[Federal Register: July 6, 1999 (Volume 64, Number 128)]

[Rules and Regulations]               

[Page 36274-36290]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]





Fish and Wildlife Service

50 CFR Part 17


Endangered and Threatened Wildlife and Plants; Final Designation 

of Critical Habitat for the Rio Grande Silvery Minnow

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 

critical habitat for the Rio Grande silvery minnow (Hybognathus 

amarus), a species federally listed as endangered under the authority 

of the Endangered Species Act of 1973, as amended (Act). This species, 

also referred to herein as silvery minnow or minnow, presently occurs 

only in the Rio Grande from Cochiti Dam downstream to the headwaters of 

Elephant Butte Reservoir, New Mexico, approximately five percent of its 

known historical range. Critical habitat overlays this last remaining 

portion of occupied range. It encompasses 262 kilometers (km) (163 

miles (mi)) of the mainstem Rio Grande from the downstream side of the 

State Highway 22 bridge crossing the Rio Grande immediately downstream 

of Cochiti Dam, to the crossing of the Atchison Topeka and Santa Fe 

Railroad near San Marcial, New Mexico.

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

ADDRESSES: You may inspect the complete file for this rule at the U.S. 

Fish and Wildlife Service, New Mexico Ecological Services Field Office, 

2105 Osuna NE., Albuquerque, New Mexico 87113, by appointment, during 

normal business hours at the above address.


Ecological Services Field Office (See ADDRESSES above).



    The Rio Grande silvery minnow is one of seven species in the genus 

Hybognathus found in the United States (Pflieger 1980). The species was 

first described by Girard (1856) from specimens taken from the Rio 

Grande near Fort Brown, Cameron County, Texas. It is a stout silvery 

minnow with moderately small eyes and a small, slightly oblique mouth. 

Adults may reach 90 millimeters (mm) (3.5 inches (in)) in total length 

(Sublette et al. 1990). Its dorsal fin is distinctly pointed with the 

front of it located slightly closer to the tip of the snout than to the 

base of the tail. Life color is silver with emerald reflections. Its 

belly is silvery white; fins are plain; and barbels are absent 

(Sublette et al. 1990).

    This species was historically one of the most abundant and 

widespread fishes in the Rio Grande Basin, occurring from Espanola, New 

Mexico, to the Gulf of Mexico (Bestgen and Platania 1991). It was also 

found in the Pecos River, a major tributary of the Rio Grande, from 

Santa Rosa, New Mexico, downstream to its confluence with the Rio 

Grande (Pflieger 1980). It is completely extirpated from the Pecos 

River and from the Rio Grande downstream of Elephant Butte Reservoir 

(Bestgen and Platania 1991). Throughout much of its historical range, 

decline of the silvery minnow may be attributed to modification of 

stream discharge patterns and channel drying because of impoundments, 


[[Page 36275]]

diversion for agriculture, and stream channelization (Cook et al. 1992; 

Bestgen and Platania 1991).

    In the Pecos River, the silvery Minnow was replaced by the closely 

related, introducted plains minnow (H. placitus) (Hatch et al. 1985; 

Bestgen et al. 1989; Cook et al. 1992). It is believed the plains 

minnow was introduced into the Pecos drainage during 1968, probably the 

result of the release of ``bait minnows'' that were collected from the 

Arkansas River drainage. The displacement that ensured was complete in 

less than one decade (Cowley 1979). The plains minnow may be more 

tolerant of modified habitats and, therefore, able to replace the 

silvery minnow in the modified reaches of the Pecos River. It is also 

believed that the two species hybridized. Habitat alteration and 

resulting flow modification could have also contributed to extirpation 

of the species in the Pecos River.

    Decline of the species in the Middle Rio Grande probably began in 

1916 when the gates at Elephant Butte Dam were closed. Construction of 

the dam signaled the beginning of an era of main stream Rio Grande dam 

construction that resulted in five major main stem dams within the 

minnow's habitat (Shupe and Williams 1988). These dams allowed 

manipulation and diversion of the flow of the river. Often this 

manipulation resulted in the drying of reaches of river and elimination 

of all fish. Concurrent with construction of the main stream dams was 

an increase in the abundance of non-native and exotic fish species as 

these species were stocked into the reservoirs created by the dams 

(Sublette et al. 1990). Once established, these species often 

completely replaced the native fish fauna (Propst et al. 1987). 

Development of agriculture and the growth of cities within the 

historical range of the Rio Grande silvery minnow resulted in a 

decrease in the quality of water that may have also adversely affected 

the range and distribution of the species.

    Historically there were four other small native fish species that 

are now either extinct or extirpated from the middle Rio Grande; the 

silvery minnow is the only one surviving today and it has been reduced 

to only 5 percent of its historical range. Although the minnow is a 

hearty fish, capable of withstanding many of the natural stresses of 

the desert aquatic environment, the majority of the individual minnows 

live only one year. A healthy annual spawn is key to the survival of 

the species.

    The minnow's range has been so greatly restricted that the species 

is extremely vulnerable to a single naturally occurring chance event. 

The minnow prefers shallow waters with a sandy and silty substrate that 

is generally associated with a meandering river that includes sidebars, 

oxbows, and backwaters. However, physical modifications to the Rio 

Grande over the last century, including the construction of dams and 

channelization of the mainstem, have altered much of the historical 

habitat for the minnow. Channelization has straightened and shortened 

mainstem river reaches, increased the velocity of the current, and 

altered riparian vegetation, instream cover, and substrate composition. 

The spring runoff triggers the minnow's spawn and the eggs produced 

drift in the water column. Diversion dams prevent the minnow from 

subsequently being able to move upstream as waters recede or as the 

minnow approaches inhospitable habitat such as Elephant Butte 

Reservoir, where the waters are cold, deep and stocked with non-native 

predatory fish.

    During the irrigation season (March 1 to October 31), minnows often 

become stranded in the diversion channels where they may, although are 

unlikely to, survive for a while. As the water is used on the fields, 

the chance for survival of the minnow in the irrigation return flows in 

slim. Unscreened diversion dams also entrain both adult minnow, fry, 

and buoyant eggs. Perhaps even more problematic for the minnow are 

irrigation seasons in drought years, when most or all of the water may 

be diverted from the two lower-most segments of the river to meet 

irrigation and other needs. This diversion causes minnows to become 

stranded in dewatered segments of the river.

    Historically, the silvery minnow was able to withstand periods of 

drought primarily by retreating to pools and backwater refugia, and 

swimming upstream to repopulate upstream habitats. However, when the 

river dries too rapidly and dams prevent upstream movement, the minnow 

becomes trapped in dewatered reaches and generally dies. This becomes 

particularly significant for the silvery minnow below San Acacia 

diversion dam, where approximately 70 percent of the current population 

lives. In the river reaches above (north of) San Acacia Dam, return 

flows from irrigation and other diversions are returned back into the 

mainstem of the river, which assures a fairly consistent flow. However, 

at San Acacia Dam, one irrigation diversions are made the return flows 

continue in off-river channels until they enter Elephant Butt 


    Furthermore, because the river is an aggrading system below San 

Acacia (i.e,. the river bottom is rising due to sedimentation), the bed 

of the river is now perched above the bed of the 80 km (50 mile) low 

flow conveyance channel, which is immediately adjacent and parallel to 

the river channel. Because of this physical configuration, waters in 

the mainstem of the river tend to be drained into the low flow 

conveyance channel.

    Seventy percent of the remaining minnow population resides between 

San Acacia diversion dam and the headwaters of elephant butte. In low 

water years in this reach, all the water in the stream may be diverted 

into the irrigation system or drained from the mainstem by the low flow 

conveyance channel. In effect, water is being conveyed to Elephant 

Butte reservoir through a bypass of the river in the San Acacia reach, 

resulting in a dry or drying Riverbed.

    The designation of critical habitat for the Rio Grande silvery 

minnow includes 262 river-km (163 river-mi) in the Middle Rio Grande 

which are the last miles of habitat occupied by the species. The 

designation involves the mainstem of the Rio Grande or the active river 

channel including the water column, and its associated channel 

morphology. Land on either side of, but not within, the designated 

critical habitat, lies within the administrative boundaries of the 

Middle Rio Grande Conservancy District. Other landowners, sovereign 

entities, and managers include: the pueblos of Cochiti, San Felipe, 

Santo Domingo, Santa Ana, Sandia, and Isleta; the U.S. Bureau of 

Reclamation (BOR); the Service; the U.S. Bureau of Land Management; New 

Mexico State Parks Division; New Mexico Department of Game and Fish; 

New Mexico State Lands Department; and the U.S. Army Corps of Engineers 

(Corps). The communities of Algodones, Bernalillo, Rio Rancho, 

Corrales, Albuquerque, Bosque Farms, Los Lunas, Belen, and Socorro also 

border the length of critical habitat in the Middle Rio Grande Valley.

Previous Federal Action

    On February 19, 1991, we mailed approximately 80 pre-proposal 

notification letters to the six Middle Rio Grande Indian pueblos, 

various governmental agencies, knowledgeable individuals, and the New 

Mexico Congressional delegation. The letter informed them of our intent 

to propose adding the Rio Grande silvery minnow to the Federal list of 

Endangered and Theratened Wildlife and Plants and solicited their 

comments and input. We were particularly interested in obtaining

[[Page 36276]]

additional status information or information concerning threats. On May 

22, 1991, a second informational letter was sent to the New Mexico 

Congressional delegation. Comments were received from the Service's 

Dexter, New Mexico, Fisheries Assistance Office; New Mexico Department 

of Game and Fish City of Albuquerque; Texas Parks and Wildlife 

Department; U.S. Department of the Interior, Office of Surface Mining; 

and the New Mexico Interstate Stream Commission. No commenters offered 

additional information concerning the status of the species or 

information concerning additional threats. Most commented that the 

range of the species had been severely reduced and that Federal listing 

should be considered. The response from the New Mexico interstate 

Stream Commission included a historical review of water development in 

the Middle Rio Grande Valley.

    The Rio Grande silvery minnow was included in our Animal Notice of 

Review (56 FR 58804; November 21, 1991) as a Category 1 candidate 

species. At that time, a Category 1 candidate species was one for which 

we had on file substantial information on biological vulnerability and 

threats to support a proposal to list it as an endangered or threatened 


    On March 20, 1992, we held a meeting in Albuquerque, New Mexico, to 

explore with various interested governmental and private entities any 

existing or potential flexibility in water delivery schedules that 

might avoid de-watering the Rio Grande through the area containing the 

remaining habitat of the silvery minnow. We also requested that 

attendees provide any information that would add to the knowledge of 

the current distribution of the species. No New information concerning 

distribution, abundance, or threats to the species was provided. No 

flexibility in the management of water in the river or the timing or 

duration of flows was identified by any meeting participant.

