[Federal Register: February 19, 2003 (Volume 68, Number 33)]
[Rules and Regulations]               
[Page 8087-8135]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19fe03-25]                         




[[Page 8087]]


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Part II










Department of the Interior










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Fish and Wildlife Service






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50 CFR Part 17






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




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DEPARTMENT OF THE INTERIOR


Fish and Wildlife Service


50 CFR Part 17


RIN 1018-AH91


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


AGENCY: Fish and Wildlife Service, Interior.


ACTION: Final rule; notice of availability.


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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat for the Rio Grande silvery minnow (Hybognathus amarus) 
(silvery minnow), an endangered species under the Endangered Species 
Act of 1973, as amended (Act). On June 6, 2002, we proposed that 212 
miles (mi) (339 kilometers (km)) be designated as critical habitat for 
the silvery minnow. The silvery minnow critical habitat designation in 
the Rio Grande extends from Cochiti Dam, Sandoval County, New Mexico 
(NM) downstream to the utility line crossing the Rio Grande, a 
permanent identified landmark in Socorro County, NM, a total of 
approximately 157 mi (252 km), referred to as the ``middle Rio 
Grande.'' The designation also includes the tributary Jemez River from 
Jemez Canyon Dam in NM to the upstream boundary of Santa Ana Pueblo, 
which is not included. The critical habitat designation defines the 
lateral extent (width) as those areas bounded by existing levees or, in 
areas without levees, 300 feet (ft) (91.4 meters (m)) of riparian zone 
adjacent to each side of the bankfull stage of the middle Rio Grande. 
The Pueblo lands of Santo Domingo, Santa Ana, Sandia, and Isleta within 
this area are not included in the final critical habitat designation. 
Except for these areas, the final remaining portion of the silvery 
minnow's occupied range in the middle Rio Grande in NM is being 
designated as critical habitat. This publication also provides notice 
of the availability of the final economic analysis and the final 
Environmental Impact Statement (EIS) for this final rule.
    This final rule and EIS are being issued pursuant to a court order. 
On November 21, 2000, the United States District Court for the District 
of New Mexico, in Middle Rio Grande Conservancy District v. Babbitt, 
206 F. Supp. 2d 1156 (D.N.M. 2000), set aside the July 6, 1999, 
critical habitat designation for the minnow and ordered us to issue 
both an EIS pursuant to the National Environmental Policy Act (NEPA) 
and a new proposed rule designating critical habitat for the silvery 
minnow.


DATES: This final rule is effective March 21, 2003.


ADDRESSES: Comments and materials received, as well as supporting 
documentation used in the preparation of this final rule, are available 
for public inspection, by appointment, during normal business hours at 
the New Mexico Ecological Services Field Office, 2105 Osuna Road NE, 
Albuquerque, NM 87113.
    You may obtain copies of the final rule, the economic analysis, or 
the final EIS from the field office address above or by calling 505-
346-2525. All documents are also available from our Web site at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://ifw2es.fws.gov/Library/
.
    If you would like copies of the regulations on listed wildlife or 
have questions about prohibitions and permits, contact the U.S. Fish 
and Wildlife Service, Division of Endangered Species, P.O. Box 1306, 
Albuquerque, NM 87103.


FOR FURTHER INFORMATION CONTACT: Field Supervisor, New Mexico 
Ecological Services Field Office (see ADDRESSES section above); 
telephone: 505-346-2525. Division of Endangered Species (see ADDRESSES 
section above); telephone 505-248-6920; facsimile 505-248-6788.


SUPPLEMENTARY INFORMATION:


Background


    The Rio Grande silvery minnow is one of seven species in the genus 
Hybognathus found in the United States (Pflieger 1980). The species was 
first described by Girard (1856) from specimens taken from the Rio 
Grande near Fort Brown, Cameron County, TX. It is a stout silvery 
minnow with moderately small eyes and a small, slightly oblique mouth. 
Adults may reach 3.5 inches (in) (90 millimeters (mm)) 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. The fish is silver with emerald reflections. Its 
belly is silvery white, its 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, NM, 
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, 
NM, downstream to its confluence with the Rio Grande (Pflieger 1980). 
The silvery minnow is extirpated from the Pecos River and also from the 
Rio Grande downstream of Elephant Butte Reservoir and upstream of 
Cochiti Reservoir (Bestgen and Platania 1991). The current distribution 
of the silvery minnow is limited to the Rio Grande between Cochiti Dam 
and Elephant Butte Reservoir. Throughout much of its historic range, 
the decline of the silvery minnow has been attributed to modification 
of the flow regime (hydrological pattern of flows that vary seasonally 
in magnitude and duration, depending on annual precipitation patterns 
such as runoff from snowmelt) and channel drying resulting from 
impoundments, water diversion for agriculture, stream channelization, 
and perhaps both interactions with non-native fish and decreasing water 
quality (Cook et al. 1992; Bestgen and Platania 1991; Service 1999; 
Buhl 2001).
    Much of the species' life history information detailed below comes 
from studies conducted within the middle Rio Grande, the current range 
of the silvery minnow. Nevertheless, we believe that our determinations 
for other areas outside of the middle Rio Grande, but within the 
historic range of the silvery minnow, are consistent with the data 
collected to date on the species' ecological requirements (e.g., 
Service 1999).
    The role of the plains minnow (Hybognathus placitus) in the decline 
and extirpation of the silvery minnow from the Pecos River is 
uncertain; however, the establishment of the plains minnow coincided 
with the disappearance of the silvery minnow from the Pecos River 
(Bestgen and Platania 1991; Cook et al. 1992). Cook et al. (1992) 
believed that the non-native plains minnow was introduced into the 
Pecos drainage prior to 1964, and was probably the result of the 
release of ``bait minnows'' collected from the Arkansas River drainage. 
It is unclear, however, if populations of the native silvery minnow 
were depleted prior to the introduction of the plains minnow, or if the 
reduction and extirpation of the silvery minnow was a consequence of 
the interactions between the two species (C. Hoagstrom, U.S. Fish and 
Wildlife Service, pers. comm. 2001). One theory is that the plains 
minnow may be more tolerant of modified habitats and, therefore, was 
able to replace the silvery minnow in the degraded reaches of the Pecos 
River. Nevertheless, the plains minnow has experienced population 
declines within its native range from highly variable water levels, 
unstable streambeds, and fluctuating water temperatures (Cross et al. 
1985, cited in


