WSP07668

• File Number: 8240.200.10.C.5
• Description: UCRBRIP
• Basin: Colorado Mainstem
• Date: 3/21/1994
• Author: USFWS
• Title: Federal Register - Determination of Critical Habitat for Four Colorado River Endangered Fishes - Final Rule
• Water Supply Pro - Doc Type: Publication

Federal Register / Vol. 59, No. 54 / Monday, March 21, 1994 / Rules and Regulations

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river reaches proposed for desigriation
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 ofeffects 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 destroction or edverse
. modification of critical habitat would be
small mid would not significantly
increase existing workloads.
Issue 19: Sevei-al respondents stated
that the Service was in violation of the
Endangered Species Act (Act) for.
designatiD.g critical habitat more than
two years after species, arid the Federal
Lend'Policy Management Act (FLMA)
for failure to comply with requiI:ed
proced,,*,," in implementing a major
management'sction. ". .
Service'Response: On October 27.
1992, the.Court ruled thatthe Service
was in violation of the Act because .
critical habitat had not been designated
concun'll\ltly.with the Iisting.ofthe '.
razorback sucker, This designation:of
critical']li,bitat forthe Colorad<iRiver
en~ fishes'brings the Service
into"full compliance with thlf",", ",'"
requirements of the Act. In addition, the
Service:has'followed procedural',.,
req~ts for the designation. The
Act aoesnot stipulate that critical. .';',
lui.bii:af Cannot De designated after the
initial:twri y_ period has. passed..,
DeSign8.tion' of critical habitat is not a
managmnent action under the FLPMA,
but an' action required by section 4 the
Act. 'Actions authorized. funded or .
carried'<lutby Federal agencies must
undergo section 7 consultation if they
may affact a listed species or critical
habitat.. The Service will determine if
such actions are likely to jeopardize the
continued 'existence of these four
endangeted fishes or destroy or
adveriely 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
man8gement plan or sutomatically .
exclude certain activities, FLPMA does
not apply to designation.
Issue 20:0ne 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
.publicat the time the proposed rule was
published, that was not possible
because.ofthe 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 preparation 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 additionall'ublic input,
All available informatian 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: DrIift" published
November 1993 (Fish and Wildlife
Service, Salt Lake City) end made
svailable to the public (58 FR 59979),
That document stated thar'" . ..
information 1lD.d comments are welcome
on the'overalhxcluslon 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.
Ser:vice 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 contsined in
biological opinions require agencies to
insure they do not violate the jeoparoy
standard. Also. implementation of
reasonable and prudent alternatives in
biological opinions may require

1339'

additional costs. The reasonable and
prudent measures and tenns 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 23: One letter stated a concern
that:the delay in designating critical
habitathas 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 jeoparoy to the species under
section 7 of the.Act; which reflect to.
large degree, ifnot completely, the same
issues presented by adveise ,. ... .
modification of critical habitat.'
Issue24: Saveral respondents ' .
indicated that the Service should set
recovery goal"baSed on numbers offish
so that it is evident when recovery is
achieved.' . ....
Service Response: Critical habitat
designation is no;t 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
delisting 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 warrent it and in cases
where reliable population estimates can
be made.