    We proposed to list the Rio Grande silvery minnow as an endangered 

species with critical habitat on March 1, 1993 (58 FR 11821). The 

comment period, originally scheduled to close on April 30, 1993, was 

extended until August 25, 1993 (58 FR 19220; April 13, 1993). This 

extension allowed us to conduct public hearings and to receive 

additional public comments. Public hearings were held in Albuquerque 

and Socorro, New Mexico, on the evenings of June 2 and 3, 1993, 


    After a review of all comments received in response to the proposed 

rule, we published the final rule to list the Rio Grande silvery minnow 

on July 20, 1994 (59 FR 36988). Section 4(a)(3) of the Act requires 

that, to the maximum extent prudent and determinable, the Secretary 

designate critical habitat at the time a species is determined to be 

endangered or threatened. Our regulations (50 CFR 424.12(a)(2)) state 

that critical habitat is not determinable if information sufficient to 

perform required analyses of the impacts of the designation is lacking 

or if the biological needs of the species are not sufficiently well 

known to permit identification of an area as critical habitat. At the 

time of listing the silvery minnow, we found that critical habitat was 

not determinable because there was insufficient information to perform 

the required analyses of the impacts of the designation.

    We contracted for an economic analysis of the proposed critical 

habitat designation in September 1994. Individuals and agencies were 

notified of the award of the contract on September 30, 1994. On October 

27, 1994, we held a meeting with the contractors, inviting 

representatives from the BOR and Corps, as the two Federal agencies 

with significant activities within the range of the silvery minnow and 

the proposed critical habitat; the pueblos of Cochiti, San Felipe, 

Isleta, Sandia, Santa Ana, and Santo Domingo; the Middle Rio Grande 

Conservancy District; the Rio Grande Compact Commission; the cities of 

El Paso, Texas and Albuquerque, New Mexico; the Elephant Butte 

Irrigation District; and the International Boundary and Water 

Commission. At the meeting, we and the contractors outlined the 

approach under consideration to determine if economic impacts arose 

from critical habitat designation and sought input to the process and 

participation from these entities. Following the meeting, a paper 

prepared by the consulting economists on their methodology for 

estimating economic effects of critical habitat designation was 

provided to all attendees.

    On November 3, 1994, letters soliciting any information considered 

germane to the economic analysis were sent to attendees of the October 

27, 1994, meeting. We scheduled two additional meetings to discuss and 

clarify any questions of the agencies and entities who were asked to 

provide information for the economic analysis. Non-Pueblo entities were 

invited to a June 21, 1995, meeting. At that meeting we reviewed the 

description and evaluation provided in the proposed rule of activities 

that might adversely modify critical habitat or that may be affected by 

such designation. To assist respondents in replying to our information 

request, the following topics identified in the proposed rule were 


    Any action that would lessen the amount of the minimum flow or 

would significantly alter the natural flow regime;

    any activity that would extensively alter the channel morphology of 

the Rio Grande; and

    any activity that would significantly alter the water chemistry in 

the Rio Grande.

    Further, at that meeting we identified activities that may be 

affected by the designation to include construction, maintenance, and 

operation of diversion structures; use of the conveyance channel and 

other canals; and levee and dike construction and maintenance. As 

detailed below, we have since determined that activities likely to 

result in a finding of adverse modification of critical habitat for the 

silvery minnow are also likely to jeopardize the continued existence of 

the species.

    On June 22, 1995, a meeting was held solely for Pueblo 

representatives to discuss the proposed critical habitat and the 

process to be employed in determining economic effects of the 

designation with the content identical to that of the earlier meeting. 

No Pueblo representative attended.

    On July 5, 1995, potential respondent agencies and individuals were 

provided a copy of a previous report prepared on potential economic 

consequences of designating critical habitat for fish species in 

southern Oregon and northern California, in order to familiarize them 

with the type of approach to be utilized for the silvery minnow. On 

July 14, 1995, we sent a questionnaire to all known Federal entities in 

the area of proposed critical habitat seeking their input in developing 

information on the potential economic consequences of the proposed 

designation. The entities were specifically requested to evaluate two 

scenarios. The ``no designation'' scenario represented the conditions 

that would exist, given that the Rio Grande silvery minnow has been 

listed as an endangered species, but assuming there were no 

designations of critical habitat. The other was the ``proposed 

designation'' scenario, which represented conditions that would exist 

if proposed critical designation was made final. Any difference between 

activities was to be identified as the designation's impacts. Five 

Federal agencies did not respond to the questionnaire. Twelve responded 

that their actions would not change between

[[Page 36277]]

the two scenarios. One Federal agency, the BOR, responded that the 

designation of critical habitat for the silvery minnow in the middle 

Rio Grande Valley would have a limited impact on activities that it 

would conduct, authorize, permit, or fund over and above any impact 

derived from the listing of the species.

    Following the compilation and assessment of responses, the draft 

economic analysis was prepared and provided to us on February 29, 1996. 

The draft document was then provided to all interested parties on April 

26, 1996. That mailing included 164 individuals and agencies, all 

affected pueblos in the valley, all county commissions within the 

occupied range of the species, and an additional 54 individuals who had 

attended the public hearings on the proposed listing and who had 

requested that they be included on our mailing list. At that time we 

notified the public that, because of the Congressional moratorium and 

funding rescission on final listing actions and designations of 

critical habitat imposed by Public Law 104-6, no work would be 

conducted on the analysis or on the final decision concerning critical 

habitat. However, we solicited comments from the public and agencies on 

the economic analysis for use when such work resumed.

    On April 26, 1996, the moratorium was lifted. Following the waiver 

of the moratorium, we reactivated the listing program that had been 

shut down for over a year and faced a national backlog of 243 proposed 

species' listings. In order to address that workload, we published our 

listing Priority Guidance (LPG) for the remainder of Fiscal Year (FY) 

1996 (May 16, 1999; 61 FR 24722). That guidance prioritized all listing 

actions and identified the designation of critical habitat as the 

lowest priority upon which we would expend limited funding and staff 

resources. Subsequent revisions of the LPG for Fiscal Years 1997 (61 FR 

64475) and for 1998/1999 (63 FR 25502) retained critical habitat as the 

lowest priority.

    The processing of this final rule designating critical habitat for 

the minnow does not conform with our current LPG for FY 1998/1999. That 

guidance gives the highest priority (Tier 1) to processing emergency 

rules to add species to the Lists of Endangered and Threatened Wildlife 

and Plants; second priory (Tier 2) to processing final determinations 

on proposals to add species to the lists, processing new listing 

proposals, processing administrative findings on petitions (to add 

species to the lists, delist species, or reclassify listed species), 

and processing a limited number of proposed and final rules to delist 

or reclassify species; and third priority (Tier 3) to processing 

proposed and final rules designating critical habitat. Our Southwest 

Region is currently working on Tier 2 actions; however, we are 

undertaking this Tier 3 action in order to comply with the court order 

in Forest Guardians and Defenders of Wildlife v. Bruce Babbitt, CIV 97-

0453 JC/DIS, discussed below.

    On February 22, 1999, the United States District Court for the 

District of New Mexico in Forest Guardians and Defenders ordered us to 

publish a final determination with regard to critical habitat for the 

Rio Grande silvery minnow within 30 days of that order. The deadline 

was subsequently extended by the Court to June 23, 1999. This final 

rule is issued to comply with that order and has been crafted within 

the time constraints imposed by the Court's orders. The draft economic 

analysis performed for the critical habitat designation was drafted in 

1996 and represents data gathered from respondent entities about 4 

years ago. We reviewed the content of that draft report in the context 

of Service policy, comments received from the public, and any other new 


    On April 7, 1999, we reopened the public comment period on the 

proposal to designate critical habitat and announced the availability 

of two draft documents, the draft Economic Analysis prepared in 1996, 

and a draft Environmental Assessment on the proposed action of 

designating critical habitat (64 FR 16890). Also on April 7, 1999, we 

mailed copies of the notice and the two draft documents to 

approximately 425 entities known to have an interest in the Rio Grande 

silvery minnow and its proposed critical habitat. The April 7, 1999, 

Federal Register notice also announced a public hearing to discuss and 

receive comments on the proposed designation. That hearing was held in 

Albuquerque, New Mexico, on April 29, 1999.

    Parallel to the process of reviewing the critical habitat proposal 

and the economic consequences of the designation, we initiated recovery 

planning for the silvery minnow. The Interagency Cooperative Policy 

Statement, issued jointly by us and the National Marine Fisheries 

Service on July 1, 1994 (59 CFR 34272), identified the minimization of 

social and economic impacts caused by implementing recovery actions as 

a priority of both Services. The Rio Grande Silvery Minnow Recovery 

Team was appointed pursuant to this guidance and includes both species 

and habitat experts and community and private interest stakeholders. 

Many of the representatives of agencies, municipalities, and private 

interests that were involved in the proposal to list and in the 

analysis of critical habitat are recovery team members. The draft Final 

Rio Grande Silvery Minnow Recovery Plan has been prepared and is 

currently under review.

Critical Habitat

    Section 4(a)(3) of the Act, as amended, and implementing 

regulations (50 CFR 424.12), require that, to the maximum extent 

prudent and determinable, the Secretary designate critical habitat at 

the time the species is determined to be endangered or threatened. With 

this final rule, critical habitat is being designated for the RIO 

Grande silvery minnow.

Definition of Critical Habitat

    Critical habitat is defined in section 3(5)(A) of the Act as ``(i) 

the specific areas within the geographical area occupied by a species, 

at the time it is listed in accordance with the Act, on which are found 

those physical or biological features (I) essential to the conservation 

of the species and (II) that may require special management 

considerations or protection; and (ii) specific areas outside the 

geographical area occupied by a species at the time it is listed, upon 

a determination that such areas are essential for the conservation of 

the species.'' The term ``conservation,'' as defined in section 3(3) of 

the Act, means ``to use and the use of all methods and procedures which 

are necessary to bring an endangered species or threatened species to 

the point at which the measures provided pursuant to this Act are no 

longer necessary'' (i.e., the species is recovered and removed from the 

list of endangered and threatened species).