[[Page 8089]]


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


[[Page 8090]]


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


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Previous Federal Action


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


[[Page 8092]]


(UTM) coordinates of UTM Zone 13: 311474 E, 3719722 N, as referenced 
with the 1927 North American Datum (NAD27). The designation also 
includes the tributary Jemez River from Jemez Canyon Dam to the 
upstream boundary of Santa Ana Pueblo, which is not included (see the 
``Regulation Promulgation'' section of this rule for exact descriptions 
of boundaries of critical habitat), and no other reaches within the 
historic range of the silvery minnow. We have also not included four 
areas of the middle Rio Grande in the critical habitat because of 
Tribal management plans and other relevant issues (see ``Relationship 
of Critical Habitat to Pueblo Lands under Section 3(5)(A) and 
Exclusions Under Section 4(b)(2)'' section of this rule). Therefore, we 
are only designating some sections of the river reaches currently 
occupied by the silvery minnow.
    This final rule is selected as the preferred alternative in the 
final EIS, pursuant to NEPA, which we were required to prepare under 
court order from the United States District Court for the District of 
New Mexico, in Middle Rio Grande Conservancy District v. Babbitt, 206 
F. Supp. 2d 1156 (D.N.M. 2000). The two reaches referenced above (i.e., 
middle Pecos River and lower Rio Grande) were also analyzed in the EIS 
and Economic Analysis. We followed the procedures required by the Act, 
NEPA, and the Administrative Procedure Act during this Federal 
rulemaking process. Therefore, we solicited public comment on all 
reaches identified in the proposed rule as essential, including whether 
any of these or other areas should be excluded from the final 
designation pursuant to section 4(b)(2). As required by law, we have 
considered all comments received on the proposed rule, the draft EIS, 
and the draft economic analysis before making this final determination.


Recovery Plan


    Restoring an endangered or threatened species to the point where it 
is recovered is a primary goal of our endangered species program. To 
help guide the recovery effort, we prepare recovery plans for most of 
the listed species native to the United States. Recovery plans describe 
actions considered necessary for conservation of the species, establish 
criteria for downlisting or delisting the species, and estimate time 
and cost for implementing the recovery measures needed. Although a 
recovery plan is not a regulatory document (i.e., recovery plans are 
advisory documents because there are no specific protections, 
prohibitions, or requirements afforded to a species solely on the basis 
of a recovery plan), the information contained in the Rio Grande 
Silvery Minnow Recovery Plan (Recovery Plan) was considered in 
developing this critical habitat designation.
    On July 1, 1994, the Recovery Team was established by the Service 
pursuant to section 4(f)(2) of the Act and our cooperative policy on 
recovery plan participation, a policy intended to involve stakeholders 
in recovery planning (July 1, 1994; 59 FR 34272). Stakeholder 
involvement in the development of recovery plans helps minimize the 
social and economic impacts that could be associated with recovery of 
endangered species. Numerous individuals, agencies, and affected 
parties were involved in the development of the Recovery Plan or 
otherwise provided assistance and review (Service 1999). On July 8, 
1999, we finalized the Recovery Plan (Service 1999), pursuant to 
section 4(f) of the Act.
    The Recovery Plan recommends recovery goals for the silvery minnow, 
as well as procedures to better understand the biology of the species. 
The primary goals of the Recovery Plan are to: (1) Stabilize and 
enhance populations of silvery minnow and its habitat in the middle Rio 
Grande valley and (2) reestablish the silvery minnow in at least three 
other areas of its historic range (Service 1999). The reasons for 
determining that these three areas were necessary for recovery include: 
(1) Consideration of the biology of the species (e.g., few silvery 
minnows live more than 12 to 14 months, indicating the age-1 fish 
(i.e., all fish born in 2000 that remain alive in 2001 would be age-1 
fish) are almost entirely responsible for perpetuation of the species); 
(2) the factors in each reach that may inhibit or enhance 
reestablishment and security of the species vary among areas; and (3) 
it is unlikely that any single event would simultaneously eliminate the 
silvery minnow from three geographic areas (Service 1999).
    In accordance with the Recovery Plan, we have initiated a captive 
propagation program for the silvery minnow (Service 1999; Brooks 2001). 
Silvery minnows are currently being propagated at five facilities in NM 
and one in South Dakota (SD); one additional NM facility will come on-
line in 2003. We currently have silvery minnows housed at: (1) The 
Service's Dexter National Fish Hatchery and Technology Center, NM; (2) 
the Service's Mora National Fish Hatchery and Technology Center, NM; 
(3) the City of Albuquerque's Biological Park, NM; (4) the New Mexico 
State University, NM; (5) the New Mexico Department of Game and Fish's 
Rock Lake State Fish Hatchery, NM; and (6) the U.S. Geological Survey 
Biological Resources Division's Yankton Laboratory, SD (J. Brooks, 
pers. comm., 2002). Progeny of these fish are being used to augment the 
middle Rio Grande silvery minnow population, but could also be used in 
future augmentation or reestablishment programs for the silvery minnow 
in other river reaches (J. Remshardt, New Mexico Fishery Resources 
Office, pers. comm. 2001).
    We have also salvaged and transplanted silvery minnows within the 
middle Rio Grande in recent years (Service 1996, 1998, 1999, 2000, 
2001, 2002). Approximately 225,500 silvery minnow larvae and adults 
have been released (i.e., stockings from captive bred fish or 
translocated from downstream reaches) since May 1996 (J. Remshardt, 
U.S. Fish and Wildlife Service, pers. comm. 2001). For example, in late 
2001, the University of New Mexico (UNM) released 11,900 silvery 
minnows into the San Acacia Reach. In June 2002, we released 2,500 
marked silvery minnows within the Angostura Reach. These fish were 
marked to determine the movement of silvery minnows in the wild. 
Results of studies of the effectiveness of these releases will be 
useful for evaluating future efforts to reintroduce the species. These 
results should be available in 2003 (R. Dudley and S. Platania, UNM, 
pers. comm. 2002).
    We have also continued working with the Recovery Team since the 
Recovery Plan was finalized. We believe this critical habitat 
designation and our conservation strategy (see ``Exclusions Under 
Section 4(b)(2) of the Act'' section below) are consistent with the 
Recovery Plan (Service 1999). The purpose of the Recovery Plan is to 
outline the research and data collection activities that will identify 
measures to ensure the conservation of the silvery minnow in the wild. 
We believe this critical habitat designation and our conservation 
strategy are consistent with the recommendations of the Recovery Plan 
and Recovery Team.


