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13390 Federal Register / Vol. 59, No. 54 / Monday, March 21, 1994 / Rules and Regulations with no mention of the other three endangered Colorado River fish. However, because the intent of the Act is "* * * to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved * * *," the Service also decided to propose critical habitat for the Colorado squawfish, humpback chub, and bonytail chub. These fishes coexist in the Basin and much of their habitats overlap. However, for species that do not have a requirement to designate critical habitat, the Service may designate critical habitat at any time. The designation of critical habitat for four species in a single rule is more cost- and time-effective than designating critical habitat separately for each species. I& The public believed that they should be more involved in. the decision process and suggested that workgroups be established to designate critical habitat that involved affected groups. Service Response: Through comments provided on the proposed rule, Draft Biological Support Document, and Economic Analysis, the public provided information considered by the Service in the decision process. The Service, acting through its economic contractors, obtained additional information from affected groups needed to complete the Economic Analysis. The process of asking for comments and holding hearings is the Service's standard procedure for involving the public in decision making regarding listing of species and designation of critical habitat. Issue 11: Various groups involved in recovery efforts for the four fishes asked how critical habitat will relate to existing RIP's. Service Response: Critical habitat is an inventory of habitat needed for survival and recovery and not a plan providing goals or guidance toward achieving recovery. The Recovery Implementation Programs for the Colorado and San Juan Rivers W's) have, as their goal, recovery of these four fish species. Therefore, the designation of critical habitat is not in conflict with the stated goal of the RIP's. It is the intent of the Service that recovery actions under the auspices of the RIp's will serve as reasonable and prudent alternatives to adverse modification. Issue 12: A few respondents believed that the designation included so much area that it would not be manageable. Service Response: The Service's designation includes many miles of the Basin's major rivers covering the areas needed for the survival and recovery of the species involved. Extensive areas are required to meet all the life history requirements of these four fishes. Issue 13: A few respondents stated that critical habitat designation is not "prudent and/or determinable." Service Response: On October 27, 1992, the Court ruled that the Service had violated the Act in failing to designate critical habitat when the razorback sucker was listed. The Court ordered the Service to have a proposed rule designating critical habitat for the razorback sucker published by January 25, 1993, using presently available information and to have amore complete final rule published at the earliest time permitted by the Act and its regulations. The language in the Act and Service regulations at 50 CFR 424.12 for determining prudency indicate that unless the designation will not be of net benefit to the species, it is prudent to designate critical habitat. If the Service finds that critical habitat is not determinable at the time, then it must collect the information needed to determine it and complete designation within 2 years of the proposed listing. The Service has determined that designation in this situation is both prudent and determinable. . Issue 14: Many respondents questioned the effect of critical habitat on existing water laws, compacts (including compact entitlements), treaties, etc., and indicated that the Service had ignored the "Law of the River." Service Response: Critical habitat designation for the four fishes does not modify or nullify any existing State water law, compact agreement, or treaty. It is the Service's opinion that the Act. as well as other Federal statutes, are part of what is commonly referred to as the "Law of the River". Impacts to water development opportunities within any State are adequately addressed in the Economic Analysis. It is the intent of the Service to fully consider State water law, interstate compact agreements, and treaties in protecting and recovering the four endangered fishes. As an example, the Service has worked to establish and to _ support the Upper Colorado River and San Juan River Recovery Implementation Programs, whose participants have committed to recover the four endangered fish consistent with State water laws and other agreements. Issue 15: A few respondents believe that the economic impacts of listing the Colorado River fishes as endangered should be accounted for in the economic analysis as impacts of designating critical habitat. Service Response: The listing of a threatened or endangered species is considered a different action than determination of critical habitat. At the time of listing. the Service considered biological factors in determining to list the four species as endangered. Regarding critical habitat, section 4(b)(2) of the Act places requirements on the Secretary to consider the economic impact and any other relevant impact of specifying any particular area as critical habitat. Economic impacts that result from other requirements of the Act that are distinct from critical habitat designation are not required to be considered duringahe economic analysis for critical-habitat. Issue 16: Some respondents were concerned the Service did not seek adequate consultation with affected groups. Service Response: The Service provided all interested groups as much time to comment on the proposed designation as Court orders allowed. The timeframes required that existing information be used to develop the economic impact model. Economic information has been obtained from - existing sources and also was requested at the time of publication of the - _ . - proposed rule, Drag Biological Support Document, and the Economic Analysis. Issue 17: Some individuals believed that private property should not be included in the d on- Service Response. -The Endangered. Species Act applies to all areas within the United States and contains no biological or legal justification for the categorical exclusion of private lands from critical habitat designation. The Service designated critical habitat based on biological information regarding whether or not an area contains the primary constituent elements for critical habitat for the four fishes, after taking into account the economic costs associated with the critical habitat designation. Critical habitat designation, only impacts private property if there is an action by a Federal agency (permit, funding or other action) that is likely to destroy or adversely modify critical habitat. The requirement to consider adverse modification of critical habitat is an incremental section 7 consideration above and beyond section 7 review to evaluate jeopardy and incidental take of the species. Issue 18: A few agencies were concerned that critical habitat designation will increase administration/implementation costs of doing section 7 consultation. Service Response: Section 7 consultation is already being done on all Federal projects and other activities in 1 1 1 i