    We are required to base critical habitat designations upon the best 

scientific and commercial data available (50 CFR 424.12) after taking 

into account economic and other impacts of such designation. In 

designating critical habitat for the Rio Grande silvery minnow, we have 

reviewed the overall approach to the conservation of the silvery minnow 

undertaken by the local, State, Tribal, and Federal agencies operating 

within the Middle Rio Grande Valley since the species' listing in 1994, 

and the identified steps necessary for recovery outlined in the draft 

Final Rio Grande Silvery Minnow Recovery Plan (in review). We have also 

reviewed available information that pertains to the habitat 

requirements of this species, including material received during the

[[Page 36278]]

initial public comment period on the proposed listing and designation, 

the information received following the provision of the draft Economic 

Analysis to the public on April 26, 1996, and the comments and 

information provided during the 30-day comment period opened on April 

7, 1999, including the public hearing.

Effect of Critical Habitat Designation

    Section 7(a) of the Act, as amended, requires Federal agencies to 

evaluate their actions with respect to any species that is proposed or 

listed as endangered or threatened. Regulations implementing this 

interagency cooperation provision of the Act are codified at 50 CFR 

part 402. Section 7(a)(2) requires Federal agencies to ensure that 

activities they authorize, fund, or carry out are not likely to 

jeopardize the continued existence of a listed species or to destroy or 

adversely modify its critical habitat. If a Federal action may affect a 

list species or its critical habitat, the responsible Federal agency 

must enter into formal consultation with the Service.

    The designation of critical habitat directly affects only Federal 

agencies, by prohibiting actions they fund, authorize, or carry out 

from destroying or adversely modifying critical habitat. Individuals, 

firms and other non--Federal entities are not affected by the 

designation of critical habitat so long as their actions do not require 

support by permit, license, funding, or other means from a Federal 


    An understanding of the interplay of jeopardy and adverse 

modification standards is necessary to evaluate the likely outcomes of 

consultation under section 7, and to evaluate the environmental, 

economic and other impacts of any critical habitat designation. 

Implementing regulations (50 CFR part 402) define ``jeopardize the 

continued existence of'' (a species) and ``destruction or adverse 

modification of'' (critical habitat) in virtually identical terms. 

``Jeopardize the continued existence of'' means to engage in an action 

``that reasonably would be expected * * * to reduce appreciably the 

likelihood of both the survival and recovery of a listed species.'' 

``Destruction or adverse modification'' means a direct or indirect 

alteration that ``appreciably diminishes the value of critical habitat 

for both the survival and recovery of a listed species.''

    Common to both definitions is an appreciable detrimental effect on 

both survival and recovery of a listed species. Thus, for most species, 

actions likely to result in destruction or adverse modification of 

critical habitat are nearly always found to jeopardize the species 

concerned, and in most cases the existence of a critical habitat 

designation does not materially affect the outcome of consultation. 

This is often in contrast to the public perception that the adverse 

modification standard sets a lower threshold for violation of section 7 

than the jeopardy standard. In fact, biological opinions that conclude 

that a Federal agency action is likely to adversely modify critical 

habitat but not to jeopardize the species for which it is designated 

are extremely rare historically and none have been issued in recent 


    The duplicative nature of the jeopardy and adverse modification 

standards is true for the Rio Grande silvery minnow as well. Since the 

species was listed in 1994, there have been a number of consultations 

that included a determination of potential impacts to proposed critical 

habitat. Implementing regulations of the act found at 50 CFR 402.10 

direct that each Federal agency shall confer with the Service on any 

action which is likely to jeopardize the continued existence of any 

proposed species or result in the destruction or adverse modification 

of proposed critical habitat. No additional restrictions resulted from 

these conferences. We do not anticipate that when the designation is 

finalized we will need to impose additional restrictions relative to 

critical habitat that were not previously in place due to the listing 

of the species.

    In some cases, critical habitat may assist in focusing conservation 

activities by identifying areas that contain essential habitat features 

(primary constituent elements), regardless of whether they are 

currently occupied by the listed species. This alerts the public and 

land managing agencies to the importance of an area in the conservation 

of that species. Critical habitat also identifies areas that may 

require special management or protection.

    Section 4(b)(8) of the Act requires us to describe in any proposed 

or final regulation that designates critical habitat, those activities 

involving a Federal action that may adversely modify such habitat or 

that may be affected by such designation. Activities that may destroy 

or adversely modify critical habitat include those that alter the 

primary constituent elements (defined below) to an extent that the 

value of designated critical habitat for both the survival and recovery 

of the silvery minnow is appreciably reduced. We note that such 

activities may also jeopardize the continued existence of the species. 

Because the area that is being designated as critical habitat 

represents the remaining 5 percent of its historical range and is 

currently occupied by the species, loss of habitat that would result in 

a finding of adverse modification would also significantly reduce the 

likelihood of survival and recovery of the species, which is the 

definition of jeopardy.

    Federal activities that may be affected by critical habitat 

designation include construction, maintenance, and operation of 

diversion structures; management of the conveyance channel; and levee 

and dike construction and maintenance. Again, these types of activities 

have already been examined under consultation with us upon listing the 

species as endangered. No additional restrictions to these activities 

as a result of critical habitat designation are anticipated.

    Recent consultations undertaken with the BOR and Corps have 

recognized and allowed for occasional drying of portions of the lower 

reaches of the minnow's occupied habitat. We anticipate that, in times 

of severe water shortages, similar actions must be permissible after 

the designation of critical habitat becomes final, as long as a managed 

reduction ion surface flows allows the minnow to remain in the water 

column and retreat upstream, minimizing mortality. However, any such 

circumstance would require consultation under section 7 of the Act, and 

adequate monitoring would be required to ensure that the action would 

not result in jeopardy to the species, adversely modify its critical 

habitat, or result in unpermitted taking of individuals. See the 

discussion on Primary Constituent Elements and our response to Issue 

33, below.

    The minnow does not need a large quantity of water to survive but 

it does need some water. The minnow requires habitat with sufficient 

flows through the irrigation season to avoid excessive mortality in 

downstream reaches, plus a spike in flow in the late spring or early 

summer to trigger spawning, and a relatively constant winter flow. 

Alterations of the primary constituent elements are evaluated to 

determine whether Federal activities are destroying or adversely 

modifying critical habitat; the identification of primary constituent 

elements for the minnow is not intended to create a high-velocity, deep 

flowing river. The minnow does not require such habitat 


Primary Constituent Elements

    In identifying areas as critical habitat, 50 CFR 424.12 provides 

that we consider those physical and biological

[[Page 36279]]

attributes that are essential to a species' conservation, and that may 

require special management considerations or protection. Such physical 

and biological features, as outlined in 50 CFR 424.12, include, but are 

not limited to, the following:

    Space for individual and population growth, and for normal 


    Food, water, or other nutritional or physiological requirements;

    Cover or shelter;

    Sites for breeding, reproduction, or rearing of offspring; and

    Habitats that are protected from disturbances or are representative 

of the historical geographical and ecological distributions of a 


    Primary constituent elements of critical habitat required to 

sustain the Rio Grande silvery minnow include:

    Stream morphology that supplies sufficient flowing water to provide 

food and cover needed to sustain all life stages of the species;

    Water of sufficient quality to prevent water stagnation (elevated 

temperatures, decreased oxygen, carbon dioxide build-up, etc.); and

    Water of sufficient quality to prevent formation of isolated pools 

that restrict fish movement, foster increased predation by birds and 

aquatic predators, and congregate pathogens.

    All areas within the designated stretch of the Rio Grande are 

occupied by the Rio Grande silvery minnow. Areas within the designated 

stretch either contain, or are capable of containing, these primary 

constituent elements. Areas within the designated critical habitat that 

may not have minnows present at a given point in time are capable of 

supporting these constituent elements because habitat conditions can 

change rapidly in response to flows and other factors, such as the 

development of sand bars, shifting of islands within the channel, and 

creation and disappearance of pools.

Land Ownership

    The area designated as critical habitat for the Rio Grande silvery 

minnow is the only area where the species has been collected in the 

recent past and where it is currently known to exist. Within this 160 

mi (262 km) stretch of river, there are four identified reaches 

delineated to reflect the management of water and habitat. From its 

upstream end at the Highway 22 bridge to its downstream terminus at the 

railroad trestle, critical habitat is within the Cochiti, Angostura, 

Isleta, and San Acacia reaches.

    Critical habitat for the silvery minnow includes only the active 

channel of the mainstem Rio Grande. Ownership of the channel itself is 

unclear. However, most of the land in the middle river valley that 

abuts critical habitat is within the administrative boundaries of the 

Middle Rio Grande Conservancy District. The Middle Rio Grande 

Conservancy District is the subdivision of the State of New Mexico 

which provides for irrigation, flood control, and drainage of the 

Middle Rio Grande valley in New Mexico, from Cochiti Dam downstream 150 

mi (285 km) to the northern boundary of the Bosque del Apache del 

Apache National Wildlife Refuge. Within these 150 mi are also the lands 

of the communities of Algodones, Bernalillo, Corrales, Albuquerque, Los 

Lunas, Belen, Socorro, and a number of smaller incorporated and 

unincorporated communities. Within the upper third of the middle valley 

of the Rio Grande are six Indian pueblos: Cochiti, Santo Domingo, San 

Felipe, Santa Ana, Sandia, and Isleta. Approximately 45 river mi (86 

km) of critical habitat run through Pueblo lands.

Summary of Economic and Other Impacts

    The Act requires that we designate critical habitat after taking 

into consideration the economic impact, and any other relevant impact, 

of specifying any particular area as critical habitat. We may exclude 

an area from designation if the benefits of its exclusion outweigh the 

benefits of its inclusion in critical habitat, unless failure to 

designate the area would result in extinction of the species concerned. 