Summary of Comments and Recommendations


    In the June 6, 2002, proposed rule, we requested all interested 
parties to submit comments or information concerning the designation of 
critical habitat for the silvery minnow (67 FR 39206). During the 
comment period, we held public hearings in Socorro and Albuquerque on 
June 25, and 26, 2002, respectively. We published newspaper notices 
inviting public comment and announcing the public hearings in the


[[Page 8093]]


following newspapers in NM: Albuquerque Journal, Albuquerque Tribune, 
Socorro Defensor Chieftain, Sante Fe New Mexican, and Las Cruces Sun. 
Transcripts of these hearings are available for inspection (see 
ADDRESSES section). The comment period was originally scheduled to 
close on September 4, but was extended until October 2, 2002 (September 
12, 2002; 67 FR 57783). We contacted all appropriate State and Federal 
agencies, Tribes, county governments, scientific organizations, and 
other interested parties and invited them to comment. On June 6, 2002, 
we hosted a teleconference to provide a short presentation and answer 
questions by reporters on all aspects of the proposed critical habitat 
designation, the draft economic analysis, and draft EIS. We also 
provided notification of these documents through e-mail, telephone 
calls, letters, and news releases faxed and/or mailed to affected 
elected officials, media outlets, local jurisdictions, Tribes, and 
interest groups. We also published all of the associated documents on 
our Region 2 Internet site following their release on June 6, 2002.
    We solicited five independent experts who are familiar with this 
species to peer review the proposed critical habitat designation. Only 
one of the peer reviewers submitted comments, and these supported the 
proposed designation. We also received a total of 34 oral and 54 
written comments. Of the oral comments, 10 supported critical habitat 
designation and 24 opposed designation. Of the written comments, 17 
supported critical habitat designation, 22 opposed designation, and 15 
were neutral or provided additional information. We reviewed all 
comments received for substantive issues and new data regarding 
critical habitat and the silvery minnow, the draft economic analysis, 
and the draft EIS. In the following summary of issues we address all 
comments received on all three documents during the comment periods and 
public hearing testimony. Comments of a similar nature are grouped into 
issues.


