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19 almost 1,000 acre-feet for a one-time depletion charge of$50,000. The BIA and the State of New Mexico expressed concern that allowing such an additional depletion would make it more difficult to find water to complete NIIP and would allow this project to "leap-frog" past NIIP since a completed NIIP did not appear in the environmental baseline. In 1998 the Biology Committee of the SJRRIP presented the Coordination Committee with draft flow recommendations for the endangered fish based on the seven years of research required by the RPAs for ALP and NIIP. The Coordination Committee subsequently adopted these recommendations, which in effect found that an additional 122,000 acre-feet may be made available for depletion without jeopardizing the San Juan River populations of the endangered fish. In early 1999 the BIA prepared a new Biological Assessment on completion ofNIIP construction. That was submitted to FWS on June 14 along with a finding that completion of the project "may affect, but is not likely to adversely affect" listed species or critical habitat, based on the SJRRIP flow recommendations. FWS concurred in that finding on July 14, thus concluding informal consultation on the project. The Jicarilla Apache Tribe meanwhile expressed the concern that ifNIIP utilized all of the additional 122,000 acre-feet, that would effectively foreclose the Tribe's exercise of its settlement water rights out of Navajo Reservoir. The two Tribes have met to discuss options for Jicarilla Apache use of Navajo Reservoir water. B. CRITICAL HABIT AT DESIGNATIONS General Background The ESA requires critical habitat to be designated by regulation to "the maximum extent prudent and determinable" at the same time a species is listed as threatened or endangered, 16 V.S.C. 1533(a)(3). Critical habitat contains the physical or biological features essential to the survival and recovery of a species which may require special protection. The designation is to be based on the best scientific data available. When the FWS does not have sufficient scientific data to designate critical habitat at the time of a final listing, the FWS is granted an additional year before it is required to make a designation based on the data that is available. If the FWS determines that it is "not prudent" to designate, designation is not required. "Not prudent" findings are made when the designation will increase the threat to the species or is not beneficial, 50 CFR 424. 12(a)(1). Other listing actions under the ESA require the exercise of purely scientific judgment. Critical habitat designations, however, involve consideration of economic impacts and other relevant effects of the designation, 16 U.S.C. 1533(b)(2). The FWS believes that only the economic impacts of the critical habitat designation itself are to be considered, not the economic impacts of the listing of the species as endangered or threatened. Therefore, most economic impacts of designation are considered insignificant. Geographical areas may be excluded from the