36274 Federal Register / Vol. 64, No. 128 / Tuesday, July 6, 1999 / Rules and Regulations applicable to a broad range of business chargeable to the demonstration project. downstream to the activity. Indirect administrative costs associated with headwaters of Elephant Butte Reservoir, (c) Certification of Accounting Statement the demonstration project will be allocated to New Mexico, approximately five Accuracy. (1) The Carrier shall certify the the demonstration project based on the percent of its known historical range. annual accounting statement in the form set percentage obtained by dividing the dollar forth in paragraph (c)(3) of this clause. The amount of claims processed under the Critical habitat overlays this last Carrier’s chief executive officer and the chief demonstration project by the total claims remaining portion of occupied range. It financial officer shall sign the certificate. processed for FEHB Program activity. This encompasses 262 kilometers (km) (163 (2) The Carrier shall require an authorized same percentage will also be used to miles (mi)) of the mainstem agent of its underwriter, if any, also to certify determine the amount of the Carrier’s service from the downstream side of the State the annual accounting statement. charge that will be allocated to the Highway 22 bridge crossing the Rio (3) The certificate required shall be in the demonstration project. Grande immediately downstream of following form: (2) The Carrier shall submit a separate Cochiti Dam, to the crossing of the Certification of Accounting Statement annual accounting statement and monthly Atchison Topeka and Santa Fe Railroad Accuracy incurred claims report for demonstration project experience. near San Marcial, New Mexico. This is to certify that I have reviewed this (End of Clause) EFFECTIVE DATES: This rule becomes accounting statement and to the best of my effective August 5, 1999. knowledge and belief: 7. Section 1652.232–71 is amended by ADDRESSES: You may inspect the 1. The statement was prepared in removing ‘‘(Jan. 1999)’’ from the clause complete file for this rule at the U.S. conformity with the guidelines issued by the heading and adding in its place ‘‘(JAN Office of Personnel Management and fairly Fish and Wildlife Service, New Mexico 2000),’’ and adding a new paragraph (f) Ecological Services Field Office, 2105 presents the financial results of this reporting to read as follows: period in conformity with those guidelines. Osuna NE., Albuquerque, New Mexico 2. The costs included in the statement are 1652.232±71 PaymentsÐexperience-rated 87113, by appointment, during normal actual, allowable, allocable, and reasonable contracts. business hours at the above address. in accordance with the terms of the contract FOR FURTHER INFORMATION CONTACT: and with the cost principles of the Federal * * * * * Employees Health Benefits Acquisition (f) Exception for the 3-Year DoD Field Supervisor, New Mexico Regulation and the Federal Acquisition Demonstration Project (10 U.S.C. 1108). Ecological Services Field Office (See Regulation. The Carrier will perform a final ADDRESSES above). 3. Income, rebates, allowances, refunds and reconciliation of revenue and costs for SUPPLEMENTARY INFORMATION: other credits made or owed in accordance the demonstration project group at the Background with the terms of the contract and applicable end of the demonstration project. Costs cost principles have been included in the in excess of the premiums will be The Rio Grande silvery minnow is statement. reimbursed first from the Carrier’s one of seven species in the genus 4. If applicable, the letter of credit account Hybognathus found in the United States was managed in accordance with 5 CFR part demonstration project Contingency 890, 48 CFR chapter 16, and OPM guidelines. Reserve and then from OPM’s (Pflieger 1980). The species was first Carrier Name: llllllllllllll Administrative Reserve. Any surplus described by Girard (1856) from lllllllllllllllllllll after the final accounting will be paid by specimens taken from the Rio Grande Name of Chief Executive Officer: the Carrier to OPM’s Administrative near Fort Brown, Cameron County, (Type or Print) Reserve. Texas. It is a stout silvery minnow with lllllllllllllllllllll moderately small eyes and a small, (End of Clause) Name of Chief Financial Officer: slightly oblique mouth. Adults may lllllllllllllllllllll [FR Doc. 99–16913 Filed 7–2–99; 8:45 am] reach 90 millimeters (mm) (3.5 inches Signature of Chief Executive Officer: BILLING CODE 6325±01±U (in)) in total length (Sublette et al. 1990). lllllllllllllllllllll Its dorsal fin is distinctly pointed with Signature of Chief Financial Officer: the front of it located slightly closer to lllllllllllllllllllll DEPARTMENT OF THE INTERIOR the tip of the snout than to the base of Date Signed: the tail. Life color is silver with emerald lllllllllllllllllllll Fish and Wildlife Service reflections. Its belly is silvery white; fins Date Signed: are plain; and barbels are absent lllllllllllllllllllll 50 CFR Part 17 (Sublette et al. 1990). This species was historically one of Underwriter: llllllllllllll Endangered and Threatened Wildlife the most abundant and widespread Name and Title of Responsible Corporate and Plants; Final Designation of fishes in the Rio Grande Basin, Official: Critical Habitat for the Rio Grande (Type or Print:) lllllllllllll occurring from Espanola, New Mexico, Silvery Minnow Signature of Responsible Corporate Official: to the Gulf of Mexico (Bestgen and lllllllllllllllllllll AGENCY: Fish and Wildlife Service, Platania 1991). It was also found in the Date Signed: llllllllllllll Interior. Pecos River, a major tributary of the Rio (End of Certificate) ACTION: Final rule. Grande, from Santa Rosa, New Mexico, (d) Exceptions for the 3-Year DoD downstream to its confluence with the Demonstration Project (10 U.S.C. 1108). SUMMARY: We, the U.S. Fish and Rio Grande (Pflieger 1980). It is (1) The Carrier shall draw funds from its Wildlife Service (Service), designate completely extirpated from the Pecos Letter of Credit (LOC) account to pay critical habitat for the Rio Grande River and from the Rio Grande demonstration project benefits costs in the silvery minnow (Hybognathus amarus), downstream of Elephant Butte Reservoir same manner as it does for benefits costs a species federally listed as endangered (Bestgen and Platania 1991). incurred by regular FEHB members. The Carrier shall account separately for health under the authority of the Endangered Throughout much of its historical range, benefits charges paid using demonstration Species Act of 1973, as amended (Act). decline of the silvery minnow may be project funds and regular FEHB funds. Direct This species, also referred to herein as attributed to modification of stream administrative costs attributable solely to the silvery minnow or minnow, presently discharge patterns and channel drying demonstration project shall be fully occurs only in the Rio Grande from because of impoundments, water Federal Register / Vol. 64, No. 128 / Tuesday, July 6, 1999 / Rules and Regulations 36275 diversion for agriculture, and stream extremely vulnerable to a single Furthermore, because the river is an channelization (Cook et al. 1992; naturally occurring chance event. The aggrading system below San Acacia (i.e,. Bestgen and Platania 1991). minnow prefers shallow waters with a the river bottom is rising due to In the Pecos River, the silvery sandy and silty substrate that is sedimentation), the bed of the river is Minnow was replaced by the closely generally associated with a meandering now perched above the bed of the 80 km related, introducted plains minnow (H. river that includes sidebars, oxbows, (50 mile) low flow conveyance channel, placitus) (Hatch et al. 1985; Bestgen et and backwaters. However, physical which is immediately adjacent and al. 1989; Cook et al. 1992). It is believed modifications to the Rio Grande over the parallel to the river channel. Because of the plains minnow was introduced into last century, including the construction this physical configuration, waters in the Pecos drainage during 1968, of dams and channelization of the the mainstem of the river tend to be probably the result of the release of mainstem, have altered much of the drained into the low flow conveyance ‘‘bait minnows’’ that were collected historical habitat for the minnow. channel. from the Arkansas River drainage. The Channelization has straightened and Seventy percent of the remaining displacement that ensured was shortened mainstem river reaches, minnow population resides between complete in less than one decade increased the velocity of the current, and the (Cowley 1979). The plains minnow may and altered riparian vegetation, instream headwaters of elephant butte. In low be more tolerant of modified habitats cover, and substrate composition. The water years in this reach, all the water and, therefore, able to replace the spring runoff triggers the minnow’s in the stream may be diverted into the silvery minnow in the modified reaches spawn and the eggs produced drift in irrigation system or drained from the of the Pecos River. It is also believed the water column. Diversion dams mainstem by the low flow conveyance that the two species hybridized. Habitat prevent the minnow from subsequently channel. In effect, water is being alteration and resulting flow being able to move upstream as waters conveyed to Elephant Butte reservoir modification could have also recede or as the minnow approaches through a bypass of the river in the San contributed to extirpation of the species inhospitable habitat such as Elephant Acacia reach, resulting in a dry or in the Pecos River. Butte Reservoir, where the waters are drying Riverbed. Decline of the species in the Middle cold, deep and stocked with non-native The designation of critical habitat for Rio Grande probably began in 1916 predatory fish. the Rio Grande silvery minnow includes when the gates at 262 river-km (163 river-mi) in the During the irrigation season (March 1 were closed. Construction of the dam Middle Rio Grande which are the last to October 31), minnows often become signaled the beginning of an era of main miles of habitat occupied by the species. stranded in the diversion channels stream Rio Grande dam construction The designation involves the mainstem where they may, although are unlikely that resulted in five major main stem of the Rio Grande or the active river dams within the minnow’s habitat to, survive for a while. As the water is channel including the water column, (Shupe and Williams 1988). These dams used on the fields, the chance for and its associated channel morphology. allowed manipulation and diversion of survival of the minnow in the irrigation Land on either side of, but not within, the flow of the river. Often this return flows in slim. Unscreened the designated critical habitat, lies manipulation resulted in the drying of diversion dams also entrain both adult within the administrative boundaries of reaches of river and elimination of all minnow, fry, and buoyant eggs. Perhaps the Middle Rio Grande Conservancy fish. Concurrent with construction of even more problematic for the minnow District. Other landowners, sovereign the main stream dams was an increase are irrigation seasons in drought years, entities, and managers include: the in the abundance of non-native and when most or all of the water may be pueblos of Cochiti, San Felipe, Santo exotic fish species as these species were diverted from the two lower-most Domingo, Santa Ana, Sandia, and Isleta; stocked into the reservoirs created by segments of the river to meet irrigation the U.S. Bureau of Reclamation (BOR); the dams (Sublette et al. 1990). Once and other needs. This diversion causes the Service; the U.S. Bureau of Land established, these species often minnows to become stranded in Management; New Mexico State Parks completely replaced the native fish dewatered segments of the river. Division; New Mexico Department of fauna (Propst et al. 1987). Development Historically, the silvery minnow was Game and Fish; New Mexico State of agriculture and the growth of cities able to withstand periods of drought Lands Department; and the U.S. Army within the historical range of the Rio primarily by retreating to pools and Corps of Engineers (Corps). The Grande silvery minnow resulted in a backwater refugia, and swimming communities of Algodones, Bernalillo, decrease in the quality of water that may upstream to repopulate upstream Rio Rancho, Corrales, Albuquerque, have also adversely affected the range habitats. However, when the river dries Bosque Farms, Los Lunas, Belen, and and distribution of the species. too rapidly and dams prevent upstream Socorro also border the length of critical Historically there were four other movement, the minnow becomes habitat in the Middle Rio Grande Valley. small native fish species that are now trapped in dewatered reaches and either extinct or extirpated from the generally dies. This becomes Previous Federal Action middle Rio Grande; the silvery minnow particularly significant for the silvery On February 19, 1991, we mailed is the only one surviving today and it minnow below San Acacia diversion approximately 80 pre-proposal has been reduced to only 5 percent of dam, where approximately 70 percent of notification letters to the six Middle Rio its historical range. Although the the current population lives. In the river