Issue 1: Biological Concerns


    (1) Comment: Some commenters state that the extent of critical 
habitat proposed by us is inadequate to address survival and recovery 
of the species (e.g., critical habitat for the silvery minnow should be 
expanded beyond the current proposal). Recommendations for additional 
areas designated include the Rio Grande from Caballo to the NM-TX 
border, the area from the confluence of the Rio Conchas to the 
downstream boundary of Big Bend National Park, and the Pecos River from 
Sumner to Brantley Reservoir.
    Our Response: Our analysis of the following two areas--(1) the 
river reach in the middle Pecos River, NM, from Sumner Dam to Brantley 
Dam in De Baca, Chaves, and Eddy Counties, NM; and (2) the river reach 
in the lower Rio Grande in Big Bend National Park downstream of the 
National Park boundary to the Terrell/Val Verde County line, TX--finds 
that the benefits of excluding these areas from the designation of 
critical habitat outweigh the benefits of including them (see 
``Exclusions Under Section 4(b)(2)'' section). Although we believe 
these areas are essential to the conservation of the silvery minnow, 
these areas are not designated as critical habitat.
    It is critical to the recovery of the silvery minnow that we 
reestablish the species in areas outside of its current occupied range. 
We believe that one of the goals of the Recovery Plan can be fulfilled 
by reestablishing the silvery minnow in areas of its historic range 
using the flexibility provided for in section 10(j) of the Act. In 
order to achieve recovery for the silvery minnow, we need assistance 
from local stakeholders to ensure the success of reestablishing the 
minnow in areas of its historic range. Use of section 10(j) is meant to 
encourage local cooperation through management flexibility. Critical 
habitat is often viewed negatively by the public since it is not well 
understood and there are many misconceptions about how it affects 
private landowners (E. Hein, U.S. Fish and Wildlife Service, pers. 
comm, 2002). It is important for recovery of this species that we have 
the support of the public when we move toward meeting the second 
recovery goal of reestablishing the species in areas of its historic 
range.
    The reasons why other areas of the silvery minnow's historic range 
were not designated as critical habitat are detailed within the 
``Reach-by-Reach Analysis'' section below. If, in the future, we 
determine from information or analysis that those areas designated in 
this final rule need further refinement or if we identify and determine 
additional areas to be essential to the conservation of the species and 
requiring special management or protection, we will evaluate whether a 
revision of critical habitat is warranted at that time.
    (2) Comment: The current proposal for critical habitat for the 
silvery minnow is contrary to the recommendations of the Rio Grande 
Silvery Minnow Recovery Team and the Recovery Plan. The proposed 
designation is deficient in its omission of critical habitat in the 
``three other areas within its historic range'' as required by the 
Recovery Plan. Our proposal to not designate the lower Rio Grande as 
critical habitat has no factual basis.
    Our Response: It is important to note that we utilized the 
recommendations of the Recovery Team in the Recovery Plan, consistent 
with this definition of conservation, to conclude that the middle Rio 
Grande and the middle Pecos River from Sumner Dam to Brantley Dam, NM, 
and the lower Rio Grande from the upstream boundary of Big Bend 
National Park downstream through the area designated as a wild and 
scenic river to the Terrell/Val Verde County line, TX, are ``essential 
to the conservation of'' the silvery minnow. Although the middle Pecos 
River and the lower Rio Grande are not designated as critical habitat, 
we believe they are important for the recovery of the silvery minnow. 
Thus, we concur with the Recovery Plan that reestablishment of the 
silvery minnow within additional geographically distinct areas, within 
its historical range, is necessary to ensure the minnow's survival and 
recovery (Service 1999). However, recovery is not achieved by 
designating critical habitat. The Act provides for other mechanisms 
that will provide for reestablishment of the minnow outside of the 
middle Rio Grande and the eventual recovery of the silvery minnow. In 
addition, please see responses 1 and 44 for information related to this 
particular issue.
    (3) Comment: The Service appears to be greatly concerned that 
critical habitat could jeopardize the trust and spirit of cooperation 
that has been established over the last several years because critical 
habitat designation would be viewed as an unwarranted and unwanted 
intrusion in the middle Pecos and lower Rio Grande. However, the same 
arguments can be made in the middle Rio Grande.
    Our Response: The middle Pecos and lower Rio Grande are essential 
to the conservation of the silvery minnow. Still, the silvery minnow 
has been extirpated from these areas of its historic range and we 
believe that the appropriate means to potentially reestablish the 
species is through use of the 10(j) experimental population rule (see 
``Exclusions Under Section 4(b)(2)'' section). We also have not 
included areas within the middle Rio Grande where we believe adequate 
special management is in place and because of other relevant issues 
(see ``Relationship of Critical Habitat to Pueblo Lands under Section 
3(5)(A) and Exclusions Under Section 4(b)(2)'' section).


[[Page 8094]]


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


[[Page 8095]]


