NMISC, it was period. In 2001, 22,000 af of through BOR’s voluntary supplemental agreed that the NMISC would run supplemental water, from the water program. This program is being URGWOM and provide detailed conservation water agreement, was implemented within the existing water comments, data, output, and released and was sufficient to meet the rights framework, including Federal interpretation to us during the open supplemental flow requirements Indian water rights, San Juan-Chama comment period on this and other outlined in the June 29, 2001, biological contract rights, and state law water relevant analyses. We also requested opinion (J. Smith, pers. comm., 2002). In rights administered by the State of New that the NMISC assist us in determining addition, Balleau Groundwater, Inc. Mexico. Supplemental flows to avoid the economic costs of providing water to (1999) estimated that it would require destruction or adverse modification of meet Rio Grande Compact delivery 52,600 af of water released from Cochiti critical habitat will likely be similar if obligations separate from the economic to maintain a flow of 200 cfs at San not identical to what is currently costs of leaving water in the river for the Acacia in an average year. Therefore, we required to avoid jeopardizing the silvery minnow. The NMISC indicated believe our estimate of approximately species. in its October 2, 2002, comments on the 40,000 af of supplemental water is During the 2000 irrigation season, proposed critical habitat designation accurate. most of the supplemental water used to that the data and analyses were nearly support the silvery minnow was (55) Comment: The Service’s analyses provided through BOR leases of San complete and a report interpreting the do not take into account upstream results would be submitted in Juan-Chama Project water from the City storage that would be needed to provide of Albuquerque. The City in turn November 2002. Additional comments for supplemental flows, nor did the or data were not submitted. If additional provided that water to the MRGCD to Service address storage of native water finish the irrigation season, while comments or data had been submitted when storage is restricted in upstream after October 2, 2002, we would not allowing native Rio Grande flows to reservoirs (e.g., see Rio Grande remain in the river without diversion. have considered them in the Compact, Article VII). development of this final rule, the Moreover, in June 2002, the City of economic analysis, or the EIS because Our Response: The hydrologic model Albuquerque signed two agreements to the data, analyses, and report would not used in the economic analysis did not provide 40,000 af of water to the BOR have been submitted during the open attempt to model the location of water for supplemental flows for the silvery comment period, and other parties used to supplement instream flow, but minnow and an additional 70,000 af of would not have had the full opportunity rather provided the amount of water to extend the MRGCD irrigation to review and comment on the material. supplementary water needed at the San season from June to September 2002. Section 4(b)(2) of the Act states Acacia (middle Rio Grande) and Acme The BOR supplemental water program critical habitat shall be designated on (middle Pecos River) gages. We did not has been implemented on a year-to-year the basis of the best scientific data identify sources of supplemental water basis since 1997. During this period, no available. We must make this (e.g., storage) within this designation, irrigation water has been used to determination on the basis of the because these sources can vary augment river flows without being information available at this time, and annually. Moreover, the Federal replaced (BOR 2001c). For example, the we are not allowed to delay our decision agencies have discretion on selecting water that was leased from San Juan- until further information is submitted. specific sources and storage of Chama contractors and released during Therefore, we conclude the current supplemental water (BOR 2001c; Corps 2000 was used by MRGCD for irrigation hydrological model used in the 2001). The amount of supplemental and was exchanged for an equivalent economic analysis is the best scientific flows will be dependent upon the amount of native Rio Grande water to information available at this time, as environmental baseline of the silvery provide supplemental flows for the required by the Act. minnow, the proposed action by the silvery minnow. We believe that these (54) Comment: The Economic Federal agency, and those discretionary types of collaborative actions will Analysis appears to underestimate the actions that are part of the consultation. continue and do not anticipate that the

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amount of supplemental instream flow, unfounded claims indicate that a (64) Comment: Because of the silvery required by past section 7 consultations thorough hydrologic analysis of the minnow, the Service has not allowed (e.g., Service 2001b), will increase middle Rio Grande should be completed the BOR to maintain a channel through because an area is designated as critical using hydrological variability the delta area north of Elephant Butte habitat. techniques (e.g., Richter et al. 1997). Reservoir. (58) Comment: The Service should Our Response: We have revised the Our Response: On May 8, 2000, we analyze the impacts on groundwater, ‘‘Background’’ section of this final rule. received a biological assessment from urban development, and operation of We are participating in the Upper Rio BOR concerning the creation of a canals and other irrigation structures. Grande Basin Water Operations Review temporary channel through the Our Response: The EIS analyzes and EIS with the Joint Lead Agencies upstream delta of Elephant Butte impacts on water rights and and other cooperators, including the Reservoir. BOR proposed to implement management, land ownership and use, Corps, BOR, and the NMISC, to several conservation measures-these social and economic impacts, and a comprehensively review the water were included and described in their variety of other environmental operations activities that are conducted biological assessment as part of the consequences. under the existing authorities in the Rio project. On August 4, 2000, we (59) Comment: The Service should Grande Basin above Fort Quitman, TX. completed consultation by concurring consider the positive impact of critical Hydrological variability techniques (e.g., with BOR’s determination that the habitat designation in the region’s Richter et al. 1997) can guide river project ‘‘may affect but is not likely to economy. managers to define and adopt interim adversely affect’’ the silvery minnow or Our Response: The potential benefits management targets before conclusive its designated critical habitat, that it of critical habitat are described in the long-term research results are available. ‘‘may affect but is not likely to adversely economic analysis and EIS. The Federal agencies have discretion affect’’ the southwestern willow (60) Comment: It is currently when selecting specific river flycatcher, and that it will have ‘‘no impossible with the natural flow regime management targets and activities (e.g., effect’’ on the bald eagle. During (i.e., after all managed uses of water are sources and storage of supplemental September 2000 and April 2001, BOR curtailed) to maintain the primary water (BOR 2001c; Corps 2001)). provided supplementary information constituent elements related to water Consequently, hydrological variability and clarifications on the project flow. The primary constituent element techniques could be applied to river activities. No additional effects were that indicates conditions ‘‘do not management targets and activities at the anticipated and it is our understanding increase prolonged periods of low or no discretion of the Federal agencies, but that BOR is proceeding with the flow’’ presume a baseline is known. are beyond the scope of this construction of the temporary channel Our Response: Critical habitat is in full compliance with its designation. designated on the basis of existing responsibilities under the Act. In a letter (63) Comment: One commenter conditions within each of the river dated August 30, 2002, from the reaches. We acknowledge that some of questioned why, although Service’s New Mexico Ecological these areas have the potential for no to approximately 200,000 af of water were Services Field Office to the New Mexico low flow during certain seasons or released in the summer of 2000 to save Office of the State Engineer, we years. This primary constituent element the silvery minnow from extinction, the reiterated that environmental provides water of sufficient flows to species suffered one of its most compliance with the Act had been reduce the formation of isolated pools, significant declines during this achieved. In the letter, we specifically and is essential to the conservation of artificially wet period. NM and other asked whether the State Engineer the silvery minnow because the species signatories of the Rio Grande Compact believed that further environmental cannot withstand permanent drying of cannot afford this waste of water. clearances were required for the long stretches of river. In addition, Our Response: In the spring of 2000, completion of the temporary channel. please see response to comment 35 for as a result of court-ordered mediation We did not receive a response to the information related to this particular (Minnow v. Keys, Civ. No. 99–1230 JP/ August 30, 2002, letter. issue. KBM–ACE), BOR, through voluntary (65) Comment: Many environmental (61) Comment: There is not enough leases and repayment agreements, and groups are using the silvery minnow to information known about the silvery in cooperation with other entities, further their agendas of stopping growth minnow or about the impacts of the provided 168,000 af of water to the Rio and development. designation to perform the required Grande for the silvery minnow and for Our Response: The recovery of the analyses. irrigation purposes during the year silvery minnow follows our cooperative Our Response: This final 2000. Data from silvery minnow policy on recovery plan participation, a determination constitutes our best population monitoring studies in 2001 policy intended to involve stakeholders assessment of areas needed for the indicated a slight increase of the in recovery planning (July 1, 1994; 59 conservation of the silvery minnow. We population in the Angostura, Isleta, and FR 34272). Numerous individuals, must make this determination on the San Acacia Reaches (Dudley and agencies, environmental groups, and basis of the information available at this Platania 2001). Without efforts to affected parties were involved in the time, and we may not delay our maintain at least some flow in the Rio development of the Recovery Plan or decision until more information about Grande in 2000, it is likely that the otherwise provided assistance and the species and its habitat are available. silvery minnow might have been review (Service 1999). We believe this Southwest Center for Biological extirpated from the middle Rio Grande stakeholder involvement will minimize Diversity v. Babbitt, 215 F.3d 58 (D.C. (Dudley and Platania 2001). It is also the social and economic impacts that Cir. 2000). important to note that, at least partially could be associated with recovery of (62) Comment: The Service concludes as a result of these supplemental flows, this endangered species. that low or no-flow conditions have NM realized a credit of 100,000 af Section 4(a)(3) of the Act requires that become more prevalent in the last few toward its current and future delivery the Secretary, to the maximum extent decades. The hydrological data obligations to TX under the Rio Grande prudent and determinable, designate demonstrate that this is not true. These Compact (BOR 2001c). critical habitat at the time a species is

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listed as endangered or threatened. As significant economic impacts associated rights, in its highest and best use. That noted under the ‘‘Background Section’’ with the designation of critical habitat is, in paying for water rights, buyers are above, when the silvery minnow was for the silvery minnow (see also the making clear the implicit value of the listed as endangered in 1994, we found ‘‘Economic Analysis’’ section of this water to them. The economic analysis that critical habitat was not rule). concluded that (1) there is an active determinable. Subsequently, we were (68) Comment: The draft economic market in NM to move water to uses ordered to publish a final determination analysis uses alfalfa as the basis for other than the original use; (2) there are regarding critical habitat for the silvery calculating the cost of forgone multiple buyers and sellers of water minnow, Forest Guardians v. Babbitt, production and secondary economic rights; and (3) the price of water rights Civ. No. 97–0453 JC/DIS. On July 6, impacts. The estimated economic can be predicted from expected 1999, we published a final designation impacts were likely underestimated underlying economic factors. of critical habitat for the silvery minnow because alfalfa makes up about 56 Studies and historic and current data (64 FR 36274), pursuant to the court percent of the agricultural crops in the indicate that ‘‘water flows uphill toward order. middle Rio Grande. The costs of forgone money’’ (Brookshire et al. 2002; Hall Critical habitat will affect private, production on the other 44 percent of 2002). In other words, water will move State, or Tribal activities when Federal agricultural crops would likely be toward the highest valued use in funding, permitting, or authorization is higher, since alfalfa is a relatively low- accordance with the economy. For involved. If there is Federal value, high-water-consuming crop. example, 90 percent of all water rights involvement, consultation will be Our Response: Based on interviews transferred (i.e., leased or sold) in the completed within the statutory time with local crop scientists and because of middle Rio Grande from 1976 to 2000 frames. The process of section 7 the dominant status, annual planting were previously held by irrigation consultation does not stop growth or cycle, and relatively high water (Brookshire et al. 2002). Consequently, development. requirements of alfalfa, the economic we believe that the voluntary (66) Comment: Your last economic analysis assumes that acres retired from acquisition of water to meet analysis found that there would be no planting will be those devoted to the supplemental flows will be available. impacts associated with the designation alfalfa crop. However, the economic (70) Comment: The economic analysis of critical habitat for the silvery analysis indicated that this assumption underestimates the farmland removed minnow. is likely to be conservative and to from production to provide for Our Response: We were required to overstate effects on the regional supplemental flows. prepare a new critical habitat economy when compared with Our Response: The economic analysis designation under the court order from modeling reductions in water available used models created by the New Mexico the United States District Court for the to other crops. A second calculation Cooperative Extension Service and NM District of New Mexico, in Middle Rio using a reduction in hay production is agricultural statistics from the New Grande Conservancy District v. Babbitt, included in the final economic analysis Mexico Agricultural Statistics Service to 206 F. Supp. 2d 1156 (D.N.M. 2000). We to provide comparison. Modeling the estimate costs and returns for the State’s prepared a new economic analysis, a same reductions in water available to farming industry in 2001. The draft EIS, and a new proposed rule the second most prevalent crop in each commenter did not provide any data for pursuant to that court order. A new study area (pasture hay for the middle us to consider and did not explain why economic analysis was completed to Rio Grande and cotton for the Pecos) he or she believes our estimates to be address this revised final designation, produces a total value of forgone inadequate. the previous economic analysis is not production that is 3 percent less than (71) Comment: Agricultural reflective of this designation or our that produced by modeling removals production in the middle Rio Grande current approach for analyzing from alfalfa. Given that 90 percent of the valley is on a scale that does not allow economic impacts. irrigated acreage in the middle Rio comparison to agriculture elsewhere in (67) Comment: The economic analysis Grande study area and over 75 percent the United States. Consequently, the only considered the middle Rio Grande of the irrigated acreage in the Pecos values of agriculture are as much social as an entire unit and did not evaluate study area are devoted to the two and cultural as they are economic. The economic impacts to different areas dominant crops, it is likely that water Service should consider these values within the middle Rio Grande. An removed from irrigation would come before finalizing the designation. economic analysis that does not take from one of these two crops, validating Our Response: The economic analysis local land and water use into account the assumptions set forth in the estimated: (1) The opportunity cost of does not disclose the full economic economic analysis. water needed to supplement instream costs of the designation and is of no (69) Comment: The draft economic flow; (2) direct, indirect, and induced benefit to the Service or the public. analysis does not consider that NM has economic effects resulting from the Our Response: The economic analysis had an active water market for years and resulting changes in the use of water, includes specific analyses within the many farmers have not chosen to sell including cultural and secondary area designated as critical in the middle their water rights. Consequently, the impacts on water sellers and Rio Grande by estimating the cost of acquisition of water to meet communities; and (3) costs of section 7 designating critical habitat in each of supplemental flows may not be consultations. The EIS also analyzed the the five reaches. The analysis utilized available. social and economic impacts, impacts all information provided by the Federal, Our Response: Under New Mexico on land use, and impacts on cultural State, local, and Tribal respondents State law, users of water must hold a resources. Please refer to the economic operating in the area, including models water right. Such rights are treated as analysis and EIS for a complete analysis created by and technical assistance from property rights, and are traded in a of these impacts. the New Mexico State University market. Since a competitive market (72) Comment: The economic analysis Agricultural Extension Service. exists for water rights in NM, it is assumed that the market for water rights Information concerning the local and assumed that the price of these rights may not result in actual delivery of ‘‘wet regional economy was analyzed to represents the expected economic water’’ (i.e., water in the river) once the conclude that there would not be benefit of water made available by these middle Rio Grande is adjudicated.

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Our Response: Water rights in the (74) Comment: The economic analysis Rio Grande with UTM coordinates of middle Rio Grande are not adjudicated does not explain why a 20-year time UTM Zone 13: 311474 E, 3719722 N, and much of the water uses are not period was selected. just east of the Bosque Well demarcated metered (Whitney et al. 1996). Our Response: The economic analysis on USGS Paraje Well 7.5 minute Adjudicating water rights (i.e., a judicial stated that activities occurring greater quadrangle (1980). This downstream determination and definition of water than 20 years in the future are difficult boundary of critical habitat was selected rights within a river system that to predict, and the outcomes of such because it is a permanent identified quantifies and establishes the legal right activities are even more uncertain. The landmark that is found on a standard to use water) in the middle Rio Grande 20-year time horizon was selected topographic map. The area below this would, in conjunction with a metering because population forecasts as well as boundary (i.e., from the utility line program, allow for improved local and regional planning documents downstream to Elephant Butte Reservoir administration of water rights and use similar time horizons. Dam) has the potential to be inundated improved water management (Whitney (75) Comment: The economic analysis by the reservoir and may not provide et al. 1996). However, an adjudication does not explicitly address whether the those physical or biological features may not be completed for the middle benefits of excluding a particular reach essential to the conservation of the Rio Grande in the foreseeable future. outweigh the benefits of including the species and is therefore not designated reach as critical habitat. as critical habitat. The State Engineer of New Mexico Our Response: We use the economic During the open comment period, the has indicated that as water markets analysis and other relevant information BOR provided GIS maps that identified begin to develop in the state, there will to conduct analyses under section the utility line crossing the Rio Grande be a natural tendency to attempt to 4(b)(2) of the Act. If relevant to a with UTM coordinates of UTM Zone 13: transfer paper water rights (New Mexico particular critical habitat designation, 311474 E, 3719722 N, just east of the Office of the State Engineer 2001). The these considerations are included in the Bosque Well demarcated on USGS State Engineer is charged with water final rule (50 CFR 424.19). For a Paraje Well 7.5 minute quadrangle rights adjudications (New Mexico Office detailed discussion, see the ‘‘Exclusions (1980) (M. Porter, BOR, pers. comm., of the State Engineer 2001). The existing Under Section 4(b)(2) of the Act’’ and 2002). Consequently, we revised the adjudication system is being examined ‘‘Relationship of Critical Habitat to boundary for the designation because to allow the entire State to be Pueblo Lands under Section 3(5)(A) and we find that the area downstream of the adjudicated (New Mexico Office of the Exclusions Under Section 4(b)(2)’’ utility line is not essential to the State Engineer 2001). Moreover, the sections below. conservation of the silvery minnow and State Engineer of New Mexico has three Summary of Changes From the we believe that the boundary, as criteria that must be met in order for Proposed Rule originally proposed, was confusing as state law water rights to be transferred: evidenced by many commenters, (1) The right must be valid, with a valid In the development of this final including the Elephant Butte Irrigation priority date; (2) the water must be put designation of critical habitat for the District, the NMISC, and others. to beneficial use; and (3) the transferred silvery minnow we made several We further reviewed existing water right must not impair the rights of changes to the proposed critical habitat information (Platania and Dudley others, including compact deliveries. designation based on our review of 2001a) to determine if the area from the For these reasons, we believe that the public comments received on the designated critical habitat boundary to sale or lease of water rights will result proposed designation, the draft the headwaters of Elephant Butte in the delivery of ‘‘wet water.’’ economic analysis, and the draft EIS Reservoir is essential to the and further evaluation of lands conservation of the silvery minnow. For (73) Comment: The prevailing price of proposed as critical habitat. As water rights in the middle Rio Grande example, the location for the silvery discussed in the ‘‘Relationship of minnow spawning study (Platania and will substantially increase when more Critical Habitat to Pueblo Lands Under Dudley 2000, 2001a) is just downstream than 40,000 af water rights are sold and Section 3(5)(A) and Exclusions Under of the critical habitat boundary. The removed from the water rights market. Section 4(b)(2)’’ section of this final study location was selected to maximize Our Response: The price of water rule, we evaluated the lands proposed the potential number of silvery minnow rights is significantly affected by the as critical habitat for the Pueblos of eggs collected by rescuing those eggs type of buyer (e.g., municipal, private, Santo Domingo, Santa Ana, Sandia, and destined to drift into Elephant Butte Federal/State) and has increased in NM Isleta. Because each of these Pueblos Reservoir. Currently, if silvery minnow over the last several decades (Brookshire submitted management plans that spawn in the area from the designated et al. 1999). However, water markets provide for special management critical habitat boundary to the remain highly localized, with considerations or protections for the headwaters of Elephant Butte Reservoir, significantly different prices in each silvery minnow and because of other the floating eggs would enter the market. Nevertheless, the value used in relevant issues, (see ‘‘Relationship of reservoir in just a few hours. Once the the economic analysis reflects the Critical Habitat to Pueblo Lands Under eggs and larvae enter the reservoir, they current price of water rights resulting Section 3(5)(A) and Exclusions Under would be subjected to predation from the voluntary acquisition of Section 4(b)(2)’’ section below), these (Platania and Dudley 2001a). We find supplemental water. We expect these lands were not included in the final that silvery minnow eggs and larvae in types of voluntary programs to continue, critical habitat designation. this reach contribute little to the and do not anticipate that the amount of The downstream boundary of critical survival or recovery of the species. supplemental water (i.e., demand) in habitat differs from that described in the Consequently, the area from the previous consultations (e.g., Service proposed rule. In the proposal, the designated critical habitat boundary to 2001b) will increase because critical boundary was Elephant Butte Reservoir the headwaters of Elephant Butte habitat is designated. In addition, please Dam, with the reservoir specifically Reservoir is not essential to the see response to comment 57 for excluded by definition (June 6, 2002; 67 conservation of the silvery minnow. information related to this particular FR 39206). However, in this final rule, Because of these reasons, we also issue. we selected the utility line crossing the believe that the exclusion of this area