Grande Indian pueblos, various minnow is a hearty fish, capable of reaches above (north of) San Acacia governmental agencies, knowledgeable withstanding many of the natural Dam, return flows from irrigation and individuals, and the New Mexico stresses of the desert aquatic other diversions are returned back into Congressional delegation. The letter environment, the majority of the the mainstem of the river, which assures informed them of our intent to propose individual minnows live only one year. a fairly consistent flow. However, at San adding the Rio Grande silvery minnow A healthy annual spawn is key to the Acacia Dam, one irrigation diversions to the Federal list of Endangered and survival of the species. are made the return flows continue in Theratened Wildlife and Plants and The minnow’s range has been so off-river channels until they enter solicited their comments and input. We greatly restricted that the species is Elephant Butt Reservoir. were particularly interested in obtaining 36276 Federal Register / Vol. 64, No. 128 / Tuesday, July 6, 1999 / Rules and Regulations additional status information or the Rio Grande silvery minnow on July respondents in replying to our information concerning threats. On May 20, 1994 (59 FR 36988). Section 4(a)(3) information request, the following 22, 1991, a second informational letter of the Act requires that, to the maximum topics identified in the proposed rule was sent to the New Mexico extent prudent and determinable, the were discussed: Congressional delegation. Comments Secretary designate critical habitat at the Any action that would lessen the were received from the Service’s Dexter, time a species is determined to be amount of the minimum flow or would New Mexico, Fisheries Assistance endangered or threatened. Our significantly alter the natural flow Office; New Mexico Department of regulations (50 CFR 424.12(a)(2)) state regime; Game and Fish City of Albuquerque; that critical habitat is not determinable any activity that would extensively Texas Parks and Wildlife Department; if information sufficient to perform alter the channel morphology of the Rio U.S. Department of the Interior, Office required analyses of the impacts of the Grande; and of Surface Mining; and the New Mexico designation is lacking or if the biological any activity that would significantly Interstate Stream Commission. No needs of the species are not sufficiently alter the water chemistry in the Rio commenters offered additional well known to permit identification of Grande. information concerning the status of the an area as critical habitat. At the time of Further, at that meeting we identified species or information concerning listing the silvery minnow, we found activities that may be affected by the additional threats. Most commented that that critical habitat was not designation to include construction, the range of the species had been determinable because there was maintenance, and operation of diversion severely reduced and that Federal insufficient information to perform the structures; use of the conveyance listing should be considered. The required analyses of the impacts of the channel and other canals; and levee and response from the New Mexico designation. dike construction and maintenance. As interstate Stream Commission included We contracted for an economic detailed below, we have since a historical review of water analysis of the proposed critical habitat determined that activities likely to development in the Middle Rio Grande designation in September 1994. result in a finding of adverse Valley. Individuals and agencies were notified modification of critical habitat for the The Rio Grande silvery minnow was of the award of the contract on silvery minnow are also likely to included in our Animal Notice of September 30, 1994. On October 27, jeopardize the continued existence of Review (56 FR 58804; November 21, 1994, we held a meeting with the the species. 1991) as a Category 1 candidate species. contractors, inviting representatives On June 22, 1995, a meeting was held At that time, a Category 1 candidate from the BOR and Corps, as the two solely for Pueblo representatives to species was one for which we had on Federal agencies with significant discuss the proposed critical habitat and file substantial information on activities within the range of the silvery the process to be employed in biological vulnerability and threats to minnow and the proposed critical determining economic effects of the support a proposal to list it as an habitat; the pueblos of Cochiti, San designation with the content identical to endangered or threatened species. Felipe, Isleta, Sandia, Santa Ana, and that of the earlier meeting. No Pueblo On March 20, 1992, we held a Santo Domingo; the Middle Rio Grande representative attended. meeting in Albuquerque, New Mexico, Conservancy District; the Rio Grande On July 5, 1995, potential respondent to explore with various interested Compact Commission; the cities of El agencies and individuals were provided governmental and private entities any Paso, Texas and Albuquerque, New a copy of a previous report prepared on existing or potential flexibility in water Mexico; the Elephant Butte Irrigation potential economic consequences of delivery schedules that might avoid de- District; and the International Boundary designating critical habitat for fish watering the Rio Grande through the and Water Commission. At the meeting, species in southern Oregon and area containing the remaining habitat of we and the contractors outlined the northern California, in order to the silvery minnow. We also requested approach under consideration to familiarize them with the type of that attendees provide any information determine if economic impacts arose approach to be utilized for the silvery that would add to the knowledge of the from critical habitat designation and minnow. On July 14, 1995, we sent a current distribution of the species. No sought input to the process and questionnaire to all known Federal New information concerning participation from these entities. entities in the area of proposed critical distribution, abundance, or threats to Following the meeting, a paper prepared habitat seeking their input in the species was provided. No flexibility by the consulting economists on their developing information on the potential in the management of water in the river methodology for estimating economic economic consequences of the proposed or the timing or duration of flows was effects of critical habitat designation designation. The entities were identified by any meeting participant. was provided to all attendees. specifically requested to evaluate two We proposed to list the Rio Grande On November 3, 1994, letters scenarios. The ‘‘no designation’’ silvery minnow as an endangered soliciting any information considered scenario represented the conditions that species with critical habitat on March 1, germane to the economic analysis were would exist, given that the Rio Grande 1993 (58 FR 11821). The comment sent to attendees of the October 27, silvery minnow has been listed as an period, originally scheduled to close on 1994, meeting. We scheduled two endangered species, but assuming there April 30, 1993, was extended until additional meetings to discuss and were no designations of critical habitat. August 25, 1993 (58 FR 19220; April 13, clarify any questions of the agencies and The other was the ‘‘proposed 1993). This extension allowed us to entities who were asked to provide designation’’ scenario, which conduct public hearings and to receive information for the economic analysis. represented conditions that would exist additional public comments. Public Non-Pueblo entities were invited to a if proposed critical designation was hearings were held in Albuquerque and June 21, 1995, meeting. At that meeting made final. Any difference between Socorro, New Mexico, on the evenings we reviewed the description and activities was to be identified as the of June 2 and 3, 1993, respectively. evaluation provided in the proposed designation’s impacts. Five Federal After a review of all comments rule of activities that might adversely agencies did not respond to the received in response to the proposed modify critical habitat or that may be questionnaire. Twelve responded that rule, we published the final rule to list affected by such designation. To assist their actions would not change between Federal Register / Vol. 64, No. 128 / Tuesday, July 6, 1999 / Rules and Regulations 36277 the two scenarios. One Federal agency, proposed and final rules to delist or private interest stakeholders. Many of the BOR, responded that the designation reclassify species; and third priority the representatives of agencies, of critical habitat for the silvery minnow (Tier 3) to processing proposed and final municipalities, and private interests that in the middle Rio Grande Valley would rules designating critical habitat. Our were involved in the proposal to list and have a limited impact on activities that Southwest Region is currently working in the analysis of critical habitat are it would conduct, authorize, permit, or on Tier 2 actions; however, we are recovery team members. The draft Final fund over and above any impact derived undertaking this Tier 3 action in order Rio Grande Silvery Minnow Recovery from the listing of the species. to comply with the court order in Forest Plan has been prepared and is currently Following the compilation and Guardians and Defenders of Wildlife v. under review. assessment of responses, the draft Bruce Babbitt, CIV 97–0453 JC/DIS, Critical Habitat economic analysis was prepared and discussed below. provided to us on February 29, 1996. On February 22, 1999, the United Section 4(a)(3) of the Act, as The draft document was then provided States District Court for the District of amended, and implementing regulations to all interested parties on April 26, New Mexico in Forest Guardians and (50 CFR 424.12), require that, to the 1996. That mailing included 164 Defenders ordered us to publish a final maximum extent prudent and individuals and agencies, all affected determination with regard to critical determinable, the Secretary designate pueblos in the valley, all county habitat for the Rio Grande silvery critical habitat at the time the species is commissions within the occupied range minnow within 30 days of that order. determined to be endangered or of the species, and an additional 54 The deadline was subsequently threatened. With this final rule, critical individuals who had attended the extended by the Court to June 23, 1999. habitat is being designated for the RIO public hearings on the proposed listing This final rule is issued to comply with Grande silvery minnow. and who had requested that they be that order and has been crafted within Definition of Critical Habitat included on our mailing list. At that the time constraints imposed by the time we notified the public that, Court’s orders. The draft economic Critical habitat is defined in section because of the Congressional analysis performed for the critical 3(5)(A) of the Act as ‘‘(i) the specific moratorium and funding rescission on habitat designation was drafted in 1996 areas within the geographical area final listing actions and designations of and represents data gathered from occupied by a species, at the time it is critical habitat imposed by Public Law respondent entities about 4 years ago. listed in accordance with the Act, on 104–6, no work would be conducted on We reviewed the content of that draft which are found those physical or the analysis or on the final decision report in the context of Service policy, biological features (I) essential to the concerning critical habitat. However, we comments received from the public, and conservation of the species and (II) that solicited comments from the public and any other new information. may require special management agencies on the economic analysis for On April 7, 1999, we reopened the considerations or protection; and (ii) use when such work resumed. public comment period on the proposal specific areas outside the geographical On April 26, 1996, the moratorium to designate critical habitat and area occupied by a species at the time was lifted. Following the waiver of the announced the availability of two draft it is listed, upon a determination that moratorium, we reactivated the listing documents, the draft Economic Analysis such areas are essential for the program that had been shut down for prepared in 1996, and a draft conservation of the species.’’ The term over a year and faced a national backlog Environmental Assessment on the ‘‘conservation,’’ as defined in section of 243 proposed species’ listings. In proposed action of designating critical 3(3) of the Act, means ‘‘to use and the order to address that workload, we habitat (64 FR 16890). Also on April 7, use of all methods and procedures published our listing Priority Guidance 1999, we mailed copies of the notice which are necessary to bring an (LPG) for the remainder of Fiscal Year and the two draft documents to endangered species or threatened (FY) 1996 (May 16, 1999; 61 FR 24722). approximately 425 entities known to species to the point at which the That guidance prioritized all listing have an interest in the Rio Grande measures provided pursuant to this Act actions and identified the designation of silvery minnow and its proposed critical are no longer necessary’’ (i.e., the critical habitat as the lowest priority habitat. The April 7, 1999, Federal species is recovered and removed from upon which we would expend limited Register notice also announced a public the list of endangered and threatened funding and staff resources. Subsequent hearing to discuss and receive species). revisions of the LPG for Fiscal Years comments on the proposed designation. We are required to base critical 1997 (61 FR 64475) and for 1998/1999 That hearing was held in Albuquerque, habitat designations upon the best (63 FR 25502) retained critical habitat as New Mexico, on April 29, 1999. scientific and commercial data available the lowest priority. Parallel to the process of reviewing (50 CFR 424.12) after taking into The processing of this final rule the critical habitat proposal and the account economic and other impacts of designating critical habitat for the economic consequences of the such designation. In designating critical minnow does not conform with our designation, we initiated recovery habitat for the Rio Grande silvery current LPG for FY 1998/1999. That planning for the silvery minnow. The minnow, we have reviewed the overall guidance gives the highest priority (Tier Interagency Cooperative Policy approach to the conservation of the 1) to processing emergency rules to add Statement, issued jointly by us and the silvery minnow undertaken by the local, species to the Lists of Endangered and National Marine Fisheries Service on State, Tribal, and Federal agencies Threatened Wildlife and Plants; second July 1, 1994 (59 CFR 34272), identified operating within the Middle Rio Grande priory (Tier 2) to processing final the minimization of social and Valley since the species’ listing in 1994, determinations on proposals to add economic impacts caused by and the identified steps necessary for species to the lists, processing new implementing recovery actions as a recovery outlined in the draft Final Rio listing proposals, processing priority of both Services. The Rio Grande Silvery Minnow Recovery Plan administrative findings on petitions (to Grande Silvery Minnow Recovery Team (in review). We have also reviewed add species to the lists, delist species, was appointed pursuant to this available information that pertains to or reclassify listed species), and guidance and includes both species and the habitat requirements of this species, processing a limited number of habitat experts and community and including material received during the 36278 Federal Register / Vol. 64, No. 128 / Tuesday, July 6, 1999 / Rules and Regulations initial public comment period on the nearly always found to jeopardize the being designated as critical habitat proposed listing and designation, the species concerned, and in most cases represents the remaining 5 percent of its information received following the the existence of a critical habitat historical range and is currently provision of the draft Economic designation does not materially affect occupied by the species, loss of habitat Analysis to the public on April 26, the outcome of consultation. This is that would result in a finding of adverse 1996, and the comments and often in contrast to the public modification would also significantly information provided during the 30-day perception that the adverse modification reduce the likelihood of survival and comment period opened on April 7, standard sets a lower threshold for recovery of the species, which is the 1999, including the public hearing. violation of section 7 than the jeopardy definition of jeopardy. standard. In fact, biological opinions Federal activities that may be affected Effect of Critical Habitat Designation that conclude that a Federal agency by critical habitat designation include Section 7(a) of the Act, as amended, action is likely to adversely modify construction, maintenance, and requires Federal agencies to evaluate critical habitat but not to jeopardize the operation of diversion structures; their actions with respect to any species species for which it is designated are management of the conveyance channel; that is proposed or listed as endangered extremely rare historically and none and levee and dike construction and or threatened. Regulations have been issued in recent years. maintenance. Again, these types of implementing this interagency The duplicative nature of the jeopardy activities have already been examined cooperation provision of the Act are and adverse modification standards is under consultation with us upon listing codified at 50 CFR part 402. Section true for the Rio Grande silvery minnow the species as endangered. No 7(a)(2) requires Federal agencies to as well. Since the species was listed in additional restrictions to these activities ensure that activities they authorize, 1994, there have been a number of as a result of critical habitat designation fund, or carry out are not likely to consultations that included a are anticipated. jeopardize the continued existence of a determination of potential impacts to Recent consultations undertaken with listed species or to destroy or adversely proposed critical habitat. Implementing the BOR and Corps have recognized and modify its critical habitat. If a Federal regulations of the act found at 50 CFR allowed for occasional drying of action may affect a list species or its 402.10 direct that each Federal agency portions of the lower reaches of the critical habitat, the responsible Federal shall confer with the Service on any minnow’s occupied habitat. We agency must enter into formal action which is likely to jeopardize the anticipate that, in times of severe water consultation with the Service. continued existence of any proposed shortages, similar actions must be The designation of critical habitat species or result in the destruction or permissible after the designation of directly affects only Federal agencies, by adverse modification of proposed critical habitat becomes final, as long as prohibiting actions they fund, authorize, critical habitat. No additional a managed reduction ion surface flows or carry out from destroying or restrictions resulted from these allows the minnow to remain in the adversely modifying critical habitat. conferences. We do not anticipate that water column and retreat upstream, Individuals, firms and other non— when the designation is finalized we minimizing mortality. However, any Federal entities are not affected by the will need to impose additional such circumstance would require designation of critical habitat so long as restrictions relative to critical habitat consultation under section 7 of the Act, their actions do not require support by that were not previously in place due to and adequate monitoring would be permit, license, funding, or other means the listing of the species. required to ensure that the action would from a Federal agency. In some cases, critical habitat may not result in jeopardy to the species, An understanding of the interplay of assist in focusing conservation activities adversely modify its critical habitat, or jeopardy and adverse modification by identifying areas that contain result in unpermitted taking of standards is necessary to evaluate the essential habitat features (primary individuals. See the discussion on likely outcomes of consultation under constituent elements), regardless of Primary Constituent Elements and our section 7, and to evaluate the whether they are currently occupied by response to Issue 33, below. environmental, economic and other the listed species. This alerts the public The minnow does not need a large impacts of any critical habitat and land managing agencies to the quantity of water to survive but it does designation. Implementing regulations importance of an area in the need some water. The minnow requires (50 CFR part 402) define ‘‘jeopardize the conservation of that species. Critical habitat with sufficient flows through the continued existence of’’ (a species) and habitat also identifies areas that may irrigation season to avoid excessive ‘‘destruction or adverse modification of’’ require special management or mortality in downstream reaches, plus a (critical habitat) in virtually identical protection. spike in flow in the late spring or early terms. ‘‘Jeopardize the continued Section 4(b)(8) of the Act requires us summer to trigger spawning, and a existence of’’ means to engage in an to describe in any proposed or final relatively constant winter flow. action ‘‘that reasonably would be regulation that designates critical Alterations of the primary constituent expected * * * to reduce appreciably habitat, those activities involving a elements are evaluated to determine the likelihood of both the survival and Federal action that may adversely whether Federal activities are recovery of a listed species.’’ modify such habitat or that may be destroying or adversely modifying ‘‘Destruction or adverse modification’’ affected by such designation. Activities critical habitat; the identification of means a direct or indirect alteration that that may destroy or adversely modify primary constituent elements for the ‘‘appreciably diminishes the value of critical habitat include those that alter minnow is not intended to create a high- critical habitat for both the survival and the primary constituent elements velocity, deep flowing river. The recovery of a listed species.’’ (defined below) to an extent that the minnow does not require such habitat Common to both definitions is an value of designated critical habitat for characteristics. appreciable detrimental effect on both both the survival and recovery of the survival and recovery of a listed species. silvery minnow is appreciably reduced. Primary Constituent Elements Thus, for most species, actions likely to We note that such activities may also In identifying areas as critical habitat, result in destruction or adverse jeopardize the continued existence of 50 CFR 424.12 provides that we modification of critical habitat are the species. Because the area that is consider those physical and biological Federal Register / Vol. 64, No. 128 / Tuesday, July 6, 1999 / Rules and Regulations 36279 attributes that are essential to a species’ mainstem Rio Grande. Ownership of the interacts with resources potentially conservation, and that may require channel itself is unclear. However, most affected by the designation. This area special management considerations or of the land in the middle river valley includes nine counties in two states and protection. Such physical and biological that abuts critical habitat is within the four metropolitan areas: Santa Fe, features, as outlined in 50 CFR 424.12, administrative boundaries of the Middle Albuquerque, Las Cruces, and El Paso. include, but are not limited to, the Rio Grande Conservancy District. The Albuquerque and El Paso, each with a following: Middle Rio Grande Conservancy District population of about 650,000, are Space for individual and population is the subdivision of the State of New considerably larger than the others. growth, and for normal behavior; Mexico which provides for irrigation, Irrigated agriculture accounts for more Food, water, or other nutritional or flood control, and drainage of the than 80 percent of permitted water use physiological requirements; Middle Rio Grande valley in New in the Middle Rio Grande Valley. Total Cover or shelter; Mexico, from Cochiti Dam downstream private-sector employment in the Sites for breeding, reproduction, or 150 mi (285 km) to the northern agricultural industry in 1993 was rearing of offspring; and boundary of the Bosque del Apache del 14,078, about two percent of total Habitats that are protected from Apache National Wildlife Refuge. employment in the study area. disturbances or are representative of the Within these 150 mi are also the lands Agricultural employment is a higher historical geographical and ecological of the communities of Algodones, percentage of total employment in the distributions of a species. Bernalillo, Corrales, Albuquerque, Los two non-metropolitan counties (Socorro Primary constituent elements of Lunas, Belen, Socorro, and a number of and Sierra counties in the lower reaches critical habitat required to sustain the smaller incorporated and of designated critical habitat) than in the Rio Grande silvery minnow include: unincorporated communities. Within metropolitan areas, and a higher Stream morphology that supplies the upper third of the middle valley of percentage in the Las Cruces sufficient flowing water to provide food the Rio Grande are six Indian pueblos: metropolitan area than in the other and cover needed to sustain all life Cochiti, Santo Domingo, San Felipe, metropolitan areas. For the study area as stages of the species; Santa Ana, Sandia, and Isleta. a whole, growth in agricultural Water of sufficient quality to prevent Approximately 45 river mi (86 km) of employment during the past decade did water stagnation (elevated temperatures, critical habitat run through Pueblo not keep pace with total employment. In decreased oxygen, carbon dioxide build- lands. 