    (7) Comment: One of the most significant threats to native fish in 
the southwestern United States is non-native fish; however, the Service 
did not provide any information on whether non-native fish affect the 
silvery minnow or its habitat.
    Our Response: In the proposed critical habitat designation rule, we 
stated: ``Habitat alteration and loss, and non-native competition, 
predation, and other effects are inextricably intertwined and have 
contributed substantially to the endangered status of the silvery 
minnow (Service 1999; Dudley and Platania 2001). Furthermore, habitat 
alteration has been a significant contributor to non-native fish 
invasion, competition, and adverse effects. In turn, non-native species 
have likely contributed significantly to the inability of native fish, 
such as the silvery minnow, to persist in altered environments (Hubbs 
1990; Propst 1999)'' (June 6, 2002; 67 FR 39206).
    (8) Comment: There is a notable lack of data in your reports 
concerning the plains minnow found within the middle Rio Grande.
    Our Response: Although the plains minnow was found infrequently in 
a survey of bait-fishing stores within the Rio Grande Basin (Schmitt 
1975), the plains minnow has never been documented in the wild within 
the middle Rio Grande (R. Dudley, American Southwest Ichthyological 
Research Foundation, pers. comm., 2002; K. Bestgen, Colorado State 
University, Larval Fish Laboratory, pers. comm., 2002). The silvery 
minnow and plains minnow can be distinguished from each other by 
morphological and genetic differences (Bestgen and Propst 1996; Cook et 
al. 1992). Therefore, we believe that ``a lack of data'' is reflective 
of a lack of presence of the plains minnow in the middle Rio Grande.
    (9) Comment: Critical habitat could result in the loss of flood 
pulses for uses such as periodic flooding of the bosque.
    Our Response: The silvery minnow requires a spike in early spring 
to trigger spawning (Platania and Dudley 2000). Critical habitat will 
not result in the loss of this pulse of water. In fact, this hydrologic 
event could also periodically flood some areas of the bosque (bosque is 
the riparian areas adjacent to the Rio Grande).
    (10) Comment: One commenter believes the Service overlooked 
important information that silvery minnows can bury in the wet sand and 
survive extensive periods, especially when the river bed is dry. This 
commenter states that when the river is dry, silvery minnows have been 
found by digging in the sand.
    Our Response: There is no information in the scientific literature 
or provided by biologists researching the silvery minnow to indicate 
that the species can either bury underground or survive in the wet sand 
when the river is dry. Available evidence indicates that silvery 
minnows die only minutes after being removed from water.
    (11) Comment: The Service should consider the use of irrigation 
ditches to recover the silvery minnow.
    Our Response: Ephemeral or perennial irrigation canals and ditches, 
including the LFCC (i.e., downstream of the southern boundary of Bosque 
del Apache National Wildlife Refuge to the headwaters of Elephant Butte 
Reservoir) do not offer suitable refugia and are not useful for 
conservation of the silvery minnow because they do not contain the 
primary constituent elements and the habitat is not sufficient to 
support viable populations of silvery minnow for extended periods of 
time (see also BOR 2001c). Silvery minnows found in canals and ditches 
are believed to represent silvery minnows that became entrapped due to 
the diversion of irrigation water from the mainstem middle Rio Grande. 
Nevertheless, we are aware that a study is being conducted by New 
Mexico State University to evaluate the usefulness of irrigation canals 
and ditches to the silvery minnow (Thompson 2002). We will assess the 
results of this study when they are available.
    (12) Comment: Why does the Service indicate that agricultural 
runoff is detrimental to the silvery minnow, when the return flows are 
an important source of water for the species?
    Our Response: We recognize that under current irrigation 
operations, the delivery of irrigation water and associated return 
flows play an important role in supporting fish survival in the lower 
reaches of the river. The return flows also help to provide water to 
meet Rio Grande Compact delivery obligations. Irrigation water 
deliveries to MRGCD and the six middle Rio Grande Pueblos provide 
``carriage'' water that facilitates the more efficient delivery of 
supplemental water to benefit the silvery minnow. However, as noted in 
the background section, development of agriculture and the growth of 
cities within the historic range of the silvery minnow may have 
resulted in a decrease in the quality of river water through municipal 
and agricultural runoff (i.e., sewage and pesticides).


Issue 2: Procedural and Legal Compliance


    (13) Comment: The U.S. Army Corps of Engineers (Corps) should be 
held responsible for the plight of the silvery minnow because they 
constructed Cochiti Dam and drastically altered the species' habitat.
    Our Response: The effects of past and ongoing human and natural 
factors leading to the current status of the silvery minnow is called 
the environmental baseline. The environmental baseline is a snapshot of 
the species' status at any point in time, and is updated when we 
conduct a section 7 biological opinion. No single entity can be held 
responsible for the status of the silvery minnow. However, the Corps is 
(as are many other entities) included in the Middle Rio Grande 
Endangered Species Act Collaborative Program and is part of the long-
term solution to develop and implement activities to conserve the 
minnow.
    (14) Comment: We must specify in the final rule for critical 
habitat whether the experimental population under section 10(j) of the 
Act would be essential or nonessential.
    Our Response: When we designate a population as experimental, 
section 10(j) of the Act requires that we determine whether that 
population is either essential or nonessential to the continued 
existence of the species on the basis of the best available 
information. Any future recovery efforts, including repatriation of the 
species to areas of its historical range under section 10(j) of the 
Act, will be conducted in accordance with the pertinent sections of the 
Act, NEPA, and Federal rulemaking procedures. A NEPA analysis is 
necessary to carefully consider information concerning every 
significant environmental impact among all the alternatives and select 
a preferred alternative. We find that nonessential designations garner 
wider and more meaningful public support. However, at this time we 
cannot determine the type of 10(j) rule that may be proposed for the 
minnow.
    (15) Comment: The establishment of experimental populations is 
purely speculative because according to the Service's regulations, the 
establishment of an experimental population requires an agreement among 
the Service, affected States, Federal agencies, and landowners. An 
agreement is unlikely to happen.
    Our Response: We believe that the use of section 10(j) will 
encourage local cooperation through management flexibility. Our 
regulations state that we shall consult with appropriate State fish


[[Page 8096]]


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


[[Page 8097]]


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


[[Page 8098]]


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


[[Page 8099]]


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


[[Page 8100]]


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


[[Page 8101]]