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from the designated critical habitat will eggs and also spawn during high flow economic analysis also recognizes that not lead to the extinction of the species. events with eggs and larvae being this is likely an overstatement of the It should be noted that the Service, in distributed downstream (Bestgen et al. actual increase in consultations because collaboration with other State and 1989). Therefore, flow regime operations consultations frequently occur on Federal agencies, rescues silvery in this reach that benefit the Pecos projects located outside of Pecos minnow eggs in the lower San Acacia bluntnose shiner also provide benefits bluntnose shiner critical habitat, Reach for use in captive propagation to silvery minnow habitat. We also because of the interdependent nature of and subsequent augmentation of the believe that the primary constituent the river system and the presence of the silvery minnow in the middle Rio elements for the Pecos bluntnose shiner species. Consequently, we do not Grande. critical habitat are compatible with the believe that designating critical habitat primary constituent elements for the Exclusions Under Section 4(b)(2) of the within this river reach would provide silvery minnow (see ‘‘Criteria for Act additional benefits for the silvery Identifying Critical Habitat’’ section minnow, because currently the activities Section 4(b)(2) of the Act requires us below). Thus, we find that little that occur outside of critical habitat to base critical habitat designations on additional benefit through section 7 designated for the Pecos bluntnose the best scientific and commercial data consultation would occur as a result of shiner are also the subject of available, after taking into consideration the overlap between habitat suitable for consultation. In the absence of the the economic and any other relevant the silvery minnow and the Pecos silvery minnow, we find little benefit to impact of specifying any particular area bluntnose shiner listing and critical including this river reach in the critical as critical habitat. We may exclude areas habitat designation. habitat for the silvery minnow because from a critical habitat designation when In Sierra Club v. Fish and Wildlife of the presence of the Pecos bluntnose the benefits of exclusion outweigh the Service, 245 F.3d 434 (5th Cir. 2001), shiner and its designated critical benefits of designation, provided the the Fifth Circuit Court of Appeals stated habitat. Current and ongoing exclusion will not result in the that the identification of habitat conservation activities for the Pecos extinction of the species. Our analysis of essential to the conservation of the bluntnose shiner are compatible with the following two areas: (1) The river species can provide informational those of the silvery minnow such that reach in the middle Pecos River, NM, benefits to the public, State and local reestablishment of the silvery minnow from Sumner Dam to Brantley Dam in governments, scientific organizations, in this stretch of river should not be De Baca, Chaves, and Eddy Counties, and Federal agencies. The court also precluded in the future. Thus, we NM; and (2) the river reach in the lower noted that heightened public awareness determine that any additional benefit Rio Grande in Big Bend National Park of the plight of listed species and their from a designation of critical habitat in downstream of the National Park habitats may facilitate conservation this river reach does not outweigh the boundary to the Terrell/Val Verde efforts. We agree with these findings; benefit of excluding this area, as County line, TX, concludes that the however, we believe that there would be discussed below in the ‘‘Benefits of benefits of excluding these areas from little additional informational benefit Exclusion’’ section. the designation of critical habitat gained from including the middle Pecos outweigh the benefits of including them. River because the final rule identifies all The benefits of inclusion of the river Therefore, we are not designating these areas that are essential to the reach in the lower Rio Grande in Big areas as critical habitat. conservation of the silvery minnow, Bend National Park downstream of the park boundary to the Terrell/Val Verde (1) Benefits of Inclusion regardless of whether all of these areas are included in the regulatory County line, TX, would also result from The benefits of inclusion of the river designation. Consequently, we believe the requirement under section 7 of the reach in the middle Pecos River, NM, that the informational benefits will be Act that Federal agencies consult with from Sumner Dam to Brantley Dam in provided to the middle Pecos River, us to ensure that any proposed actions De Baca, Chaves, and Eddy Counties, even though this reach is not designated do not destroy or adversely modify NM, would result from the requirement as critical habitat. critical habitat. However, as indicated in under section 7 of the Act that Federal The economic analysis recognizes that the economic analysis, we anticipate agencies consult with us to ensure that while consultations regarding the Pecos very little consultation activity within any proposed actions do not destroy or River will occur without a silvery this area. The economic analysis adversely modify critical habitat. minnow critical habitat designation, (section 6.3.3) estimates that over the Historically, no consultations have those consultations would not consider next 20 years there would be a total of occurred on the Pecos River for the the silvery minnow. However, because 12 formal consultations and 6 informal silvery minnow since the area is not of the similar life history requirements consultations if silvery minnow critical occupied by the species. However, of these species, we do not anticipate habitat were designated. The only while critical habitat designation could that the outcomes of such consultations Federal action that we are aware of provide some benefit to the silvery would be altered. We recognize, as does within the river reach of the lower Rio minnow, in fact, consultations are the economic analysis, that the middle Grande downstream of Big Bend already occurring for another listed fish Pecos River area (as described above) National Park is the Big Bend National with similar habitat requirements. The covers about twice the length of the area Park oversight and permitting authority Pecos bluntnose shiner (Notropis simus designated for the Pecos bluntnose for float trips, scientific research pecosensis) was federally listed in 1987 shiner. Historically, two formal permits, environmental education, and and portions of the Pecos River are consultations and two informal law enforcement (R. Skiles, Big Bend designated as critical habitat for the consultations occurred annually for the National Park, pers. comm. 2001). Pecos bluntnose shiner (February 20, Pecos bluntnose shiner. The economic Therefore, unless there are other types 1987; 52 FR 5295). As stated in the analysis assumes that twice as many of Federal permitting or authorization ‘‘Criteria for Identifying Critical consultations would occur if this area within this area, private and State- Habitat’’ section of this rule, these fish were designated as critical habitat for owned lands would not be affected. species belong to the same guild of the silvery minnow, since the area Additional activities that were used to broadcast spawners with semibuoyant would be doubled in size. However, the estimate the numbers of consultations

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for this area include: National Park must be conducted in accordance with to informally confer with us on actions management activities (e.g., pesticide NEPA and the Act. An overview of the that are likely to jeopardize the application and fishing regulations), process to establish an experimental continued existence of a proposed U.S. International Boundary and Water population under section 10(j) of the species. Section 7(a)(2) of the Act, Commission channel maintenance Act is described below. which requires Federal agencies to activities, certain Service activities (e.g., Section 10(j) of the Act enables us to ensure that their activities are not likely fire management plans, fish stocking), designate certain populations of to jeopardize the continued existence of and the U.S. Environmental Agency federally listed species that are released a listed species, would not apply except (EPA) NPDES permitting for the into the wild as ‘‘experimental.’’ The on National Wildlife Refuge System and Presidio or Lajitas wastewater treatment circumstances under which this National Park System lands. facility. We find sufficient regulatory designation can be applied are the Experimental populations determined to and protective conservation measures in following: (1) The population is be ‘‘essential’’ to the survival of the place from the consultations regarding geographically separate from non- species would remain subject to the the activities described above. We experimental populations of the same consultation provisions of section believe there would be little benefit to species (e.g., the population is 7(a)(2) of the Act. a designation in this reach because this reintroduced outside the species’ In order to establish an experimental area is protected and managed by the current range but within its probable population, we must issue a proposed National Park Service and the number of historic range); and (2) we determine regulation and consider public consultations expected to occur in this that the release will further the comments on the proposed rule prior to area is relatively low. conservation of the species. Section publishing a final regulation. In As above, we believe that heightened 10(j) is designed to increase our addition, we must comply with NEPA. public awareness of a listed species and flexibility in managing an experimental Also, our regulations require that, to the its habitat may facilitate conservation population by allowing us to treat the extent practicable, a regulation issued efforts. Nevertheless, we believe that population as threatened, regardless of under section 10(j) of the Act represent there would be little additional the species’ status elsewhere in its an agreement between us, the affected informational benefit gained from range. Threatened status gives us more State and Federal agencies, and persons including the lower Rio Grande within discretion in developing and holding any interest in land that may be designated critical habitat for the silvery implementing management programs affected by the establishment of the minnow because we have identified in and special regulations for a population experimental population (see 50 CFR this final designation those areas that and allows us to develop any 17.81(d)). we believe are essential to the regulations we consider necessary to The flexibility gained by conservation of the species. For these provide for the conservation of a establishment of an experimental reasons, we determine that any threatened species. In situations where population through section 10(j) would additional benefit of designation of we have experimental populations, be of little value if a designation of critical habitat in this river reach does certain section 9 prohibitions (e.g., critical habitat overlaps it. This is not outweigh the benefit of excluding harm, harass, capture) that apply to because Federal agencies would still be this area, as discussed below. endangered and threatened species may required to consult with us on any no longer apply, and a special rule can actions that may adversely modify (2) Benefits of Exclusion be developed that contains the critical habitat. In effect, the flexibility As discussed in the ‘‘Recovery Plan’’ prohibitions and exceptions necessary gained from section 10(j) would be section of this rule, the primary goals of and appropriate to conserve that rendered useless by the designation of the silvery minnow Recovery Plan are species. This flexibility allows us to critical habitat. In fact, section to: (1) Stabilize and enhance manage the experimental population in 10(j)(2)(C)(ii) of the Act states that populations of the silvery minnow and a manner that will ensure that current critical habitat shall not be designated its habitat in the middle Rio Grande and future land, water, or air uses and under the Act for any experimental valley; and (2) reestablish the silvery activities will not be unnecessarily population determined to be not minnow in at least three other areas of restricted and the population can be essential to the continued existence of a its historic range (Service 1999). We managed for recovery purposes. species. believe that the best way to achieve the When we designate a population as The second goal of the Recovery Plan second recovery goal will be to use the experimental, section 10(j) of the Act is to reestablish the silvery minnow in authorities under section 10(j) of the requires that we determine whether that areas of its historic range. We strongly Act. Consequently, this final rule population is either essential or believe that, in order to achieve outlines our conservation strategy that nonessential to the continued existence recovery for the silvery minnow, we we believe is consistent with the of the species, on the basis of the best would need the flexibility provided for species’ Recovery Plan. The available information. Nonessential in section 10(j) of the Act to help ensure conservation strategy is to reestablish experimental populations located the success of reestablishing the the silvery minnow, under section 10(j) outside National Wildlife Refuge System minnow in the middle Pecos River and of the Act, within areas of its historic or National Park System lands are lower Rio Grande areas. Use of section range, possibly including the river reach treated, for the purposes of section 7 of 10(j) is meant to encourage local in the middle Pecos River and the river the Act, as if they are proposed for cooperation through management reach in the lower Rio Grande. Since the listing. Thus, for nonessential flexibility. Critical habitat is often silvery minnow is extirpated from these experimental populations, only two viewed negatively by the public since it areas and natural repopulation is not provisions of section 7 would apply is not well understood and there are possible without human assistance, we outside National Wildlife Refuge System many misconceptions about how it believe a 10(j) rule is the appropriate and National Park System lands: Section affects private landowners (Patlis 2001). tool to achieve this recovery objective. 7(a)(1), which requires all Federal We believe it is important for recovery Nevertheless, any future recovery agencies to use their authorities to of this species that we have the support efforts, including reintroduction of the conserve listed species, and section of the public when we move toward species to areas of its historic range, 7(a)(4), which requires Federal agencies meeting the second recovery goal. It is

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critical to the recovery of the silvery plan and EIS in 2003. We will review River and lower Rio Grande outweigh minnow that we reestablish the species the river management plan when the the benefits of their inclusion as critical in areas outside of its current occupied draft EIS is released to suggest habitat. Including these areas may result range. The current population of silvery management recommendations for this in some benefit through additional minnow in the middle Rio Grande is in river reach that are consistent with the consultations with Federal agencies an imperiled state, making recovery needs of the silvery minnow. whose activities may affect critical reestablishment into other portions of We believe this area has the greatest habitat. However, overall this benefit is its historic range extremely important. potential for repatriating the species minimal because of the presence of the As noted above, nonessential within an area of its historic range and Pecos bluntnose shiner and its critical experimental populations located believe this river reach also has the habitat in the middle Pecos River and within the National Park System are greatest potential for developing an the minimal number of estimated future treated, for purposes of section 7 of the experimental population under section consultations that are expected to occur Act, as if they are listed as threatened 10(j) of the Act. In order for an within Big Bend National Park and the (50 CFR 17.83(b)). Thus, a nonessential experimental population to be wild and scenic river designation that experimental population established in successful, the support of local extends beyond the Park’s boundaries. the river reach in the lower Rio Grande stakeholders—including the National On the other hand, an exclusion will downstream of the Big Bend National Park Service, the State of Texas, private greatly benefit the overall recovery of Park boundary (i.e., within the reach landowners, and other potentially the minnow by allowing us to move designated as a wild and scenic river) to affected entities—is crucial. In light of forward using the flexibility and greater the Terrell/Val Verde County line, TX, this and the fact that the river public acceptance of section 10(j) of the would be treated, for purposes of management plan will soon be Act to reestablish minnows in other section 7, as a threatened species completed, we find that significant portions of its historic range where it no because this area is a component of the benefits result from excluding this river longer occurs. This is likely the most national wild and scenic rivers system reach from designation of critical important step in reaching recovery of that is administered by the Secretary of habitat. this species and we believe that section the Interior through the National Park On the middle Pecos River, we 10(j), as opposed to a critical habitat Service and is considered part of the acknowledge that the NMISC has been designation, is the best tool to achieve National Park System (16 U.S.C. actively acquiring and leasing water this objective. Thus, we believe that an 1281(c)). These lands downstream of Big rights to meet the State’s delivery exclusion of these two areas outweighs Bend National Park are owned by the obligations to TX as specified in the any benefits that could be realized State of Texas (Black Gap Wildlife Pecos River Compact and pursuant to an through a designation of critical habitat Management Area) and approximately Amended Decree entered by the U.S. and we have not included these two 12 to 15 private landowners. The Supreme Court. For example, between areas within this critical habitat National Park Service’s management 1991 and 1999, $27.8 million was spent designation. authority in the wild and scenic river on the Pecos River water rights The Pecos River and lower Rio designation currently extends 0.25 mi acquisition program. NM faced a Grande reaches were historically from the ordinary high water mark. shortfall in its Pecos River Compact occupied but are currently unoccupied For the past two years, Big Bend delivery obligations for the year 2001 by the silvery minnow (Hubbs 1940; National Park has been working on a and the possibility of priority Trevino-Robinson 1959; Hubbs et al. management plan for the ‘‘outstanding administration, in which the State 1977; Bestgen and Platania 1991). The remarkable values of the Rio Grande Engineer would order junior water silvery minnow occupies less than 5 wild and scenic river’’ (F. Deckert, Big rights holders not to use water. Given percent of its historic range, and the Bend National Park, pers. comm. 2002). this tight water situation and the Pecos likelihood of extinction from The development of the river River Compact delivery obligations, we catastrophic events is high because of its management plan has involved believe that the flexibility of section limited range (Hoagstrom and Brooks stakeholders, including private 10(j) would be especially appropriate in 2000; Service 1999). However, if critical landowners and the State of Texas. the middle Pecos. Economic costs habitat were designated in the middle Throughout the stakeholder-based associated with endangered species Pecos River or lower Rio Grande, the planning process, the Park has built management and critical habitat likelihood of extinction of the species trust among diverse and competing designation for the silvery minnow are from the occupied reach of the middle interests by encouraging open dialogue discussed in the economic analysis. Rio Grande would not decrease because regarding various river management There are a variety of current and critical habitat designation is not a issues. If critical habitat were designated potential future costs associated with process to reestablish additional in this river reach, the introduction of the ongoing water management and populations within areas outside of the additional Federal influence could water reallocation on the middle Pecos current known distribution. We believe jeopardize the trust and spirit of River. The economic analysis and EIS that the exclusion of the river reaches of cooperation that has been established discuss and analyze these costs in the middle Pecos River and the lower over the last several years (F. Deckert, greater detail. We used the economic Rio Grande will not lead to the pers. comm. 2002). The designation of analysis and EIS to make our extinction of the species. critical habitat would be expected to determinations on the benefits of Relationship of Critical Habitat to adversely impact our, and possibly the including or excluding areas from the Park’s, working relationship with the designation of critical habitat. Prior to Pueblo Lands Under Section 3(5)(A) State of Texas and private landowners, making our final determination, we and Exclusions Under Section 4(b)(2) and we believe that Federal regulation considered comments on the economic In the proposed rule for the through critical habitat designation and other relevant impacts of all of the designation of critical habitat for the would be viewed as an unwarranted and areas we determined to be essential for silvery minnow (June 6, 2002; 67 FR unwanted intrusion. the conservation of the silvery minnow. 39213), we indicated that if any The National Park Service expects to In summary, we believe that the management plans are submitted during complete and finalize its management benefits of excluding the middle Pecos the open comment period, we would

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consider whether such plans provide explained below, excluded their lands sharing. Because Santo Domingo adequate special management or under section 4(b)(2) of the Act. commits to implementing these protection for the species. We also During the open comment period, we activities, we find that the Santo indicated that we would use this worked with the Pueblos of Santo Domingo management plan provides information in determining which, if Domingo, Santa Ana, Sandia, and Isleta significant conservation benefit to the any, river reaches or portions of river to develop voluntary measures to silvery minnow. We believe that the reaches within the middle Rio Grande conserve the silvery minnow on their resolution passed by the Santo Domingo should not be included in the final lands. These Pueblos each completed Tribal Council and the development of designation of critical habitat for the special management plans for the the Santo Domingo management plan silvery minnow. We based this silvery minnow and submitted them to demonstrate that the management plan discussion on section 3(5) of the Act, us during the open comment period. will be implemented. The Santo which defines critical habitat, in part, as Excluding the Tribal lands in this Domingo management plan specifically areas within the geographical area designation of critical habitat for the provides periodic updates as occupied by the species ‘‘on which are silvery minnow will not adversely affect appropriate, including updates based found those physical and biological the conservation and future delisting of upon silvery minnow population and features (I) essential to the conservation the species. Whether or not a species habitat monitoring and research. of the species and (II) which may has designated critical habitat, that (2) Santa Ana Management Plan: require special management species is protected from any actions During the open comment period, the considerations and protection.’’ We resulting in an unlawful take, under Pueblo of Santa Ana submitted section 9 of the Act, and from Federal noted that ‘‘special management comments and a draft safe harbor actions that could jeopardize the considerations or protection’’ is a term agreement to us. The comments and species’ continued existence. The four that originates in the definition of draft safe harbor agreement indicate that critical habitat and that adequate special Pueblo plans are summarized below: (1) Santo Domingo Tribe Rio Grande the Pueblo is currently enhancing, management consideration or protection restoring, and maintaining habitat for can be provided by a legally operative Silvery Minnow Management Plan (Santo Domingo management plan): A the silvery minnow and other species. plan or agreement that addresses the The Pueblo’s current natural resource maintenance and improvement of the resolution was passed by the Santo Domingo Tribal Council for the Santo programs—along with the draft safe primary constituent elements important harbor agreement—will, along with to the species and manages for the long- Domingo management plan to exercise the Tribe’s sovereign status and provide providing other conservation benefits, term conservation of the species. The serve as the foundation for managing the three criteria identified in the proposed for special management protections and conservation of the silvery minnow. The silvery minnow and other species rule for determining if a plan provides Santo Domingo management plan sets within the Pueblo’s lands. The Pueblo adequate special management or the goal of gathering and analyzing data has actively coordinated with us to protection are as follows: (1) A current to formulate and prioritize actions to implement these voluntary conservation plan or agreement must be complete and improve the status of these lands. programs to augment the silvery provide sufficient conservation benefit Additionally, the Santo Domingo Tribe minnow population within its lands and to the species; (2) the plan or agreement will attempt to secure funding to: (1) intends to continue its existing natural must provide assurances that the Determine and quantify the extent of the resource management programs that conservation management strategies will silvery minnow population and habitat currently provide special management be implemented; and (3) the plan or found on Santo Domingo lands; (2) considerations or protections for the agreement must provide assurances that develop management actions and silvery minnow. These programs the conservation management strategies strategies to address the threats to the include ecosystem restoration, range will be effective (i.e., provide for species and provide protection of and wildlife, water resources, GIS, and periodic monitoring and revisions as silvery minnow populations and environmental education. The necessary). habitat; (3) develop methods and ecosystem restoration program In a recent opinion (Center for protocols for gathering, storing, and concentrates on the restoration of Biological Diversity v. Norton, Civ. No. monitoring data for the Rio Grande riparian, wetland, and riverine systems 01–409 TUC DCB D. Ariz. Jan. 13, 2003), watershed; and (4) analyze, revise, and by eradicating non-native plant species a federal district court determined that strengthen the Santo Domingo and restoring native wildlife habitat, our definition of critical habitat, as it management plan to promote long-term including habitat for the silvery applies to special management, is not improvement of the watershed and minnow. Its current scope includes correct. The court stated that ‘‘whether protect the silvery minnow and other developing methods and implementing habitat does or does not require special species. bosque, wetland, and channel management is not determinative on The Santo Domingo Tribe intends to restoration along the Rio Grande within whether the habitat is ‘‘critical’’ to a coordinate with us to follow methods the boundaries of the Pueblo and in the threatened or endangered species.’’ and protocols that were provided to the Rio Jemez watershed. The range and Although we do not necessarily agree Tribe in 2001 to survey for silvery wildlife program concentrates on with the court’s analysis, we minnows or habitat, to conduct water improving the health of the Pueblo’s nevertheless do not intend to delete quality sampling, to develop water rangeland. The water resources program areas from this final designation because quality standards, and to devise is responsible for surface water and additional special management is not relocation or augmentation protocols groundwater projects and programs required. We do however, as explained (Santo Domingo 2002; Service 2001e). ongoing and in development at the below, believe that the management The Santo Domingo management plan Pueblo. Activities currently being plans submitted by the Pueblos of Santo organizes these activities into silvery implemented and anticipated to Domingo, Santa Ana, Sandia, and Isleta minnow population and habitat continue focus on water quality during the comment period provide for monitoring, silvery minnow research, standards development, technical special management of the silvery bosque (the riparian areas adjacent to support for water rights establishment, minnow on their lands and we have, as the Rio Grande) restoration, and data conserving riparian areas, improving