We utilized the draft economic analysis prepared for the proposed 

critical habitat designation, in addition to our assessment of other 

impacts, to assist in our determination of whether any incremental 

economic effects of designation exist beyond the effects of the 

listing. The draft economic analysis, along with comments and other 

information available to us, allowed us to assess the benefits of 

exclusion versus inclusion for the area identified in the proposed 


Regional Economic Profile

    The study area for the draft economic analysis included the strip 

of land adjacent to the Rio Grande, stretching from the Santa Fe 

metropolitan area, at the northern edge of the proposed designation to 

the El Paso, Texas metropolitan area, lying about 150 miles downstream 

from the southern terminus of the proposed critical habitat 

designation. This area embraces the designated habitat area and the 

majority of the economic activity that directly interacts with 

resources potentially affected by the designation. This area includes 

nine counties in two states and four metropolitan areas: Santa Fe, 

Albuquerque, Las Cruces, and El Paso. Albuquerque and El Paso, each 

with a population of about 650,000, are considerably larger than the 


    Irrigated agriculture accounts for more than 80 percent of 

permitted water use in the Middle Rio Grande Valley. Total private-

sector employment in the agricultural industry in 1993 was 14,078, 

about two percent of total employment in the study area. Agricultural 

employment is a higher percentage of total employment in the two non-

metropolitan counties (Socorro and Sierra counties in the lower reaches 

of designated critical habitat) than in the metropolitan areas, and a 

higher percentage in the Las Cruces metropolitan area than in the other 

metropolitan areas. For the study area as a whole, growth in 

agricultural employment during the past decade did not keep pace with 

total employment. In 1993, proprietors and employees in the study 

area's agricultural industry earned income of about $269 million, or 

one percent of total income. Agricultural incomes in this area have 

grown more rapidly than incomes in other sectors during the past 

decade, largely because farm incomes were depressed throughout the 

nation in the early 1980s. Nonetheless, average earnings in the 

agricultural industry are approximately two-thirds of the overall 


    These data indicate that the agricultural industry, the resource-

intensive industry primarily associated with the critical habitat of 

the silvery minnow, generally reflects the national trends for 

resource-intensive industries. In particular, the data indicate that 

nationwide this industry is a small component of the overall economy 

and it is not growing as rapidly as other sectors of the economy.

    Although from a geographic perspective the landscape surrounding 

the critical habitat for the silvery minnow is predominantly non-

metropolitan, the economy of the study area is highly concentrated in 

the area's four metropolitan centers: Santa Fe, Albuquerque, Las 

Cruces, and El Paso. Approximately 98 percent of the population in the 

study area resides in the counties that constitute the area's four 

metropolitan statistical areas. This percentage somewhat overstates the 

portion of the area's population that actually has a metropolitan 

residence, because these are large counties and each one contains both 

urban and non-urban residents.

[[Page 36280]]

Economic Impacts and Effects

    We reviewed and assessed the draft economic analysis report, which 

was based on questionnaires to Federal agencies. These questionnaires 

reported Federal agencies' own assessments of the extent to which they 

would alter their activities in response to critical habitat 

designation. Most agencies stated that the designation would have no 

effect. Only one agency, the BOR, indicated that it would alter its 

activities in response to the proposed designation of critical habitat 

for the minnow. Specifically, the BOR indicated that it would alter its 

river maintenance program in the proposed designated critical habitat 

area from just below Cochiti Dam to just above Elephant Butte 

Reservoir. Because of numerous uncertainties, however, the BOR was 

unable to give a specific estimate of the designation's potential 

impact on its river maintenance activities.

    The BOR's response to the questionnaire was their own 

interpretation of the ramifications of avoiding adverse modification of 

critical habitat. However, we believe that if the identified activities 

had an impact on the silvery minnow significant enough to result in a 

finding of adverse modification of the minnow's critical habitat, we 

would also find that those activities would jeopardize the continued 

existence of the species in the absence of designated critical habitat. 

Thus, the designation of critical habitat should not require any change 

in the activities identified by the Bureau that were not already 

changed due to the listing of the minnow, and no economic effects 

should flow from the designation itself.

    No Federal agency that commented during the April-May 1999, public 

comment period amended or added to its original response about impacts 

to its operations that would be caused by critical habitat. The BOR, in 

its May 7, 1999, comments, stated that the designation of critical 

habitat will likely have minimal impacts on that agency's Endangered 

Species Act-related activities.

    In summary, although the draft economic analysis provided to us 

identified a perceived economic impact of critical habitat designation, 

we consider this potential economic impact to be a result of the 

minnow's listing, not critical habitat designation. In addition, the 

BOR's original estimate of economic impacts resulting from critical 

habitat designation discussed ceasing river maintenance; an unlikely 

occurrence. It is more likely that the Bureau would employ different 

design and construction techniques to accomplish river maintenance 

objectives. We have concluded that there are no incremental economic 

effects associated with the designation of critical habitat above and 

beyond the effects of listing the species as endangered. We have thus 

determined that there are no areas within the proposed designation 

where the benefits of exclusion can be shown to outweigh any benefits 

of inclusion.

Secretarial Order 3206

    Secretarial Order 3206 was issued to clarify the responsibilities 

of the component agencies, bureaus, and offices of the Department of 

the Interior and the Department of Commerce, when actions taken under 

authority of the Act and associated implementing regulations affect, or 

may affect, Indian lands, Tribal trust resources, or the exercise of 

American Indian Tribal rights. In keeping with the trust responsibility 

and government-to-government relationships, we recognize our 

responsibility to consult with affected tribes and provide written 

notice to them as far in advance as practicable of conservation 

restrictions that we consider necessary to protect listed species.

    If a proposed conservation restriction is directed at a Tribal 

activity that could raise the potential issue of direct (directed) take 

under the Act, then meaningful government-to-government consultation 

shall occur, in order to strive to harmonize the Federal trust 

responsibility to Tribes, Tribal sovereignty, and the statutory 

missions of the Departments of the Interior and Commerce. In cases 

involving an activity that could raise the potential issue of an 

incidental take under the Act, Tribal notification shall include an 

analysis and determination that all of the following conservation 

standards have been met--(i) the restriction is reasonable and 

necessary for conservation of the species at issue; (ii) the 

conservation purpose of the restriction cannot be achieved by 

reasonable regulation of non-Indian activities; (iii) the measure is 

the least restrictive alternative available to achieve the required 

conservation purpose; (iv) the restriction does not discriminate 

against Indian activities, either as stated or applied; and (v) 

voluntary tribal measures are not adequate to achieve the necessary 

conservation purpose.

    Below we have specifically assessed the designation of critical 

habitat with respect to the five factors listed in Secretarial Order 


    1. The designation of critical habitat is required by law. The 

initial inclusion of reaches of the Rio Grande within or adjacent to 

Pueblo boundaries was based solely on biology and the contribution of 

those reaches of the river to the conservation of the species. 

Moreover, as discussed previously, critical habitat designation will 

impose no additional restrictions on activities on Indian lands beyond 

the prohibitions already in place against jeopardy and unpermitted 

taking of the species.

    2. In the process of designating critical habitat for the Rio 

Grande silvery minnow, specific biological criteria were applied to all 

potential river reaches. This critical habitat designation includes a 

continuous stretch of river that constitutes the remaining 5 percent of 

the historical range of the species, and that we consider essential to 

the silvery minnow's conservation. The contiguity of habitats within 

and among the different reaches of the Rio Grande and the importance of 

the linkage between upstream and downstream activities and habitats 

does not allow for the removal from designation of one river section 

from its adjacent upstream and downstream non-Indian counterparts 

without potentially decreasing the value of all sections. Additionally, 

because of the unique relationship existing between the pueblos and the 

non-Indian Middle Rio Grande Conservancy District (the District is 

obligated to deliver water to the pueblos; the pueblos are represented 

on the Board of the District), and the interdependence of Tribal and 

non-Tribal activities throughout the stretch of critical habitat lying 

within the District does not facilitate the separation of the two.

    3. The critical habitat as designated encompasses the last remnant 

of habitat still occupied by the silvery minnow (approximately 5 

percent of the species' historical habitat) and is considered the least 

amount available with which to achieve the survival and recovery of the 


    4. The designation of critical habitat does not discriminate 

against Indian activities, either as stated or applied. The identified 

threats to the habitat of the Rio Grande silvery minnow were based on 

range-wide information that neither discriminated against nor favored 

particular land owners. Any ``restrictions'' which might be derived 

from the designation would have to arise from the obligation, under the 

Act, of Federal agencies to ensure that their actions do not result in 

the destruction or adverse modification of critical habitat. As stated 

in 1 (above), critical habitat does not create additional

[[Page 36281]]

restrictions because the areas are currently occupied, and no increased 

burdens have been identified.

    5. Voluntary Tribal measures are not adequate to achieve the 

necessary conservation purpose. Tribal representation has been included 

in the Rio Grande Silvery Minnow Recovery Team and we continue to work 

with individual pueblos when requested to provide expertise in the 

rehabilitation and maintenance of aquatic habitats on Pueblo lands. 

Santa Ana Pueblo has taken a leadership role in forming a broad 

interest-based consortium, which is seeking funding for recovery 

projects for the silvery minnow. In addition, Santa Ana is also 

actively pursuing habitat restoration within the Santa Ana Pueblo 

boundaries. Both Sandia Pueblo (which is north of Albuquerque on the 

Rio Grande) and Isleta Pueblo (which is immediately south of 

Albuquerque on the Rio Grande) have enacted EPA-approved water quality 

standards as authorized under the Clean Water Act.

    Because of the time constrains in rendering this final 

determination, we have had limited opportunity to engage in 

consultation with the pueblos adjacent to the designated critical 

habitat. However, on March 4, 1999, following the receipt of the court 

order, information was provided to Tribal representatives at the 

meeting of the Six Middle Rio Grande Basin Pueblos Coalition. Written 

comments to the proposed critical habitat designation for the Rio Grand 

silvery minnow were received from Sandia Pueblo (generally supporting 

the designation), Isleta Pueblo, and the Jicarilla Apache Tribe (both 

expressing concerns about the effects of the designation). On May 3, 

1999, the Service's Regional Director, the Department of the Interior's 

Office of the Regional Solicitor, and staff met with representatives of 

and legal counsel for the Pueblo of Santa Ana to discuss critical 

habitat designation and solicit input from the Pueblo. We will continue 

to provide assistance to and cooperate with pueblos abutting critical 

habitat at their request.

Summary of Comments

    Following the proposal to list the Rio Grand silvery minnow as an 

endangered species with critical habitat, we received comments from the 

public, scientific community, and management and regulatory agencies at 

the State and Federal levels concerning critical habitat. Additionally, 

following the provision of the draft Economic Analysis to the entities 

on our mailing list, we also received comments on the draft document 

and the economic impacts predicted by that document. Finally, during 

the public comment period opened from April 7 to May 7, 1999, we 

received a total of 94 comments concerning the proposal, the draft 

Economic Analysis document, and the draft Environmental Assessment. 

Thirty-two comments were provided orally at the public hearing, and we 

received 62 written comments. All comments on critical habitat and the 

draft documents, both oral and written, received during the comment 

period are addressed in the following summary. Comments of a similar 

nature are grouped into a number of general issues. Issues that were 

addressed in the final rule to list the Rio Grande silvery minnow may 

be found in that publication (59 FR 36988).