be either positive (benefits) or negative (costs).
    In New Mexico Cattle Growers Ass'n v. U.S. Fish and Wildlife 
Service, 248 F.3d 1277, however, the Tenth Circuit recently held that 
the baseline approach to economic analysis of critical habitat 
designations used by us for the southwestern willow flycatcher 
designation was ``not in accord with the language or intent of the 
ESA.'' In particular, the court was concerned that we had failed to 
analyze any economic impact that would result from the designation, 
because it took the position in the economic analysis that there was no 
economic impact from critical habitat that was incremental to, rather 
than merely co-extensive with, the economic impact of listing the 
species. We had therefore assigned all of the possible impacts of 
critical habitat designation to the listing of the species, without 
acknowledging any uncertainty in this conclusion or considering such 
potential impacts as transaction costs, reinitiations, or indirect 
costs. The court rejected the baseline approach incorporated in that 
designation.
    In our analysis, we addressed the Tenth Circuit's concern that we 
give meaning to the Act's requirement of considering the economic 
impacts of critical habitat designation by acknowledging the 
uncertainty of assigning certain post-designation economic impacts 
(particularly section 7 consultations) as having resulted from either 
the listing or the designation. We believe that for many species the 
designation of critical habitat has a relatively small economic impact, 
particularly in areas where consultations have been ongoing with 
respect to the species. This is because the majority of the 
consultations and associated project modifications, if any, already 
consider habitat impacts and, as a result, the process is not likely to 
change significantly as a result of the designation of critical 
habitat. Nevertheless, we recognize that the nationwide history of 
consultations on critical habitat is not broad, and, in any particular 
case, there may be considerable uncertainty whether an impact results 
from the critical habitat designation or the listing alone. We also 
understand that the public wants to know more about the kinds of costs 
section 7 consultations impose and frequently believes that critical 
habitat designation could require additional project modifications. 
Therefore, the final economic analysis incorporates two baselines. One 
addresses the impacts of critical habitat designation that may be 
``attributable co-extensively'' to the listing of the species. Because 
of the potential uncertainty about the benefits and economic costs 
resulting from critical habitat designations, we believe it is 
reasonable to estimate the upper bounds of the cost of project 
modifications on the basis of the benefits and economic costs of 
project modifications that would be required by consultation under the 
jeopardy standard. It is important to note that the inclusion of 
impacts attributable co-extensively to the listing does not convert the 
economic analysis into a tool to be considered in the context of a 
listing decision. As the court reaffirmed in the southwestern willow 
flycatcher decision, ``the ESA clearly bars economic considerations 
from having a seat at the table when the listing determination is being 
made.'' The other baseline, the lower boundary baseline, will be a more 
traditional rulemaking baseline. The economic analysis attempts to 
provide our best analysis of which of the effects of future section 7 
consultations actually result from the regulatory action under review 
(i.e., the critical habitat designation). These costs will in most 
cases be the costs of additional consultations, reinitiated 
consultations, and additional project modifications that would not have 
been required under the jeopardy standard alone, as well as costs 
resulting from uncertainty and perceptional impacts on markets. The 
final economic analysis provides a detailed study concerning the 
baseline and potential incremental effects of the designation of 
critical habitat for the silvery minnow, and we believe it is in 
compliance with the Tenth Circuit's decision in New Mexico Cattle 
Growers Ass'n v. U.S. Fish and Wildlife Service, 248 F.3d 1277.


Issue 3: Tribal and Pueblo Concerns


    (47) Comment: The Service is legally mandated to have Government-
to-Government consultations with affected Tribes and Pueblos. The 
designation will affect the trust assets of Tribes and Pueblos. Will 
the designation of critical habitat affect the Pueblos of Taos, San 
Juan, or the Jicarilla Apache Nation?
    Our Response: In accordance with Secretarial Order 3206, ``American 
Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the 
Endangered Species Act'' (June 5, 1997); the President's memorandum of 
April 29, 1994, ``Government-to-Government Relations with Native 
American Tribal Governments'' (May 4, 1994; 59 FR 22951); Executive 
Order 13175; and the Department of the Interior's requirement at 512 DM 
2, we recognize the need to consult with Federally recognized Indian 
Pueblos and Tribes on a Government-to-Government basis. Section 4(b)(2) 
of the Act requires us to gather information regarding the designation 
of critical habitat and the effects thereof from all relevant sources, 
including Indian Pueblos and Tribes.
    We were available to confer with the affected Indian Pueblos and 
Tribes during the comment period for this proposed rule. Recognizing 
our Federal trust responsibility, we met with the following Pueblos and 
Tribes (some meetings were to provide technical assistance and are not 
considered Government-to-Government consultations): Jicarilla Apache 
Nation (October 22, 2001; January 9 and 25, 2002; March 7, 2002), San 
Juan (December 11, 2001; February 25, 2002; September 6, 2002), Isleta 
(July 25, 2002; August 8 20, 2002), Sandia (October 22, 2001; February 
12, 2002; September 25, 2002), Santa Ana (December 11, 2001; July 9 and 
10, 2002; August 2 and 6, 2002; September 13, 2002), Santo Domingo 
(August 8, 2002), and Taos Pueblos (April 2, 2002; September 11, 2002; 
October 23, 2002) to discuss how they might be affected by the 
designation of critical habitat or other issues related to the Act. We 
provided technical assistance to Santo Domingo, Santa Ana, Sandia, and 
Isleta Pueblos in the development of their management plans (see 
``Relationship of Critical Habitat to Pueblo Lands under Section 
3(5)(A) and Exclusions Under Section 4(b)(2)'' section of this rule 
below).
    The designation of critical habitat is not anticipated to impact 
Indian Trust Assets, which are legal interests in assets held in trust 
by the United States Government for Tribes and Pueblos. Water rights 
are considered an Indian Trust Asset. For an impact to occur, the 
designation of critical habitat would need to diminish the Tribe's 
access to or the value of any Indian Trust Asset. For example, the BOR 
recently indicated that the six middle Rio Grande Pueblos would receive 
prior and paramount water deliveries through November 15, 2002, and 
that future deliveries of prior and paramount water for the six middle 
Rio Grande Pueblos will also be ensured. Prior and paramount water 
deliveries are not dependent on, and are not expected to affect, 
supplemental water deliveries for the silvery minnow (BOR 2002). We 
also do not believe that other Tribes or Pueblos (e.g., Taos and San 
Juan Pueblos, Jicarilla Apache Nation) outside of the critical habitat 
designation will be affected. We believe that the consultation history 
of the silvery minnow demonstrates that previous section 7 
consultations have not affected or impaired Indian Pueblo