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water quality, and reestablishing natural native grasses, trees, and shrubs; (4) standards pursuant to the Clean Water hydrologic processes. These natural increase water retention and yield of the Act. The EPA has taken the surface resource management programs will riparian area; (5) encourage the water quality standards developed by collect monitoring data such as water reintroduction of native species, Isleta Pueblo into consideration in the quality information, stream including the silvery minnow and the development of point source discharge geomorphologic assessments, aquatic Southwestern willow flycatcher; and (6) permits; these standards minimize studies, and vegetation surveys. We continue water quality monitoring to potential water quality impacts on water expect that periodic updates of determine if degradation has uses and resources, including the information as well as water contributed to the decline of the silvery protection of the silvery minnow. The management improvements will occur minnow. The Pueblo also developed Pueblo regularly monitors compliance because their natural resource programs specific objectives to provide for special with these surface standards, and is incorporate monitoring and adaptive management considerations or currently engaged with us in conducting management principles. protections of the silvery minnow, a water quality study. The study is We believe that Santa Ana Pueblo including: determining silvery minnow designed to assess water quality in currently provides, and will continue to distribution, abundance, mesohabitat relation to the silvery minnow and its provide, special management for the and habitat preference, and evaluating habitat. The results of this study will be conservation of the silvery minnow water quality impacts. Additionally, the used to develop and promote long-term through its existing natural resource Pueblo will prepare a feasibility study strategies that will protect and conserve management programs. Because Santa for creating silvery minnow habitat and the silvery minnow. Ana commits to implementing the will continue cooperative research The Isleta management plan sets the activities described above, we conclude efforts with us. overall management goals of (1) that the management of Santa Ana As an example of current protection, determining, quantifying, and assessing Pueblo lands and those described under Sandia Pueblo has surface water quality silvery minnow populations within the draft safe harbor agreement provide standards pursuant to the Clean Water Isleta Pueblo; (2) developing and significant conservation benefit to the Act. To support these standards, the refining management actions to address silvery minnow. We believe that the Pueblo has an intensive monitoring potential threats to the silvery minnow; existing natural resource program and program to assess water quality (3) prescribing measures to sustain draft safe harbor agreement demonstrate compliance in relation to its established existing silvery minnow populations that these voluntary management standards. In addition, the Pueblo is and habitat and enhance numbers; and activities will be implemented. In fact, currently engaged with us in conducting (4) promoting a comprehensive we have previously commented that a water quality study. The study is integrated resource management Santa Ana’s active restoration program designed to assess water quality in approach for the riverine ecosystem. includes many standard relation to the silvery minnow and its These goals, conducted in cooperation recommendations we make concerning habitat. The results of this study will be with the FWS, will be accomplished by fish and wildlife and their habitat, such used to develop and promote long-term silvery minnow population and habitat as expansion of shallow, low-velocity strategies that will protect and conserve assessment and monitoring, including habitat in the Rio Grande, creation and the silvery minnow. surveys, egg sampling and collection, restoration of riparian and wetland We find that the Sandia management and silvery minnow rescues. areas, protection and enhancement of plan is complete and provides We find that the Isleta management aquatic habitat, and establishment of significant conservation benefit to the plan is complete and the commitment to native plant species in riparian areas silvery minnow as described above. We implement the activities described cleared of non-native vegetation believe that the resolution passed by the above provides significant conservation (Service 2001f). The Santa Ana natural Pueblo of Sandia Tribal Council benefit to silvery minnow. We believe resource program and draft safe harbor concerning the Sandia management that the resolution passed by the Tribal agreement also provide for periodic plan demonstrates that the management Council of the Pueblo of Isleta updates as appropriate. plan will be implemented. The Sandia concerning the final Isleta management (3) Pueblo of Sandia Bosque management plan also will be plan demonstrates that the management Management Plan (Sandia management periodically updated, as appropriate, on plan will be implemented. The Isleta plan): A resolution passed by the Pueblo the basis of results of ongoing Federal management plan specifically provides of Sandia Tribal Council adopts the and State agency programs and studies. periodic updates as appropriate, management plan. The resolution, (4) The Pueblo of Isleta Riverine including updates based upon silvery among other things, identifies that the Management Plan: Rio Grande Silvery minnow population, habitat, and water Sandia management plan formalizes Minnow (Isleta management plan). A quality monitoring and studies. bosque restoration activities, thus resolution passed by the Tribal Council Section 4(b)(2) allows the Service to demonstrating the Pueblo’s commitment of the Pueblo of Isleta adopts the Isleta exclude areas form critical habitat to protect the bosque, including the management plan. The resolution, designation if the benefits of such silvery minnow. The Sandia among other things, demonstrates the exclusion outweigh the benefits of management plan provides a Pueblo’s commitment through the Isleta specifying such areas as critical habitat, conservation benefit to the silvery management plan to protect, conserve, unless exclusion would result in the minnow by enhancing and restoring the and promote the management of the extinction of the species. If excluding an species’ habitat through bosque silvery minnow and its associated area from a critical habitat designation restoration efforts, water quality habitat within the boundaries of Isleta will provide substantial conservation monitoring, fire prevention activities, Pueblo. Management activities covered benefits, and at the same time including wetland enhancements, and natural by the Isleta Management Plan include the area fails to confer a counter- pond restoration. The goals of the silvery minnow population monitoring, balancing positive regulatory or Sandia management plan are to: (1) habitat protection, and habitat educational benefit to the species, then Create and sustain diverse habitats restoration. the benefits of excluding the area from within the bosque; (2) reduce and As an example of current protection, critical habitat outweigh the benefits of eradicate invasive species; (3) plant Isleta Pueblo has surface water quality including it.

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The Service has analyzed the benefits result of the funding or permitting studies (see discussion below). For these of including the Pueblos of Santa processes administered by the Federal reasons, then, we believe that Domingo, Santa Ana, Sandia, and Isleta agency involved. The benefit of critical designation of critical habitat would as part of the critical habitat designation habitat designation would ensure that have few, if any, additional benefits and the benefits of excluding these any actions funded by or permits given beyond those that will result from areas, and determined that the benefits by a Federal agency would not likely continued consultation under the of exclusion outweigh those of destroy or adversely modify any critical jeopardy standard. inclusion. A major factor in the analysis habitat. Without critical habitat, projects (2) Benefits of Exclusion described below is that, even if would still trigger consultation excluded, these river reaches owned requirements under the Act because the The benefits of excluding the Pueblos and managed by the Pueblos will silvery minnow is currently present in of Santa Domingo, Santa Ana, Sandia, nonetheless receive special management the middle Rio Grande. Given that no and Isleta from designated critical and protection through the Pueblos consultations have occurred with the habitat are more significant. The management plans, which were BIA or the Pueblos since the silvery proposed critical habitat designation submitted during the open comment minnow was listed as endangered in included 29.5 mi (47.5 km) of river period for the proposed rule. Under 1994 and the overall low likelihood of through these areas. We believe that not these management plans, the silvery Federal projects being proposed in these designating critical habitat on these minnow will benefit from monitoring, areas, the Service believes there is areas would have substantial benefits restoration, enhancement, and survey almost no regulatory benefit of a critical including: (1) The furtherance of our efforts. The Service has also determined habitat designation in this area. Federal Trust obligations and our that exclusion would not result in the Consequently, the designation of critical deference to the Pueblos of Santa extinction of the species. habitat in these areas would provide Domingo, Santa Ana, Sandia, and Isleta to develop and implement Tribal (1) Benefits of Inclusion minimal, if any, regulatory benefit to the species. conservation and natural resource There are few additional benefits of management plans for their lands and including the Pueblos of Santa Another possible benefit is that the resources within the Rio Grande Domingo, Santa Ana, Sandia, and Isleta designation of critical habitat can serve ecosystem, which includes the silvery in this critical habitat designation to educate the public regarding the minnow and its habitat; (2) the beyond what will be achieved through potential conservation value of an area, establishment and maintenance of the implementation of their and this may focus and contribute to effective working relationships to management plans. The principal conservation efforts by other parties by promote the conservation of the silvery benefit of any designated critical habitat clearly delineating areas of high minnow and its habitat; (3) the is that activities in and affecting such conservation value for certain species. allowance for continued meaningful habitat require consultation under Any information about the silvery collaboration and cooperation in section 7 of the Act. Such consultation minnow and its habitat that reaches a scientific studies to learn more about would ensure that adequate protection wide audience, including other parties the life history and habitat requirements is provided to avoid destruction or engaged in conservation activities, of the species; and (4) providing adverse modification of critical habitat. would be considered valuable. conservation benefits to the Rio Grande If adequate protection can be provided However, the Pueblos are already ecosystem and the silvery minnow and in another manner, the benefits of working with the Service to address the its habitat that might not otherwise including any area in critical habitat are habitat needs of the species. Further, occur. minimal. The economic analysis found these areas were included in the As detailed above, we met with that the Bureau of Indian Affairs (BIA) proposed designation, which itself has Pueblos and Tribes to discuss how each has no consultation history for the reached a wide audience, and has thus might be affected by the designation of silvery minnow (i.e., no consultations provided information to the broader critical habitat. During the open have been conducted since the species public about the conservation value of comment period, we established was listed). However, the economic these areas. Thus, the educational effective working relationships with the analysis found that, consultations may benefits that might follow critical Pueblos of Santa Domingo, Santa Ana, occur in the future for water trades or habitat designation, such as providing Sandia, and Isleta. As part of our voluntary leasing that would benefit the information to the BIA , BOR, or relationship, we provided technical silvery minnow. The economic analysis Pueblos on areas that are important for assistance to each of these four Pueblos estimated 6 informal consultations may the long-term survival and conservation to develop voluntary measures to occur over the next 20 years, resulting of the species, have already been conserve the silvery minnow and its from these beneficial water trades, but provided by proposing these areas as habitat on their lands. These voluntary that no formal consultations were likely. critical habitat. Alternatively, the same measures are contained within special These consultations would occur or greater educational benefits will be management plans that each of these regardless of whether critical habitat is provided to these lands if they are Pueblos submitted during the open designated, because the species excluded from the designation, because comment period (see discussion above). occupies these four areas. Section 7 the management plans provide for These actions were conducted in consultation under the jeopardy conservation benefits above any that accordance with Secretarial Order 3206, standards will still be required for would be provided by designating ‘‘American Indian Tribal Rights, activities affecting the silvery minnow. critical habitat. For example, the Federal-Tribal Trust Responsibilities, Beyond these informal consultations, educational aspects are likely greater for and the Endangered Species Act’’ (June we do not expect any additional these areas if they are not included in 5, 1997); the President’s memorandum consultations. the designation because the Pueblos will of April 29, 1994, ‘‘Government-to- Although we believe the likelihood of continue to work cooperatively toward Government Relations with Native additional consultations is small, the conservation of the silvery minnow, American Tribal Governments’’ (59 FR consultation requirements under section which will include continuing, 22951); Executive Order 13175; and the 7 of the Act would be triggered as a initiating, and completing scientific relevant provision of the Departmental

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Manual of the Department of the Interior Domingo intends to coordinate with us will be used to develop and promote (512 DM 2). We believe that these to survey for silvery minnows or habitat, long-term strategies that will protect and Pueblos should be the governmental to conduct water quality sampling, to conserve the silvery minnow and its entities to manage and promote the develop water quality standards, and to habitat within the Pueblo lands of Santa conservation of the silvery minnow on devise relocation or augmentation Domingo, Santa Ana, Sandia, and Isleta. their lands. During our meetings with protocols. Santa Ana Pueblo will The benefits of excluding these areas each of these Pueblos, we recognized continue to actively coordinate with us from critical habitat will encourage the and endorsed their fundamental right to to implement a variety of voluntary continued cooperation and development provide for resource management conservation programs to augment the of data-sharing protocols and scientific activities, including those relating to the silvery minnow population within its studies as part of implementing the Rio Grande ecosystem. Much of our lands and intends to continue its special management plans. If these areas discussions centered on providing existing natural resource management were designated as critical habitat, we technical assistance to the Pueblos to programs that currently provide special believe it is unlikely that much of this develop, continue, or expand natural management considerations or information would be available to us. resource programs such that the protections for the silvery minnow. In addition to management actions designation of critical habitat for the Sandia Pueblo intends to enhance and described above to address the silvery minnow would likely be restore the species’ habitat through conservation needs of the silvery unnecessary. bosque restoration efforts, water quality minnow, we discussed with each of the We find that other conservation monitoring, fire prevention activities, Pueblos possible future amendments to benefits could be provided to the Rio wetland enhancements, and natural the special management plans to Grande ecosystem and the silvery pond restoration. Finally, Isleta Pueblo include voluntary conservation efforts minnow and its habitat by excluding the intends to protect, conserve, and for other listed species and their habitat Pueblos of Santa Domingo, Santa Ana, promote the management of the silvery (e.g., southwestern willow flycatcher). Sandia, and Isleta from the designation. minnow and its associated habitat All of the Pueblos indicated their For example, as part of maintaining an including population monitoring, willingness to work cooperatively with effective working relationship with each habitat protection, habitat restoration, us to benefit other listed species. Pueblo, conservation benefits, including and continued water quality standards. However, these future voluntarily silvery minnow augmentation, Consequently, we view each of the management actions will likely be population and habitat monitoring, special management plans as a starting contingent upon whether lands on these silvery minnow research, habitat point for cooperative and productive four Pueblos are designated as critical restoration, and the development of relationships that have the potential to habitat for the silvery minnow. Thus, a water leases may be possible. In fact, provide additional substantive benefit of excluding these lands would during our discussions with each of the conservation benefits to the silvery be future voluntary conservation efforts Pueblos, we were informed that critical minnow and its habitat. The additional that would benefit other listed species. In summary, the benefits of including habitat would be viewed as an intrusion benefits would be less likely if critical the Pueblos of Santa Domingo, Santa on their sovereign abilities to manage habitat was designated because the Ana, Sandia, and Isleta in critical natural resources in accordance with Pueblos view critical habitat as an habitat are small, and are limited to their own policies, customs, and laws. intrusion on their ability to manage minor educational benefits. The benefits To this end, we found that each Pueblo their own lands and trust resources. would prefer to work with us on a of excluding these areas from being Government-to-Government basis. For The special management plans and designated as critical habitat for silvery these reasons, we believe that our comments submitted by each of the minnow are more significant, and working relationships with the Pueblos Pueblos documents that meaningful include encouraging the continued of Santa Domingo, Santa Ana, Sandia, collaborative and cooperative scientific development and implementation of the and Isleta would be maintained if they studies will begin or continue within special management measures such as are excluded from the designation of their lands. These commitments monitoring, survey, enhancement, and critical for the silvery minnow. We view demonstrate the willingness of each of restoration activities that are planned this as a substantial benefit. the Pueblos to work cooperatively with for the future or are currently being Proactive voluntary conservation us toward landscape-scale conservation implemented. These programs will efforts are necessary to promote the efforts that will benefit the silvery allow the Pueblos to manage their recovery of the silvery minnow (Service minnow. Each of the Pueblos has natural resources to benefit the Rio 1999). Consideration of this issue is committed to several ongoing or future Grande ecosystem and silvery minnow, especially important in areas where the management, restoration, enhancement, without the perception of Federal status of the species is uncertain or and survey activities that would not Government intrusion. This philosophy unknown. Recovery of the silvery occur as a result of critical habitat is also consistent with our published minnow will require access to all areas designation. The Pueblos of Sandia and policies on Native American natural of the middle Rio Grande and Isleta are currently participating in a resource management. The exclusion of permission for monitoring and other water quality study with us. Santo these areas will likely also provide efforts (e.g., augmentation of the existing Domingo Pueblo indicated that, among additional benefits to the species that population, water leasing, etc). Because other activities, it will attempt to secure would not otherwise be available to we have not had permission from the funding to implement silvery minnow encourage and maintain cooperative Pueblos within the Cochiti reach, and habitat inventories, water quality working relationships. We find that the surveys to determine the status of the sampling, and the development of water benefits of excluding these areas from silvery minnow have not been quality standards. Santa Ana indicated critical habitat designation outweigh the conducted since the mid-1990s (Platania that water quality data, stream benefits of including these areas. 1995; Hoagstrom and Brooks 2000). geomorphology assessments, and As noted above, the Service may Pueblo cooperation is essential to obtain aquatic and vegetation studies will exclude areas from the critical habitat permission for these monitoring continue. Therefore, we believe that the designation only if it is determined, activities. As described above, the Santo results of these or other similar studies ‘‘based on the best scientific and

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commercial data available, that the Section 4(b)(2) of the Act requires that will not control the direction and failure to designate such area as critical we base critical habitat designation on substance of future recovery plans, habitat will result in the extinction of the best scientific and commercial data habitat conservation plans under section the species concerned.’’ Here, we have available, taking into consideration the 10 of the Act, or conservation planning determined that exclusion of the Pueblo economic impact, and any other efforts for other species if new lands of Santo Domingo, Santa Ana, relevant impact, of specifying any information available to these planning Sandia, and Isleta from the critical particular area as critical habitat. We efforts calls for a different outcome. may exclude areas from critical habitat habitat designation will not result in the Methods extinction of the silvery minnow. First, designation if we determine that the activities on these areas that may affect benefits of exclusion outweigh the In determining areas that are essential the silvery minnow will still require benefits of including the areas as critical to conserve the silvery minnow, we consultation under section 7 of the Act. habitat, provided the exclusion will not used the best scientific and commercial Section 7(a)(2) of the Act requires result in the extinction of the species. data available. This included data from Federal agencies to ensure that activities Designation of critical habitat helps research and survey observations they authorize, fund, or carry out are not focus conservation activities by published in peer-reviewed articles, likely to jeopardize the continued identifying areas that are essential to the recovery criteria outlined in the existence of listed species. Therefore, conservation of the species and alerting Recovery Plan (Service 1999), data even without critical habitat designation the public and land management collected from reports submitted by on these lands, activities that occur on agencies to the importance of an area to biologists holding section 10(a)(1)(A) these lands cannot jeopardize the conservation. Within areas currently recovery permits, and comments continued existence of the silvery occupied by the species, critical habitat received on the previous proposed and minnow. Second, each of the Pueblos also identifies areas that may require final rule, draft economic analysis, and have committed to protecting and special management or protection. environmental assessment. We have managing according to their special Critical habitat receives protection from emphasized areas known to be occupied management plans and natural resource destruction or adverse modification by the silvery minnow and described management objectives. In short, the through required consultation under other river reaches that were identified Pueblos have committed to greater section 7 of the Act with regard to in the Recovery Plan which we believe conservation measures on these areas actions carried out, funded, or are important for possible than would be available through the authorized by a Federal agency. Where reintroduction and recovery (Service designation of critical habitat. With no such Federal agency action is 1999). these natural resource measures, we involved, critical habitat designation Primary Constituent Elements has no bearing on private landowners, have concluded that this exclusion from In accordance with section 3(5)(A)(i) critical habitat will not result in the State, or Tribal activities. Aside from the added protection provided under of the Act and regulations at 50 CFR extinction of the silvery minnow. 424.12, in determining which areas to Accordingly, we have determined that section 7, critical habitat does not provide other forms of protection to propose as critical habitat, we are the Pueblo lands of Santa Domingo, required to base critical habitat Santa Ana, Sandia, and Isleta should be designated lands. Designating critical habitat does not, designations on the best scientific and excluded under subsection 4(b)(2) of the in itself, lead to recovery of a listed commercial data available and to Act because the benefits of exclusion species. Designation does not create a consider those physical and biological outweigh the benefits of inclusion and management plan, establish numerical features (primary constituent elements) will not cause the extinction of the population goals, prescribe specific that are essential to the conservation of species. For this reason, we are management actions (inside or outside the species and, within areas currently excluding from this critical habitat of critical habitat), or directly affect occupied by the species, may require designation the Pueblo lands of Santa areas not designated as critical habitat. special management considerations or Domingo, Santa Ana, Sandia, and Isleta. Specific management recommendations protection. Those physical and Critical Habitat for areas designated as critical habitat biological features may include, but are are most appropriately addressed in not limited to, space for individual and Critical habitat is defined in section recovery, conservation, and population growth, and for normal 3(5)(A) of the Act as—(i) the specific management plans, and through section behavior; food, water, or other areas within the geographic area 7 consultations and section 10 permits. nutritional or physiological occupied by a species, at the time it is Critical habitat designations do not requirements; cover or shelter; sites for listed in accordance with the Act, on signal that habitat outside the breeding, reproduction, or rearing of which are found those physical or designation is unimportant or may not offspring; and habitats that are protected biological features (I) essential to the be required for recovery. from disturbance or are representative of conservation of the species and (II) that Areas outside the critical habitat the historic geographical and ecological may require special management designation will continue to be subject distributions of a species. considerations or protection; and (ii) to conservation actions that may be The various life-history stages of the specific areas outside the geographic implemented under section 7(a)(1), the silvery minnow require diverse habitats. area occupied by a species at the time regulatory protections afforded by the The following discussion summarizes it is listed, upon a determination that section 7(a)(2) jeopardy standard, and the biological requirements of the such areas are essential for the the section 9 take prohibition. Federally silvery minnow relevant to identifying conservation of the species. funded or assisted projects affecting the primary constituent elements of its ‘‘Conservation,’’ as defined by the Act, listed species outside their designated critical habitat. means the use of all methods and critical habitat areas may still result in The silvery minnow historically procedures that are necessary to bring jeopardy findings in some cases. inhabited portions of the wide, shallow an endangered or a threatened species to Similarly, critical habitat designations rivers and larger streams of the Rio the point at which listing under the Act made on the basis of the best available Grande basin, predominantly the Rio is no longer necessary. information at the time of designation Grande and the Pecos River (Bestgen