1993, proprietors and employees in the up, etc.); and study area’s agricultural industry earned Water of sufficient quality to prevent Summary of Economic and Other income of about $269 million, or one formation of isolated pools that restrict Impacts percent of total income. Agricultural fish movement, foster increased The Act requires that we designate incomes in this area have grown more predation by birds and aquatic critical habitat after taking into rapidly than incomes in other sectors predators, and congregate pathogens. consideration the economic impact, and during the past decade, largely because All areas within the designated any other relevant impact, of specifying farm incomes were depressed stretch of the Rio Grande are occupied any particular area as critical habitat. throughout the nation in the early by the Rio Grande silvery minnow. We may exclude an area from 1980s. Nonetheless, average earnings in Areas within the designated stretch designation if the benefits of its the agricultural industry are either contain, or are capable of exclusion outweigh the benefits of its approximately two-thirds of the overall containing, these primary constituent inclusion in critical habitat, unless average. elements. Areas within the designated failure to designate the area would These data indicate that the critical habitat that may not have result in extinction of the species agricultural industry, the resource- minnows present at a given point in concerned. We utilized the draft intensive industry primarily associated time are capable of supporting these economic analysis prepared for the with the critical habitat of the silvery constituent elements because habitat proposed critical habitat designation, in minnow, generally reflects the national conditions can change rapidly in addition to our assessment of other trends for resource-intensive industries. response to flows and other factors, impacts, to assist in our determination In particular, the data indicate that such as the development of sand bars, of whether any incremental economic nationwide this industry is a small shifting of islands within the channel, effects of designation exist beyond the component of the overall economy and and creation and disappearance of effects of the listing. The draft economic it is not growing as rapidly as other pools. analysis, along with comments and sectors of the economy. other information available to us, Although from a geographic Land Ownership allowed us to assess the benefits of perspective the landscape surrounding The area designated as critical habitat exclusion versus inclusion for the area the critical habitat for the silvery for the Rio Grande silvery minnow is identified in the proposed rule. minnow is predominantly non- the only area where the species has been metropolitan, the economy of the study collected in the recent past and where Regional Economic Profile area is highly concentrated in the area’s it is currently known to exist. Within The study area for the draft economic four metropolitan centers: Santa Fe, this 160 mi (262 km) stretch of river, analysis included the strip of land Albuquerque, Las Cruces, and El Paso. there are four identified reaches adjacent to the Rio Grande, stretching Approximately 98 percent of the delineated to reflect the management of from the Santa Fe metropolitan area, at population in the study area resides in water and habitat. From its upstream the northern edge of the proposed the counties that constitute the area’s end at the Highway 22 bridge to its designation to the El Paso, Texas four metropolitan statistical areas. This downstream terminus at the railroad metropolitan area, lying about 150 miles percentage somewhat overstates the trestle, critical habitat is within the downstream from the southern terminus portion of the area’s population that Cochiti, Angostura, Isleta, and San of the proposed critical habitat actually has a metropolitan residence, Acacia reaches. designation. This area embraces the because these are large counties and Critical habitat for the silvery minnow designated habitat area and the majority each one contains both urban and non- includes only the active channel of the of the economic activity that directly urban residents. 36280 Federal Register / Vol. 64, No. 128 / Tuesday, July 6, 1999 / Rules and Regulations

Economic Impacts and Effects Bureau would employ different design 1. The designation of critical habitat We reviewed and assessed the draft and construction techniques to is required by law. The initial inclusion economic analysis report, which was accomplish river maintenance of reaches of the Rio Grande within or based on questionnaires to Federal objectives. We have concluded that adjacent to Pueblo boundaries was agencies. These questionnaires reported there are no incremental economic based solely on biology and the Federal agencies’ own assessments of effects associated with the designation contribution of those reaches of the river the extent to which they would alter of critical habitat above and beyond the to the conservation of the species. their activities in response to critical effects of listing the species as Moreover, as discussed previously, habitat designation. Most agencies endangered. We have thus determined critical habitat designation will impose stated that the designation would have that there are no areas within the no additional restrictions on activities proposed designation where the benefits on Indian lands beyond the prohibitions no effect. Only one agency, the BOR, of exclusion can be shown to outweigh already in place against jeopardy and indicated that it would alter its any benefits of inclusion. unpermitted taking of the species. activities in response to the proposed 2. In the process of designating designation of critical habitat for the Secretarial Order 3206 critical habitat for the Rio Grande minnow. Specifically, the BOR Secretarial Order 3206 was issued to silvery minnow, specific biological indicated that it would alter its river clarify the responsibilities of the criteria were applied to all potential maintenance program in the proposed component agencies, bureaus, and river reaches. This critical habitat designated critical habitat area from just offices of the Department of the Interior designation includes a continuous below Cochiti Dam to just above and the Department of Commerce, when stretch of river that constitutes the Elephant Butte Reservoir. Because of actions taken under authority of the Act remaining 5 percent of the historical numerous uncertainties, however, the and associated implementing range of the species, and that we BOR was unable to give a specific regulations affect, or may affect, Indian consider essential to the silvery estimate of the designation’s potential lands, Tribal trust resources, or the minnow’s conservation. The contiguity impact on its river maintenance exercise of American Indian Tribal of habitats within and among the activities. rights. In keeping with the trust different reaches of the Rio Grande and The BOR’s response to the responsibility and government-to- the importance of the linkage between questionnaire was their own government relationships, we recognize upstream and downstream activities and interpretation of the ramifications of our responsibility to consult with habitats does not allow for the removal avoiding adverse modification of critical affected tribes and provide written from designation of one river section habitat. However, we believe that if the notice to them as far in advance as from its adjacent upstream and identified activities had an impact on practicable of conservation restrictions downstream non-Indian counterparts the silvery minnow significant enough that we consider necessary to protect without potentially decreasing the value to result in a finding of adverse listed species. of all sections. Additionally, because of modification of the minnow’s critical If a proposed conservation restriction the unique relationship existing habitat, we would also find that those is directed at a Tribal activity that could between the pueblos and the non-Indian activities would jeopardize the raise the potential issue of direct Middle Rio Grande Conservancy District continued existence of the species in the (directed) take under the Act, then (the District is obligated to deliver water absence of designated critical habitat. meaningful government-to-government to the pueblos; the pueblos are Thus, the designation of critical habitat consultation shall occur, in order to represented on the Board of the should not require any change in the strive to harmonize the Federal trust District), and the interdependence of activities identified by the Bureau that responsibility to Tribes, Tribal Tribal and non-Tribal activities were not already changed due to the sovereignty, and the statutory missions throughout the stretch of critical habitat listing of the minnow, and no economic of the Departments of the Interior and lying within the District does not effects should flow from the designation Commerce. In cases involving an facilitate the separation of the two. itself. activity that could raise the potential 3. The critical habitat as designated No Federal agency that commented issue of an incidental take under the encompasses the last remnant of habitat during the April–May 1999, public Act, Tribal notification shall include an still occupied by the silvery minnow comment period amended or added to analysis and determination that all of (approximately 5 percent of the species’ its original response about impacts to its the following conservation standards historical habitat) and is considered the operations that would be caused by have been met—(i) the restriction is least amount available with which to critical habitat. The BOR, in its May 7, reasonable and necessary for achieve the survival and recovery of the 1999, comments, stated that the conservation of the species at issue; (ii) species. designation of critical habitat will likely the conservation purpose of the 4. The designation of critical habitat have minimal impacts on that agency’s restriction cannot be achieved by does not discriminate against Indian Endangered Species Act-related reasonable regulation of non-Indian activities, either as stated or applied. activities. activities; (iii) the measure is the least The identified threats to the habitat of In summary, although the draft restrictive alternative available to the Rio Grande silvery minnow were economic analysis provided to us achieve the required conservation based on range-wide information that identified a perceived economic impact purpose; (iv) the restriction does not neither discriminated against nor of critical habitat designation, we discriminate against Indian activities, favored particular land owners. Any consider this potential economic impact either as stated or applied; and (v) ‘‘restrictions’’ which might be derived to be a result of the minnow’s listing, voluntary tribal measures are not from the designation would have to not critical habitat designation. In adequate to achieve the necessary arise from the obligation, under the Act, addition, the BOR’s original estimate of conservation purpose. of Federal agencies to ensure that their economic impacts resulting from critical Below we have specifically assessed actions do not result in the destruction habitat designation discussed ceasing the designation of critical habitat with or adverse modification of critical river maintenance; an unlikely respect to the five factors listed in habitat. As stated in 1 (above), critical occurrence. It is more likely that the Secretarial Order 3206: habitat does not create additional Federal Register / Vol. 64, No. 128 / Tuesday, July 6, 1999 / Rules and Regulations 36281 restrictions because the areas are Finally, during the public comment (comprised of the active river channel currently occupied, and no increased period opened from April 7 to May 7, including the water column), and its burdens have been identified. 1999, we received a total of 94 associated channel morphology. 