    Issue 1: Considerable discrepancy exists within the comments 

received related to geographical extent of the proposed designation. 

Some commenters stated that the extent of critical habitat proposed by 

the Service is inadequate to address survival and recovery of the 

species. Others asserted that there is no basis for excluding the river 

above Cochiti Reservoir (including the Colorado portions of the 

watershed) from designation. Still others recommended that additional 

reaches of the Rio Grande should be evaluated, such as the river 

between Elephant Butte and Caballo reservoirs and downstreams of 

Caballo Reservoir. Some commented that the reach of the Rio Grande 

below San Acacia, because of its known episodes of intermittency, 

should be removed from the proposal. Some commenters recommended that, 

because the reach upstream from San Acacia Cochiti Reservoir would 

appear to offer an opportunity to provide critical habitat for the 

silvery minnow without insurmountable adverse effects on water supply, 

that we do not designate as critical habitat the reach downstream from 

San Acacia. Some commenters stated that there were no east-west 

boundaries identified for critical habitat. Some commenters, 

misinterpreting the scale of the map prepared for critical habitat, 

interpreted the proposal to incorporate miles of terrestrial habitat 

bordering the river throughout the length of the Middle Rio Grande 


    Service Response: The areas finalized as critical habitat in this 

rule meet the designation criteria in 50 CFR part 424. This designation 

of critical habitat is based on the last remaining area still occupied 

by the species. The Service considers this area in need of special 

management and protection and essential for the conservation of the 

species. The area designated includes the mainstem of the Rio Grande 

(comprised of the active river channel including the water column), and 

its associated channel morphology. Although some actions on lands 

within the floodplain of the river may affect critical habitat, these 

areas are not included within the designation.

    The river reach between San Acacia and Elephant Butte Reservoir is 

of primary importance because 70 percent of the population currently 

inhabits that reach. The river above Cochiti Dam was not a significant 

part of the species' historical range, is colder than the optimal 

temperature for silvery minnows, and is stocked with predatory non-

native fish. The area between Elephant Butte and Caballo reservoirs is 

also stocked with non-native fish, and its channel morphology is not 

conductive to silvery minnows. Finally, the river below Caballo 

Reservoir is not currently occupied by the species. As we progress 

through the recovery process for the Rio Grande silvery minnow, we may 

identify areas below the Caballo Reservoir, or other areas, that are 

suitable for reintroduction. Those areas would first have to be 

examined to determine why the minnow no longer occurs there, what 

remedial action would be necessary to reestablish the species, and 

whether remediation is feasible. However, until we have this 

information, we believe that the habitat essential to the silvery 

minnow's conservation is that which we originally proposed. If 

information becomes available that confirms that additional areas are 

essential for the species' conservation, we can revise the critical 

habitat designation. In addition, under section 4 of the Act, persons 

can petition the Service to modify the designation.

    Issue 2: The economic analysis for regional impacts must be able to 

assess the effects on regional income that result from changes in the 

natural resource supply such as water. An inter-industry general 

equilibrium resource assessment model that can account for true 

resource limits and interdependence in the regional economy should be 


    Service Response: Because any finding of adverse modification of 

critical habitat will also result in a finding of jeopardy to this 

species, we have determined that there are no incremental economic 

effects above and beyond any effects associated with the listing of 

this species. Therefore, we believe that there is no need for further 

economic analysis as suggested by these commentors.

    Immediately following initiation of the draft economic analysis, we 

arranged a meeting for all interested

[[Page 36282]]

agencies to meet with the consulting economists and to discuss the 

approach and methodology that was to be utilized in the determination 

of economic impacts. Those commenters who expressed their desire to 

interact with the economists were invited to the meeting. A second 

meeting was also held with agencies prior to the provision of the 

questionnaire; interested parties were invited to these meetings and 

also provided informational copies of the questionnaire that was sent 

to Federal entities for response.

    Issue 3: We must evaluate the direct and indirect impacts of 

critical habitat. Indirect costs are associated with the societal 

implications on small communities in the middle Rio Grande valley 

dependent upon adequate flows from the Rio Grande to sustain the 

practice of irrigated agriculture. Designation of critical habitat 

could limit the ability of municipalities and other water providers in 

the middle valley to provide water to residents and affect the 

agricultural economy.

    Service Response: As indicated in the proposal, the designation of 

critical habitat would affect only Federal agency actions that would 

adversely modify or destroy that habitat. As stated previously, actions 

that would destroy or adversely modify critical habitat would also 

result in jeopardy to the species. The draft economic analysis 

discussed the possibility that cessation or alternation of Federal 

actions in order to avoid jeopardy to the species or adverse 

modification or destruction of critical habitat might affect water 

availability to irrigators, cities, and other water rights holders. It 

also stated that complete cessation might have far reaching impacts on 

the viability of conveyance structures linked to and dependent upon the 

maintenance of the channel of the Rio Grande. The draft economic 

analysis further included the BOR's estimates of increased costs of 

river maintenance, and possible loss of water caused by an equivalent 

reduction in river maintenance capability as a worst case scenario 

based on the Bureau's interpretation of critical habitat.

    In commenting on the draft report, the BOR has clarified that those 

actions under its control within the boundaries of critical habitat 

would not necessarily cease, rather the Bureau would likely employee 

different design and construction techniques to accomplish river 

maintenance objectives. Additionally, the BOR, in its commenting letter 

of May 7, 1999, said that the designation of critical habitat will 

likely have minimal impacts on that agency's Endangered Species Act-

related activities.

    Issue 4: The draft Economic Analysis is incomplete and flawed. The 

draft Environmental Assessment, relying on the conclusions of the 

economic analysis, is also flawed and inadequate. The Service should 

prepare a thorough economic analysis with necessary studies to 

adequately assess the requirements of the silivery minnow and the 

impact of the critical habitat designation. The Service is strongly 

encouraged to provide adequate time for public review and comment on 

studies to determine the impact of the critical habitat designation and 

a final rule should not be issued until this new information has been 

fully considered.

    Service Response We have reviewed the draft economic analysis, 

draft Environmental Assessment, and all comments relieved on those 

documents and the proposal to designate critical habitat. We considered 

all comments in the final preparation of this designation. We believe 

that designation of critical habitat will have no incremental effects 

beyond those resulting from listing the species as endangered. The 

absence of impacts attributable to critical habitat designation is 

clearly and adequately explained in both this final rule and in the 

environmental assessment prepared for this action. Further, while we 

welcome and encourage additional studies on the biological requirements 

of the silvery minnow, we believe the best available information has 

been used in defining the primary constituent elements necessary for 

the species' conservation.

    Issue 5: The Service should place the silvery minnow critical 

habitat designation on hold in order to establish a coordinating 

committee composed of interests above and below Elephant Butte 

Reservoir to develop a full-scale report on the existing data available 

on the silvery minnow, with several subcommittees, one of which would 

be charged with evaluation of the overall impact of the designation on 

other significant environmental interests.

    Service Response: The Act does not allow the indefinite suspension 

of determination of critical habitat. It does, however, allow for a 1-

year delay in designation if we find that critical habitat is not 

determinable. We stated in the final listing rule that we would need an 

additional year to determine the economic and other impacts of 


    The Act requires that we determine the extent of critical habitat 

and the economic and other relevant impacts of such a determination 

using the best scientific and commercial information available at that 

time. We believe that considerable information is available on the 

silvery minnow, including numerous scientific studies on the species 

and on the hydrology of the Rio Grande. In addition, a recovery plan 

has been drafted by a team of experts and is currently under review. 

This recovery plan represents a compilation and analysis of the 

existing data on the species and its habitat. Within the constraints 

imposed by the Act and, in this instance, time constraints from the 

Court, we have attempted to contact all knowledgeable and interested 

entities to gather information for use in the determination of critical 

habitat and in the analysis of the economic and other relevant impacts 

that might arise from its designation.

    Issue 6: The proposed rule provided no data or factors that were 

considered concerning economic and other impacts.

    Service Response: The proposed designation of critical habitat was 

based solely on biological information concerning the needs and 

potential conservation of the silvery minnow. Economic data were not 

required for the proposal, nor were the economic data developed at the 

time the proposed rule was published. The economic analysis of impacts 

from the proposed designation was initiated in September 1994. The 

draft economic analysis was shared with all interested parties in April 

1996, and its availability announced along with the reopening of the 

public comment period on the proposal in April 1999, giving interested 

parties ample opportunity to comment on the draft economic analysis.

    Issue 7: An Environmental Impact Statement is required and must be 

provided before critical habitat can be designated.

    Service Response: We have determined that an Environmental Impact 

Statement, as defined by the National Environmental Policy Act (NEPA) 

of 1969, need not be prepared in connection with actions under section 

4 of the Endangered Species Act, including designation of critical 

habitat. A notice outlining our reasons for this determination was 

published in the Federal Register on October 25, 1983 (48 FR 49244). 

However, the Tenth Circuit Court of Appeals ordered compliance with 

NEPA on critical habitat designation for two fish species in Catron 

County Board of Commissioners v. U.S. Fish and Wildlife Service, 75 

F.3d 1429 (10th Cir. 1996). Based on that decision, in order to comply 

with NEPA, we have completed an Environmental Assessment to delineate 

those environmental, socio-economic, and other relevant impacts

[[Page 36283]]

arising from this designation. That Environmental Assessment resulted 

in a Finding of No Significant Impact for this action. Under NEPA, an 

Environmental Impact Statement is not required in instances where a 

Finding of No Significant Impact is made on an Environmental 


    Issue 8: Several commenters stated their concern that critical 

habitat would affect water rights. Other stated that while the proposed 

critical habitat is totally upstream of Elephant Butte. Reservoir, 

action taken in accordance with the proposal may decrease the amount 

and delivery of water available for use by the El Paso Water Utilities.

    Service Response: We have determined that any alternations of BOR 

activities due to the prohibition against destruction or adverse 

modification of critical habitat would also be required under the 

prohibition of jeopardy to the species. Thus, there are no additional 

impacts of critical habitat designation. Further, neither the listing 

of the species nor designation of crucial habitat can or will determine 

State water rights.

    Issue 9: The City of Albuquerque's wasterwater treatment facility 

discharges into the reach of the Rio Grande designated as critical 

habitat for the silivery minnow. To avoid significantly altering the 

water chemistry of the Rio Grande, the City of Albuquerque may have to 

remove the treated effluent entirely from the river, and to control and 

treat stormwater runoff.