[[Page 8102]]


and Tribal trust resources within the area we are designating as 
critical habitat (e.g., see Service 2001b). During consultation, 
measures taken to avoid destruction or adverse modification of critical 
habitat will likely be similar if not identical to what is currently 
required to avoid jeopardizing the silvery minnow. Consequently, we do 
not believe that critical habitat will result in requirements during 
consultation, and do not believe critical habitat will affect Indian 
Trust Assets.
    (48) Comment: The Service completely omits Pueblos from the 
analysis under the Regulatory Flexibility Act.
    Our Response: We are certifying that this final rule will not have 
a significant effect on a substantial number of small entities, 
including Indian Tribes and Pueblos (see ``Required Determinations'' 
section below).
    (49) Comment: Critical habitat will require the maintenance of 
river flows which will adversely affect Pueblos by limiting the amount 
of water available. Pueblos may have substantial unused water rights. 
If critical habitat limits depletions, the designation would 
disproportionately affect Pueblos.
    Our Response: We do not anticipate that the designation of critical 
habitat will alter the administration of the supplemental water 
program. Thus, delivery of water to middle Rio Grande contractors and 
Pueblos is ensured (BOR 2001c). Environmental justice-related impacts 
of preferred alternatives for critical habitat designation are 
discussed in Chapter 4 of the EIS. Nothing in the final rule or the EIS 
is intended to preclude new depletions resulting from the exercise of 
senior Indian water rights. In addition, please see response to comment 
48 for information related to this particular issue.


Issue 4: Other Relevant Issues


    (50) Comment: The Service has continued to ignore the economic 
consequences of designating critical habitat for the silvery minnow on 
the Pecos River.
    Our Response: The Pecos River is not designated as critical habitat 
for the silvery minnow.
    (51) Comment: In the Economic Analysis, why is it assumed that all 
the water required to meet supplemental flows will all come from NM 
agriculture? The Rio Grande flows through three states, so why will the 
burden of ensuring the survival of the silvery minnow be placed upon 
the water users in the middle Rio Grande? Are interstate water rights 
transfers (i.e., sale or lease) possible under existing Federal or 
State law?
    Our Response: The Economic Analysis assumed that water resources in 
NM are limited, which is demonstrated by an active market in which 
water rights move between willing buyers and sellers within the 
confines of State and Federal regulations. From 1976 to 2000, the 
purchasers of water rights in the middle Rio Grande were generally 
municipalities (61 percent of purchasers); however, other sectors 
participate as buyers in this market as well. During the same time 
frame, the sellers of water rights in the middle Rio Grande were 
primarily agriculture (90 percent of sellers) reflecting the fact that 
the majority of the water rights (as measured by total volume of water 
reflected in these rights) are currently held in the agriculture 
sector. Given these data, it was assumed that any water provided to the 
silvery minnow by supplementing present water flow conditions would 
come from currently held irrigation water rights because these tend to 
have greater flexibility than water rights for municipal or commercial 
uses. Thus, the economic analysis focused on the area within the middle 
Rio Grande for providing supplemental water, and did not consider 
interstate transfers of water. In general, our economic analyses 
consider the impacts within the geographic area being proposed as 
critical habitat. For example, in this case the economic analysis 
considered the area proposed as critical habitat in the middle Rio 
Grande, as well as the other two areas found to be essential to the 
conservation of the minnow (i.e., middle Pecos River and Lower Rio 
Grande). While interstate water rights transfers (i.e., sale or lease) 
may be possible under existing Federal or State law, we concluded that 
such transfers were beyond the scope of our economic analysis.
    (52) Comment: The Economic Analysis severely underestimates the 
costs associated with providing 40,000 af of supplemental water because 
it did not estimate transaction costs associated with the purchase or 
lease of water rights.
    Our Response: Easter et al. (1999) found that transaction costs 
associated with purchase or lease of water rights must be kept low for 
an effective water market. For example, they estimated that transaction 
costs range from about $17 to $190 per af. Another example indicates 
that a 10 percent commission is common for completing the sale or lease 
of a water right in NM (Turner 2002a; http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.waterbank.com/Agreements/Agency%20Agreement.htm
). Based on these and other data, the 
final Economic Analysis estimates that the average transaction cost is 
likely $333 and $183 for the Rio Grande and Pecos, respectively. 
Consequently, the estimated transaction costs would be approximately 7 
to 10 percent of the total price of an acre-foot. These estimates do 
not change our required determinations below.
    (53) Comment: The Service should have used the Upper Rio Grande 
Water Operations Model (URGWOM) to determine the amount of supplemental 
water to meet the target flow of 50 cfs at the San Marcial Floodway 
gage. The Service did not use the best scientific and commercial data 
available because you failed to engage the State of New Mexico and use 
their expertise, data, and models.
    Our Response: On September 5, 2001, we invited the NMISC to 
participate in the development of the EIS as a cooperating agency. On 
October 3, 2001, the NMISC accepted our invitation. On April 9, 2002, 
the Service requested the expert review of the preliminary 
predecisional draft EIS and preliminary predecisional draft economic 
analysis from the NMISC, as a cooperating agency. We requested the 
review because the NMISC has jurisdiction by law or special expertise 
over water resources and environmental impacts involved with the 
Service's action of designating critical habitat. We specifically 
requested that the review focus on the accuracy of information and 
analyses as described in the draft documents. On April 25, 2002, the 
NMISC requested additional information from the Service and our 
contractors. During the open comment period for the proposed rule, we 
met on July 2 and 22, 2002, with the NMISC to further coordinate the 
designation of critical habitat and clarify the additional information 
requested. Nevertheless, we could not rely on data from URGWOM to 
develop the final rule because the information has yet to be submitted.
    A focal point of discussions with the NMISC was the use of URGWOM 
for estimating the amount of supplemental water needed to maintain 
flows in the middle Rio Grande. During these meetings and in a July 16, 
2002, letter, we indicated that on the basis of discussions between our 
contractor and the NMISC, and according to the May 9, 2002, notes from 
the URGWOM Steering Committee meeting, we understood that URGWOM was 
still being calibrated and validated. It was also our understanding 
that URGWOM and the relevant input and output data have not been tested 
by all the cooperating agencies for the