5. Voluntary Tribal measures are not comments concerning the proposal, the Although some actions on lands within adequate to achieve the necessary draft Economic Analysis document, and the floodplain of the river may affect conservation purpose. Tribal the draft Environmental Assessment. critical habitat, these areas are not representation has been included in the Thirty-two comments were provided included within the designation. Rio Grande Silvery Minnow Recovery orally at the public hearing, and we The river reach between San Acacia Team and we continue to work with received 62 written comments. All and Elephant Butte Reservoir is of individual pueblos when requested to comments on critical habitat and the primary importance because 70 percent provide expertise in the rehabilitation draft documents, both oral and written, of the population currently inhabits that and maintenance of aquatic habitats on received during the comment period are reach. The river above Cochiti Dam was Pueblo lands. Santa Ana Pueblo has addressed in the following summary. not a significant part of the species’ taken a leadership role in forming a Comments of a similar nature are historical range, is colder than the broad interest-based consortium, which grouped into a number of general issues. optimal temperature for silvery is seeking funding for recovery projects Issues that were addressed in the final minnows, and is stocked with predatory for the silvery minnow. In addition, rule to list the Rio Grande silvery non-native fish. The area between Santa Ana is also actively pursuing minnow may be found in that Elephant Butte and Caballo reservoirs is habitat restoration within the Santa Ana publication (59 FR 36988). also stocked with non-native fish, and Pueblo boundaries. Both Sandia Pueblo Issue 1: Considerable discrepancy its channel morphology is not (which is north of Albuquerque on the exists within the comments received conductive to silvery minnows. Finally, Rio Grande) and Isleta Pueblo (which is related to geographical extent of the the river below Caballo Reservoir is not immediately south of Albuquerque on proposed designation. Some currently occupied by the species. As the Rio Grande) have enacted EPA- commenters stated that the extent of we progress through the recovery approved water quality standards as critical habitat proposed by the Service process for the Rio Grande silvery authorized under the Clean Water Act. is inadequate to address survival and minnow, we may identify areas below Because of the time constrains in recovery of the species. Others asserted the Caballo Reservoir, or other areas, rendering this final determination, we that there is no basis for excluding the that are suitable for reintroduction. have had limited opportunity to engage river above Cochiti Reservoir (including Those areas would first have to be in consultation with the pueblos the portions of the watershed) examined to determine why the adjacent to the designated critical from designation. Still others minnow no longer occurs there, what habitat. However, on March 4, 1999, recommended that additional reaches of remedial action would be necessary to following the receipt of the court order, the Rio Grande should be evaluated, reestablish the species, and whether information was provided to Tribal such as the river between Elephant remediation is feasible. However, until representatives at the meeting of the Six Butte and Caballo reservoirs and we have this information, we believe Middle Rio Grande Basin Pueblos downstreams of Caballo Reservoir. that the habitat essential to the silvery Coalition. Written comments to the Some commented that the reach of the minnow’s conservation is that which we proposed critical habitat designation for Rio Grande below San Acacia, because originally proposed. If information the Rio Grand silvery minnow were of its known episodes of intermittency, becomes available that confirms that received from Sandia Pueblo (generally should be removed from the proposal. additional areas are essential for the supporting the designation), Isleta Some commenters recommended that, species’ conservation, we can revise the Pueblo, and the Jicarilla Apache Tribe because the reach upstream from San critical habitat designation. In addition, (both expressing concerns about the Acacia Cochiti Reservoir would appear under section 4 of the Act, persons can effects of the designation). On May 3, to offer an opportunity to provide petition the Service to modify the 1999, the Service’s Regional Director, critical habitat for the silvery minnow designation. the Department of the Interior’s Office of without insurmountable adverse effects Issue 2: The economic analysis for the Regional Solicitor, and staff met on water supply, that we do not regional impacts must be able to assess with representatives of and legal designate as critical habitat the reach the effects on regional income that counsel for the Pueblo of Santa Ana to downstream from San Acacia. Some result from changes in the natural discuss critical habitat designation and commenters stated that there were no resource supply such as water. An inter- solicit input from the Pueblo. We will east-west boundaries identified for industry general equilibrium resource continue to provide assistance to and critical habitat. Some commenters, assessment model that can account for cooperate with pueblos abutting critical misinterpreting the scale of the map true resource limits and habitat at their request. prepared for critical habitat, interpreted interdependence in the regional the proposal to incorporate miles of economy should be utilized. Summary of Comments terrestrial habitat bordering the river Service Response: Because any Following the proposal to list the Rio throughout the length of the Middle Rio finding of adverse modification of Grand silvery minnow as an endangered Grande Valley. critical habitat will also result in a species with critical habitat, we Service Response: The areas finalized finding of jeopardy to this species, we received comments from the public, as critical habitat in this rule meet the have determined that there are no scientific community, and management designation criteria in 50 CFR part 424. incremental economic effects above and and regulatory agencies at the State and This designation of critical habitat is beyond any effects associated with the Federal levels concerning critical based on the last remaining area still listing of this species. Therefore, we habitat. Additionally, following the occupied by the species. The Service believe that there is no need for further provision of the draft Economic considers this area in need of special economic analysis as suggested by these Analysis to the entities on our mailing management and protection and commentors. list, we also received comments on the essential for the conservation of the Immediately following initiation of draft document and the economic species. The area designated includes the draft economic analysis, we impacts predicted by that document. the mainstem of the Rio Grande arranged a meeting for all interested 36282 Federal Register / Vol. 64, No. 128 / Tuesday, July 6, 1999 / Rules and Regulations agencies to meet with the consulting that agency’s Endangered Species Act- available at that time. We believe that economists and to discuss the approach related activities. considerable information is available on and methodology that was to be utilized Issue 4: The draft Economic Analysis the silvery minnow, including in the determination of economic is incomplete and flawed. The draft numerous scientific studies on the impacts. Those commenters who Environmental Assessment, relying on species and on the hydrology of the Rio expressed their desire to interact with the conclusions of the economic Grande. In addition, a recovery plan has the economists were invited to the analysis, is also flawed and inadequate. been drafted by a team of experts and meeting. A second meeting was also The Service should prepare a thorough is currently under review. This recovery held with agencies prior to the economic analysis with necessary plan represents a compilation and provision of the questionnaire; studies to adequately assess the analysis of the existing data on the interested parties were invited to these requirements of the silivery minnow species and its habitat. Within the meetings and also provided and the impact of the critical habitat constraints imposed by the Act and, in informational copies of the designation. The Service is strongly this instance, time constraints from the questionnaire that was sent to Federal encouraged to provide adequate time for Court, we have attempted to contact all entities for response. public review and comment on studies knowledgeable and interested entities to Issue 3: We must evaluate the direct to determine the impact of the critical gather information for use in the and indirect impacts of critical habitat. habitat designation and a final rule determination of critical habitat and in Indirect costs are associated with the should not be issued until this new the analysis of the economic and other societal implications on small information has been fully considered. relevant impacts that might arise from communities in the middle Rio Grande Service Response We have reviewed its designation. valley dependent upon adequate flows the draft economic analysis, draft Issue 6: The proposed rule provided from the Rio Grande to sustain the Environmental Assessment, and all no data or factors that were considered practice of irrigated agriculture. comments relieved on those documents concerning economic and other impacts. Designation of critical habitat could and the proposal to designate critical Service Response: The proposed limit the ability of municipalities and habitat. We considered all comments in designation of critical habitat was based other water providers in the middle the final preparation of this designation. solely on biological information valley to provide water to residents and We believe that designation of critical concerning the needs and potential affect the agricultural economy. habitat will have no incremental effects conservation of the silvery minnow. Service Response: As indicated in the beyond those resulting from listing the Economic data were not required for the proposal, the designation of critical species as endangered. The absence of proposal, nor were the economic data habitat would affect only Federal agency impacts attributable to critical habitat developed at the time the proposed rule actions that would adversely modify or designation is clearly and adequately was published. The economic analysis destroy that habitat. As stated explained in both this final rule and in of impacts from the proposed previously, actions that would destroy the environmental assessment prepared designation was initiated in September or adversely modify critical habitat for this action. Further, while we 1994. The draft economic analysis was would also result in jeopardy to the welcome and encourage additional shared with all interested parties in species. The draft economic analysis studies on the biological requirements April 1996, and its availability discussed the possibility that cessation of the silvery minnow, we believe the announced along with the reopening of or alternation of Federal actions in order best available information has been used the public comment period on the to avoid jeopardy to the species or in defining the primary constituent proposal in April 1999, giving interested adverse modification or destruction of elements necessary for the species’ parties ample opportunity to comment critical habitat might affect water conservation. on the draft economic analysis. availability to irrigators, cities, and Issue 5: The Service should place the Issue 7: An Environmental Impact other water rights holders. It also stated silvery minnow critical habitat Statement is required and must be that complete cessation might have far designation on hold in order to establish provided before critical habitat can be reaching impacts on the viability of a coordinating committee composed of designated. conveyance structures linked to and interests above and below Elephant Service Response: We have dependent upon the maintenance of the Butte Reservoir to develop a full-scale determined that an Environmental channel of the Rio Grande. The draft report on the existing data available on Impact Statement, as defined by the economic analysis further included the the silvery minnow, with several National Environmental Policy Act BOR’s estimates of increased costs of subcommittees, one of which would be (NEPA) of 1969, need not be prepared river maintenance, and possible loss of charged with evaluation of the overall in connection with actions under water caused by an equivalent reduction impact of the designation on other section 4 of the Endangered Species Act, in river maintenance capability as a significant environmental interests. including designation of critical habitat. worst case scenario based on the Service Response: The Act does not A notice outlining our reasons for this Bureau’s interpretation of critical allow the indefinite suspension of determination was published in the habitat. determination of critical habitat. It does, Federal Register on October 25, 1983 In commenting on the draft report, the however, allow for a 1-year delay in (48 FR 49244). However, the Tenth BOR has clarified that those actions designation if we find that critical Circuit Court of Appeals ordered under its control within the boundaries habitat is not determinable. We stated in compliance with NEPA on critical of critical habitat would not necessarily the final listing rule that we would need habitat designation for two fish species cease, rather the Bureau would likely an additional year to determine the in Catron County Board of employee different design and economic and other impacts of Commissioners v. U.S. Fish and Wildlife construction techniques to accomplish designation. Service, 75 F.3d 1429 (10th Cir. 1996). river maintenance objectives. The Act requires that we determine Based on that decision, in order to Additionally, the BOR, in its the extent of critical habitat and the comply with NEPA, we have completed commenting letter of May 7, 1999, said economic and other relevant impacts of an Environmental Assessment to that the designation of critical habitat such a determination using the best delineate those environmental, socio- will likely have minimal impacts on scientific and commercial information economic, and other relevant impacts Federal Register / Vol. 64, No. 128 / Tuesday, July 6, 1999 / Rules and Regulations 36283 arising from this designation. That bank flow is or will be a requirement to consequences for the water users in Environmental Assessment resulted in a avoid jeopardy to the species or adverse southern New Mexico and Texas. Finding of No Significant Impact for this modification of critical habitat. (See Service Response: We believe that