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Federal Register / Vol. 59, No. 54 / Monday, March 21, 1994 / Rules and Regulations A 1 1 13321 river reaches proposed for designation as critical habitat, because all reaches are occupied by the endangered fishes. Many of the effects of designation on the physical and biological features of the habitat are already considered in the analysis of-effects of the action to determine if the project is likely to jeopardize the continued existence of the species. For most projects, the additional analysis required to determine destruction or adverse modification of critical habitat would be small and would not significantly increase existing workloads. Issue i9: Several respondents stated that the Service was in violation of the Endangered Species Act (Act) for - designating critical habitat more than two yyeeaazrss after species, and tie Federal Land'Policy Management Act (FLMA) for failure to comply with required proceduues in implementing a major Management-action.' - Service-Response: On October 27, 1992, the -Court ruled that the Service was in violation of the Act because critical habitat had not been designated concarnaatly-with the listing of the razorback sucker. This designation of critical tat for-the Colorado River endangered fishes brings the Service intofiall compliance with the requirements of the Act In addition, the Servic atm followed procedural - - requirements for the designation. The Act does not stipulate that critical habitat cannot be designated after the inidaftwd penod has passed- Desig?oa =nn, of critical habitat is not a management action under the FLPMA, but an action required by section 4 the Act-Actions authorized, funded or. carried out by Federal agencies must undergo section 7 consultation if they may affect a listed species or critical habitat The Service will determine if such actions are likely to jeopardize the continued-existence of these four endangered fishes or destroy or adversely modify their critical habitat. Plans developed under FLPMA would be subject to section 7 consultation if it is determined that the action may affect the endangered fishes or their habitat. Because the designation of critical habitat does not by itself create a management plan or automatically exclude certain activities. FLPMA does not apply to designation. Issue 20: One respondent believed that providing a comment period after the Draft Biological Support Document/ Economic Analysis was made available did not allow for meaningful public comment on the rule. Service Response: While the Service would have preferred that the Draft Biological Support Document and Economic Analysis be available to the .public at the time the proposed rule was published, that was not possible because of the Court's order. Although not released concurrently with the proposed rule, the two documents were written to support it, and comments were requested on these documents and considered in the exclusion process and in reparation of the final rule. Issue 21: Several letters requested that the Service provide for public comment on the balancing/exclusion process, including holding additional public hearings. Service Response: The exclusion process is conducted immediately prior to preparing a final rule and does not provide for any additional public input. All availableinformation is used in the exclusion process. This includes information obtained during the public comment period. Additional information supplied during the public comment period could change the economic costs to certain areas or provide additional biological. information as to the significance of an area to the species. Information relating to the Exclusion Process was provided in the "Overview of the Critical Habitat Designation for the Colorado River Endangered Fish: Draft" published November 1993 (Fish and Wildlife Service, Salt Lake City) and made available to the public (58 FR 59979). That document stated than- ' • information and comments are welcome on the overall -exclusion process: - recommendations on economic criteria for use in the exclusion determination, any other benefits associated with exclusion. benefits of including proposed areas as critical habitat, and information on which areas, if excluded. would result in the extinction of any of the four endangered fishes." Issue 22: A few respondents stated that there are no economic impacts from listing: therefore, all impacts associated with having endangered fish in the Basin should be attributed to critical habitat Service Response: Once a species is listed as-endangered or threatened, protections under sections 7 and 9 of the Act come into force. Section 7 protections are based on the provisions in the Act that require all Federal agencies to insure that their actions do not jeopardize the continued existence of listed species. During formal consultation under the Act, reasonable and prudent alternatives contained in biological opinions require agencies to insure they do not violate the jeopardy standard. Also, implementation of reasonable and prudent alternatives in biological opinions may require additional costs. The reasonable and prudent measures and terms and conditions covering incidental take included in the biological opinion also may require the agency incur costs. The Act also provides direction for all Federal agencies to use their authorities to seek to recover threatened and endangered species in section 7(a)(1). Providing for recovery actions also incurs costs. These costs are all associated with listing of a species and are not critical habitat costs. Issue 13: One letter stated a concern that the delay in designating critical habitat.has harmed the endangered fishes. Service Response: The Service does not believe that delay in designating critical habitat has contributed to the . decline of any of these four fish species. All four fishes enjoy the protection of the Act by virtue of their listing and, in accordance with section 7(a)(4), publishing of the proposed critical habitat rule required Federal agencies and the Service to confer on potential impacts of any Federal action upon proposed critical habitat. Additionally, prior to the designation of critical - habitat. Federal actions that may affect the endangered fish required review for possible jeopardy to the species under section 7 of the-Act : which reflect to large degree, if not completely, the same issues presented by adverse - modification of critical habitat Issue 24: Several respondents indicated that the Service should set recovery goals based on numbers of fish so that it is evident when recovery is achieved Service Response: Critical habitat designation is not a management or recovery plan. Critical habitat serves to identify those areas where conservation efforts should be concentrated but does not dictate what those efforts should be, or set goals to measure the success of such efforts. Recovery goals are appropriately contained in recovery plans. Recovery plans generally identify specific actions needed for the conservation of the species. Criteria for downlisting or desting contained in recovery plans function as goals to be met to achieve species conservation. In the development of recovery plans, species experts determine the level of specificity of these goals, based on the status of the species and its biology. Goals based on specific numbers of individuals are only set if the biology of the species warrant it and in cases where reliable population estimates can be made.