BOARD01872

• Board Meeting Date: 9/27/1999
• Description: Colorado River Basin Issues - Interior Department's Indian Water Rights Report
• Board Meetings - Doc Type: Memo

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designation when the benefits of their exclusion outweigh the benefits of inclusion, except when
failing to designate an area as critical habitat will result in the species' extinction. Although
designations of critical habitats have been very controversial, the FWS believes that critical
habitat designations generally have minor or no effects beyond those effects resulting from
listing a species.8

Designation of Critical Habitat for Endangered Fish in the Upper Colorado River Basin

In March 1989, six environmental groups petitioned the FWS to list the razorback sucker, a
native fish species, as an endangered species. After conducting a status review, FWS agreed that
the species should be listed and published a proposed rule in May 1990. Although the ESA
requires designation of critical habitat concurrently with listings, the FWS considered listing "not
prudent" and also stated that it could not determine critical habitat because it did not have
sufficient biological information. The "not determinable" finding extended the time for
mandatory designation to May 1992, but the "not prudent" finding could have provided a
permanent exemption from the designation requirement. The Navajo Nation in its comments on
the proposal listing rule did not object to the listing of the species so long as no critical habitat
would be designated and stated that, if it were to be designated, the San Juan River should be
excl uded.

After the proposed rule was published, a Federal court decision caused the FWS to scrutinize all
of its "not prudent" findings. The October 23, 1991, final rule for the listing again concluded
there was insufficient data to designate. But in a change from the proposed rule, the final rule
stated that during the additional time FWS had to accumulate biological information for
designation, it would reassess whether critical habitat designation for the razorback sucker was
prudent.

Two days after publication of the final rule, the Sierra Club Legal Defense Fund (SCLDF) sent
the FWS a notice of intent to sue. The SCLDF notified the FWS that if the FWS did not propose
critical habitat for the razorback sucker by March 23, 1992, the date by which a proposed rule
had to be published to meet the May 1992 statutory deadline for a final rule, it would sue to force
the FWS to do so.

8 The only operative provision in the ESA which relates to critical habitat is the prohibition in
Section 7 against Federal agency actions destroying or adversely modifying critical habitat.
Section 7 already prohibits Federal actions which are likely to jeopardize listed species. Almost
invariably, actions which are likely to jeopardize species relate to impacts to species' habitat and
are the same actions which destroy or adversely modify critical habitat. It is rare that a Section 7
consultation will result in a biological opinion concluding that the agency action will result in
adverse modification of critical habitat without also determining that the same agency action is
also likely to jeopardize the existence of the affected species.

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