action. Under NEPA, an Environmental discussion above under Effect of Critical there are alternatives in the delivery of Impact Statement is not required in Habitat Designation.) As an water that will allow the United States instances where a Finding of No evolutionary product of arid southwest and the State of New Mexico to comply Significant Impact is made on an river systems such as the Rio Grande, with compact and treaty obligations Environmental Assessment. the silvery minnow has adapted to low without either jeopardizing the Issue 8: Several commenters stated flow and intermittent flow conditions. continued existence of the species or their concern that critical habitat would However, complete dewatering of destroying or adversely modifying affect water rights. Other stated that extensive reaches of the only section of critical habitat. Some commenters are while the proposed critical habitat is river where it now exists are of great concerned that if water is transported in totally upstream of Elephant Butte. concern, particularly when the impacts the river channel instead of the Reservoir, action taken in accordance of dewatering are combined with the conveyance structures, additional water with the proposal may decrease the inability of the silvery minnow to access will be lost. However, we do not believe amount and delivery of water available stillflowing reaches upstream of that the accounting of water transport or for use by the El Paso Water Utilities. diversion dams. carriage losses is of sufficient accuracy Service Response: We have We have made no prediction of the and precision; the loss of salvaged determined that any alternations of BOR amount of water needed for surface water could be a loss to only one activities due to the prohibition against maintenance of critical habitat. reach of the river, to the overall system, destruction or adverse modification of However, since the silvery minnow was or merely transported subsurface to critical habitat would also be required listed and critical habitat proposed, the Elephant Butte. A better understanding under the prohibition of jeopardy to the amount of water needed in low-water of the hydrology and a more precise species. Thus, there are no additional years to avoid jeopardy to the species accounting system would also aid in the impacts of critical habitat designation. ranged from about 17,000 to 58,000 management of flow of the river. Further, neither the listing of the species acre-feet, depending upon specific Issue 13: The amount of time and data available to agencies in responding to nor designation of crucial habitat can or yearly conditions of water use, climate, will determine State water rights. the economic questionnaire were water availability, and response of the Issue 9: The City of Albuquerque’s insufficient to allow for more detailed silvery minnow to those river wasterwater treatment facility reporting of economic effects. discharges into the reach of the Rio conditions. We do not anticipate that Service Responses: The initial contact Grande designated as critical habitat for flow management necessary to avoid with the identified agencies that might the silivery minnow. To avoid destruction or adverse modification of have actions affected by the designation significantly altering the water critical habitat will be different than of critical habitat was in October 1994. chemistry of the Rio Grande, the City of what is currently required to avoid Coordination by both ourselves and the Albuquerque may have to remove the jeopardizing the species. consulting economists continued with treated effluent entirely from the river, Issue 11: The draft economic analysis the agencies to clarify information and to control and treat stormwater displayed a bias against irrigated needs, to provide examples of runoff. agriculture and flood control activities. questionnaires utilized in and reports Service Response: The City of It argues against irrigation subsidies produced by other economic impact Albuquerque is correct in stating that even though society through its assessments of critical habitat, and to the Environmental Protection Agency congressional representatives has made exhaustively discuss what would be (EPA), as the Federal agency issuing a the decision that such subsidies provide considered the components of critical permit for the City’s wasterwater important benefits to society. habitat and how adverse modification to treatment plant under the National Service Response: We disagree with those components might be analyzed by Pollutant Discharge Elimination System, the commenter’s interpretation that the the Service. These efforts continued for would be required to ensure that its report’s presentation of economic values over seven months. In June 1995, action would not destroy or adversely and commitments identified for another meeting was held with all modify critical habitat for the silvery irrigated agriculture and flood control is involved agencies invited to discuss the minnow. However, the EPA would be biased against these activities. The process, the information needs, the required to ensure that its proposed report does not argue for or against questionnaire, and the assessment action would not likely jeopardize the subsidies of any kind, it merely notes parameters. It was only after that continued existence of the species. their existence within the context of extensive period of coordination that Given the similarity of the definition of economic analysis. The costs and the questionnaire was sent to the jeopardy and destruction or adverse revenues from agriculture in the Rio agencies for their response. The modification, no additional restrictions Grande valley are a matter of record, not requested response time was 30 days; will result from designation of critical generated by the authors of the report, based on the discussions and meetings habitat. but taken from published data of the of the preceding seven months, we do Issue 10: The designation of critical U.S. Department of Commerce, Bureau not believe that the response time was habitat will require continuous instream of Economic Analysis, and the New unreasonably brief. flow. The working of the primary Mexico Cooperative Extension Service. Issue 14: The authors of the draft constituent element to require a Issue 12: The draft Economic Analysis economic analysis cannot seriously quantity of water sufficient to avoid should have included some analysis to consider the estimate of 4,000 acre-feet isolated pools in the river equates to gauge the impacts if the United States’ additional depletion to represent the perennial bank to bank flows. The ability to comply with its treaty actual impact of the designation of amount of water predicted for critical obligations to Mexico are compromised. critical habitat. habitat is unobtainable. Similarly, if the ability of New Mexico Service Response: The authors of the Service Response: We have made no to deliver water to Elephant Butte is draft report utilized the information determination that continuous bank-to- hampered, there will be drastic provided to them from the Federal 36284 Federal Register / Vol. 64, No. 128 / Tuesday, July 6, 1999 / Rules and Regulations agencies who have been managing the Issue 17: Critical habitat should not be or adverse modification of critical Rio Grande for over 90 years. The designated until such time as a recovery habitat would also result in a finding of quantity of 4,000 acre-feet was provided plan has been developed for the silvery jeopardy to the species. Therefore, any by the BOR. Although the BOR minnow that includes a determination changes in river maintenance activities estimated that a potential loss of 4,000 that such designation is necessary for are attributed to the listing of the silvery acre feet of surface flow could be survival and recovery of the species. minnow, and are not a result of critical realized from the cessation of some of Service Response: A recovery plan has habitat designation. their river maintenance program, it is been drafted for the silvery minnow and Issue 20: The draft Economic Analysis not known if this amount of water the plan is being reviewed. Although we does not appear to present facts would be lost to the system entirely, or agree that it would be appropriate to regarding the values of benefits of travel subsurface down the channel of make a detailed determination of habitat designating critical habitat for the the Rio Grande to arrive, in some needs of listed species during the silvery minnow. The discussion of quantity, at Elephant Butte Reservoir. recovery planning process, the recreational fishing benefits does not Issue 15: If critical habitat is declared Endangered Species Act does not apply to this section of the Rio Grande. there is a real possibility that the BOR currently link the designation critical Service Response: In responding to will be unable to perform periodic habitat to the development of the the questionnaire, the BOR provided maintenance on the Rio Grande recovery plan. The Act requires that, to estimates of costs identified as resulting upstream from Elephant Butte the maximum extent prudent and from the critical habitat designation, Reservoir. determinable, we designate critical without the amelioration or perceived Service Response: This concern was habitat when it lists a species. If critical benefits. As stated previously, we have not voiced by the BOR. No data habitat is not considered determinable concluded that no additional provided by the Bureau indicated that a at the time a final rule is adopted to list restrictions will result from the complete cessation of periodic a species, it must be designated ‘‘to the designation of critical habitat. We also maintenance would occur if critical maximum extent prudent’’ within 1 concur that recreational fishing in the habitat were to be designated for the Rio additional year. There is no provision in mainstem of the Rio Grande within the Grande silvery minnow. We concur that the Act to delay designation of critical boundaries of critical habitat is a river maintenance activities may need to habitat until such time as a recovery minimal input to the regional economy. be altered in order to avoid jeopardizing plan is prepared. The timing of this The draft Economic Analysis prepared the species or destroying or adversely designation also is in compliance with for our use in determining effects modifying critical habitat, but the a court order. presented some potential benefits to be resultant impacts in channel capacity, Issue 18: The calculation of the value derived from healthy riverine and water conveyance efficiencies, or water of the BOR’s river maintenance program riparian systems, but that draft did not conservation have not been provided by in the Middle Rio Grande is misleading. quantify the benefits to be derived from the Bureau for such alterations. The river maintenance program has designation; nor did it address any Issue 16: The New Mexico Interstate flood control and drainage purposes and mitigative actions that might be Stream Commission commented that the benefits as well as water salvage employed or implemented to lessen the prior appropriation doctrine in New benefits. The draft report did not identified economic impacts. Mexico does, to some extent, protect evaluate the economic value of these Issue 21: The minnow has not done instream flows. New Mexico State law benefits. well in stretches of the river that have and the Rio Grande Compact both Service Response: The BOR did not perennial flowing water and has done ensure delivery of water downstream provide estimates of the value of the quite well in some places that are through the Middle Rio Grande Valley benefits identified by the commenter, seasonally dry. to water users in the nor did they provide data that would Service Response: Although we south of Elephant Butte Dam. have allowed us to estimate the value of concur that the distribution of silvery Service Response: Both State law and those benefits. Therefore, economists minnow shows low members in areas the Rio Grande Compact require the were not able to include the value of now receiving flows year round (Cochiti delivery of water downstream. However, those benefits in the draft economic and Albuquerque reaches) and high currently the water that is released analysis. numbers in stretches of the river subject during the irrigation season is native Issue 19: The BOR estimated that the to low or no flows (Isleta and San water plus any waters called for to meet proposed designation of critical habitat Acacia reaches), we disagree with the irrigation, municipal, and industrial would cause the cost of continuing the conclusion that they are doing well in needs. Additional water to meet current level of river maintenance in the the seasonally dry reaches. The silvery Compact deliveries are released during Middle Rio Grande to increase by up to minnows transported from upstream the non-irrigation months in accordance 40 percent. This would mean that if reaches to the Isleta and San Acacia with instructions from the Compact funding for river maintenance activities stretches cannot regain the upstream Commission, which is composed of remains stable or declines, what river habitat. They are blocked by the representatives from Colorado, New maintenance activities in the Middle diversion dams. Their presence does not Mexico, and