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and Platania 1991). Survey results documented in the Isleta and San the release of floating silvery minnow indicated that adults were common in Acacia reaches on July 24, 25, and 26, eggs may replenish downstream shallow and braided runs over sand 2002, following a high flow event reaches, but the presence of the substrate, and almost never occurred in produced by a thunderstorm (see also diversion dams (Angostura, Isleta, and habitats with bottoms of gravel or Dudley and Platania 2002d). This spawn San Acacia Diversion Dams) prevents cobble, while young-of-year fish (less was smaller than the typical spawning recolonization of upstream habitats than 1 year old) occupied shallow, low- event in May, but a significant number (Platania 1995). As upstream reaches are velocity backwaters with sand-silt of eggs was collected (N = 496) in 2 depleted upstream, and diversion substrates (Dudley and Platania 1997; hours of effort (J. Smith, NMESFO, pers. structures prevent upstream Platania and Dudley 1997; Platania comm. 2002). In 2002, small spawning movements, population decline of the 1991; Remshardt et al. 2001). Young-of- events (a few eggs in each spawn) have species within river reaches may occur year silvery minnows were infrequently been documented in all reaches except through loss of connectivity (i.e., found at the same time in the same the Cochiti Reach as late as August 7 (J. preventing upstream movement of fish). habitat as adults. River reaches Smith, NMESFO, pers. comm. 2002). Silvery minnows, eggs, and larvae are Platania (1995, 2000) found that early dominated by straight, narrow, incised also transported downstream to development and hatching of eggs is (deep) channels with rapid flows are not Elephant Butte Reservoir, where it is typically occupied by the silvery correlated with water temperature. believed that survival of these fish is minnow (Bestgen and Platania 1991). Silvery minnow eggs raised in 30°C The habitats most often occupied by water hatched in about 24 hours, while highly unlikely because of poor habitat, silvery minnow were characterized by eggs reared in 20°C water hatched and, more importantly, because of low (<20 cm) to moderate depths (31 to within 50 hours. Eggs were 1.6 mm predation from reservoir fishes (Service 40 cm), little (<10 cm/s) to moderate (11 (0.06 in) in size upon fertilization, but 2001b). The population center (i.e., the to 30 cm/s) water velocity, and silt and quickly swelled to 3 mm (0.12 in). river reach that contains the majority of sand substrata (Dudley and Platania Recently hatched larval fish are about adult silvery minnows) is believed to 1997; Remshardt et al. 2001). It is 3.7 mm (0.15 in) in standard length and have moved farther downstream over believed that silvery minnow select grow about 0.15 mm (0.005 in) per day the last several years (Dudley and debris piles, pools, and backwaters as during the larval stages. Eggs and larvae Platania 2001; 2002a; 2002b). For habitat, and generally avoid main remain in the drift for 3 to 5 days, and example, in 1997, it was estimated that channel runs (Dudley and Platania may be transported from 134 to 223 mi 70 percent of the silvery minnow 1997). (216 to 359 km) downstream depending population was found in the reach The silvery minnow is believed to be on river flows and habitat conditions below San Acacia Diversion Dam a generalized forager, feeding upon (e.g., debris piles, low velocity (Dudley and Platania 1997). Moreover, items suspended in the water column backwaters) (Platania and Altenbach during surveys in 1999, over 95 percent and items lying on the substrate (e.g., 1998). About 3 days after hatching, the of the silvery minnows captured plankton, algae, diatoms) (Sublette et al. larvae begin moving to low-velocity occurred downstream of San Acacia 1990; Dudley and Platania 1997; Service habitats where food (mainly Diversion Dam (Dudley and Platania 1999). The silvery minnow’s elongated phytoplankton and zooplankton) is 1999a; Smith and Jackson 2000). and coiled gastrointestinal tract suggests abundant and predators are scarce. Probable reasons for this distribution that detritus (partially decomposed Because eggs and larvae can be swept include: (1) The spawning of plant or animal matter), including sand downstream, where recruitment (that semibuoyant eggs during the spring and and silt, is scraped from the river portion of young-of-the-year fish added early summer high flows, resulting in bottom (Sublette et al. 1990). Other to the breeding population) of fish may downstream transport of eggs and larval species of Hybognathus have similar be poor in the current degraded fish; (2) diversion dams that restrict or food habits, consuming rich organic condition of the middle Rio Grande preclude the movement of fish into ooze and detritus found in silt or mud (e.g., channelization, banks upstream reaches; and (3) reduction in substrates (Pflieger 1997). stabilization, levee construction, the amount of available habitat due to The silvery minnow is a pelagic disruption of natural processes the current degraded condition of some spawner, with each female capable of throughout the floodplain, etc.), areas within the middle Rio Grande producing an average of 3,000 adequate stream length appears to be an (e.g., channelization, streambed semibuoyant, non-adhesive eggs during important determinant of reproductive degradation, reduction in off-channel a spawning event (Platania 1995; success. habitat, and the general narrowing and Platania and Altenbach 1998). Platania (1995) indicated that the incising of the stream channel) (Platania Collection of eggs in the middle of May, downstream transport of eggs and larvae 1998; Lagassee 1981; BOR 2001). late May, early June, and late June of the silvery minnow over long suggest a contracted spawning period in distances may have been, historically, Most Great Plains streams are highly response to a spring runoff or spike beneficial to the survival of their variable environments. Fish in these (increase in flow that occurs when populations. This behavior could have systems (e.g., the Rio Grande) are winter snows melt) (Service 1999; BOR promoted recolonization of reaches subjected to extremes in water 2001a). However, the peak of egg impacted during periods of natural temperatures, flow regimes, and overall production appears to occur in mid-May drought (Platania 1995). Alternatively, water quality conditions (especially the (Smith 1998, 1999). If the spring spike in a natural functioning river system concentration of dissolved oxygen). occurs at the wrong time or is reduced, (e.g., a natural, unregulated flow Native fish in these streams often then silvery minnow reproduction regime), a variety of low-velocity refugia exhibit life history strategies and could be impacted. Similar to other (e.g., oxbows, backwaters, etc.) would microhabitat preferences that enable species of Hybognathus in other have been available for silvery minnow, them to cope with these natural drainages (Lehtinen and Layzer 1988; and lengthy downstream drift of eggs conditions. For example, Matthews and Taylor and Miller 1990), the silvery and larvae may not have been common Maness (1979) reported that the minnow appears capable of multiple (J. Brooks, U.S. Fish and Wildlife synergistic (combined) effects of high spawns. For example, a late spawn was Service pers. comm., 2001). Currently, temperature, low oxygen, and other

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stressors probably limit fishes in decreasing dissolved oxygen) and loss of The primary constituent elements streams of the Great Plains. refuge habitat prior to prolonged periods identified below provide a qualitative The silvery minnow evolved in a of low or no flow (J. Brooks, pers. comm description of those physical and highly variable ecosystem, and is likely 2001; Ostrand and Wilde 2001). For biological features necessary to ensure more tolerant of elevated temperatures instance, a reduction of stream flow the conservation of the silvery minnow. and low dissolved oxygen reduces the amount of water available to We acknowledge that if thresholds were concentrations for short periods than protect against temperature oscillations, established as part of a critical habitat other non-native species. Although little and high temperatures from reduced designation, they could be revised if is known about the upper tolerance water flow frequently kill fish before new data became available (50 CFR limits of the silvery minnow, when prolonged periods of no flow occurs 424.12(g)); however, the process of new water quality conditions degrade, stress (Hubbs 1990). rulemaking can take years (see 50 CFR increases, and fish generally die (e.g., It is also possible that fish may 424.17), as opposed to reinitiating and see Matthews and Maness 1979; Ostrand subsequently die from living under completing a formal consultation, which and Wilde 2001). Generally, it is suboptimal conditions or that their takes months (see 50 CFR 402.14). believed that during periods of low flow spawning activities may be significantly Formal consultation provides an up-to- or no flow, Great Plains fishes seek disrupted (Hubbs 1974; Platania 1993b). date biological status of the species or refugia in large isolated pools, Such conditions are in part responsible critical habitat (i.e., environmental backwater areas, or adjoining tributaries for the current precarious status of the baseline) which is used to evaluate a (Deacon and Minckley 1974; Matthews silvery minnow. For example, proposed action during formal and Maness 1979). Fish in these refugia management of water releases from consultations. Consequently, we believe strive to survive until suitable flow reservoirs, evaporation, diversion dams, it is more prudent to pursue the conditions return and these areas and irrigation water deliveries have establishment of specific thresholds reconnect with the main river channel. resulted in dewatered habitat—causing through formal consultation. This pattern of retraction and This final rule does not explicitly direct mortality and isolated pools that recolonization of occupied areas in state what might be included as special cause silvery minnow mortality as a response to flow and other habitat management for a particular river reach result of poor water quality and conditions is typical of fishes that within the middle Rio Grande. We predation from other fish and predators. endure harsh conditions of Great Plains anticipate that special management Despite efforts to manage water rivers and streams (Deacon and actions will likely be developed as part Minckley 1974; Matthews and Maness resources to benefit the silvery minnow, of the section 7 consultation process. 1979). periods of intermittency have and Special management might entail a suite Localized reductions in abundance continue to occur. Portions of the of actions including re-establishment of are not typically a concern where middle Rio Grande were dewatered in hydrologic connectivity within the sufficient numbers of the species the period 1996 through 2001 (Service floodplain, widening the river channel, survive, because river reaches can be 2001b; J. Smith, pers. comm. 2001). In or placement of woody debris or recolonized when conditions improve. 1996, about 34 mi (58 km) out of the 56 boulders within the river channel (J. However, habitat conditions such as mi (90 km) from the San Acacia Smith, pers. comm., 2001). oxbows, backwaters, or other refugia Diversion Dam to Elephant Butte It is important to note that some areas that were historically present on the Rio Reservoir were dewatered. In 1997, within the middle Rio Grande critical Grande and Pecos River and were a water flows ceased at the south habitat have the potential for periods of component of natural population boundary of the Bosque del Apache low or no flow under certain conditions fluctuations (e.g., extirpation and National Wildlife Refuge, resulting in (e.g., see discussion above on middle recolonization) have been dramatically the dewatering of 14 mi (22.5 km) of Rio Grande). We recognize that the altered or lost (Bestgen and Platania silvery minnow habitat. In 1998, the Rio critical habitat designation specifically 1991; Hoagstrom 2000; BOR 2001a, Grande was discontinuous within the includes some areas that have lost flow 2001b). Over the past several decades, Bosque del Apache National Wildlife periodically (MRGCD 1999; Scurlock the extent of areas in the Rio Grande Refuge, dewatering about 20 mi (32 km) and Johnson 2001; Scurlock 1998). It is and Pecos Rivers that have periodically of habitat. In 1999, flows ceased about our belief that the river reach below San lost flow has increased due to human 1 mi upstream of the Bosque del Apache Acacia Diversion Dam on the middle alterations of the watersheds and stream National Wildlife Refuge northern Rio Grande is likely to experience channels and diversion of the boundary, dewatering about 24 mi (39 periods of low or no flow under certain streamflows (Service 1994). km) of habitat. A similar event occurred conditions, and we are not able to Variation in stream flow (i.e., flow in 2000, but not to the extent of the 1999 predict with certainty which areas will regime) strongly affects some stream fish drying. In 2001, approximately 9 experience these conditions. We believe (Schlosser 1985). For example, juvenile combined mi (14 km) of river dried this area is essential to the conservation recruitment of some stream fish is within the Bosque del Apache National of the silvery minnow because it likely highly influenced by stable flow regimes Wildlife Refuge and south of San serves as connecting corridors for fish (Schlosser 1985; Hoagstrom 2000). Marcial (Smith 2001). Drying occurred movements between areas of sufficient When sufficient flows persist and other during the 2002 irrigation season in the flowing water (e.g., see Deacon and habitat needs are met, then recruitment Isleta and San Acacia Reaches. Between Minckley 1974; Eberle et al. 1993). into the population is high. Silvery June and August 2002, approximately Additionally, we believe this area is minnows and other Great Plains or 25 mi of river in the San Acacia Reach essential for the natural channel desert fishes cannot currently survive and 14 mi in the Isleta Reach dried. geomorphology (the topography of the when conditions lead to prolonged Because of prolonged recurring periods river channel) to maintain or re-create recurring periods of low or no flow of of low or no flow through multiple habitat, such as pools, by removing or long stretches of river (Hubbs 1974; years, the status of the silvery minnow redistributing sediment during high Hoagstrom 2000). Fish mortality likely has declined to alarmingly low levels flow events (e.g., see Simpson et al. begins from degraded water quality (e.g., (Dudley and Platania 2001, 2002a, 1982; Middle Rio Grande Biological increasing temperatures, p.H., and 2002b, 2002c, 2002d, 2002e). Interagency Team 1993). Therefore, we

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believe that the inclusion of an area that including, but not limited to the history stages and provides for has the potential for periods of low or following studies: Bestgen and Platania hydrologic connectivity to facilitate fish no flow as critical habitat will ensure 1991; Service 1999; Dudley and Platania movement. The second primary the conservation of the silvery minnow. 1997, 2001, 2002a; Platania and constituent element provides habitat As such, we believe that the primary Altenbach 1998; Platania 1991, 2000; necessary for development and hatching constituent elements as described in Service 2001; Smith 1998, 1999; of eggs and the survival of the silvery this final rule could allow for short Hoagstrom 2000; Remshardt et. al 2001. minnow from larvae to adult. Low- periods of low or no flow. Because of The primary constituent elements are as velocity habitat provides food, shelter, the difficulties in describing the existing follows: and sites for reproduction, which are conditions of this area (see above) and 1. A hydrologic regime that provides essential for the survival and defining the primary constituent sufficient flowing water with low to reproduction of silvery minnow. The elements to reflect such a flow regime, moderate currents capable of forming third primary constituent element we solicited comments in the proposed and maintaining a diversity of aquatic provides appropriate silt and sand critical habitat designation rule for habitats, such as, but not limited to the substrates (Dudley and Platania 1997; information related to the designation of following: Backwaters (a body of water Remshardt et al. 2001), which we and critical habitat in this area that may connected to the main channel, but with other scientists conclude are important experience periods of low or no flow, no appreciable flow), shallow side in creating and maintaining appropriate and, in particular, the primary channels, pools (that portion of the river habitat and life requisites such as food constituent elements and how they that is deep with relatively little and cover. The final primary constituent related to the existing conditions (e.g., velocity compared to the rest of the element provides protection from flow regime). We did not receive any channel), eddies (a pool with water degraded water quality conditions. We additional information or comments on moving opposite to that in the river conclude that when water quality these areas to refine the primary channel), and runs (flowing water in the conditions degrade (e.g., water constituent elements in this final river channel without obstructions) of temperatures are too high, pH levels are designation. varying depth and velocity—all of too low, and dissolved oxygen Federal agencies with discretion over which are necessary for each of the concentrations are too low), silvery water management actions that affect particular silvery minnow life-history minnows will likely be injured or die. critical habitat will be required to stages in appropriate seasons. The consider critical habitat and possibly silvery minnow requires habitat with Criteria for Identifying Critical Habitat enter into consultation under section 7 sufficient flows from early spring The primary objective in designating of the Act. These consultations will (March) to early summer (June) to critical habitat is to identify areas that evaluate whether any Federal trigger spawning, flows in the summer are considered essential for the discretionary actions destroy or (June) and fall (October) that do not conservation of the species, and to adversely modify critical habitat to the increase prolonged periods of low or no highlight specific areas where extent that the action appreciably flow, and a relatively constant winter management considerations should be diminishes the value of the critical flow (November through February); given highest priority. In determining habitat for the survival and recovery of 2. The presence of low-velocity critical habitat for the silvery minnow, the species. The adverse modification habitat (including eddies created by we have reviewed the overall approach analysis will likely evaluate whether the debris piles, pools, or backwaters, or to the conservation of the silvery adverse effect of prolonged recurring other refuge habitat (e.g., connected minnow undertaken by the local, State, periods of low or no flow is of sufficient oxbows or braided channels)) within Tribal, and Federal agencies operating magnitude (e.g., length of river) and unimpounded stretches of flowing water within the species’ historic range since duration that it would appreciably of sufficient length (i.e., river miles) that the species’ listing in 1994, and the diminish the value of critical habitat for provide a variety of habitats with a wide previous proposed (March 1, 1993; 58 the survival and recovery of the silvery range of depth and velocities; FR 11821) and final critical habitat rules minnow. For example, the effect of 3. Substrates of predominantly sand (July 6, 1999; 64 FR 36274). We have prolonged periods of low or no flow on or silt; and also outlined our conservation strategy the habitat quality (e.g., depth of pools, 4. Water of sufficient quality to to recover the species (see ‘‘Exclusions water temperature, pool size) and the maintain natural, daily, and seasonally Under Section 4(b)(2) of the Act’’ extent of fish mortality is related to the variable water temperatures in the section above) and considered the duration of the event (Bestgen and approximate range of greater than 1 °C features and steps necessary for Platania 1991). All of these factors will (35 °F) and less than 30 °C (85 °F) and recovery and habitat requirements be analyzed under section 7 of the Act, reduce degraded water quality described in the Recovery Plan (Service if they are part of an action proposed by conditions (decreased dissolved oxygen, 1999). We considered information a Federal agency. Additionally, any increased pH, etc.). provided by our New Mexico Fishery Federal agency whose actions influence We determined that these primary Resources Office and other biologists, water quantity or quality in a way that constituent elements of critical habitat and also utilized our own expertise. We may affect critical habitat or the silvery provide for the physiological, also reviewed the biological opinion minnow must enter into section 7 behavioral, and ecological requirements issued June 29, 2001, to the BOR and consultation with us. Still, these of the silvery minnow. The first primary the Corps for impacts to the silvery consultations cannot result in biological constituent element provides water of minnow from water operations in the opinions that require actions that are sufficient flows to reduce the formation middle Rio Grande (Service 2001b), and outside an action agency’s legal of isolated pools. We conclude this the biological opinion issued to the BOR authority and jurisdiction (50 CFR element is essential to the conservation for discretionary actions related to water 402.02). of the silvery minnow because the management on the Pecos River in NM We determined the primary species cannot withstand permanent (Service 2001a). We reviewed available constituent elements of critical habitat drying (loss of surface flow) of long information that pertains to the habitat for the silvery minnow based on studies stretches of river. Water is a necessary requirements of this species, including on their habitat and population biology, component for all silvery minnow life- material received during the initial

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public comment period on the proposed minnow in certain river reaches of the river, including changes affecting the listing and designation, the information Rio Grande and Pecos River. The existing fish community, habitat received following the provision of the Recovery Plan also recommended a restoration, and coordinated water draft economic analysis to the public on thorough analysis of the reestablishment management (e.g., Service 1999). April 26, 1996, the comments and potential of specific river reaches within Nevertheless, we conclude that information provided during the 30-day the historic range of the silvery minnow. conservation of the silvery minnow comment period that opened on April 7, We have determined that one of the requires habitat conditions that will 1999, including the public hearing, and most important goals to be achieved facilitate population expansion or the comments and information received toward the conservation of this species reintroduction. As an example, we are during the 60-day comment period is the establishment of secure, self- currently involved in developing several opened on April 5, 2001, for the notice reproducing populations in areas efforts to assist in the recovery of the of intent to prepare an EIS and public outside of the middle Rio Grande, but silvery minnow and other imperiled scoping meetings held on April 17, 23, within the species’ historic range species (e.g., Federal and non-Federal 24, and 27, 2001 (April 7, 1999; 64 FR (Service 1999). Thus, we have outlined efforts to create a middle Rio Grande 16890). We also considered information our conservation strategy for the silvery Endangered Species Act Collaborative and comments received on the recent minnow (see ‘‘Exclusions Under Section Program). Any future habitat restoration proposal to designate critical habitat 4(b)(2) of the Act’’ section above). efforts conducted by us or other Federal (June 6, 2002; 67 FR 39206). Because the species occupies less than agencies within the species’ historic Since the listing of the silvery 5 percent of its historic range and the habitat will be analyzed through NEPA minnow in 1994 (July 20, 1994; 59 FR likelihood of extinction from a and will be conducted in accordance 36988), no progress has been made catastrophic event is greatly increased with the pertinent sections of the Act toward reestablishing this species (Hoagstrom and Brooks 2000; Service and Federal rulemaking procedures. within unoccupied areas (e.g., river 1999), we believe that additional As discussed above in the comments reaches on the middle Pecos, lower Rio populations should be established section, non-native fish species may Grande). Because the silvery minnow within certain unoccupied reaches (i.e., adversely affect the silvery minnow. has been extirpated from these areas, areas outside of the current known However, non-native fish have the Federal agencies have not consulted distribution). Nevertheless, any future potential to be removed or reduced to with us on how their discretionary recovery efforts, including acceptable levels using a variety of actions may affect the silvery minnow. reintroduction of the species to areas of control or management techniques. For We conclude these areas (e.g., river its historic range, must be conducted in example, the New Mexico State Game reaches on the middle Pecos and the accordance with NEPA and the Act. Commission recently passed a lower Rio Grande) are essential to the The recent trend in the status of the regulation limiting the species that can conservation of the minnow, but we silvery minnow has been characterized be used as baitfish in the Pecos River have not designated them as critical by dramatic declines in numbers and (New Mexico Department of Game and habitat (see ‘‘Exclusions Under Section range despite the fact that this species Fish 2000). As part of the Federal 4(b)(2) of the Act’’ section). evolved in rapidly fluctuating, harsh rulemaking process, we sought further This critical habitat designation environments. Moreover, none of the information regarding the role of differs from the final critical habitat threats affecting the silvery minnow has unoccupied river reaches within the designation we made in 1999 (July 6, been eliminated since the fish was listed historic range of the silvery minnow, 1999; 64 FR 36274), which was (July 20, 1994; 59 FR 36988), and its including those reaches with non-native subsequently set aside by court order. status continues to decline (Dudley and fish species (e.g., plains minnow) The differences also reflect the best Platania 2001, 2002b, 2002c, 2002d, present or those reaches that have the scientific and commercial information 2002e). The known silvery minnow potential for low or no flow events. We analyzed in the context of the final population within the middle Rio were particularly interested in Recovery Plan (see ‘‘Recovery Plan’’ Grande has become fragmented and assistance in describing the existing discussion above) and our conservation isolated and is vulnerable to those habitat (e.g., flow) conditions for the strategy for this species. Although we natural or manmade factors that might river reach below San Acacia Diversion could have designated two additional further reduce population size (Dudley Dam on the middle Rio Grande. critical habitat units to respond to the and Platania 2001, 2002a, 2002b). However, we did not receive additional Recovery Plan’s recommendation that Because there have been low spring information on these areas to refine this additional areas are required to achieve peak flows in the Rio Grande in some final designation. recovery (Service 1999) (see ‘‘Recovery recent years (e.g., 2000) and a related It is important to note that the mere Plan’’ discussion above), we believe that decrease in silvery minnow spawning presence of non-native aquatic species inclusion of these areas under a critical success, the population size of silvery does not eliminate an area from being habitat regulation could hinder our minnow continued to decline through considered for designation as critical future conservation strategy (see the winter of 2002 (Dudley and Platania habitat. For example, the relationship ‘‘Exclusions Under Section 4(b)(2) of the 2001, 2002a, 2002b, 2002c, 2002d, between the introduction of the plains Act’’ section above) and actually impede 2002e). We conclude that the species’ minnow and extirpation of the silvery recovery of the silvery minnow. vulnerability to catastrophic events, minnow is unclear (see discussion Recovery requires protection and such as prolonged periods of low or no above). Although the Recovery Plan enhancement of existing populations flow, has increased since the species suggested that the plains minnow would and reestablishment of populations in was listed as endangered in 1994 (July be the primary limiting factor suitable areas of historic range. The 20, 1994; 59 FR 36988). precluding successful reestablishment Recovery Plan identifies ‘‘the necessity It is widely recognized that major of the silvery minnow to the Pecos River of reestablishing silvery minnow in efforts to reintroduce the silvery (Service 1999), we have little data from portions of its historic range outside of minnow to large reaches of its historic which to draw firm conclusions for the the middle Rio Grande in New Mexico.’’ habitat in the Rio Grande and Pecos extirpation of the silvery minnow from The Recovery Plan identified potential River will not likely occur without the Pecos River. We recognize that any areas for reestablishment of silvery either natural or induced changes in the efforts to reestablish the silvery minnow