    Service Response: The City of Albuquerque is correct in stating 

that the Environmental Protection Agency (EPA), as the Federal agency 

issuing a permit for the City's wasterwater treatment plant under the 

National Pollutant Discharge Elimination System, would be required to 

ensure that its action would not destroy or adversely modify critical 

habitat for the silvery minnow. However, the EPA would be required to 

ensure that its proposed action would not likely jeopardize the 

continued existence of the species. Given the similarity of the 

definition of jeopardy and destruction or adverse modification, no 

additional restrictions will result from designation of critical 


    Issue 10: The designation of critical habitat will require 

continuous instream flow. The working of the primary constituent 

element to require a quantity of water sufficient to avoid isolated 

pools in the river equates to perennial bank to bank flows. The amount 

of water predicted for critical habitat is unobtainable.

    Service Response: We have made no determination that continuous 

bank-to-bank flow is or will be a requirement to avoid jeopardy to the 

species or adverse modification of critical habitat. (See discussion 

above under Effect of Critical Habitat Designation.) As an evolutionary 

product of arid southwest river systems such as the Rio Grande, the 

silvery minnow has adapted to low flow and intermittent flow 

conditions. However, complete dewatering of extensive reaches of the 

only section of river where it now exists are of great concern, 

particularly when the impacts of dewatering are combined with the 

inability of the silvery minnow to access stillflowing reaches upstream 

of diversion dams.

    We have made no prediction of the amount of water needed for 

maintenance of critical habitat. However, since the silvery minnow was 

listed and critical habitat proposed, the amount of water needed in 

low-water years to avoid jeopardy to the species ranged from about 

17,000 to 58,000 acre-feet, depending upon specific yearly conditions 

of water use, climate, water availability, and response of the silvery 

minnow to those river conditions. We do not anticipate that flow 

management necessary to avoid destruction or adverse modification of 

critical habitat will be different than what is currently required to 

avoid jeopardizing the species.

    Issue 11: The draft economic analysis displayed a bias against 

irrigated agriculture and flood control activities. It argues against 

irrigation subsidies even though society through its congressional 

representatives has made the decision that such subsidies provide 

important benefits to society.

    Service Response: We disagree with the commenter's interpretation 

that the report's presentation of economic values and commitments 

identified for irrigated agriculture and flood control is biased 

against these activities. The report does not argue for or against 

subsidies of any kind, it merely notes their existence within the 

context of economic analysis. The costs and revenues from agriculture 

in the Rio Grande valley are a matter of record, not generated by the 

authors of the report, but taken from published data of the U.S. 

Department of Commerce, Bureau of Economic Analysis, and the New Mexico 

Cooperative Extension Service.

    Issue 12: The draft Economic Analysis should have included some 

analysis to gauge the impacts if the United States' ability to comply 

with its treaty obligations to Mexico are compromised. Similarly, if 

the ability of New Mexico to deliver water to Elephant Butte is 

hampered, there will be drastic consequences for the water users in 

southern New Mexico and Texas.

    Service Response: We believe that there are alternatives in the 

delivery of water that will allow the United States and the State of 

New Mexico to comply with compact and treaty obligations without either 

jeopardizing the continued existence of the species or destroying or 

adversely modifying critical habitat. Some commenters are concerned 

that if water is transported in the river channel instead of the 

conveyance structures, additional water will be lost. However, we do 

not believe that the accounting of water transport or carriage losses 

is of sufficient accuracy and precision; the loss of salvaged surface 

water could be a loss to only one reach of the river, to the overall 

system, or merely transported subsurface to Elephant Butte. A better 

understanding of the hydrology and a more precise accounting system 

would also aid in the management of flow of the river.

    Issue 13: The amount of time and data available to agencies in 

responding to the economic questionnaire were insufficient to allow for 

more detailed reporting of economic effects.

    Service Responses: The initial contact with the identified agencies 

that might have actions affected by the designation of critical habitat 

was in October 1994. Coordination by both ourselves and the consulting 

economists continued with the agencies to clarify information needs, to 

provide examples of questionnaires utilized in and reports produced by 

other economic impact assessments of critical habitat, and to 

exhaustively discuss what would be considered the components of 

critical habitat and how adverse modification to those components might 

be analyzed by the Service. These efforts continued for over seven 

months. In June 1995, another meeting was held with all involved 

agencies invited to discuss the process, the information needs, the 

questionnaire, and the assessment parameters. It was only after that 

extensive period of coordination that the questionnaire was sent to the 

agencies for their response. The requested response time was 30 days; 

based on the discussions and meetings of the preceding seven months, we 

do not believe that the response time was unreasonably brief.

    Issue 14: The authors of the draft economic analysis cannot 

seriously consider the estimate of 4,000 acre-feet additional depletion 

to represent the actual impact of the designation of critical habitat.

    Service Response: The authors of the draft report utilized the 

information provided to them from the Federal

[[Page 36284]]

agencies who have been managing the Rio Grande for over 90 years. The 

quantity of 4,000 acre-feet was provided by the BOR. Although the BOR 

estimated that a potential loss of 4,000 acre feet of surface flow 

could be realized from the cessation of some of their river maintenance 

program, it is not known if this amount of water would be lost to the 

system entirely, or travel subsurface down the channel of the Rio 

Grande to arrive, in some quantity, at Elephant Butte Reservoir.

    Issue 15: If critical habitat is declared there is a real 

possibility that the BOR will be unable to perform periodic maintenance 

on the Rio Grande upstream from Elephant Butte Reservoir.

    Service Response: This concern was not voiced by the BOR. No data 

provided by the Bureau indicated that a complete cessation of periodic 

maintenance would occur if critical habitat were to be designated for 

the Rio Grande silvery minnow. We concur that river maintenance 

activities may need to be altered in order to avoid jeopardizing the 

species or destroying or adversely modifying critical habitat, but the 

resultant impacts in channel capacity, water conveyance efficiencies, 

or water conservation have not been provided by the Bureau for such 


    Issue 16: The New Mexico Interstate Stream Commission commented 

that the prior appropriation doctrine in New Mexico does, to some 

extent, protect instream flows. New Mexico State law and the Rio Grande 

Compact both ensure delivery of water downstream through the Middle Rio 

Grande Valley to water users in the Rio Grande Project south of 

Elephant Butte Dam.

    Service Response: Both State law and the Rio Grande Compact require 

the delivery of water downstream. However, currently the water that is 

released during the irrigation season is native water plus any waters 

called for to meet irrigation, municipal, and industrial needs. 

Additional water to meet Compact deliveries are released during the 

non-irrigation months in accordance with instructions from the Compact 

Commission, which is composed of representatives from Colorado, New 

Mexico, and Texas. Alterations to this plan require consent of the 

Compact Commission. Release of additional Compact waters during the 

irrigation season would only be helpful to the minnow if the waters 

traveled down the riverbed. As discussed above, if water is not 

transported through the reach of river between San Acadia Dam and 

Elephant Butte Reservoir, increased water in the system may not result 

in increased wet habitat for the minnow.

    Issue 17: Critical habitat should not be designated until such time 

as a recovery plan has been developed for the silvery minnow that 

includes a determination that such designation is necessary for 

survival and recovery of the species.

    Service Response: A recovery plan has been drafted for the silvery 

minnow and the plan is being reviewed. Although we agree that it would 

be appropriate to make a detailed determination of habitat needs of 

listed species during the recovery planning process, the Endangered 

Species Act does not currently link the designation critical habitat to 

the development of the recovery plan. The Act requires that, to the 

maximum extent prudent and determinable, we designate critical habitat 

when it lists a species. If critical habitat is not considered 

determinable at the time a final rule is adopted to list a species, it 

must be designated ``to the maximum extent prudent'' within 1 

additional year. There is no provision in the Act to delay designation 

of critical habitat until such time as a recovery plan is prepared. The 

timing of this designation also is in compliance with a court order.

    Issue 18: The calculation of the value of the BOR's river 

maintenance program in the Middle Rio Grande is misleading. The river 

maintenance program has flood control and drainage purposes and 

benefits as well as water salvage benefits. The draft report did not 

evaluate the economic value of these benefits.

    Service Response: The BOR did not provide estimates of the value of 

the benefits identified by the commenter, nor did they provide data 

that would have allowed us to estimate the value of those benefits. 

Therefore, economists were not able to include the value of those 

benefits in the draft economic analysis.

    Issue 19: The BOR estimated that the proposed designation of 

critical habitat would cause the cost of continuing the current level 

of river maintenance in the Middle Rio Grande to increase by up to 40 

percent. This would mean that if funding for river maintenance 

activities remains stable or declines, what river maintenance 

activities in the Middle Rio Grande would be decreased. Reclamation did 

not estimate what percentage reduction in the river maintenance program 

might occur.

    Service Response: We assumed that if the Bureau estimated that 

costs might increase by 40 percent, an alternative scenario would be 

that activities might instead decrease by 40 percent. However, as 

discussed above, the Service has determined that any activities likely 

to result in destruction or adverse modification of critical habitat 

would also result in a finding of jeopardy to the species. Therefore, 

any changes in river maintenance activities are attributed to the 

listing of the silvery minnow, and are not a result of critical habitat 


    Issue 20: The draft Economic Analysis does not appear to present 

facts regarding the values of benefits of designating critical habitat 

for the silvery minnow. The discussion of recreational fishing benefits 

does not apply to this section of the Rio Grande.

    Service Response: In responding to the questionnaire, the BOR 

provided estimates of costs identified as resulting from the critical 

habitat designation, without the amelioration or perceived benefits. As 

stated previously, we have concluded that no additional restrictions 

will result from the designation of critical habitat. We also concur 

that recreational fishing in the mainstem of the Rio Grande within the 

boundaries of critical habitat is a minimal input to the regional 

economy. The draft Economic Analysis prepared for our use in 

determining effects presented some potential benefits to be derived 

from healthy riverine and riparian systems, but that draft did not 

quantify the benefits to be derived from designation; nor did it 

address any mitigative actions that might be employed or implemented to 

lessen the identified economic impacts.

    Issue 21: The minnow has not done well in stretches of the river 

that have perennial flowing water and has done quite well in some 

places that are seasonally dry.

    Service Response: Although we concur that the distribution of 

silvery minnow shows low members in areas now receiving flows year 

round (Cochiti and Albuquerque reaches) and high numbers in stretches 

of the river subject to low or no flows (Isleta and San Acacia 

reaches), we disagree with the conclusion that they are doing well in 

the seasonally dry reaches. The silvery minnows transported from 

upstream reaches to the Isleta and San Acacia stretches cannot regain 

the upstream habitat. They are blocked by the diversion dams. Their 

presence does not necessarily indicate that the species is doing well 

in the lower portions of the river. Their presence indicates that they 

are vulnerable to the dewatering of these important habitats.

