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Federal Register /Vol. 59, No. 54 /Monday, March 21, 19.94 /Rules and R ations 13389 final rule. Publishing the Draft EIS on the proposed critical habitat Issue 7: Representatives of tribal Biological Support Document and designation would not further the goals govern ments stated that designating Economic Analysis for public comment of NEPA or the Act. The NEPA critical habitat on tribal lands violates provided additional opportunities for documentation should be done on the Federal Government's trust public involvement. All comments i th d D ft Bi l l management plans and activities that responsibility. ' ve ra rece on e o ogica Support involve critical habitat: section 7 Service Response: As stated above, the Document and the Economic Analysis consultation is conducted on those Endangered Species Act of 1973, as were analyzed, considered. and where actions. Additionally, the Service amended, applies to all areas of the appropriate those comments were believes that the.Draft Biological United States, including tribal lands. t consideredduring the exclusion process Support Document and Economic The Service does not agree that and included in the final rule. Analysis provide the public and inclusion of tribal lands violates the Issue 3: Some respondents questioned decision makers the same information Federal Government's trust ' whether critical habitat should have been proposed without first completing that is generally supplied .in a NEPA doctmnent (environmental impact responsibility. Mere designation of critical habitat does not affect tribal the biological and economic analyses and stated that it was difficult to statement or environmental assessment). Issue 5: Many respondents were lands unless a Federal action is likely to destiny or adversely modify critical comment on the proposed rule until concerned that critical habitat habitat. The requirement to consider these documents were made available to designation would result in "takings" of adverse modification of critical habitat ' the public. Service Response' Designation of water rights and other p- rivate_ property.. Service Response: The Service _is an incremental sectiou 7 consideration above and beyond review critical habitat normally would have allowed preparation of the Draft prepared a -Takings Implications Assessment" under provisions of to evaluate jeopardy and incidental take of the species. The Service will work ' Biological Support Document and Economic Analysis prior to publishing Executive Order 12630 to address this issue. The Service has concluded that with tribes to develop reasonable and prudent alternatives fix any adverse the proposed rule. The Service argued in coral that the biological support the promulgation of the rule designating critical habitat will not take water rights modification finding and to live up -to the Federal Government's trust ' information and economic analysis should be completed for release with or other private property. Although there may be cases where land or water responsibility and to maintain compliance with the Act. the proposed rule. However, a court order compelled the Service to focus use may be conditioned, it is unlikely that use would be prohibited. Moreover Issue 8: Several respondents stated that critical habitat should not be ' exclusively an development of the , the Service does not anticipate any - designated until a recovery plan is proposed vale. The Service recognized takings implications associated with completed for the razorbacks sucker. i that tT* segaence would make other Federal agency actions resulting Service Response: The Act requires r substantive comments on the proposed from the designation and if there were that critical habitat be designated g rule diT arlt to prepare. For this reason to be any. it is unlikely that they would concurrently with a species' listing or the Service provided an Overview, a -be signi&c - within 2 years of the proposal to list the 1 Draft Biological Support Document, and Issue 6: Tnbal representatives stated species. Only if the Service determines f an Economic Analysis for public review that tribal lands are sovereign and that identification of critical habitat is t 1 and co®e>Yt prior to preparation of a final tile The Service consid d ll therefore should not be designated.. Service Re Th E d d '.not prudent' (1.e., will not be of net i . ere e sponse e n angere benefit to the species) is designation not s public cu?ems on these documents Species Act of 1973, as amended, required by the Act. The Service has -. t and the proposed rule during the applies to any entity or individual determined that critical habitat for these t exclusion process and final rule subject to the jurisdiction of the United species is determinable and that ' t L PreParatiorL Issue !: Many respondents stated that States. No area or entity-within the boundaries of the United States is designation is prudent. The Service proposed listing of the razorback sucker the Service should prepare-an exempt from the Act The Act requires on May 22, 1990 (55 FR 21154); Environmental Impact Statement (EIS) that the Service base designation of therefore, the designation of critical ' and damply with the National critical habitat on the best scientific habitat for this species should have been i. Environmental Policy Act (NEPA) information, taking into consideration completed by May 22,1992. The Ad because the designation would have economic and other relevant impacts, also requires the Service to prepare a significant impact on the human and that areas be excluded only if the recovery plan for any listed species environment Service Response: The United States ' benefits of exclusion outweigh the benefits of inclusion. The Act does not likely to benefit from one: although no timeframe is mandated, Service policy District Gant for the District of Oregon provide for categorical exemption of provides that such plans shall be in Douglas County v. Manuellujan (Civil No. 91-1423-HO) ruled that tribal lands from critical habitat designation, or other provisions, when completed within 30 months following listing. Therefore, the tirneframes i critical habitat designations should be analyzed under NEPA. However, such scientific studies indicate the lands contain important habitat Section 9 imposed by the Act usually necessitate the designation of critical habitat before decision is stayed pending appeal to the Ni th Ci it prohibits take of listed fish or wildlife a recovery plan can be approved. n rcu . The 1981-Sixth Circuit Court decision on private and tribal lands, including destruction of habitat that results in the Finally, the Court has ordered designation by March 15 1994. in Pacific legal Foundation v. Andrus (657 F.2d 829) held that an EIS is not take of such wildlife. Section 7 applies to any Federal agency that authorizes, , Issue 9: A few respondents suggested that critical habitat should only have required for listings under the Act. The decision noted that preparing an EIS on funds or dries out actions that are likely to jeopardize the continued been designated for the razorback sucker and not for all four species at the same a listing action would not further the existence of a species or destroy or time. i goals of NEPA or the Act The Service believes that the reasoning behind this adversely modify critical habitat. This includes Federal actions involving tribal Service Response: The Service was ordered by the Court to designate ' decision is sound and that preparing an lands that may affect critical habitat critical habitat for the razorback sucker