Texas. Alterations to this Rio Grande would be decreased. necessarily indicate that the species is plan require consent of the Compact Reclamation did not estimate what doing well in the lower portions of the Commission. Release of additional percentage reduction in the river river. Their presence indicates that they Compact waters during the irrigation maintenance program might occur. are vulnerable to the dewatering of these season would only be helpful to the Service Response: We assumed that if important habitats. minnow if the waters traveled down the the Bureau estimated that costs might Issue 22: It is not water depletion that riverbed. As discussed above, if water is increase by 40 percent, an alternative threatens the silvery minnow, but the not transported through the reach of scenario would be that activities might structural changes that have narrowed river between San Acadia Dam and instead decrease by 40 percent. and confined the channel. Elephant Butte Reservoir, increased However, as discussed above, the Service Response: We concur that it is water in the system may not result in Service has determined that any not one action or factor that is solely increased wet habitat for the minnow. activities likely to result in destruction responsible for the endangerment of the Federal Register / Vol. 64, No. 128 / Tuesday, July 6, 1999 / Rules and Regulations 36285 silvery minnow. The morphology of the Conway granted additional time and believe that there will be no change channel, the quality of the water in the may grant even more time if an from what has occurred in the Federal channel, and the provision of some environmental impact statement is arena for the past 4 years since the flows to avoid dewatering are all required. species was listed and critical habitat important and, thus, have been Service Response: The Act requires proposed. Critical habitat, based on the identified as constituent elements of the that, to the extent prudent, critical responses received from the Federal species’ critical habitat. habitat be designated concurrently with agencies, will not ‘‘curtail’’ their Issue 23: In order to justify the a species’ listing. Further, the Act actions. Critical habitat will have no determination of no difference between requires that the designation be based incremental affect on their actions over critical habitat and listing, the Service on the best available information, even and above that resulting from listing of should limit the components of critical if the information is incomplete. the Rio Grande silvery minnow. habitat so that there is no difference Further, the court ordered us to make a Issue 28: The economic report is not between critical habitat and listing. determination concerning the site-specific. An economic model that Service Response: We believe that the designation of critical habitat within a does not take local land and water use primary constituent elements identified specific time frame. This final rule, into account does not benefit the Fish for critical habitat—channel therefore, complies with both the Act and Wildlife Service. morphology, water quality, and water and the court order. As we stated Service Responses: The economic quantity—are the attributes needed in earlier, we have determined that an analysis was specific to the Middle Rio the river for the silvery minnow’s Environmental Impact Statement is not Grande Valley and utilized all survival and recovery. It is these required for this action. information provided by the Federal, attributes that we evaluate whether Although there is always additional State, and local, and Native American conducting section 7 consultation on information we would like to have respondents operating in the valley. the species with or without critical concerning a species, there has been Baseline information concerning the habitat. considerable research done on the Rio regional economy was provided that Issue 24: Critical habitat in the Middle Grande silvery minnow and on the dealt specifically with the Middle Rio Rio Grande is dependent on restoring hydrology of the Middle Rio Grande. In Grande. the low-velocity flows at locations addition, a recovery plan has been Issue 29: Not only is the Fish and within some reaches of the Middle Rio prepared and is currently being Wildlife Service’s conclusion that Rio Grande. The required habitat for the reviewed, which compiles and analyzes Grande silvery minnow population recovery of the Rio Grande silvery the existing data for the species. In the declines are due to habitat loss minnow in the Middle Rio Grande does preparation of this final rule designating questionable, but the assertion that not include the entire 163-mile segment critical habitat for the minnow, we used these declines are the result of from Cochiti Dam to the headwaters of the best scientific and commercial data agricultural dewatering between 1987 Elephant Butte Reservoir, nor does it available. and 1992 are also suspect. Salt cedar include the entire cross section of the Issue 26: If it is the Fish and Wildlife and municipal and industrial water use river at the locations designated for Service’s conclusion that there is little could also be causative factors. The critical habitat. Only those reaches or no difference in benefit or effect natural flow regime referenced in the below the present, modified, or future between the No Action and Preferred proposed critical habitat designation has diversion structures should be Action alternatives, the Service should not existed since irrigation began in the considered in arriving at locations conclude that the designation of critical basin over 800 years ago. The drying of designated for the critical habitat for habitat for the Rio Grande silvery the river for days, weeks, and months this species. minnow is not needed at this time. has been in place for at least 100 years. Service Response: We concur that not Service Response: This final rule Service Responses: As indicated in every cross section of the river within complies with the Act and the court the proposed and final rules to list the the 163 miles of designated critical order that we make a final Rio Grande silvery minnow, the species habitat may provide all constituent determination on critical habitat for the is no longer found in 95 percent of its elements at any moment in time. Rio Grande silvery minnow. A more historical range. This range-wide However, within this relatively short complete discussion of the Service’s constriction predates the status of the reach of river, habitat conditions change view on this designation is found in species between 1987 and 1992 in the in response to flows and other factors: Effect of the Critical Habitat Designation Middle Rio Grande Valley. We agree sand bars develop, islands shift within above. that many factors, in addition to the channel; pools are created and then Issue 27: The statement in the diversions for agricultural use, that filled in. The interconnectedness of the Economic Analysis that ‘‘If the contribute to the dewatering of the river habitat is also vitally important to its designation will have no impact on the may be responsible for the imperiled value for the survival and recovery of activities of Federal agencies, then it status of the silvery minnow. The the species. We believe that a will have no economic impact’’ is not intensity of impact of diversions and continuum of habitat, rather than true. Although the designation of water management has certainly grown disjunct reaches, is the best way to critical habitat only directly curtails the with the ability to control the river. maximize the probability of the species’ actions of Federal agencies, it does not Diversions 800 years ago did not have survival and recovery. follow that no private entities are the capacity to affect the river to the Issue 25: The Service is rushing to affected by the Federal agencies’ actions extent that modern management designate critical habitat with or lack thereof. structures can . As management and inadequate information; both Secretary Service Response: We acknowledge manipulation of the river have of the Interior Bruce Babbitt and Service that private entities could be affected if intensified in the past 100 years, not Director Jamie Rappaport Clark Federal actions are curtailed by the only in the Middle Rio Grande Valley, conceded that the Service has designation of critical habitat. However, but throughout the range of the silvery insufficient information to declare the Federal agencies responded that minnow, the species has been lost from critical habitat for the minnow and that critical habitat would not or would very 95 percent of its historical range. additional time is required. Judge minimally affect their actions. Thus, we Moreover, the contraction in the 36286 Federal Register / Vol. 64, No. 128 / Tuesday, July 6, 1999 / Rules and Regulations minnows’ range makes it must more source and riparian destruction, and any sustained with low flows in the summer vulnerable to adverse conditions locally, activity that would significantly alter and late spring. In the spring and where previously it could have the water chemistry in the Rio Grande. summer, runoff generally triggers recolonized areas temporarily Service Response: The economic spawning. The primary constituent depopulated from areas where analysis evaluated the effect critical elements we have described are conditions were more favorable. habitat designation could be expected to intended to require the provision of Issue 30: The Fish and Wildlife have on the activities mentioned in this these low flows to create habitat Service found an economic impact comment. The analysis of impacts of a throughout the existing range of the arising from critical habitat for the particular action on critical habitat species, not to change the hydrography Mexican spotted owl. For the Rio under section 7 will take into account to a raging, high flowing river. Grande silvery minnow, it found no the effects of that action on the primary The Service has not stated the exact effect attributable to critical habitat. On constituent elements. Any consultation flow regime needed to sustain the what basis has the Fish and Wildlife on the effects of an action on the species minnow nor has it required a minimum Service’s interpretation of critical would also consider the effects on cubic feet per second flow at any point habitat and its associated impacts been habitat attributes identified as the in the river system. There are a modified? primary constituent elements. multiplicity of variables to be taken into Service Response: There has been no Issue 33: No attempt has been made account at any given time on any point modification, but we must judge the to establish a relationship between in the river and there may be an equal impacts of individual and specific abundance of Rio Grande silvery number of ways to solve the problem of critical designations based upon the minnow and flow conditions. ensuring adequate flows. Not only has case-specific information before us. The Service Response: It is correct that the Recovery Team (which includes impacts can differ between species and specific flow amounts needed for interested parties in addition to habitats, based on the effects of numeric population goals have not been scientific experts) been meeting since designation on Federal activities. In the identified. However, data are available the species was listed, but a number of case of the Mexican spotted owl, effects to describe habitats, including flow different stakeholders continue to were identified. In the case of the Rio conditions where most Rio Grande explore possible solutions to the Grande silvery minnow, we found no silvery minnows have been found. problem. Potential solutions include effects from designation. As we have Additionally, data are available to show establishing a conservation pool from gained more experience with critical that a spring pulse is necessary for which to draw in low-water years; habitat, it has become increasingly reproduction of the silvery minnow, and conserving water which might then be apparent that its designation has little, flows sufficient to produce low-velocity used to support the minnow and other if any, influence on the outcome of habitats are required for the young to life in the river; creating and enhancing section 7 consultations. This has been survive and be recruited into the silvery minnow habitat upstream and true of consultations involving the population. Flows are necessary to increasing populations upstream; silvery minnow that included a provide habitat to allow survival of this purchasing or leasing unused contract conference on proposed critical habitat. year’s fish to next year so that they can water for use in the mainstem; passing We do not anticipate that the outcome spawn and thus contribute to the downstream during the irrigation season of section 7 consultations will be population. Investigations have not yet some of the water used to meet Compact materially changed upon final critical been conducted to determine the deliveries; creating ways to get some habitat designation. specific volume of a spring pulse to flows returned to the mainstem of the Issue 31: The draft Environmental trigger spawning or to determine the river below the San Acacia Dam; and Assessment provides no clarification amount of water and its rate of flow to