    Issue 22: It is not water depletion that threatens the silvery 

minnow, but the structural changes that have narrowed and confined the 


    Service Response: We concur that it is not one action or factor 

that is solely responsible for the endangerment of the

[[Page 36285]]

silvery minnow. The morphology of the channel, the quality of the water 

in the channel, and the provision of some flows to avoid dewatering are 

all important and, thus, have been identified as constituent elements 

of the species' critical habitat.

    Issue 23: In order to justify the determination of no difference 

between critical habitat and listing, the Service should limit the 

components of critical habitat so that there is no difference between 

critical habitat and listing.

    Service Response: We believe that the primary constituent elements 

identified for critical habitat--channel morphology, water quality, and 

water quantity--are the attributes needed in the river for the silvery 

minnow's survival and recovery. It is these attributes that we evaluate 

whether conducting section 7 consultation on the species with or 

without critical habitat.

    Issue 24: Critical habitat in the Middle Rio Grande is dependent on 

restoring the low-velocity flows at locations within some reaches of 

the Middle Rio Grande. The required habitat for the recovery of the Rio 

Grande silvery minnow in the Middle Rio Grande does not include the 

entire 163-mile segment from Cochiti Dam to the headwaters of Elephant 

Butte Reservoir, nor does it include the entire cross section of the 

river at the locations designated for critical habitat. Only those 

reaches below the present, modified, or future diversion structures 

should be considered in arriving at locations designated for the 

critical habitat for this species.

    Service Response: We concur that not every cross section of the 

river within the 163 miles of designated critical habitat may provide 

all constituent elements at any moment in time. However, within this 

relatively short reach of river, habitat conditions change in response 

to flows and other factors: sand bars develop, islands shift within the 

channel; pools are created and then filled in. The interconnectedness 

of the habitat is also vitally important to its value for the survival 

and recovery of the species. We believe that a continuum of habitat, 

rather than disjunct reaches, is the best way to maximize the 

probability of the species' survival and recovery.

    Issue 25: The Service is rushing to designate critical habitat with 

inadequate information; both Secretary of the Interior Bruce Babbitt 

and Service Director Jamie Rappaport Clark conceded that the Service 

has insufficient information to declare critical habitat for the minnow 

and that additional time is required. Judge Conway granted additional 

time and may grant even more time if an environmental impact statement 

is required.

    Service Response: The Act requires that, to the extent prudent, 

critical habitat be designated concurrently with a species' listing. 

Further, the Act requires that the designation be based on the best 

available information, even if the information is incomplete. Further, 

the court ordered us to make a determination concerning the designation 

of critical habitat within a specific time frame. This final rule, 

therefore, complies with both the Act and the court order. As we stated 

earlier, we have determined that an Environmental Impact Statement is 

not required for this action.

    Although there is always additional information we would like to 

have concerning a species, there has been considerable research done on 

the Rio Grande silvery minnow and on the hydrology of the Middle Rio 

Grande. In addition, a recovery plan has been prepared and is currently 

being reviewed, which compiles and analyzes the existing data for the 

species. In the preparation of this final rule designating critical 

habitat for the minnow, we used the best scientific and commercial data 


    Issue 26: If it is the Fish and Wildlife Service's conclusion that 

there is little or no difference in benefit or effect between the No 

Action and Preferred Action alternatives, the Service should conclude 

that the designation of critical habitat for the Rio Grande silvery 

minnow is not needed at this time.

    Service Response: This final rule complies with the Act and the 

court order that we make a final determination on critical habitat for 

the Rio Grande silvery minnow. A more complete discussion of the 

Service's view on this designation is found in Effect of the Critical 

Habitat Designation above.

    Issue 27: The statement in the Economic Analysis that ``If the 

designation will have no impact on the activities of Federal agencies, 

then it will have no economic impact'' is not true. Although the 

designation of critical habitat only directly curtails the actions of 

Federal agencies, it does not follow that no private entities are 

affected by the Federal agencies' actions or lack thereof.

    Service Response: We acknowledge that private entities could be 

affected if Federal actions are curtailed by the designation of 

critical habitat. However, the Federal agencies responded that critical 

habitat would not or would very minimally affect their actions. Thus, 

we believe that there will be no change from what has occurred in the 

Federal arena for the past 4 years since the species was listed and 

critical habitat proposed. Critical habitat, based on the responses 

received from the Federal agencies, will not ``curtail'' their actions. 

Critical habitat will have no incremental affect on their actions over 

and above that resulting from listing of the Rio Grande silvery minnow.

    Issue 28: The economic report is not site-specific. An economic 

model that does not take local land and water use into account does not 

benefit the Fish and Wildlife Service.

    Service Responses: The economic analysis was specific to the Middle 

Rio Grande Valley and utilized all information provided by the Federal, 

State, and local, and Native American respondents operating in the 

valley. Baseline information concerning the regional economy was 

provided that dealt specifically with the Middle Rio Grande.

    Issue 29: Not only is the Fish and Wildlife Service's conclusion 

that Rio Grande silvery minnow population declines are due to habitat 

loss questionable, but the assertion that these declines are the result 

of agricultural dewatering between 1987 and 1992 are also suspect. Salt 

cedar and municipal and industrial water use could also be causative 

factors. The natural flow regime referenced in the proposed critical 

habitat designation has not existed since irrigation began in the basin 

over 800 years ago. The drying of the river for days, weeks, and months 

has been in place for at least 100 years.

    Service Responses: As indicated in the proposed and final rules to 

list the Rio Grande silvery minnow, the species is no longer found in 

95 percent of its historical range. This range-wide constriction 

predates the status of the species between 1987 and 1992 in the Middle 

Rio Grande Valley. We agree that many factors, in addition to 

diversions for agricultural use, that contribute to the dewatering of 

the river may be responsible for the imperiled status of the silvery 

minnow. The intensity of impact of diversions and water management has 

certainly grown with the ability to control the river. Diversions 800 

years ago did not have the capacity to affect the river to the extent 

that modern management structures can . As management and manipulation 

of the river have intensified in the past 100 years, not only in the 

Middle Rio Grande Valley, but throughout the range of the silvery 

minnow, the species has been lost from 95 percent of its historical 

range. Moreover, the contraction in the

[[Page 36286]]

minnows' range makes it must more vulnerable to adverse conditions 

locally, where previously it could have recolonized areas temporarily 

depopulated from areas where conditions were more favorable.

    Issue 30: The Fish and Wildlife Service found an economic impact 

arising from critical habitat for the Mexican spotted owl. For the Rio 

Grande silvery minnow, it found no effect attributable to critical 

habitat. On what basis has the Fish and Wildlife Service's 

interpretation of critical habitat and its associated impacts been 


    Service Response: There has been no modification, but we must judge 

the impacts of individual and specific critical designations based upon 

the case-specific information before us. The impacts can differ between 

species and habitats, based on the effects of designation on Federal 

activities. In the case of the Mexican spotted owl, effects were 

identified. In the case of the Rio Grande silvery minnow, we found no 

effects from designation. As we have gained more experience with 

critical habitat, it has become increasingly apparent that its 

designation has little, if any, influence on the outcome of section 7 

consultations. This has been true of consultations involving the 

silvery minnow that included a conference on proposed critical habitat. 

We do not anticipate that the outcome of section 7 consultations will 

be materially changed upon final critical habitat designation.

    Issue 31: The draft Environmental Assessment provides no 

clarification regarding whether or how the Service believes the 

designation of critical habitat will affect the BOR's operation of the 

San Juan-China Project and how such an action may impact trust 

resources, tribally-owned fee lands, or the exercise of tribal rights 

for the Jicarilla Apache Tribe.

    Service Response: We have been working with the BOR to manage flows 

for the Rio Grande silvery minnow since the species was listed and 

critical habitat was proposed. Those management scenarios involved 

consideration of the San Juan-Chama Project. We do not anticipate a 

change in that process with the final critical habitat designation, nor 

do we foresee an impact on trust resources, tribally-owned fee lands, 

or the exercise of tribal, rights for the Jicarilla Apache.

    Issue 32: The economic documents do not evaluate the economic 

impact of the constituent elements or of the various activities that 

may adversely affect critical habitat: channelization, impoundment, 

deprivation of substrate source and riparian destruction, and any 

activity that would significantly alter the water chemistry in the Rio 


    Service Response: The economic analysis evaluated the effect 

critical habitat designation could be expected to have on the 

activities mentioned in this comment. The analysis of impacts of a 

particular action on critical habitat under section 7 will take into 

account the effects of that action on the primary constituent elements. 

Any consultation on the effects of an action on the species would also 

consider the effects on habitat attributes identified as the primary 

constituent elements.

    Issue 33: No attempt has been made to establish a relationship 

between abundance of Rio Grande silvery minnow and flow conditions.

    Service Response: It is correct that specific flow amounts needed 

for numeric population goals have not been identified. However, data 

are available to describe habitats, including flow conditions where 

most Rio Grande silvery minnows have been found. Additionally, data are 

available to show that a spring pulse is necessary for reproduction of 

the silvery minnow, and flows sufficient to produce low-velocity 

habitats are required for the young to survive and be recruited into 

the population. Flows are necessary to provide habitat to allow 

survival of this year's fish to next year so that they can spawn and 

thus contribute to the population. Investigations have not yet been 

conducted to determine the specific volume of a spring pulse to trigger 

spawning or to determine the amount of water and its rate of flow to 

ensure the provision of habitats for the survival of the species.

    Issue 34: The primary constituent elements of the critical habitat 

designation create hydrological operating criteria which add an 

entirely new component of regulation beyond those imposed by the 

listing of the minnow. In essence, the constituent elements require the 

entire length of the river designated as critical habitat to be wet 

from bank to bank at all times. Because of the carriage losses in the 

system, to attain a constant flow at San Marcial (just above Elephant 

Butte Reservoir) would require the release of a quantity of water 

upstream that would virtually destroy, rather than create habitat for 

the minnow, which tends to like low-flows over sandy river bottoms. The 

Service should also identify the source of the water to be used for the 


    Service Response: The minnow does not need a large quantity of 

water but it does need some water to survive. We agree that the minnow 

could be sustained with low flows in the summer and late spring. In the 

spring and summer, runoff generally triggers spawning. The primary 

constituent elements we have described are intended to require the 

provision of these low flows to create habitat throughout the existing 

range of the species, not to change the hydrography to a raging, high 

flowing river.