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to unoccupied river reaches must fully The habitat features used by the Pecos events. Critical habitat includes the area analyze and consider a variety of habitat bluntnose shiner are largely affected by of bankfull width plus 300 ft (91.4 m) management techniques, including the ongoing Sumner Dam operations (e.g., on either side of the banks. The bankfull control or management of non-native block releases). Nevertheless, any flow width is the width of the stream or river fish. Consequently, we invited regime operations in this reach that at bankfull stage (i.e., the flow at which comments or information relating to the benefit the Pecos bluntnose shiner water begins to leave the channel and status of the plains minnow in the Pecos would also benefit the silvery minnow. move into the floodplain (Rosgen River and this area not being proposed We believe they could both occupy the 1996)). Bankfull stage, while a function as critical habitat. We were especially same river reach in the future with little of the size of the stream, is a fairly interested in observations of related to no interspecific competition, in part consistent feature related to the species of Hybognathus and any because these species historically formation, maintenance, and behavioral or reproductive mechanisms coexisted (Bestgen and Platania 1991) dimensions of the stream channel that might provide for ecological and microhabitat partitioning has been (Rosgen 1996). This 300-ft (91.4-m) separation in areas where two or more documented for related species of width defines the lateral extent of those species of Hybognathus co-occur. We southwestern fish (Matthews and Hill areas we believe are essential to the did not receive any additional 1980). Therefore, we believe that the species’ conservation. Although the information concerning this aspect of primary constituent elements for the silvery minnow cannot be found in the designation. Pecos bluntnose shiner critical habitat these areas when they are dry, these Portions of the Pecos River include (e.g., clean permanent water; a main areas likely provided backwater habitat designated critical habitat for the Pecos river channel habitat with sandy and were sometimes flooded in the past bluntnose shiner (52 FR 5295). The substrate; and a low velocity flow (Middle Rio Grande Biological Pecos bluntnose shiner critical habitat (February 20, 1987; 52 FR 5295)) are Interagency Team 1993); therefore, they includes a 64 mi (103 km) reach of the compatible with our conservation may provide habitat during high-water Pecos River extending from a point 10 strategy for repatriating the silvery periods. As discussed in this section, we mi (16 km) south of Fort Sumner, NM, minnow. determined that the areas within the downstream to the De Baca and Chaves Lateral Extent of Critical Habitat 300-ft (91.4-m) lateral width are County line and a 37 mi (60 km) reach essential to the conservation of the from near Hagerman, NM, to near The critical habitat designation silvery minnow. Artesia, NM (52 FR 5295). There are defines the lateral extent as those areas current protections in place for the bounded by existing levees, or in areas We determined the 300-ft (91.4-m) Pecos bluntnose shiner in the river without levees, the lateral extent of lateral extent for several reasons. First, reach from Sumner to Brantley critical habitat is defined as 300 ft (91.4 the implementing regulations of the Act Reservoirs on the Pecos River; m) of riparian zone adjacent to each side require that critical habitat be defined consequently, we believe that the of the middle Rio Grande. Thus, the by reference points and lines as found designation of critical habitat would lateral extent of critical habitat does not on standard topographic maps of the provide little additional benefit for the include areas adjacent to the existing area (50 CFR 424.12). Although we silvery minnow above the current levees but within the 300-ft (91.4-m) considered using the 100-year jeopardy and adverse modifications lateral width outside the existing levees floodplain, as defined by the Federal standards for the Pecos bluntnose shiner (i.e., these areas are not designated as Emergency Management Agency (see ‘‘Exclusions Under Section 4(b)(2) critical habitat, even though they may (FEMA), we found that it was not of the Act’’ section above). be within the 300-ft lateral width). This included on standard topographic maps, The Pecos bluntnose shiner inhabits designation of critical habitat will not and the information was not readily main-channel habitats with sandy remove existing levees. We recognize available from FEMA or from the Corps substrates, low-velocity flows, and that these areas can be important for the for the areas we are designating. We depths from 17 to 41 cm (7 to 16 in) overall health of river ecosystems, but suspect this is related to the remoteness (Hatch et al. 1985). Adult Pecos these areas have almost no potential for of various river reaches. We received bluntnose shiners use main-channel containing the primary constituent comments in relation to other sources of habitats, with larger individuals found elements because they are separated information (e.g., National Wetlands mainly in more rapidly flowing water from the river by the levees and are Inventory maps) to refine the lateral (greater than 40 cm/sec, 1.25 ft/sec), but rarely inundated by water. Therefore, extent of critical habitat (see comments preferences for particular depths were they are not included in the designation section above). After evaluating this not found (Hoagstrom et al. 1995). because we conclude they are not information, we concluded that our Young of the year use the upstream essential to the conservation of the designation accurately delineates the reaches between Sumner and Brantley silvery minnow. Nevertheless, these and boundary of critical habitat. We selected Reservoirs, which provide shallow, low- other areas outside the critical habitat the 300-ft (91.4-m) lateral extent, rather velocity habitat. These reaches also designation will continue to be subject than some other delineation, for three maintain such habitat at high (bankfull) to conservation actions that may be reasons: (1) The biological integrity and discharge, providing refugia from swift, implemented under section7(a)(1) of the natural dynamics of the river system are deep water. Pecos bluntnose shiner and Act, the regulatory protections afforded maintained within this area (i.e., the related mainstream cyprinids (e.g., by the jeopardy standard in section floodplain and its riparian vegetation silvery minnow) are adapted to exploit 7(a)(2) of the Act, and take prohibitions provide space for natural flooding features of Great Plains rivers in section 9 of the Act. patterns and latitude for necessary (Hoagstrom 2000). These fish species For each river reach within the natural channel adjustments to maintain belong to the same guild of broadcast middle Rio Grande, the upstream and appropriate channel morphology and spawners with semibuoyant eggs and downstream boundaries are described geometry, store water for slow release to also spawn during high flow events in below. Critical habitat includes the river maintain base flows, provide protected the Pecos River, with eggs and larvae channels within the identified reaches side channels and other protected areas being distributed downstream to and areas within these reaches for larval and juvenile silvery minnow, colonize new areas (Bestgen et al. 1989). potentially inundated during high-flow allow the river to meander within its

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main channel in response to large flow necessary for long-term conservation of the 300-ft (91.4-m) lateral width is events, and recreate the mosaic of the silvery minnow. essential to the conservation of the habitats necessary for the conservation Human activities that occur outside species. of the silvery minnow); (2) conservation the river channel can have a We did not map critical habitat in of the adjacent riparian zone also helps demonstrable effect on physical and sufficient detail to exclude all provide essential nutrient recharge and biological features of aquatic habitats. developed areas and other lands protection from sediment and However, not all of the activities that unlikely to contain primary constituent pollutants, which contributes to occur within a floodplain will have an elements essential for silvery minnow successful spawning and recruitment of adverse impact on the silvery minnow conservation. Some developed lands silvery minnows; and (3) vegetated or its habitat. Thus, in determining the within the 300-ft (91.4-m) lateral extent lateral zones are widely recognized as lateral extent of critical habitat along are not considered critical habitat providing a variety of aquatic habitat riverine systems, we must consider the because they do not contain the primary functions and values (e.g., aquatic definition of critical habitat under the constituent elements and they are not Act. That is, critical habitat must be essential to the conservation of the habitat for fish and other aquatic determined to be essential to a species’ silvery minnow. Lands located within organisms, moderation of water conservation and, within areas currently the exterior boundaries of the critical temperature changes, and detritus for occupied by the species, must be in habitat designation, but not considered aquatic food webs) and help improve or need of special management critical habitat, include: Developed maintain local water quality (March 9, considerations or protection. flood control facilities; existing paved 2000; 65 FR 12897; Middle Rio Grande We do not believe that the entire roads; bridges; parking lots; dikes; Biological Interagency Team 1993). floodplain is essential to the levees; diversion structures; railroad This critical habitat designation takes conservation of the species, and we are tracks; railroad trestles; water diversion into account the naturally dynamic not proposing to designate the entire and irrigation canals outside of natural nature of riverine systems and floodplain as critical habitat. However, stream channels; the low flow recognizes that floodplains (including the river channel alone is not sufficient conveyance channel; active gravel pits; riparian areas) are an integral part of the to ensure the conservation of the silvery cultivated agricultural land; and stream ecosystem. For example, riparian minnow. For the reasons discussed residential, commercial, and industrial areas are seasonally flooded habitats above, we believe that the riparian zone developments. These developed areas (i.e., wetlands) that are major adjacent to the river channel provides do not contain any of the primary contributors to a variety of vital an important function for the protection constituent elements and do not provide functions within the associated stream and maintenance of the primary habitat or biological features essential to channel (Federal Interagency Stream constituent elements and is essential to the conservation of the silvery minnow. Restoration Working Group 1998, the conservation of the species. However, some activities in these areas, Brinson et al. 1981). They are The lateral extent (width) of riparian like activities in other areas not responsible for energy and nutrient corridors fluctuates considerably on the included within the designation (if cycling, filtering runoff, absorbing and Rio Grande. The appropriate width for Federally funded, authorized, or carried riparian protection has been the subject gradually releasing floodwaters, out), may affect the primary constituent of several studies (Castelle et al. 1994). recharging groundwater, maintaining elements of the critical habitat and, Most Federal and State agencies streamflows, protecting stream banks therefore, may be affected by the critical generally consider a zone 23 to 46 m from erosion, and providing shade and habitat designation, as discussed later in (75.4 to 150.9 ft) wide on each side of this rule. cover for fish and other aquatic species. a stream to be adequate to help improve Healthy riparian areas help ensure water or maintain local water quality (Natural Reach-by-Reach Analysis courses maintain the habitat Resource Conservation Service 1998, We conducted a reach-by-reach components essential to aquatic species 2000; Lynch et al. 1985), although analysis of the entire known historic (e.g., see U.S.D.A. Forest Service 1979; lateral widths as wide as 152 m (500 ft) range of the silvery minnow to evaluate Middle Rio Grande Biological have been recommended for achieving and select river reaches that require Interagency Team 1993; Briggs 1996), flood attenuation benefits (Corps 1999). special management or protection, or including the silvery minnow. Habitat In most instances, however, these are essential to the conservation of the quality within the mainstem river riparian areas are primarily intended to species. As identified in the Recovery channels in the historic range of the reduce detrimental impacts to the Plan (see ‘‘Recovery Plan’’ section silvery minnow is intrinsically related stream (i.e., protect the stream) from above), important factors we considered to the character of the floodplain and sources outside the river channel such in determining whether areas were the associated tributaries, side channels, as agricultural runoff. Generally, we essential to the conservation of the and backwater habitats that contribute believe a lateral distance of 300 ft (91.4 species include presence of other to the key habitat features (e.g., m) on each side of the stream beyond members of the reproductive guild (e.g. substrate, water quality, and water the bankfull stage to be appropriate for pelagic spawners, species with quantity) in the middle Rio Grande the protection of riparian and wetland semibuoyant eggs), habitat suitability (Middle Rio Grande Biological habitat and the natural processes (e.g., appropriate substrate), water Interagency Team 1993). Among other involved in the maintenance and quality, and presence of non-natives things, the floodplain provides space for improvement of water quality (e.g., see (e.g., competitors, predators, other natural flooding patterns and latitude Middle Rio Grande Biological species of Hybognathus). These for necessary natural channel Interagency Team 1993). We believe this important factors were evaluated in adjustments to maintain channel lateral width will help ensure the conjunction with the variable flow morphology and geometry. We believe a protection of one or more primary regime of each reach. Each of the river relatively intact riparian area, along constituent elements (e.g., water quality) reaches, to some extent, has a varying with periodic flooding in a relatively of the critical habitat. Thus, within the flow regime. However, the fact that a natural pattern, is important in area designated as critical habitat in the river reach may at times experience a maintaining the stream conditions middle Rio Grande, we conclude that prolonged period of low or no flow as

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a result of a varying flow regime does 10(j) of the Act, along with the critical is inadequate (e.g., less than 134 to 223 not preclude the area from being habitat in the middle Rio Grande. mi ( 216 to 358.8 km)) to ensure the considered essential to the conservation The historic range of the species in survival of downstream drift of eggs and of the species and, further, from being the Rio Grande is from Espan˜ ola, NM, larvae and recruitment of adults designated as critical habitat. Based on to the Gulf of Mexico, and in the Pecos (Platania and Altenbach 1998). Further our reach-by-reach analysis, we have River (a major tributary of the Rio investigation may be needed in this determined which reaches are essential Grande) from Santa Rosa, NM, reach to evaluate potential future for the conservation of the species. downstream to its confluence with the recovery actions. For these reasons, we We are designating the middle Rio Rio Grande (Pflieger 1980; Bestgen and conclude that habitat for silvery Grande as critical habitat. This area Platania 1991). We separated the minnow within this river reach is contains all of the primary constituent historic range of the silvery minnow generally degraded and unsuitable, and elements during some or all of the year into 12 river reaches: (1) Upstream of is not essential to the conservation of (see the ‘‘Regulation Promulgation’’ Cochiti Reservoir to the confluence of the silvery minnow. Therefore, this river section of this rule for exact the Rio Chama and Rio Grande, NM; (2) reach is not designated as critical descriptions of boundaries of designated middle Rio Grande from Cochiti habitat. critical habitat). We conclude that this Reservoir downstream to the Elephant 2. Middle Rio Grande from Cochiti critical habitat can provide for the Butte Dam, including the Jemez River Reservoir downstream to the Elephant physiological, behavioral, and from the Jemez Canyon Dam to the Butte Dam, including the Jemez River confluence of the Rio Grande; (3) ecological requirements of the silvery from the Jemez Canyon Dam to the downstream of Elephant Butte Dam to minnow. The designated critical habitat confluence of the Rio Grande, Sandoval, the , NM; (4) downstream is within the middle Rio Grande from Bernalillo, Valencia, and Socorro of Caballo Dam, New Mexico, to the immediately downstream of Cochiti Counties, NM. The middle Rio Grande , TX; (5) downstream of Reservoir to the utility line crossing the is currently occupied, and the status of American Reservoir, to the upstream Rio Grande with UTM coordinates of the silvery minnow within this segment boundary of Big Bend National Park, UTM Zone 13: 311474 E, 3719722N, just is unstable (Bestgen and Platania 1991; TX; (6) the upstream boundary of Big east of the Bosque Well demarcated on Dudley and Platania 1999; Platania and Bend National Park to the southern USGS Paraje Well 7.5 minute Dudley 2001; 2002a, 2002b). This area boundary of the wild and scenic river quadrangle (1980), including the currently contains the primary designation at Terrell/Val Verde County constituent elements (described above) tributary Jemez River from Jemez line, TX; (7) the Terrell/Val Verde during all or part of the year and is Canyon Dam to the upstream boundary County line, TX, to the , considered suitable habitat for the of Santa Ana Pueblo, which is not TX; (8) downstream of Amistad Dam to silvery minnow, as shown by the included. The designation also defines the , TX; (9) downstream of presence of the silvery minnow within the lateral extent (width) as those areas the Falcon Dam to the Gulf of Mexico, this reach. The river reaches that are bounded by existing levees or, in areas TX; (10) Pecos River from Santa Rosa designated as critical habitat are without levees, 300 ft (91.4 m) of Reservoir to Sumner Dam, Guadalupe degraded from lack of floodplain riparian zone adjacent to each side of County, NM; (11) Sumner Dam to the connectivity, non-native vegetation, the bankfull stage of the middle Rio Brantley Dam, NM; (12) Brantley Dam, stabilized banks (e.g., jetty jacks), Grande. We did not include the Pueblo NM, to the , TX; and (13) lands of Santo Domingo, Santa Ana, Red Bluff Dam to the confluence of the streambed aggradation, and decreasing Sandia, and Isleta within the middle Rio Rio Grande, TX. Each of these reaches channel width, increasing depths, and Grande. The downstream boundary of is analyzed below. increasing velocities (BOR 2001a; the designated critical habitat is 1. Upstream of Cochiti Reservoir to Service 2001b). Thus, conservation of determined to be the utility line the confluence of the Rio Chama and the silvery minnow requires stabilizing crossing (see the ‘‘Regulation Rio Grande, Rio Arriba, Sante Fe, and populations within the middle Rio Promulgation’’ section of this rule for Sandoval Counties, NM. Currently, this Grande, including special management exact descriptions of boundaries of reach is dominated by cool water, which considerations or protections (e.g., designated critical habitat). Although is not considered suitable for the silvery habitat management and/or restoration). we determined that other areas are minnow (Platania and Altenbach 1998). The middle Rio Grande is essential to essential to the conservation of the The majority of this reach is bounded by the conservation of the silvery minnow silvery minnow (i.e., the middle Pecos canyons, with substrate dominated by (see discussion below), and therefore, River from immediately downstream of gravel, cobble, and boulder (Service except for the land of Santo Domingo, Sumner Dam to Brantley Dam, NM, and 1999). The flow regime is also highly Santa Ana, Sandia, and Iselta Pueblos, the lower Rio Grande from the upstream variable seasonally because of irrigation we designate the following reaches as a boundary of Big Bend National Park to and other agricultural needs, as well as critical habitat. This designated critical Terrell/Val Verde County line, TX), recreational and municipal uses. This habitat does not include the ephemeral these areas are not designated as critical river reach is highly manipulated by or perennial irrigation canals and habitat. A description of each river releases from El Vado and Abiquiu ditches, including the LFCC (i.e., reach within the silvery minnow’s Reservoirs (J. Smith, pers. comm. 2001). downstream of the southern boundary historic range is provided below. We Furthermore, silvery minnow of Bosque del Apache National Wildlife also provide our reasons for determining populations may have been historically Refuge to the headwaters of Elephant whether each reach is essential to the low for some areas of this reach, Butte Reservoir) that are adjacent to a conservation of the species and whether supporting only small outlier portion of the river reach within the we are designating critical habitat for populations (Bestgen and Platania middle Rio Grande because these areas each of the identified reaches. We 1991). Currently, this reach is do not offer suitable refugia for the conclude that we can secure the long- dominated by cool or cold water silvery minnow. The river reaches in the term survival and recovery of this species, which have almost completely middle Rio Grande critical habitat species with the establishment of future replaced the native fish species (Service include (see ‘‘Regulation Promulgation’’ experimental populations under section 1999). The stream length in this reach section of this rule for exact

