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Federal Register I Vol. 59, No. 54 I Monday, March 21, 1994 I Rules and Regulations final role. Publishing the Draft Biological Support Document and . Economic Analysis for public comment provided additional opportunities for public involvement. All comments received on the Draft Biological Support Document and the Economic Analysis were-analyzed. considered, and where appropriate those comments were conside'red'during the exclusion process , and included in the final rule. Issue 3: Some respondents questioned whether critical habitat should have . been proposed without first completing the biological and economic analyses . and stated that it was difliculno comment on the propased role until these documents were made available to the public. . . . Service Response: Designation of critical habitllt normally would have allowed preparation of the Draft , Biological Support Document and Economic ~ysis prior to publishing the proposed rule, The Service azgued . in court that the biological support infonnatlanand economic analysis should be completed for release with the propose;! rule. However, a courl. . order compelled the Service to focas exclushe1Y On development of the' pro~~"" rule. The Service recognized thaftii;T..eqae;;ce would make .. . substantive comments on the proposed rule rlifl';';,rilJ'to prepare. For this reason the Servicieprovided<m Overview, a Draft B.iologicsl Support Document, and an EcOJiomic Analysis for public review and. .....;'..~,;, prior to preparation oCa final mla. The SerVice considered-all publiC cOmnients on these documents and thal'roposed rule during the exclusion process and final iule . preparatini1, Issue 4: Many respondents stated that the Service Should prepare'an EnviroiuneIitsllmpact Statement (EIS) and comply with the National Environmental Policy Act (NEP A) because tha designation would have. significant impact on the human environment. Sendce Response: The United States District Court fonhe District of Oregon in Douglas Countyv. Manuel Lujan (Civil No. 91-6423-HO) ruled that critical habitst designations.should be analyzed under NEPA. However, such decision is stayed pending appeal to the Ninth Cittuit. ' The 1981.8ixth Circuit Court decision in PacIfic Legal Foundation v. Andros (657 F.2d 829) held that an EIS is not o requit'ed for listings under the Act. The decision noted that preparing an .EIS on a listing action would not further the goals of NEP A or the Act, The Service believes that the reasoning behind this decision is sound and that preparing an EIS on the proposed critical habitat designation would not further the goals of NEP A or the Act. The NEP A documentation should be done on management plans and activities that involve critical habitat: section 7 consultation is conducted on those actions. Additionally. the Service believes that the. Draft Biological Support Document and Economic Analysis provide the public and decision makers the same information that is generally supplied in a NEP A document (environmental impact statement or environmental assessment). Issue 5: Many respondents were concerned that critical habitat designation would result in "takings:' of water rights and other private property. . Serviee Response: The Service prepared a "Takings Implications Assessment" under provisions of Executive Order 12630 to address this issue. The Service has concluded that the promulgation of the role designating critical habitst will not ta1<e water rights or other priVate pioperty. AlthOllgh . there may be t:8S8S where land or water uSe may be Conditioned, it is unlikely that use would be prohibited. Moreover. the Service'd~ not anticipate any. . takings implications associated with other Federal agency actions resulting from the designation and if there were . to be any, it is unlikely thai they would .be significant, -.' Issue 6: Tribalrepresenlatives stated that tn'ballands are'sovereign and . therefore Should not be designated.' Service Response: The Endangered Species Act of 1973, as amended, applies to any entity or individual sUbject to' the jurisdiction of.the United States. No area or entity within the boundaries of the United States is exempt from the Act, The Act requires that the Service base designation of critical habitat on the best scientific information, taking into consideration economic and other relevant impacts, and that areas be excluded ouly if the benefits of exclusion outweigh the benefits of inclusion. The Act does not provide for categorical """"'ption of tribal lands from critical habitat designation, or other provisions. when . scientific studies indicate the lands contain important habitat. Section 9 prohibits take of liste<! fish or wildlife on private and tribal lands. including destruction of habitat that results in the take of such wildlife. Section 7 applies . to any Federal agency that authorizes, funds or carries out actions that are likely to jeopardize the continued existence of e species or destroy or adversely modify critical habitat. This includes Federal actions involving tribal lands that may affect critical habitat. 13389 . Issue 7: Representatives of tribal governments stated that designating critical habitst on tribal lands violetes the Federal Government's trust responsibility. Service Res-po.dSe: As stated above. the Endangered Spedes Act of 1973. as amended. spplies to all areas of the United States, including tribal lands. The Service does not agree that . inclusion of tribal lands violates the Federal Government's trust responsibility. Mere designation of critical habitat does not affect tribal lands unless a Federal action 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 review . to evaluate jeopardy and incidental take of the species. The Service will work with tribes to develop reasonable and prudent altematives for any adverse modification finding and to live up.to the Federal Government's trust responsibility and to maintain compliance with the Act. Issue 8: Several respbndents stated that critical habitat should hot be designated until a recovery plan is completed for the razorback sucker. Service Response: The Act requires that critical habitat be designated 'concurrelitly with a species' listing or . within 2 years of the proposal to list1he species. Only if the Service determines that identification of critical habitat is "not prudent" (Le.. will not be of net benefit to the species} is designation not required by the Acerhe Service has c. detennined that critical habitat for these species is determinable and that designation is prudent. The Service proposed l,isting of the razorback sucker on May 22, 1990 (55 FR 21154): therefore, the designation of critical habitat for this species should have been completed by May 22, 1992. The Act also requires the Service to prepare a recovery plan for any listed species likely to benefit from one: although no timeframe is mandated. Service policy provides that such plans shall be complBted within 30 months following listing, Therefore, the timeframes imposed by the Act usually necessitate the designation of critical habitat before a recovery plan can be approved. Finally, the Court has ordered designation by March 15, 1994. Issue 9: A few respondents suggested that critical habitst should only have 'been designated for the razorback sucker and not for all four species at the same time. SeIViee Response: The Service was ordered by the Court to designate critical habitat for the razorback sucker