[[Page 8103]]


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


[[Page 8104]]


amount of supplemental instream flow, required by past section 7 
consultations (e.g., Service 2001b), will increase because an area is 
designated as critical habitat.
    (58) Comment: The Service should analyze the impacts on 
groundwater, urban development, and operation of canals and other 
irrigation structures.
    Our Response: The EIS analyzes impacts on water rights and 
management, land ownership and use, social and economic impacts, and a 
variety of other environmental consequences.
    (59) Comment: The Service should consider the positive impact of 
critical habitat designation in the region's economy.
    Our Response: The potential benefits of critical habitat are 
described in the economic analysis and EIS.
    (60) Comment: It is currently impossible with the natural flow 
regime (i.e., after all managed uses of water are curtailed) to 
maintain the primary constituent elements related to water flow. The 
primary constituent element that indicates conditions ``do not increase 
prolonged periods of low or no flow'' presume a baseline is known.
    Our Response: Critical habitat is designated on the basis of 
existing conditions within each of the river reaches. We acknowledge 
that some of these areas have the potential for no to low flow during 
certain seasons or years. This primary constituent element provides 
water of sufficient flows to reduce the formation of isolated pools, 
and is essential to the conservation of the silvery minnow because the 
species cannot withstand permanent drying of long stretches of river. 
In addition, please see response to comment 35 for information related 
to this particular issue.
    (61) Comment: There is not enough information known about the 
silvery minnow or about the impacts of the designation to perform the 
required analyses.
    Our Response: This final determination constitutes our best 
assessment of areas needed for the conservation of the silvery minnow. 
We must make this determination on the basis of the information 
available at this time, and we may not delay our decision until more 
information about the species and its habitat are available. Southwest 
Center for Biological Diversity v. Babbitt, 215 F.3d 58 (D.C. Cir. 
2000).
    (62) Comment: The Service concludes that low or no-flow conditions 
have become more prevalent in the last few decades. The hydrological 
data demonstrate that this is not true. These unfounded claims indicate 
that a thorough hydrologic analysis of the middle Rio Grande should be 
completed using hydrological variability techniques (e.g., Richter et 
al. 1997).
    Our Response: We have revised the ``Background'' section of this 
final rule. We are participating in the Upper Rio Grande Basin Water 
Operations Review and EIS with the Joint Lead Agencies and other 
cooperators, including the Corps, BOR, and the NMISC, to 
comprehensively review the water operations activities that are 
conducted under the existing authorities in the Rio Grande Basin above 
Fort Quitman, TX. Hydrological variability techniques (e.g., Richter et 
al. 1997) can guide river managers to define and adopt interim 
management targets before conclusive long-term research results are 
available. The Federal agencies have discretion when selecting specific 
river management targets and activities (e.g., sources and storage of 
supplemental water (BOR 2001c; Corps 2001)). Consequently, hydrological 
variability techniques could be applied to river management targets and 
activities at the discretion of the Federal agencies, but are beyond 
the scope of this designation.
    (63) Comment: One commenter questioned why, although approximately 
200,000 af of water were released in the summer of 2000 to save the 
silvery minnow from extinction, the species suffered one of its most 
significant declines during this artificially wet period. NM and other 
signatories of the Rio Grande Compact cannot afford this waste of 
water.
    Our Response: In the spring of 2000, as a result of court-ordered 
mediation (Minnow v. Keys, Civ. No. 99-1230 JP/KBM-ACE), BOR, through 
voluntary leases and repayment agreements, and in cooperation with 
other entities, provided 168,000 af of water to the Rio Grande for the 
silvery minnow and for irrigation purposes during the year 2000. Data 
from silvery minnow population monitoring studies in 2001 indicated a 
slight increase of the population in the Angostura, Isleta, and San 
Acacia Reaches (Dudley and Platania 2001). Without efforts to maintain 
at least some flow in the Rio Grande in 2000, it is likely that the 
silvery minnow might have been extirpated from the middle Rio Grande 
(Dudley and Platania 2001). It is also important to note that, at least 
partially as a result of these supplemental flows, NM realized a credit 
of 100,000 af toward its current and future delivery obligations to TX 
under the Rio Grande Compact (BOR 2001c).
    (64) Comment: Because of the silvery minnow, the Service has not 
allowed the BOR to maintain a channel through the delta area north of 
Elephant Butte Reservoir.
    Our Response: On May 8, 2000,