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descriptions of boundaries of designated Dudley 2001, 2002a; Service 2001c). In (e.g., jetty jacks), which has led to the critical habitat): this reach, water releases from Cochiti floodplain being predominantly a. Jemez Canyon Reach—5 mi (8 km) Reservoir have scoured sand from the disconnected from the river. Bank of the Jemez River from the Jemez stream channel and reduced the stabilization devices and other flood Canyon Dam to the upstream boundary downstream temperatures (Bestgen and control operations (e.g., channelization) of Santa Ana Pueblo, which is not Platania 1991; Platania 1991; (July 20, have led to flows that seldom exceed included. This reach of river is 1994) 59 FR 36988; Service 1999; channel capacity, such that the river manipulated by releases from Jemez Hoagstrom 2000). These effects (e.g., dynamics that likely provided Canyon Dam. Releases from this low water temperatures) may inhibit or backwater habitat for the silvery reservoir are determined by downstream prevent reproduction among Rio Grande minnow no longer function naturally. needs and flood events occurring in the Basin cyprinids (minnows) (Platania These river processes historically Jemez River. Silvery minnows and Altenbach 1998), but it is unknown shaped and reshaped the river, historically occupied this reach of the if water temperatures have affected constantly redefining the physical Jemez River and have recently been silvery minnow reproduction within habitat and complexity of the river. collected there (Sublette et al. 1990; this reach. Although reservoirs can Historical large flow events allowed the Corps 2001). The water within this modify river flows and habitat (e.g., the river to meander, thereby creating and reach is continuous to the confluence downstream river reaches have maintaining the mosaic of habitats with the Rio Grande and currently increased in depth and water velocity) necessary for the survival of the silvery contains the primary constituent (Hoagstrom 2000), we believe this river minnow and other native fish (Middle elements (described above) during all or reach is essential to the conservation of Rio Grande Biological Interagency Team a part of the year. Although this reach the silvery minnow because we believe 1993). We conclude that the creation currently provides suitable habitat for it is still occupied by the species and and maintenance of these habitats is the silvery minnow, we believe that it contributes to its survival in essential to the conservation of the is important to ensure that special downstream reaches (because the eggs silvery minnow. We believe that special management actions are implemented and larvae of the silvery minnow drift management is necessary in this and within this river reach. We also in the water column and may be other downstream reaches within the conclude that this area is essential to the transported downstream depending on middle Rio Grande to create and conservation of the silvery minnow, river flows and habitat conditions). We maintain the habitat complexity (e.g., because the additional loss of any reviewed aerial photographs from 1997 backwater areas, braided channels) that habitat that is currently occupied could and other information, and have was historically present but may not be increase the likelihood of extinction determined that the river through this currently present in these river reaches. (Hoagstrom and Brooks 2000, Service reach is braided in areas and contains This reach currently contains the 1999). Moreover, if the species or many side channels (e.g., Richard 2001). primary constituent elements (described habitat were severely impacted within We also spoke with the Corps and have above) during all or a part of the year. this reach, the continued existence of concluded that there is a high potential Thus, we designate this reach as critical silvery minnows in downstream reaches to increase the amount of suitable habitat. would be affected (i.e., the extirpation of habitat (e.g., debris piles, low velocity fish within this reach would create a d. Isleta Diversion Dam to San Acacia backwaters, side channels) within the Diversion Dam (Isleta Reach)—56 mi (90 very unstable population within the entire reach, but particularly in the downstream reaches). Thus, we km) of river downstream of the Isleta proximity of the confluences of Galisteo designate the upstream section of the Diversion Dam to the San Acacia Creek and the Rio Grande and the Sante Jemez River as critical habitat for the Diversion Dam, not including the lands Fe River and the Rio Grande (D. Kreiner, silvery minnow. of Isleta Pueblo. The river bank within b. Cochiti Reservoir Dam to Angostura U.S. Army Corps of Engineers, pers. this reach is also dominated by bank Diversion Dam (Cochiti Reach)—21 mi comm. 2001). Thus, we conclude stabilization (e.g., jetty jacks), and the (34 km) of river immediately special management is needed in this floodplain is predominantly downstream of Cochiti Reservoir to the reach. We conclude that this area disconnected from the river. The Angostura Diversion Dam, not including contains suitable habitat for the silvery substrate is mostly sand and silt and the lands of Santo Domingo Pueblo. minnow and contains the primary there are many permanent islands This reach is somewhat braided and is constituent elements (described above) within the river channel (J. Smith, pers. dominated by clear water releases from during all or part of the year. Therefore, comm. 2001). This reach provides Cochiti Reservoir (Richard 2001). Since this reach is designated as critical continuous water flow in most years Cochiti Reservoir was filled, the habitat. with infrequent periods of low or no downstream substrate has changed from c. Angostura Diversion Dam to Isleta flow (Service 2001b). Nevertheless, a coarse sand to a gravel/cobble/sand Diversion Dam (Angostura Reach)—38 flows vary markedly in magnitude, from substrate (Hoagstrom and Brooks 2000; mi (61 km) (of river immediately high spring to low summer flows. The Baird 2001; Richard 2001). Silvery downstream of the Angostura Diversion variable flow regime is a result of minnows were collected immediately Dam to the Isleta Diversion Dam, not irrigation demand, irrigation returns downstream of Cochiti Dam in 1988 including the lands of Santa Ana and (e.g., augmented flow), precipitation, (Platania 1993). Although the Cochiti Sandia Pueblos. Silvery minnows and temperature, and sediment transport. reach has not been monitored since the suitable habitat are still present This reach also contains numerous mid-1990s (Platania 1995; Hoagstrom throughout this reach of the river, arroyos and small tributaries that and Brooks 2000), it is believed that although their abundance appears to be provide water and sediment during silvery minnow may still be present low (Dudley and Platania 2001, 2002a, rainstorm events, which may within this reach, but reduced in 2002b; Service 2002). This reach is periodically augment river flows abundance (e.g., Dudley and Platania relatively wide at 183 m (600 ft) and the (Service 2001b; J. Smith, pers. comm. 2002a). For example, silvery minnows substrate is mostly coarse sand to gravel 2001). Silvery minnows and suitable were documented near the Angostura (Baird 2001). The river bank within this habitat are still present throughout this Diversion Dam in 2001 (Platania and reach is dominated by bank stabilization reach of the river; however, abundance

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appears to be low (Dudley and Platania reaches (Dudley and Platania 2001, 5. Downstream of American Reservoir 2001, 2002a, 2002b; Service 2002). 2002a, 2002b), the variable flow regime to the upstream boundary of Big Bend Nevertheless, we conclude that this area and modifications to the river have National Park, El Paso, Hudspeth, and is essential to the conservation of the increased the potential for short- and Presidio, Counties, TX. Portions of this silvery minnow because the additional long-term impacts not only to the reach, primarily upstream of Presido, loss of any habitat that is currently silvery minnow, but also to its habitat. TX, are continually dewatered, occupied could increase the likelihood Thus, we determine that this area is especially between Fort Quitman and of extinction (Hoagstrom and Brooks essential to the conservation of the Presidio (Hubbs et al. 1977; Department 2000, Service 1999). Similarly, if the species and in need of special of Interior 1998). River flow is species or habitat were severely management considerations or augmented downstream of Presido by impacted within this reach, the protections; we designate this reach as waters flowing from the Rio Conchos. continued existence of silvery minnows critical habitat. The near-continuous input of municipal in downstream reaches would be 3. Downstream of Elephant Butte waste has led to a deterioration of water affected (i.e., the extirpation of fish Reservoir to the Caballo Dam, Sierra quality, with corresponding changes to within this reach would create a very County, NM. This short 16-mi (26-km) the ichthyofauna (fish species unstable population within the reach is highly channelized with widely assemblage within a region) (Hubbs et downstream reaches). This reach variable flow regimes. Construction of al. 1977; Bestgen and Platania 1988; currently contains the primary Elephant Butte and Caballo Reservoirs IBWC 1994; El-Hage and Moulton constituent elements (described above) in 1916 and 1938, respectively, severely 1998a). Flows in this reach consist of a during all or part of the year. We believe altered the flows and habitat within this blend of raw river water, treated that special management is necessary reach (Bestgen and Platania 1991). The municipal waste from El Paso, TX, within this reach to create and maintain silvery minnow has not been untreated municipal water from Juarez, the habitat complexity (e.g., backwater documented within this reach since Mexico, irrigation return flow, and the areas, debris piles, meandering river) 1944 (Service 1999). This river reach is occasional floodwater (Texas Water that was historically but may not be currently highly channelized to Development Board 2001). Water currently be present within this reach. expedite water deliveries and very few temperature patterns can be elevated Thus, we designate this reach as critical native fish remain (Propst et al. 1987; and oxygen levels decreased by the habitat. International Boundary and Water input of various pollutants (e.g., e. San Acacia Diversion Dam to the Commission 2001). This reach is subject nitrogen, phosphorus) (Texas Water utility line crossing the Rio Grande with to prolonged periods of low or no flow Development Board 2001; IBWC 2001b). UTM coordinates of UTM Zone 13: and there is no spring runoff spike Water quality is believed to improve 311474 E, 3719722 N, near Elephant (Service 1999). Altered flow regimes farther downstream of the confluence of Butte Reservoir (San Acacia Reach)—9 will continue to affect habitat quality in the Rio Conchos and Rio Grande. The mi (14.5 km) of river immediately this reach, which does not contain development of agriculture and downstream of the San Acacia Diversion suitable habitat for the silvery minnow. population growth in this area has Dam to the utility line crossing the Rio The stream length in this reach is resulted in a decrease of water quantity Grande with UTM coordinates of UTM inadequate (e.g., less than 134 to 223 mi and quality, which has had a significant Zone 13: 311474 E, 3719722N. The (216 to 358.8 km )) to ensure the impact on the range and distribution of channel width within this reach varies survival of downstream drift of eggs and many fish species within this reach from approximately 15 m (50 ft) to larvae and recruitment of adults (IBWC 1994; El-Hage and Moulton approximately 198 m (650 ft). The (Platania and Altenbach 1998). We 1998a). There are no current or museum substrate is mostly sand and silt. The conclude this area is not essential to the records of silvery minnow from this flow regime within this reach was conservation of the species. Therefore, reach (Service 1999). Because of historically, and is currently highly this river reach is not designated as upstream dewatering and the degraded variable. In fact, this stretch may not critical habitat. water quality, we believe this reach of have provided continuous flow in some 4. Downstream of Caballo Dam to river would never provide suitable years prior to the 1900s (MRGCD 1999; American Reservoir Dam, Sierra and habitat for the silvery minnow. Thus, Scurlock and Johnson 2001). Dona Ana Counties, NM, and El Paso, Currently, the river channel has been County, TX. This approximately 110-mi this river reach is not essential to the highly modified by water depletions (176-km) reach has a highly regulated conservation of the silvery minnow and from agricultural and municipal use, flow regime from releases of water is not designated as critical habitat. dams and water diversion structures, stored in Caballo Reservoir. This reach 6. The upstream boundary of Big bank stabilization, and the is also highly channelized with winter Bend National Park 2 mi (3.2 km) infrastructure for water delivery (e.g., flows near zero in the upper portions, downstream of Lajitas), Brewster irrigation ditches). These modifications and does not contain suitable habitat for County, to the southern boundary of the have led to the loss of sediment, the silvery minnow (Service 1999; IBWC wild and scenic river designation at channel drying, separation of the river 2001a). Silvery minnows have not been Terrell/Val Verde County line, TX. This from the floodplain, and changes in reported from this reach since 1944 approximately 230–mi (368–km) reach river dynamics and resulting channel (Bestgen and Platania 1991, Service of the lower Rio Grande was historically morphology. Consequently, this reach 1999). The reach is currently inhabited occupied but is currently unoccupied by requires special management by many non-native fish species (IBWC the silvery minnow (Hubbs 1940; considerations similar to those 2001a). Due to lack of suitable habitat, Trevino-Robinson 1959; Hubbs et al. discussed above. This reach currently and diminished and highly regulated 1977; Bestgen and Platania 1991). The contains the primary constituent flow (IBWC 2001a), this reach of river continuing presence of members of the elements (described above) during all or no longer contains suitable habitat for pelagic spawning guild (e.g., speckled a part of the year. Although the silvery the silvery minnow and is not essential chub and Rio Grande shiner) are minnow continues to be widespread to the conservation of the species. Thus, evidence that the lower Rio Grande within this reach with higher this reach is not designated as critical through Big Bend National Park area abundance than the Angostura or Isleta habitat. may support reestablishment of the

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silvery minnow (Platania 1990; IBWC Amistad Dam at its terminus. It is also (IBWC 2001b). The fish community in 1994). Moreover, water quality, believed that introduced fish played a this reach of the Rio Grande has shifted compared to the reach upstream of the role in the extirpation of silvery significantly toward estuarine (a Park, is greatly improved in this reach minnow in this reach (Bestgen and mixture of fresh and salt water) type by the many freshwater springs within Platania 1991). Water quality conditions species (IBWC 1994; Contreras-B. and Big Bend National Park (MacKay 1993; within this reach are generally Lozano-V.1994). There has also been a R. Skiles, pers. comm. 2001; IBWC degraded, and are also a concern for this significant loss of the native fish fauna 1994). This area is protected and reach, particularly during low-flow in the Mexican tributaries in the last managed by the National Park Service, conditions (Texas Water Development several decades (Hubbs et al. 1977; and the river currently supports a Board 2001; Texas Natural Resource Almada-Villela 1990; Platania 1990), relatively stable hydrologic regime (R. Conservation Commission 1996). For apparently from poor water quality (e.g., Skiles, pers. comm. 2001). The National these reasons, we do not believe that Texas Water Development Board 2001; Park Service’s management authority this river reach is essential to the Texas Natural Resource Conservation over the wild and scenic river conservation of the silvery minnow; Commission 1996). Finally, invasive designation currently extends 0.25 mi therefore, it is not designated as critical weeds (e.g., hydrilla and hyacinth) have (0.4 km) from the ordinary high water habitat. clogged many areas of this reach and mark. Thus, the area designated as a 8. Downstream of the Amistad Dam to have reduced the amount of dissolved wild and scenic river outside of Big the Falcon Dam, Val Verde, Kinney, oxygen in the water (IBWC 2001b). Bend National Park is currently Maverick, Web, Zapata, and Starr Because this reach does not have managed by the National Park Service Counties, TX. This reach provides suitable habitat, there appears to be under its authorities and is considered continuous base flows ranging between little benefit in trying to intensively part of the National Park System. 500 and 3000 cfs (Service 1999), but the manage the flow regime in this reach of As discussed above, we have reach is highly urbanized and has many river. For these reasons, this reach is not determined that recovery of the silvery instream barriers (e.g., earthen dams) at considered essential to the conservation minnow requires reestablishing Maverick, Eagle Pass, and Indio that of the silvery minnow and is not populations outside of the middle Rio would prevent movements of silvery designated as critical habitat. Grande (see ‘‘Recovery Plan’’ section minnow. Water quality is also a 10. Pecos River from Santa Rosa above) and should include areas within potential concern for this reach, Reservoir to Sumner Dam, Guadalupe the lower Rio Grande. Because the particularly during low-flow conditions County, NM. This reach is silvery minnow has been extirpated (Texas Water Development Board 2001; approximately 55 mi (89 km) and is from this reach, Federal agencies have Texas Natural Resource Conservation typified by wide fluctuations in flow determined that their actions will not Commission 1996). This reach is heavily regimes from upstream releases from adversely affect the silvery minnow and channelized with little to no stream Santa Rosa Reservoir (Hoagstrom 2000). therefore have not consulted with us braiding and inappropriate substrate Within this reach there is one diversion under section 7(a)(2) about their actions (e.g., cobble) in areas. There is no at Puerto del Luna, NM. The silvery related to this reach. We believe it is suitable habitat for the silvery minnow minnow has not been collected within important to ensure that the assistance within this reach, and the species was this reach since 1939 (Bestgen and of Federal agencies, the State of Texas last recorded here in the 1950s (Service Platania 1991; Service 1999). The resource agencies, and non-Federal 1999). The fish community within this habitat in this reach is not suitable for entities in future recovery actions, such reach is dominated by warm water non- the silvery minnow because much of the as the establishment of an experimental native predators (Platania 1990; Service surrounding topography is composed of population, is not compromised. 1999). Because this reach does not have steep cliffs and canyons (Hoagstrom Although Big Bend National Park suitable habitat for the silvery minnow 2000). Canyon habitat does not provide expressed support for a critical habitat and water quality during variable flow suitable habitat (e.g., shallow, braided, designation for the silvery minnow conditions is a concern, this reach of streams with sandy substrates) for the within the National Park, it also river is not essential to the conservation silvery minnow (Bestgen and Platania indicated that if areas outside the of the silvery minnow and is not 1991; Dudley and Platania 1997; National Park but within the wild and designated as critical habitat. Remshardt et al. 2001). Because of the scenic river were included, their 9. Downstream of Falcon Reservoir to short length of this reach, fluctuations attempts at developing a river the Gulf of Mexico, Starr, Hildago, and in the flow regime, and the absence of management plan could be Cameron, Counties, TX. The silvery suitable habitat for the silvery minnow, compromised (F. Deckert, Big Bend minnow historically occupied this reach this reach of river is not essential to the National Park, pers. comm.). of river (Service 1999). In fact, the type conservation of the silvery minnow and We have determined that this reach is locality (the location from which the is not designated as critical habitat. essential to the conservation of the species was originally described) for the 11. Middle Pecos Reach— silvery minnow. However, our species is Brownsville, TX (Hubbs and approximately 214 mi (345 km) of river conservation strategy for the silvery Ortenburger 1929). However, the last immediately downstream of Sumner minnow is to establish populations collection of the silvery minnow Reservoir to the Brantley Reservoir Dam within its historic range under section occurred in 1961 just downstream of in De Baca, Chaves, and Eddy Counties, 10(j) of the Act, and all or portions of Falcon Reservoir (Bestgen and Platania NM. The Pecos River was historically this river reach could be included in 1991). The flow regime of this reach of occupied but is currently unoccupied by such an effort. We believe that this area the Rio Grande is highly influenced by the silvery minnow (Bestgen and will contribute to the recovery of the releases from Falcon Reservoir. Most of Platania 1991). In fact, the silvery silvery minnow, but have not the tributary inflow is controlled or minnow was once one of the most designated this river reach as critical influenced by small impoundments off common fish species present between habitat. the main river channel. The lower Sumner and Avalon Reservoir (the area 7. The Terrell/Val Verde County line, portion of this reach is often dewatered, currently inundated by Brantley TX to the Amistad Dam, TX. This short with the river flow stopping before the Reservoir) (Bestgen and Platania 1991). reach is highly influenced by the confluence with the Gulf of Mexico The Pecos River can support a relatively