engaging in a full-scale water rights regarding whether or how the Service ensure the provision of habitats for the adjudication on the entire Rio Grande. believes the designation of critical survival of the species. To limit the methods of assuring the habitat will affect the BOR’s operation Issue 34: The primary constituent survival of the minnow—such as by of the San Juan-China Project and how elements of the critical habitat requiring a stated minimum flow or a such an action may impact trust designation create hydrological source of water—might not only have resources, tribally-owned fee lands, or operating criteria which add an entirely unintended consequences to the the exercise of tribal rights for the new component of regulation beyond minnow and the ecosystem, but it might Jicarilla Apache Tribe. those imposed by the listing of the also prematurely limit development of Service Response: We have been minnow. In essence, the constituent other methods or combinations of working with the BOR to manage flows elements require the entire length of the methods for preventing jeopardy and for the Rio Grande silvery minnow since river designated as critical habitat to be adverse modification to the minnow and the species was listed and critical wet from bank to bank at all times. its critical habitat. habitat was proposed. Those Because of the carriage losses in the management scenarios involved system, to attain a constant flow at San Required Determinations consideration of the San Juan-Chama Marcial (just above Elephant Butte Regulatory Planning and Review. In Project. We do not anticipate a change Reservoir) would require the release of accordance with Executive Order 12866, in that process with the final critical a quantity of water upstream that would this action was submitted for review by habitat designation, nor do we foresee virtually destroy, rather than create the Office of Management and Budget. an impact on trust resources, tribally- habitat for the minnow, which tends to This final rule identifies the areas being owned fee lands, or the exercise of like low-flows over sandy river bottoms. designated as critical habitat for the tribal, rights for the Jicarilla Apache. The Service should also identify the silvery minnow. The designation will Issue 32: The economic documents do source of the water to be used for the not have an annual economic effect of not evaluate the economic impact of the minnow. $100 million. Our summary of the constituent elements or of the various Service Response: The minnow does economic impacts of designation is activities that may adversely affect not need a large quantity of water but discussed earlier in this final rule. This critical habitat: channelization, it does need some water to survive. We rule will create inconsistencies with impoundment, deprivation of substrate agree that the minnow could be other agencies’ actions. This rule will Federal Register / Vol. 64, No. 128 / Tuesday, July 6, 1999 / Rules and Regulations 36287 not materially affect entitlements, Unfunded Mandates Reform Act (2 upheld in the courts of the Ninth Circuit grants, user fees, loan programs, or the U.S.C. 1501 et seq.). This rule will not (Douglas County v. Babbitt, 48 F.3d rights and obligations of their recipients. significantly affect small governments 1495 (9th Cir. Ore. 1995), cert. Denied, This rule will not raise novel legal or because this rule will not place 116 S. Ct. 698 (1996). However, when policy issues. Proposed and final rules additional burdens on small the range of the species includes States designating critical habitat for listed governments beyond any burdens that within the Tenth Circuit, such as that of species are issued under the authority of may have been a result of listing the the Rio Grande silvery minnow, the the Endangered Species Act of 1973, as species as endangered. This rule will Service, pursuant to the Tenth Circuit amended (16 U.S.C. 1531 et seq.). not produce a Federal mandate of $100 ruling in Catron County Board of Critical habitat regulations are issued million or greater in any year, i.e. it is Commissioners v. U.S. Fish and Wildlife under procedural rules contained in 50 not a significant regulatory action under Service, 75 F.3d 1429 (10th Cir. 1996), CFR part 424. the Unfunded Mandates Reform Act. is to undertake a NEPA analysis for Regulatory Flexibility Act (5 U.S.C. Takings. In accordance with critical habitat designations. We have 601 et seq.). This rule will not have a Executive Order 12630, this rule does completed that analysis through an significant economic effect on a not have significant takings Environmental Assessment and Finding substantial number of small entities as implications. A takings implication of No Significant Impact. defined under the Regulatory Flexibility assessment is not required. This final Government-to-Government Act. As explained previously in the rule will not ‘‘take’’ private property Relationship with Tribes. In accordance final rule, the designation will not have and will not alter the value of private with the President’s memorandum of economic effects above and beyond the property. Critical habitat designation is April 29, 1994, ‘‘Government-to- listing of the species. This is because the only applicable to Federal lands, or to Government Relations with Native prohibition against destroying or private lands if a Federal nexus exists American Tribal Governments’’ (59 FR adversely modifying critical habitat is (i.e., if a Federal agency authorizes or 22951) and 512 DM2: essentially duplicative of the funds an action on private land). The We understand that federally- prohibition against jeopardizing the regulatory impacts of this rule are small recognized Indian Tribes maintain a continued existence of the species, and to non-existent and will not result in a Government-to-Government therefore there are no additional taking of private property rights. relationship with the United States. The economic effects that are not already Federalism. This final rule will not 1997 Secretarial Order on Native incurred by the listing of the species. affect the structure or role of states, and Americans and the Act clearly states Small Business Regulatory will not have direct, substantial, or that Tribal lands should not be Enforcement Fairness Act (5 U.S.C. significant effects on states as defined in designated unless absolutely necessary 804(2)). This rule is not a major rule Executive Order 12612. As previously for the conservation of the species. under 5 U.S.C. 804(2), the Small stated, critical habitat is only applicable According to the Secretarial Order, Business Regulatory Enforcement to Federal lands. Other lands only ‘‘Critical habitat shall not be designated Fairness Act. This rue does not have an become subject to the provisions of in any such areas [an area that may annual effect on the economy of $100 critical habitat if a Federal nexus exists. impact Tribal trust resources] unless it million or more. As explained in this Civil Justice Reform. In accordance is determined essential to conserve a rule, we do not believe that the with Executive Order 12988, the Office listed species. In designating critical designation will have economic effects of the Solicitor has determined that the habitat, the Services shall evaluate and above and beyond the listing of the rule does not unduly burden the judicial document the extent to which the species. This rule will not cause a major system and does meet the requirements conservation needs of a listed species increase in costs or prices for of sections 3(a) and 3(b)(2) of the Order. can be achieved by limiting the consumers, individual industries, The final designation of critical habitat designation to other lands.’’ The Federal, State, or local government for the Rio Grande silvery minnow has designation of critical habitat for the Rio agencies, or geographic regions, because been reviewed extensively. Every effort Grande silvery minnow contains Tribal the designation will not have economic has been made to ensure that the rule lands belonging to the pueblos of effects above and beyond the listing of contains no drafting errors, provides Cochiti, San Felipe. Santo Domingo, the species. This rule does not have clear standards, simplifies procedures, Santa Ana, Sandia, and Isleta. significant adverse effects on reduces burden, and is clearly written On October 27, 1994, we held a competition, employment, investment, such that litigation risk is minimized. meeting with the economic analysis productivity, innovation, or the ability Paperwork Reduction Act of 1995 (44 contractors and invited Federal of U.S.-based enterprises to compete U.S.C. 3501 et seq.). This rule does not agencies, the pueblos of Cochiti, San with foreign-based enterprises. contain any information collection Felipe, Isleta, Sandia, Santa Ana, and Proposed and final rules designating requirements for which Office of Santo Domingo, and other entities. At critical habitat for listed species are Management and Budget approval the meeting, the Service and our issued under the authority of the under the Paperwork Reduction Act is contractors outlined the approach under Endangered Species Act of 1973, as required. consideration to define the economic amended (16 U.S.C. 1531 et seq.). The National Environmental Policy Act. It impacts of critical habitat designation prohibition against destruction or is our position that, outside the Tenth and sought input to the process and adverse modification of critical habitat Circuit, environmental analyses as participation from these entities. On applies only to actions authorized, defined by the National Environmental June 22, 1995, a meeting was held solely funded, or carried out by Federal Policy Act of 1969, (NEPA) need not be for Pueblo representatives to discuss the agencies. Competition, employment, prepared in connection with listing proposed critical habitat and the process investment productivity, innovation, or species under the Endangered Species to be employed in determining the ability of U.S.-based enterprises to Act of 1973, as amended. A notice economic effects of the designation with compete with foreign-based enterprises outlining the Service’s reasons for this the content identical to that of the are not affected by a final rule determination was published in the earlier meeting. No Pueblo designating critical habitat for this or Federal Register on October 25, 1983 representatives attended. Following the any other species. (48 FR 49244). This assertion was compilation and assessment of 36288 Federal Register / Vol. 64, No. 128 / Tuesday, July 6, 1999 / Rules and Regulations responses to questionnaires, we Code of Federal Regulations as set forth RIO GRANDE SILVERY MINNOW transmitted the draft analysis to the below: (Hybognathus Amarus). pueblos on April 26, 1996. Finally, on New Mexico: Socorro, Valencia, Bernalillo, March 4, 1999, we met with Pueblo PART 17Ð(AMENDED) and Sandoval Counties. Rio Grande from the officials to discuss the impending 1. The authority citation for Part 17 downstream side of State highway 22 bridge designation of critical habitat. Thus, we continues to read as follows: crossing of the Rio Grande, immediately have sought to consult with tribes on downstream of Cochiti Dam, NW1⁄4 sec. 17, Government to Government basis. Authority: 16 U.S.C. 1361–1407; 16 U.S.C. T. 16N., R. 15 E. of the New Mexico 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– Meridian, extending downstream 625, 100 Stat. 3500, unless otherwise noted. References Cited approximately 163 mi (260 km) to where the A complete list of all references cited § 17.11 [Amended] Atchison Topeka and Santa Fee Railroad herein, as well as others, is available upon 2. Amend section 17.11(h) by revising crosses the river near San Marcial, Lat ° ′ ′′ ° ′ ′′ request from the New Mexico Ecological the entry in the Critical habitat column 33 40 50 , long 106 59 30 , Socorro County. Services Field Office (see ADDRESSES above). of the entry for the minnow, Rio Grande Primary constituent elements for the Rio Author: The primary author of this silvery, under FISHES, to read Grande silvery minnow include stream final rule is Jennifer Fowler-Propst (see ‘‘17.95(e)’’. morphology that supplies sufficient flowing ADDRESSES). 3. Section 19.95(e) is amended by water to provide food and cover needed to adding critical habitat of the Rio Grande sustain all life stages of the species; water of List of Subjects in 50 CFR Part 17 silvery minnow (Hybognathus amarus), sufficient quality to prevent water stagnation Endangered and threatened species, in the same alphabetical order as the (elevated temperatures, decreased oxygen, Exports, Imports, Reporting and record species occurs in 17.11(h). carbon dioxide build-up, etc); and water of keeping requirements, Transportation. sufficient quantity to prevent formation of § 17.95 Critical habitatÐfish and wildlife. isolated pools that restrict fish movement, Regulation Promulgation * * * * * foster increased predation by birds and Accordingly, we amend part 17, (e) * * * aquatic predators, and congregate pathogens. subchapter B of chapter I, title 50 of the * * * * * BILLING CODE 4310±55±M Federal Register / Vol. 64, No. 128 / Tuesday, July 6, 1999 / Rules and Regulations 36289 36290 Federal Register / Vol. 64, No. 128 / Tuesday, July 6, 1999 / Rules and Regulations

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