    The Service has not stated the exact flow regime needed to sustain 

the minnow nor has it required a minimum cubic feet per second flow at 

any point in the river system. There are a multiplicity of variables to 

be taken into account at any given time on any point in the river and 

there may be an equal number of ways to solve the problem of ensuring 

adequate flows. Not only has the Recovery Team (which includes 

interested parties in addition to scientific experts) been meeting 

since the species was listed, but a number of different stakeholders 

continue to explore possible solutions to the problem. Potential 

solutions include establishing a conservation pool from which to draw 

in low-water years; conserving water which might then be used to 

support the minnow and other life in the river; creating and enhancing 

silvery minnow habitat upstream and increasing populations upstream; 

purchasing or leasing unused contract water for use in the mainstem; 

passing downstream during the irrigation season some of the water used 

to meet Compact deliveries; creating ways to get some flows returned to 

the mainstem of the river below the San Acacia Dam; and engaging in a 

full-scale water rights adjudication on the entire Rio Grande. To limit 

the methods of assuring the survival of the minnow--such as by 

requiring a stated minimum flow or a source of water--might not only 

have unintended consequences to the minnow and the ecosystem, but it 

might also prematurely limit development of other methods or 

combinations of methods for preventing jeopardy and adverse 

modification to the minnow and its critical habitat.

Required Determinations

    Regulatory Planning and Review. In accordance with Executive Order 

12866, this action was submitted for review by the Office of Management 

and Budget. This final rule identifies the areas being designated as 

critical habitat for the silvery minnow. The designation will not have 

an annual economic effect of $100 million. Our summary of the economic 

impacts of designation is discussed earlier in this final rule. This 

rule will create inconsistencies with other agencies' actions. This 

rule will

[[Page 36287]]

not materially affect entitlements, grants, user fees, loan programs, 

or the rights and obligations of their recipients. This rule will not 

raise novel legal or policy issues. Proposed and final rules 

designating critical habitat for listed species are issued under the 

authority of the Endangered Species Act of 1973, as amended (16 U.S.C. 

1531 et seq.). Critical habitat regulations are issued under procedural 

rules contained in 50 CFR part 424.

    Regulatory Flexibility Act (5 U.S.C. 601 et seq.). This rule will 

not have a significant economic effect on a substantial number of small 

entities as defined under the Regulatory Flexibility Act. As explained 

previously in the final rule, the designation will not have economic 

effects above and beyond the listing of the species. This is because 

the prohibition against destroying or adversely modifying critical 

habitat is essentially duplicative of the prohibition against 

jeopardizing the continued existence of the species, and therefore 

there are no additional economic effects that are not already incurred 

by the listing of the species.

    Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 

804(2)). This rule is not a major rule under 5 U.S.C. 804(2), the Small 

Business Regulatory Enforcement Fairness Act. This rue does not have an 

annual effect on the economy of $100 million or more. As explained in 

this rule, we do not believe that the designation will have economic 

effects above and beyond the listing of the species. This rule will not 

cause a major increase in costs or prices for consumers, individual 

industries, Federal, State, or local government agencies, or geographic 

regions, because the designation will not have economic effects above 

and beyond the listing of the species. This rule does not have 

significant adverse effects on competition, employment, investment, 

productivity, innovation, or the ability of U.S.-based enterprises to 

compete with foreign-based enterprises. Proposed and final rules 

designating critical habitat for listed species are issued under the 

authority of the Endangered Species Act of 1973, as amended (16 U.S.C. 

1531 et seq.). The prohibition against destruction or adverse 

modification of critical habitat applies only to actions authorized, 

funded, or carried out by Federal agencies. Competition, employment, 

investment productivity, innovation, or the ability of U.S.-based 

enterprises to compete with foreign-based enterprises are not affected 

by a final rule designating critical habitat for this or any other 


    Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.). This rule 

will not significantly affect small governments because this rule will 

not place additional burdens on small governments beyond any burdens 

that may have been a result of listing the species as endangered. This 

rule will not produce a Federal mandate of $100 million or greater in 

any year, i.e. it is not a significant regulatory action under the 

Unfunded Mandates Reform Act.

    Takings. In accordance with Executive Order 12630, this rule does 

not have significant takings implications. A takings implication 

assessment is not required. This final rule will not ``take'' private 

property and will not alter the value of private property. Critical 

habitat designation is only applicable to Federal lands, or to private 

lands if a Federal nexus exists (i.e., if a Federal agency authorizes 

or funds an action on private land). The regulatory impacts of this 

rule are small to non-existent and will not result in a taking of 

private property rights.

    Federalism. This final rule will not affect the structure or role 

of states, and will not have direct, substantial, or significant 

effects on states as defined in Executive Order 12612. As previously 

stated, critical habitat is only applicable to Federal lands. Other 

lands only become subject to the provisions of critical habitat if a 

Federal nexus exists.

    Civil Justice Reform. In accordance with Executive Order 12988, the 

Office of the Solicitor has determined that the rule does not unduly 

burden the judicial system and does meet the requirements of sections 

3(a) and 3(b)(2) of the Order. The final designation of critical 

habitat for the Rio Grande silvery minnow has been reviewed 

extensively. Every effort has been made to ensure that the rule 

contains no drafting errors, provides clear standards, simplifies 

procedures, reduces burden, and is clearly written such that litigation 

risk is minimized.

    Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). This rule 

does not contain any information collection requirements for which 

Office of Management and Budget approval under the Paperwork Reduction 

Act is required.

    National Environmental Policy Act. It is our position that, outside 

the Tenth Circuit, environmental analyses as defined by the National 

Environmental Policy Act of 1969, (NEPA) need not be prepared in 

connection with listing species under the Endangered Species Act of 

1973, as amended. A notice outlining the Service's reasons for this 

determination was published in the Federal Register on October 25, 1983 

(48 FR 49244). This assertion was upheld in the courts of the Ninth 

Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), 

cert. Denied, 116 S. Ct. 698 (1996). However, when the range of the 

species includes States within the Tenth Circuit, such as that of the 

Rio Grande silvery minnow, the Service, pursuant to the Tenth Circuit 

ruling in Catron County Board of Commissioners v. U.S. Fish and 

Wildlife Service, 75 F.3d 1429 (10th Cir. 1996), is to undertake a NEPA 

analysis for critical habitat designations. We have completed that 

analysis through an Environmental Assessment and Finding of No 

Significant Impact.

    Government-to-Government Relationship with Tribes. In accordance 

with the President's memorandum of April 29, 1994, ``Government-to-

Government Relations with Native American Tribal Governments'' (59 FR 

22951) and 512 DM2:

    We understand that federally-recognized Indian Tribes maintain a 

Government-to-Government relationship with the United States. The 1997 

Secretarial Order on Native Americans and the Act clearly states that 

Tribal lands should not be designated unless absolutely necessary for 

the conservation of the species. According to the Secretarial Order, 

``Critical habitat shall not be designated in any such areas [an area 

that may impact Tribal trust resources] unless it is determined 

essential to conserve a listed species. In designating critical 

habitat, the Services shall evaluate and document the extent to which 

the conservation needs of a listed species can be achieved by limiting 

the designation to other lands.'' The designation of critical habitat 

for the Rio Grande silvery minnow contains Tribal lands belonging to 

the pueblos of Cochiti, San Felipe. Santo Domingo, Santa Ana, Sandia, 

and Isleta.

    On October 27, 1994, we held a meeting with the economic analysis 

contractors and invited Federal agencies, the pueblos of Cochiti, San 

Felipe, Isleta, Sandia, Santa Ana, and Santo Domingo, and other 

entities. At the meeting, the Service and our contractors outlined the 

approach under consideration to define the economic impacts of critical 

habitat designation and sought input to the process and participation 

from these entities. On June 22, 1995, a meeting was held solely for 

Pueblo representatives to discuss the proposed critical habitat and the 

process to be employed in determining economic effects of the 

designation with the content identical to that of the earlier meeting. 

No Pueblo representatives attended. Following the compilation and 

assessment of

[[Page 36288]]

responses to questionnaires, we transmitted the draft analysis to the 

pueblos on April 26, 1996. Finally, on March 4, 1999, we met with 

Pueblo officials to discuss the impending designation of critical 

habitat. Thus, we have sought to consult with tribes on Government to 

Government basis.

References Cited

    A complete list of all references cited herein, as well as 

others, is available upon request from the New Mexico Ecological 

Services Field Office (see ADDRESSES above).

    Author: The primary author of this final rule is Jennifer Fowler-

Propst (see ADDRESSES).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 

record keeping requirements, Transportation.

Regulation Promulgation

    Accordingly, we amend part 17, subchapter B of chapter I, title 50 

of the Code of Federal Regulations as set forth below:


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

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 

4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.

Sec. 17.11  [Amended]

    2. Amend section 17.11(h) by revising the entry in the Critical 

habitat column of the entry for the minnow, Rio Grande silvery, under 

FISHES, to read ``17.95(e)''.

    3. Section 19.95(e) is amended by adding critical habitat of the 

Rio Grande silvery minnow (Hybognathus amarus), in the same 

alphabetical order as the species occurs in 17.11(h).

Sec. 17.95  Critical habitat--fish and wildlife.

* * * * *

    (e) * * *

* * * * *

    RIO GRANDE SILVERY MINNOW (Hybognathus Amarus).

    New Mexico: Socorro, Valencia, Bernalillo, and Sandoval 

Counties. Rio Grande from the downstream side of State highway 22 

bridge crossing of the Rio Grande, immediately downstream of Cochiti 

Dam, NW\1/4\ sec. 17, T. 16N., R. 15 E. of the New Mexico Meridian, 

extending downstream approximately 163 mi (260 km) to where the 

Atchison Topeka and Santa Fee Railroad crosses the river near San 

Marcial, Lat 33 deg.40'50'', long 106 deg.59'30'', Socorro County.

    Primary constituent elements for the Rio Grande silvery minnow 

include stream morphology that supplies sufficient flowing water to 

provide food and cover needed to sustain all life stages of the 

species; water of sufficient quality to prevent water stagnation 

(elevated temperatures, decreased oxygen, carbon dioxide build-up, 

etc); and water of sufficient quantity to prevent formation of 

isolated pools that restrict fish movement, foster increased 

predation by birds and aquatic predators, and congregate pathogens.


[[Page 36289]]


[[Page 36290]]

    Dated June 22, 1999.

Stephen C. Saunders,

Acting Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. 99-16985 Filed 6-30-99; 10:26 am]