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stable hydrologic regime between habitat suitable for the silvery minnow Garrett 1997; Service 1999). Bestgen and Sumner and Brantley Reservoirs, and, and may support reestablishment of the Platania (1991) suggest that silvery until summer 2001, this stretch had species (Hoagstrom 2000). minnows may have been uncommon maintained continuous flow for about Federal agencies have not consulted within this reach because of pond the last 10 years (D. Coleman, pers. with us on how their actions will affect habitat and high water salinity. comm. 2001). Groundwater seepage the silvery minnow, because the species However, this area may not have been areas and base flow supplementation no longer occurs within the Pecos River well surveyed when the silvery minnow from Sumner Dam bypasses can offer a (D. Coleman, pers. comm. 2001). was still extant in the Pecos River (D. degree of stability for the river flow, Because habitat suitable for the silvery Propst, New Mexico Game and Fish, especially during low flow periods minnow is still present within this river pers. comm. 2001). Sampling the middle (Hatch et al. 1985; Service 2001). Still, reach, we find that this river reach is and lower parts of this river reach has segments of this river reach were essential to the conservation of the been historically difficult because of dewatered for at least 5 days during species. Although we have determined dense vegetation, steep canyon banks, summer 2001 (D. Coleman, pers. comm that this reach is essential to the and lack of public access (Campbell 2001). Although springs and irrigation conservation of the silvery minnow, we 1959). The upper segment of this reach return flows maintain water flow in the have not designated this area as critical can be characterized as devoid of lower portions of this river reach during habitat (see ‘‘Exclusions Under Section suitable habitat, and has a highly times when no water is being released 4(b)(2) of the Act’’ section above). Our variable flow regime from release of from Sumner Dam, periods of low conservation strategy is to develop, water from for discharge or intermittency have the through Federal rulemaking procedures, agricultural use. Indeed, many potential to impact much of the suitable one or more experimental populations freshwater springs that historically habitat within portions of this reach within the historic range of the silvery augmented the Pecos River throughout (Service 2001). minnow. We believe this river reach this reach have recently diminished or After the construction of Sumner may provide a suitable area for an gone dry (Campbell 1959; Brune 1981 Dam, major channel incision experimental population. cited in Hoagstrom 2000; Barker et al. (deepening) occurred during the 1949 to 12. Downstream of Brantley Reservoir, 1994; El-Hage and Moulton 1998b). The 1980 period, accompanied by salt cedar Eddy County, NM to Red Bluff water quality in this upper portion is (Tamarix ramosissima) proliferation Reservoir, Loving and Reeves Counties, also poor and dominated by high along the river banks (Hoagstrom 2000). TX. This reach is short, with a highly salinity (generally exceeding 5 parts per High-velocity flows within the incised variable flow regime that is dependent thousand) (Hiss 1970; Hubbs 1990; river channel can displace eggs from on agricultural demand. This reach is Linam and Kleinsasser 1996; Miyamoto pelagic spawners such as the silvery also highly segmented, with small et al. 1995; El-Hage and Moulton closely placed impoundments (e.g., minnow. This channel incision also 1998b). Additionally, algal blooms permanent and temporary diversion reduced the areas of low-velocity habitat (Prymnesium parvum) have essentially dams) that pond water, impede fish within this river reach (Hoagstrom eliminated all the fishes throughout movements, and would not allow for 2000). Recently, lengthy reservoir from Malaga, NM, to Amistad Dam, TX adequate stream length (e.g., 134 to 223 releases such as those that occurred in (James and De la Cruz 1989; Hubbs mi (216 to 358.8 km)) to ensure the 1988 (36 days) and in 1989 (56 days) 1990; Rhodes and Hubbs 1992). The survival of downstream drift of eggs and have been shortened to about 10 days, river channel is also somewhat incised which has benefitted species such as the larvae and recruitment of adults and dominated by non-native vegetation Pecos bluntnose shiner (Service 2001). (Platania and Altenbach 1998). in parts (Koidin 2000; Harman 1999; Nevertheless, historic block releases of Additionally, agricultural and oil field IBWC 2001b). Agricultural needs water from Sumner Reservoir have pollution and Permian salts (i.e., brine) diminish south of Girvin, TX, and water modified river flows and habitat (e.g., are added to the river in this reach, quality conditions (e.g., salinity) the downstream river reaches have decreasing the water quality to levels generally begin to improve downstream increased in depth and water velocity) that likely would not support the silvery from the confluence of Independence (Hoagstrom 2000). minnow (Campbell 1959; Larson 1994). The recovery of the silvery minnow The silvery minnow was historically Creek to Amistad Dam (Hubbs 1990; requires reestablishing populations uncommon within this reach; only14 Linam and Kleinsasser 1996). This outside of the middle Rio Grande specimens from two collections are improvement could result from the (Service 1999). We believe that known (Bestgen and Platania 1991). Due freshwater springs within the lower 100 reintroduction is required outside of the to the short length of this reach, mi (160 km) stretch of this reach. area presently occupied by the species fluctuations in the flow regime, Nevertheless, gaging records from the (i.e., the middle Rio Grande) to ensure degraded water quality, and the absence lower segment indicate that there is the recovery of the silvery minnow (50 of suitable habitat for the silvery virtually no flow during drought CFR 424.12(e)) (see ‘‘Recovery Plan’’ minnow, this reach is not considered conditions (Texas Water Development section above). We recognize that essential to the conservation of the Board 2001); further, water quality (e.g., habitat within this river reach is silvery minnow and is not designated as total dissolved solids) at Shumla Bend, degraded, but believe this reach within critical habitat. just upstream of Amistad Reservoir, the middle Pecos River may provide one 13. Downstream of Red Bluff would be expected to have a deleterious of the most promising areas for Reservoir to the confluence with the Rio effect on aquatic life (IBWC 1994). conducting recovery efforts because we Grande, Loving, Reeves, Pecos, Ward, We did not include this reach because believe it still contains habitat suitable Crane, Crockett, and Terrell Counties, the current or potential suitability for for the silvery minnow (Hoagstrom TX. Historically silvery minnows the silvery minnow is unknown; 2000). The continuing presence of occurred in this reach, though their detailed habitat studies have not been members of the pelagic spawning guild exact distribution and abundance is conducted in this reach. Moreover, it is (e.g., speckled chub, Rio Grande shiner, unclear (Campbell 1958; Trevino- believed that this area contains a Pecos bluntnose shiner) is evidence that Robinson 1959; James and De La Cruz network of steep canyons, with rock and this reach of the Pecos River contains 1989; Linam and Kleinsasser 1996; coarse gravel substrate (Campbell 1959;

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Texas Parks and Wildlife 1999). Canyon include: the Pueblos of Cochiti, Santo designated. We may adopt the formal habitat reduces river channel width, Domingo, San Felipe, Santa Ana, conference report as a biological which decreases sinuosity and Sandia, and Isleta; the BOR; the Service; opinion if the critical habitat is meandering, and creates deep channels the U.S. Bureau of Land Management designated and if no significant new that do not provide suitable habitat (e.g., (BLM); New Mexico State Parks information or changes in the action shallow, braided streams with sandy Division; New Mexico Department of alter the content of the opinion (see 50 substrates) (Bestgen and Platania 1991; Game and Fish; New Mexico State CFR 402.10(d)). Dudley and Platania 1997; Remshardt Lands Department; and the Corps. The Regulations at 50 CFR 402.16 also et. al 2001). Additionally, the presence Pueblo lands of Santo Domingo, Santa require Federal agencies to reinitiate of algal blooms will continue to affect Ana, Sandia, and Isleta include 29.5 consultation in instances where we have water quality in this reach. For these river mi (47.5 km), and are not included already reviewed an action for its effects reasons, we do not believe that this in the final designation. on a listed species if critical habitat is reach is essential to the conservation of subsequently designated. Consequently, the silvery minnow. It is unknown Effect of Critical Habitat Designation some Federal agencies may request whether this reach contains or has the Section 7 Consultation reinitiation of consultation or potential to develop the primary conferencing with us on actions for Section 7(a)(2) of the Act requires constituent elements. Although portions which formal consultation has been Federal agencies, including ourselves, to of this river reach may contain fresh completed, if those actions may affect ensure that actions they fund, authorize, water (i.e., salinity less than 1 part per designated critical habitat or adversely or carry out do not destroy or adversely thousand), we suspect that much of this modify or destroy critical habitat. modify critical habitat to the extent that river reach may never provide suitable When we issue a biological opinion habitat for the silvery minnow, and it is the action appreciably diminishes the concluding that a project is likely to not designated as critical habitat. On value of the critical habitat for the result in jeopardy or the destruction or June 6, 2002, we proposed designating survival and recovery of the species. adverse modification of critical habitat, 212 mi of critical habitat for the silvery Individuals, organizations, States, we also provide reasonable and prudent minnow. This final rule designates 157 Indian Pueblos and Tribes, local alternatives to the project, if any are mi as critical habitat for the silvery governments, and other non-Federal identifiable. Reasonable and prudent minnow. entities are affected by the designation alternatives are defined at 50 CFR of critical habitat only if their actions 402.02 as alternative actions identified Land Ownership occur on Federal lands, require a during consultation that can be Except for the river reaches on Federal permit, license, or other implemented in a manner consistent Pueblos lands covered by special authorization, or involve Federal with the intended purpose of the action, management plans (see ‘‘Relationship of funding. that are consistent with the scope of the Critical Habitat to Pueblo Lands under Activities on Federal lands that may Federal agency’s legal authority and Section 3(5)(A) and Exclusions Under affect the silvery minnow or its critical jurisdiction, that are economically and Section 4(b)(2)’’ section), the designated habitat will require section 7 technologically feasible, and that the critical habitat for the silvery minnow consultation. Actions on private, State, Director of the Service believes would encompasses river reaches where the or Indian Pueblo and Tribal lands avoid the likelihood of jeopardizing the species has been collected in the recent receiving funding or requiring a permit continued existence of listed species or past and where it is currently known to from a Federal agency also will be result in the destruction or adverse exist. Critical habitat for the silvery subject to the section 7 consultation modification of critical habitat. minnow includes both the active river process if the action may affect critical Reasonable and prudent alternatives can channel and the area of bankfull width habitat. Federal actions not affecting the vary from slight project modifications to plus 300 feet on either side of the banks, species or its critical habitat, as well as extensive redesign or relocation of the except in areas narrowed by existing actions on non-Federal lands that are project. Costs associated with levees. not federally funded or permitted, will implementing a reasonable and prudent Ownership of the river channel and not require section 7 consultation. alternative are similarly variable. the lateral width along the bank is Regulations implementing this Section 4(b)(8) of the Act requires us unclear in the designated critical habitat interagency cooperation provision of the to describe in any proposed or final of the middle Rio Grande. However, Act are codified at 50 CFR part 402. regulation that designates critical most of the land in the middle Rio Section 7(a)(4) of the Act requires habitat a description and evaluation of Grande valley that abuts critical habitat Federal agencies to confer with us on those activities involving a Federal is within the administrative boundaries any action that is likely to jeopardize action that may adversely modify such of the MRGCD. The MRGCD is a the continued existence of a proposed habitat or that may be affected by such political subdivision of the State of New species or to result in destruction or designation. When determining whether Mexico that provides for irrigation, adverse modification of proposed any of these activities may adversely flood control, and drainage of the critical habitat. Conference reports modify critical habitat, we will analyze middle Rio Grande valley in NM, from provide conservation recommendations the effects of the action in relation to Cochiti Dam downstream 150 mi (285 to assist the agency in eliminating designated critical habitat (Service and km) to the northern boundary of the conflicts that may be caused by the National Marine Fisheries Service Bosque del Apache National Wildlife proposed action. The conservation 1998). Therefore, the analysis (i.e., the Refuge. Within these 150 mi are also the recommendations in a conference report determination whether an action lands of the communities of Algodones, are advisory. destroys or adversely modifies critical Bernalillo, Rio Rancho, Corrales, We may issue a formal conference habitat) conducted through consultation Albuquerque, Los Lunas, Belen, report if requested by a Federal agency. or conferencing should evaluate Socorro, and a number of smaller Formal conference reports on proposed whether that loss, when added to the incorporated and unincorporated critical habitat contain a biological environmental baseline, is likely to communities. Other landowners, opinion that is prepared according to 50 appreciably diminish the capability of sovereign entities, and managers CFR 402.14, as if critical habitat were critical habitat to satisfy essential

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requirements of the species. In other agency). We note that such flow (Federal funding, authorization, or words, activities that may destroy or reductions that result from actions permit). adversely modify critical habitat include affecting tributaries of the designated As discussed previously, Federal those that alter the primary constituent river reaches may also destroy or actions that are found likely to destroy elements (defined above) to an extent adversely modify critical habitat. or adversely modify critical habitat may that the value of critical habitat for the 2. Significantly and detrimentally often be modified, through development silvery minnow is appreciably reduced altering the characteristics of the 300-ft of reasonable and prudent alternatives, (50 CFR 402.02). (91.4-m) lateral width (e.g., parts of the in ways that will remove the likelihood A number of Federal agencies or floodplain) in the designated critical of destruction or adverse modification departments fund, authorize, or carry habitat of the middle Rio Grande. of critical habitat. Such project out actions that may affect the silvery Possible actions would include modifications may include such things minnow and its designated critical vegetation manipulation, timber harvest, as adjustment in timing of projects to habitat. We have reviewed and continue road construction and maintenance, avoid sensitive periods for the species to review numerous activities proposed prescribed fire, livestock grazing, off- and its habitat; replanting of riparian within the range of the silvery minnow road vehicle use, powerline or pipeline vegetation; minimization of work and that are currently the subject of formal construction and repair, mining, and vehicle use in the main river channel or or informal section 7 consultations. A urban and suburban development with the 300-ft (91.4-m) lateral width; wide range of Federal activities have the a Federal nexus. restriction of riparian and upland potential to destroy or adversely modify 3. Significantly and detrimentally vegetation clearing in the 300-ft (91.4-m) critical habitat of the silvery minnow. altering the channel morphology (e.g., lateral width; fencing to exclude These activities may include land and depth, velocity) of any of the river livestock and limit recreational use; use water management actions of Federal reaches within the designation. Possible of alternative livestock management agencies (e.g., Corps, BOR, Service, and actions would include channelization, techniques; avoidance of pollution; the Bureau of Indian Affairs) and related impoundment, road and bridge minimization of ground disturbance in or similar actions of other federally construction, deprivation of substrate the 300-foot lateral width; use of regulated projects (e.g., road and bridge source, reduction of available alternative material sources; storage of construction activities by the Federal floodplain, removal of gravel or equipment and staging of operations Highway Administration; dredge and floodplain terrace materials, reduction outside the 300-foot lateral width; use of fill projects, sand and gravel mining, in stream flow, and excessive sediment barriers; access restrictions; and bank stabilization activities sedimentation from mining, livestock and use of best management practices to conducted or authorized by the Corps; grazing, road construction, timber minimize erosion. construction, maintenance, and harvest, off-road vehicle use, and other The silvery minnow does not need a operation of diversion structures; watershed and floodplain disturbances large quantity of water to survive but it management of the conveyance channel; with a Federal nexus. does need a sufficient amount of levee and dike construction and 4. Significantly and detrimentally flowing water to reduce prolonged maintenance by the BOR; and NPDES altering the water quality within the periods of low or no flow and minimize permits authorized by the EPA). These designation. Possible actions with a the formation of isolated pools. The types of activities have already been Federal nexus would include EPA’s identification of primary constituent examined under consultation with us NPDES permitting or the release of elements for the silvery minnow is not upon listing the species as endangered chemical or biological pollutants into intended to create a high-velocity, deep and in our previous designation of the surface water or connected flowing river, with a bank-to-bank flow. critical habitat. We expect that the same groundwater at a point source or by The silvery minnow does not require types of activities will be reviewed in dispersed release (non-point). such habitat characteristics. Instead, the section 7 consultation now that critical 5. Introducing, spreading, or silvery minnow requires habitat with habitat is again designated. However, augmenting non-native aquatic species sufficient flows through the irrigation there is some potential for an increase within the designation. Possible actions season to avoid prolonged periods of in the number of proposed actions we with a Federal nexus would include fish low or no flow; additionally, a spike in review under section 7 of the Act from stocking for sport, aesthetics, biological flow in the late spring or early summer actions proposed in areas that are control, or other purposes; use of live to trigger spawning, and a relatively contained within the 300-foot lateral bait fish; aquaculture; construction and constant winter flow are also required. width. We believe that we currently operation of canals; and interbasin If you have questions regarding review most actions (e.g., indirect water transfers. whether specific activities will likely effects) that could affect silvery minnow Not all of the identified activities are constitute destruction or adverse through section 7 that occur in this necessarily of current concern within modification of critical habitat, contact lateral width, but acknowledge that an the middle Rio Grande. However, they the Field Supervisor, New Mexico explicit boundary could result in a do indicate the potential types of Ecological Services Field Office (see slight increase in consultations. activities that will require consultation ADDRESSES and FOR FURTHER Activities that we are likely to review and, therefore, may be affected by the INFORMATION CONTACT sections). If you under section 7 of the Act include, but designation of critical habitat. We do would like copies of the regulations on are not limited to: not expect that the designation of listed wildlife or have questions about 1. Significantly and detrimentally critical habitat will result in a prohibitions and permits, contact the altering the river flow or the natural significant regulatory burden above that U.S. Fish and Wildlife Service, Division flow regime of any of the river reaches already in place because of the presence of Endangered Species (see ADDRESSES designated in the middle Rio Grande. of the listed species. However, areas and FOR FURTHER INFORMATION CONTACT Possible actions would include included within the 300-ft (91.4-m) sections). groundwater pumping, impoundment, lateral width of the designation that are and water diversion with a Federal not currently occupied by the species Economic Analysis nexus (i.e., activities that are authorized, may result in an additional regulatory Section 4(b)(2) of the Act requires that funded, or carried out by a Federal burden when there is a Federal nexus we designate critical habitat on the basis

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of the best scientific and commercial the benefits associated with We consulted with the affected Indian information available and that we conservation of an endangered species. Pueblos and Tribes during the comment consider the economic and other The economic analysis provides period for the proposed rule to gain relevant impacts of designating a information on the social welfare information on: (1) Possible effects if particular area as critical habitat. We benefits associated with maintaining critical habitat were designated on based this final rule on the best instream flows in the Middle Rio Tribal lands; and (2) possible effects on available scientific information, Grande (e.g., ecological improvements, tribal resources resulting from the including the recommendations in the recreational opportunities, and proposed designation of critical habitat Recovery Plan (Service 1999). In order protection afforded to other species). on non-tribal lands. At their request, we to make a final critical habitat These benefits are described in detail in met with each potentially affected designation, we furthered utilized the the final Economic Analysis. On the Pueblo or Tribe to ensure that economic analysis and our analysis of basis of our evaluation of lands government-to-government consultation other relevant impacts, and considered proposed as critical habitat, we believe on proposed critical habitat issues all comments and information that the designation of the lands in this occurred in a timely manner. final rule as critical habitat are essential submitted during the public hearing and Designation of Critical Habitat on to the conservation of the silvery comment period. No areas proposed as Tribal Lands critical habitat were excluded or minnow, and these lands are currently modified because of economic impacts. occupied by the species. Consequently, Section 3(5) of the Act defines critical However, we have excluded areas from none of the proposed lands have been habitat, in part, as areas within the the final designation on the basis of a excluded from the designation on the geographical area occupied by the final determination that the benefits of basis of potential economic impacts species ‘‘on which are found those such exclusions outweigh the benefits of pursuant to section 4(b)(2) of the Act. physical and biological features (I) essential to the conservation of the specifying such areas as critical habitat American Indian Tribal Rights, Federal- (see ‘‘Exclusions Under Section 4(b)(2) species and (II) which may require Tribal Trust Responsibilities, and the special management considerations and of the Act’’ section). In accordance with Endangered Species Act section 4(b)(2) of the Act, we cannot protection.’’ We included lands of the exclude areas from critical habitat when In accordance with Secretarial Order Indian Pueblos of Cochiti, Santo their exclusion will result in the 3206, ‘‘American Indian Tribal Rights, Domingo, San Felipe, Santa Ana, Federal-Tribal Trust Responsibilities, Sandia, and Isleta in the proposed extinction of the species. We have and the Endangered Species Act’’ (June designation of critical habitat for the prepared an economic analysis that was 5, 1997); the President’s memorandum silvery minnow; however, Santo available for public review and of April 29, 1994, ‘‘Government-to- Domingo, Santa Ana, Sandia, and Isleta comment during the comment period Government Relations with Native were not included for the final for the proposed rule. You can request American Tribal Governments’’ (May 9, designation because they submitted copies of the economic analysis and EIS 1994, 59 FR 22951); Executive Order sufficient management plans during the from the New Mexico Ecological 13175; and the Department of the open comment period, and we Services Field Office (see ADDRESSES Interior’s requirement at 512 DM 2, we concluded that these river reaches did section). believe that, to the maximum extent not meet the definition of critical habitat Section 4(b)(2) of the Act and 50 CFR possible, Indian Pueblos and Tribes because adequate special management is 424.19 require us to consider the should be the governmental entities to being provided for the silvery minnow economic impact, and any other manage their lands and tribal trust on these lands. The plans and our relevant impact, of specifying any resources. To this end, we support tribal analysis of other relevant issues are particular area as critical habitat. measures that preclude the need for summarized above under the Executive Order 12866 defines Federal conservation regulations. We ‘‘Relationship of Critical Habitat to ‘‘significant regulatory action,’’ in part, provided technical assistance to Indian Pueblo Lands Under Section 3(5)(A) and as a regulatory action that is likely to Pueblos and Tribes who asked for Exclusions Under Section 4(b)(2)’’ result in a rule that may have an annual assistance in developing and expanding section. effect on the economy of $100 million tribal programs for the management of Effects on Tribal Trust Resources From or more. The final Economic Analysis healthy ecosystems so that Federal Critical Habitat Designation on Non- for this rule estimates that the potential conservation regulations, such as Tribal Lands economic effects could range from $1.9 designation of critical habitat, on tribal to $16.2 million annually. This includes lands are unnecessary. We do not anticipate that the proposal potential economic effects related to The Presidential Memorandum of of critical habitat on non-tribal lands consultations, project modifications, April 29, 1994, also requires us to will result in any impact on tribal trust and providing target flows, including consult with the Indian Pueblos and resources or the exercise of tribal rights. those effects that may be attributed co- Tribes on matters that affect them, and However, in complying with our tribal extensively with the listing of the section 4(b)(2) of the Act requires us to trust responsibilities, we communicated species. Thus, we do not believe that the gather information regarding the with all Indian Pueblos and Tribes adverse modification prohibition (from designation of critical habitat and the potentially affected by the designation. critical habitat designation) will have effects thereof from all relevant sources, At their request, we arranged meetings significant economic effects such that it including Indian Pueblos and Tribes. with them during the comment period will have an annual economic effect of Recognizing a government-to- on potential effects to them or their $100 million or more. We recognize, government relationship with Indian resources that may result from critical however, that while the impacts may Pueblos and Tribes and our Federal habitat designation. We sent not be considered ‘‘significant’’ under trust responsibility, we have and will preproposal letters and the proposed Executive Order 12866, there will be continue to consult with the Indian rule and associated documents to all some economic impact within the Pueblos and Tribes that might be affected Indian Pueblos, including middle Rio Grande area. Additionally, affected by the designation of critical Cochiti, Santo Domingo, San Felipe, the final Economic Analysis recognizes habitat. Santa Ana, Sandia, Isleta, and San Juan,

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and solicited additional information except those involving Federal agencies The economic analysis determined from them regarding biological, cultural, which would be required to ensure that whether this critical habitat designation social, or economic data pertinent to the their activities do not destroy or potentially affects a ‘‘substantial proposed rule, economic analysis, or adversely modify designated critical number’’ of small entities in counties EIS. We will continue to provide habitat. As discussed above, we do not supporting critical habitat areas. It also assistance to and cooperate with Indian anticipate that the adverse modification quantifies the probable number of small Pueblos and Tribes that potentially prohibition (from critical habitat businesses that experience a ‘‘significant could be affected by this critical habitat designation) will have any significant effect.’’ While SBREFA does not designation at their request. economic effects such that it will have explicitly define either ‘‘substantial Required Determinations an annual economic effect of $100 number’’ or ‘‘significant effect,’’ the million or more. OMB has determined Small Business Administration (SBA) Regulatory Planning and Review that the critical habitat portion of this and other Federal agencies have In accordance with Executive Order rule will raise novel legal or policy interpreted these terms to represent an 12866, this document is a significant issues, but this rule was not reviewed by impact on 20 percent or more of the rule as the Office of Management and OMB due to the court ordered deadline. small entities in any industry and an Budget (OMB) determined that this rule The final rule follows the requirements effect equal to 3 percent or more of a may raise novel legal or policy issues, for designating critical habitat contained business’ annual sales. but was not reviewed by OMB due to in the Act. Based on the past consultation history for the silvery minnow, wastewater the court ordered deadline. We prepared Regulatory Flexibility Act (5 U.S.C. 601 discharges from municipal treatment an economic analysis of this action. We et seq.) used this analysis to meet the plants are the primary small business requirement of section 4(b)(2) of the Under the Regulatory Flexibility Act activities anticipated to be affected by Endangered Species Act to determine (as amended by the Small Business the designation of critical habitat. To be the economic consequences of Regulatory Enforcement Fairness Act conservative, (i.e., more likely to designating the specific areas as critical (SBREFA) of 1996; 5 U.S.C. 804(2)), overstate impacts than understate them), habitat. The draft economic analysis whenever a Federal agency is required the economic analysis assumes that a was made available for public comment, to publish a notice of rulemaking for unique company will undertake each of and we considered those comments any proposed or final rule, it must the projected consultations in a given during the preparation of this rule. The prepare and make available for public year, and so the number of businesses draft analysis indicates that this rule comment a regulatory flexibility affected is equal to the total annual will not have an annual economic effect analysis that describes the effect of the number of consultations (both formal of $100 million or more or adversely rule on small entities (i.e., small and informal). affect an economic sector, productivity, businesses, small organizations, and The first step was to estimate the jobs, the environment, or other units of small government jurisdictions). number of small businesses affected. As government. Under the Act, critical However, no regulatory flexibility shown in Exhibit 1 below, the following habitat may not be destroyed or analysis is required if the head of an calculations yield this estimate: adversely modified by a Federal agency agency certifies that the rule will not • Estimate the number of businesses action; the Act does not impose any have a significant economic impact on within the study area affected by section restrictions related to critical habitat on a substantial number of small entities. 7 implementation annually (assumed to non-Federal persons unless they are SBREFA amended the Regulatory be equal to the number of annual conducting activities funded or Flexibility Act to require Federal consultations); otherwise sponsored or permitted by a agencies to provide a statement of the • Calculate the percent of businesses Federal agency. Because of the potential factual basis for certifying that a rule in the affected industry that are likely to for impacts on other Federal agencies’ will not have a significant economic be small; activities, we reviewed this action for impact on a substantial number of small • Calculate the number of affected any inconsistencies with other Federal entities. We are certifying that the rule small businesses in the affected agency actions. We believe that this rule will not have a significant effect on a industry; will not materially affect entitlements, substantial number of small entities. • Calculate the percent of small grants, user fees, loan programs, or the The following discussion explains our businesses likely to be affected by rights and obligations of their recipients, rationale. critical habitat.

EXHIBIT 1.—ESTIMATED ANNUAL NUMBER OF SMALL BUSINESSES AFFECTED BY CRITICAL HABITAT DESIGNATION: THE ‘‘SUBSTANTIAL’’ TEST

Sanitary Industry name services ISC 14959

Annual number of affected businesses in industry: By formal consultation ...... 0.13 (Equal to number of annual consultations): 2 By informal consultation ...... 0.75 Total number of all businesses in industry within study area 6 Number of small businesses in industry within study area 6 Percent of businesses that are small (Number of small businesses)/(Total Number of businesses) 100% Annual number of small businesses affected (Number of affected businesses)*(Percent of small businesses) 0.88 Annual percentage of small businesses affected (Number of small businesses affected)/(Total number of small businesses); >20 percent is substantial 15% 1 ISC = Interstate Stream Commission.

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2 Note that because these values represent the probability that small businesses will be affected during a 1-year time period, calculations may result in fractions of businesses. This is an acceptable result, as these values represent the probability that small businesses will be affected.

This calculation reflects conservative critical habitat designation for the annual sales equal to or less than the assumptions and nonetheless yields an silvery minnow, the following threshold amount calculated above. estimate that is still far less than the 20 calculations were made: This is estimated using national percent threshold that would be • Calculate the per-business cost. statistics on the distribution of sales considered ‘‘substantial.’’ As a result, This consists of the unit cost to a third within industries. this analysis concludes that a significant party of participating in a section 7 • Based on the probability that a economic impact on a substantial consultation (formal or informal) and single business may experience number of small entities will not result the unit cost of associated project significant effects, calculate the from the designation of critical habitat modifications. To be conservative, the expected value of the number of for the silvery minnow. Nevertheless, an economic analysis uses the high-end businesses likely to experience a estimate of the number of small estimate for each cost. significant effect. • Determine the amount of annual businesses that will experience effects at • a significant level is provided below. sales that a company would need to Calculate the percent of businesses Costs of critical habitat designation to have for this per-business cost to in the study area within the affected small businesses consist primarily of the constitute a ‘‘significant effect.’’ This is industry that are likely to be affected cost of participating in section 7 calculated by dividing the per-business significantly. consultations and the cost of project cost by the 3 percent ‘‘significance’’ Calculations for costs associated with modifications. To calculate the threshold value. designating critical habitat for the likelihood that a small business will • Estimate the likelihood that small silvery minnow are provided in Exhibit experience a significant effect from businesses in the study area will have 2 below.

EXHIBIT 2.—ESTIMATED ANNUAL EFFECTS ON SMALL BUSINESSES: THE ‘‘SIGNIFICANT EFFECT’’ TEST

Sanitary Services ISC 1 4959 Industry Formal consulta- tions with project Informal modifications consultations

Annual Number of Small Businesses Affected (from final Economic Analysis) ...... 0.13 0.75 Per-Business Cost ...... $34,100 $2,900 Level of Annual Sales Below which Effects Would Be Significant (Per-Business Cost/3%) ...... $1,136,667 $96,667 Probability that Per-Business Cost is Greater than 3% of Sales for Small Business 2 ...... 48% 3% Probable Annual Number of Small Businesses Experiencing Significant Effects (Number Small Busi- nesses)* (Probability of Significant Effect) ...... 0.06 0.02

Total Annual Number of Small Businesses Bearing Significant Costs in Industry ...... 0.08

Total Annual Percentage of Small Businesses Bearing Significant Costs in Industry ...... 1.4% 1 ISC = Interstate Stream Commission. 2 This probability is calculated based on national industry statistics obtained from the Robert Morris Associated Annual Statement of Studies: 2001–2002, which provides data on the distribution of annual sales in an industry within the following ranges: $0–1 million, $1–3 million, $3–5 million, $5–10 million, $10–25 million, and $25+ million. This analysis uses the ranges that fall within the SBA definition of small businesses (i.e., for industries in which small businesses have sales of less than $5.0 million, it uses $0–1 million, $1–3 million, and $3–5 million) to estimate a distribution of sales for small businesses. It then calculates the probability that small businesses have sales below the threshold value, using the following components: (1) All small businesses (expressed as a percentage of all small businesses) in ranges whose upper limits fall below the threshold value experience the costs as significant; (2) for the range in which the threshold value falls, the percentage of companies in the bin that fall below the threshold value is calculated as [(threshold value—range minimum)/(bin maximum—range minimum)] × percent of small busi- nesses captured in range. This percentage is added to the percentage of small businesses captured in each of the lower ranges to reach the total probability that small businesses have sales below the threshold value. Note that in instances in which the threshold value exceeds the defi- nition of small businesses (i.e., the threshold value is $10 million and the definition of small businesses is sales less than $5.0 million), all small businesses experience the effects as significant.

Because the costs associated with consultation on these activities were undergone consultations. Within the designating critical habitat for the attributed solely to the critical habitat critical habitat designated in the middle silvery minnow are likely to be designation. Rio Grande, the BLM has the highest significant for less than one small Executive Order 13211 likelihood of any Federal agency to businesses per year (approximately 1 undergo section 7 consultation for percent of the small businesses in the On May 18, 2001, the President issued actions relating to energy supply, an Executive Order (E.O. 13211) on sanitary services industry) in the distribution, or use. However, since regulations that significantly affect affected counties, the economic analysis 1994, the BLM has not conducted any energy supply, distribution, and use. concludes that a significant economic Executive Order 13211 requires agencies consultations for resource management impact on a substantial number of small to prepare Statements of Energy Effects plans that relate to energy supply, entities will not result from the when undertaking certain actions. We distribution, or use. We do not designation of critical habitat for the have a very good consultation history anticipate the development of oil and silvery minnow. This would be true for the silvery minnow; thus, we can gas leases within the area we are even if all of the effects of section 7 describe the kinds of actions that have designating as critical habitat (J. Smith,

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pers. comm. 2001). Nevertheless, if we rule with appropriate resource agencies The designation may have some were to consult on a proposed BLM in NM and TX (i.e., during the EIS benefit to these governments—the areas energy-related action, the outcome of scoping period and proposed rule essential to the conservation of the that consultation likely would not differ comment period). We will continue to species would be clearly defined, and from the BLM’s policy of not allowing coordinate with the appropriate the primary constituent elements of the oil and gas development within the 100- agencies. habitat necessary to the survival of the year floodplain. For these reasons, we We do not anticipate that this species would be identified. While this do not anticipate that this rule will be regulation will intrude on State policy definition and identification does not a significant regulatory action under or administration, change the role of the alter where and what Federally Executive Order 12866, and it is not Federal or State government, or affect sponsored activities may occur, it may expected to significantly affect energy fiscal capacity. We have conducted two assist these local governments in long- supplies, distribution, or use. Therefore, formal section 7 consultations with the range planning (where otherwise they this action is not a significant energy Corps and BOR, and a non-Federal would wait for case-by-case section 7 action and no Statement of Energy agency (MRGCD) over actions related to consultations to occur). Effects is required. water operations on the middle Rio Civil Justice Reform Grande (Service 2001b, 2002a). As a Unfunded Mandates Reform Act (2 In accordance with Executive Order U.S.C. 1501 et seq.) result, we do not believe that this designation of critical habitat will have 12988 (February 7, 1996; 61 FR 4729), the Office of the Solicitor has In accordance with the Unfunded significant Federalism effects. For determined that this rule would not Mandates Reform Act (2 U.S.C. 1501 et example, in the recent formal section 7 unduly burden the judicial system and seq.): consultations, the MRGCD’s regulatory would meet the requirements of sections 1. On the basis of information burden requirement was only affected to 3(a) and 3(b)(2) of the Order. We contained in the Economic Analysis, the extent that the MRGCD was acting designate critical habitat in accordance this rule will not ‘‘significantly or as the United States’ agent for the with the provisions of the Act. The rule uniquely’’ affect small governments. A operation and maintenance of facilities. uses standard property descriptions and Small Government Agency Plan is not Federal agencies also must ensure, identifies the primary constituent required. Small governments will be through section 7 consultation with us, elements within the designated areas to affected only to the extent that any of that their activities do not destroy or assist the public in understanding the their actions involving Federal funding adversely modify designated critical habitat needs of the silvery minnow. or authorization must not destroy or habitat. Nevertheless, we do not adversely modify the critical habitat or anticipate that the amount of Paperwork Reduction Act of 1995 (44 take the species under section 9. supplemental instream flow, provided U.S.C. 3501 et seq.) 2. This rule will not produce a by past consultations (e.g., Service This rule does not contain any new Federal mandate of $100 million or 2001b), will increase because an area is greater in any year (i.e., it is not a collections of information that require designated as critical habitat. This rule approval by the Office of Management ‘‘significant regulatory action’’ under also will not change the appropriation the Unfunded Mandates Reform Act). and Budget (OMB) under 44 U.S.C. 3501 of water rights within the area et seq. This rule will not impose new Takings designated as critical habitat. For these recordkeeping or reporting requirements In accordance with Executive Order reasons, we do not anticipate that the on State or local governments, 12630 (‘‘Government Actions and designation of critical habitat will individuals, businesses, or Interference with Constitutionally change State policy or administration, organizations. An agency may not Protected Private Property Rights,’’ change the role of the Federal or State conduct or sponsor, and a person is not March 18, 1988; 53 FR 8859), we have government, or affect fiscal capacity. required to respond to, a collection of analyzed the potential takings Within the 300-ft (91.4-m) lateral information unless it displays a implications of the designation of width, designation of critical habitat currently valid OMB control number. could trigger additional review of critical habitat for the silvery minnow. National Environmental Policy Act The takings implications assessment Federal activities under section 7 of the concludes that this final rule does not Act, and may result in additional It is our position that, outside the pose significant takings implications. A requirements on Federal activities to Tenth Circuit, we do not need to copy of this assessment can be obtained avoid destroying or adversely modifying prepare environmental analyses as by contacting the New Mexico critical habitat. Any action that lacked defined by the NEPA in connection with Ecological Services Field Office (see Federal involvement would not be designating critical habitat under the ADDRESSES section). affected by the critical habitat Endangered Species Act of 1973, as On the basis of the above assessment, designation. Should a Federally funded, amended. We published a notice we find that this final rule designating permitted, or implemented project be outlining our reasons for this critical habitat for the silvery minnow proposed that may affect designated determination in the Federal Register does not pose significant takings critical habitat, we will work with the on October 25, 1983 (48 FR 49244). This implications. Federal action agency and any assertion was upheld in the Ninth applicant, through section 7 Circuit Douglas County v. Babbitt, 48 Federalism consultation, to identify ways to F.3d 1495 (9th Cir. 1995), cert. denied, In accordance with Executive Order implement the proposed project while 116 S. Ct. 698 (1996). However, when 13132, we have considered whether this minimizing or avoiding any adverse the range of the species includes States rule has significant Federalism effects effect to the species or critical habitat. within the Tenth Circuit, such as that of and have determined that a Federalism In our experience, the vast majority of the silvery minnow, pursuant to the assessment is not required. In keeping such projects can be successfully Tenth Circuit ruling in Catron County with Department of the Interior policy, implemented with, at most, minor Board of Commissioners v. U.S. Fish we requested information from and changes that avoid significant economic and Wildlife Service, 75 F.3d 1429 (10th coordinated development of this final impacts to project proponents. Cir. 1996), we will undertake a NEPA

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analysis for critical habitat designation. Authority: 16 U.S.C. 1361–1407; 16 U.S.C. increase prolonged periods of low or no Additionally, on November 21, 2000, 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– flow, and a relatively constant winter the United States District Court for the 625, 100 Stat. 3500; unless otherwise noted. flow (November through February)); District of New Mexico, in Middle Rio 2. Amend § 17.95(e) by revising (ii) The presence of eddies created by Grande Conservancy District v. Babbitt, critical habitat for the Rio Grande debris piles, pools, or backwaters, or 206 F. Supp. 2d 1156 (D.N.M. 2000), set silvery minnow (Hybognathus amarus), other refuge habitat (e.g., connected aside the July 9, 1999, critical habitat to read as follows. oxbows or braided channels) within designation and ordered us to issue unimpounded stretches of flowing water within 120 days both an EIS and a new § 17.95 Critical habitat—fish and wildlife. of sufficient length (i.e., river miles) that proposed rule designating critical * * * * * provide a variation of habitats with a habitat for the silvery minnow. We have (e) Fishes. * * * wide range of depth and velocities; (iii) Substrates of predominantly sand prepared this designation and the EIS Rio Grande Silvery Minnow or silt; and pursuant to that court order. (Hybognathus amarus) (iv) Water of sufficient quality to Government-to-Government (1) Designated critical habitat is maintain natural, daily, and seasonally Relationship With Indian Pueblos and depicted for Socorro, Valencia, variable water temperatures in the Tribes Bernalillo, and Sandoval Counties, New approximate range of greater than 1 °C Mexico, on the map and as described ° ° ° In accordance with the Secretarial (35 F) and less than 30 C (85 F) and below. Order 3206, ‘‘American Indian Tribal reduce degraded conditions (e.g., (2) For each river reach, the upstream Rights, Federal-Tribal Trust decreased dissolved oxygen, increased and downstream boundaries are pH). Responsibilities, and the Endangered described below. Critical habitat Species Act’’ (June 5, 1997); the (4) The Pueblo lands of Santo includes the stream channels within the Domingo, Santa Ana, Sandia, and Isleta President’s memorandum of April 29, identified river reaches and areas within 1994, ‘‘Government-to-Government are not designated. these reaches included within the (5) Designated critical habitat is Relations with Native American Tribal existing levees, or if no levees are depicted on the following map for the Governments’’ (59 FR 22951); Executive present, then within a lateral distance of middle Rio Grande, which includes the Order 13175; and the Department of the 300 ft (91.4 m) on each side of the river area from Cochiti Reservoir downstream Interior’s requirement at 512 DM 2, we width at bankfull stage. Bankfull stage is to the utility line crossing the Rio understand that we must conduct the flow at which water begins to leave Grande just east of the Bosque Well as relations to recognized Federal Indian the channel and move into the demarcated on USGS Paraje Well 7.5 Pueblos and Tribes on a Government-to- floodplain. The bankfull stage is not minute quadrangle (1980), with the Government basis. Therefore, we defined by water, and can be Universal Transverse Mercator (UTM) solicited information from the Indian determined by visual or physical coordinates of UTM Zone 13: 311474 E, Pueblos and Tribes and arranged indicators, including: The top of the 3719722 N (as referenced with the 1927 meetings with those that requested highest depositional features (e.g., point North American Datum (NAD27)), during the comment period to discuss bars), staining of rocks, exposed root Sandoval, Bernalillo, Valencia, and potential effects to them or their hairs, and other features. Socorro Counties, New Mexico. The resources that may result from critical (3) Within these areas the primary designation also includes the upper habitat designation. constituent elements include, but are section of the tributary Jemez River from References Cited not limited to, those habitat components Jemez Canyon Dam to the upstream that are essential for the primary boundary of Santa Ana Pueblo, A complete list of all references cited biological needs of foraging, sheltering, Sandoval County. The river reaches in in this final rule is available upon and reproduction. These elements the middle Rio Grande include: request from the New Mexico Ecological include the following: (i) Jemez Canyon Reach—1 mi (1.6 Services Field Office (see ADDRESSES (i) A hydrologic regime that provides km) of the Jemez River immediately section). sufficient flowing water with low to downstream of Jemez Canyon Dam to Authors moderate currents capable of forming the upstream boundary Santa Ana and maintaining a diversity of aquatic Pueblo; The primary authors of this notice are habitats, such as, but not limited to the (ii) Cochiti Diversion Dam to the New Mexico Field Office staff (see following: Backwaters (a body of water Angostura Diversion Dam (Cochiti ADDRESSES section). connected to the main channel, but with Reach)—21 mi (34 km) of river no appreciable flow), shallow side List of Subjects in 50 CFR Part 17 immediately downstream of Cochiti channels, pools (that portion of the river Reservoir to the Angostura Diversion Endangered and threatened species, that is deep with relatively little Dam; Exports, Imports, Reporting and velocity compared to the rest of the (iii) Angostura Diversion Dam to Isleta recordkeeping requirements, channel), eddies (a pool with water Diversion Dam (Angostura Reach)—38 Transportation. moving opposite to that in the river mi (61 km) of river immediately channel), and runs (flowing water in the Regulation Promulgation downstream of the Angostura Diversion river channel without obstructions) of Dam to the Isleta Diversion Dam; Accordingly, we amend part 17, varying depth and velocity—all of (iv) Isleta Diversion Dam to San subchapter B of chapter I, title 50 of the which are necessary for each of the Acacia Diversion Dam (Isleta Reach)— Code of Federal Regulations as set forth particular silvery minnow life-history 56 mi (90 km) of river immediately below: stages in appropriate seasons (e.g., the downstream of the Isleta Diversion Dam silvery minnow requires habitat with to the San Acacia Diversion Dam; and PART 17—[AMENDED] sufficient flows from early spring (v) San Acacia Diversion Dam to the (March) to early summer (June) to Elephant Butte Dam (San Acacia 1. The authority citation for part 17 trigger spawning, flows in the summer Reach)—92 mi (147 km) of river continues to read as follows: (June) and fall (October) that do not immediately downstream of the San

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Acacia Diversion Dam to the utility line Paraje Well 7.5 minute quadrangle (vi) Map Follows: crossing the Rio Grande just east of the (1980) with UTM coordinates of UTM BILLING CODE 4310–55–P Bosque Well demarcated on USGS Zone 13: 311474 E, 3719722 N.

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BILLING CODE 4310–55–C

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(6) This designation does not include levees, or if no levees are present, then channels; the low flow conveyance the ephemeral or perennial irrigation within a lateral distance of 300 ft (91.4 channel; active gravel pits; cultivated canals and ditches outside of natural m) on each side of the stream width at agricultural land; and residential, stream channels, including the low flow bankfull discharge) that are not commercial, and industrial conveyance channel that is adjacent to considered critical habitat and are developments. a portion of the river reach within the therefore excluded by definition, * * * * * middle Rio Grande (i.e., downstream of include: Developed flood control the southern boundary of Bosque del Dated: January 31, 2003. facilities; existing paved roads; bridges; Craig Manson, Apache National Wildlife Refuge to the parking lots; dikes; levees; diversion Assistant Secretary for Fish and Wildlife and Elephant Butte Dam). structures; railroad tracks; railroad (7) Lands located within the exterior Parks. trestles; water diversion and irrigation boundaries of the critical habitat [FR Doc. 03–3255 Filed 2–18–03; 8:45 am] canals outside of natural stream designation (i.e., within the existing BILLING CODE 4310–55–P

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