Full opinion text
MEMORANDUM OPINION AND ORDER MECHEM, Senior District Judge. Plaintiffs in each of these consolidated cases challenge a final rule of the Secretary of the Interior which designates critical habitat for the Rio Grande silvery minnow, a small and rapidly disappearing fish declared an endangered species in 1994. Plaintiffs complain pursuant to the National Environmental Policy Act, the Endangered Species Act, the Administrative Procedures Act and the Fifth Amendment to the United States Constitution that the rule designating the silvery minnow’s critical habitat is invalid for failure to prepare an Environmental Impact Statement, is arbitrary and capricious and is otherwise not in accordance with the law. All plead to have it set aside. The case comes up at this time for a plenary review of the administrative record and a determination on the merits. I find and conclude in favor of the Plaintiffs that the record fails to include what is required by law and provides an insufficient basis to support the rationality of the Secretary’s determinations or the final rule. Nature of the Case In 1999, after decision of the Tenth Circuit Court of Appeals in Forest Guardians v. Babbitt, 174 F.3d 1178 (10th Cir.1999), and a remand to the district court, the Secretary of the Interior was ordered pursuant to the Endangered Species Act to designate a critical habitat for the Rio Grande silvery minnow within 30 days, afterward extended another 90 days. Forest Guardians v. Babbitt, No. CIV 97-0453 (D.N.M.). While the Secretary listed the Rio Grande silvery minnow as endangered in 1994, the Department of the Interior failed at that time to issue an accompanying rule designating the species’ critical habitat. 59 Fed.Reg. 36988. The Secretary did not publish a final rule designating the silvery minnow’s critical habitat until July 1999, after the Tenth Circuit ruled against the Secretary and remanded the case to the district court. 64 Fed.Reg. 36274. In compliance with the district court’s order, the United States Fish and Wildlife Service completed the administrative record and published the decision now at issue. The present cases challenge the reasonableness and efficacy of the final rule designating critical habitat, the adequacy of the administrative record and the failure to prepare an Environmental Impact Statement prior to a final decision. Plaintiffs invoke the Endangered Species Act (ESA), 16 U.S.C. sec. 1531 et seq., the National Environmental Policy Act (NEPA), 42 U.S.C. sec. .4321 et seq., and the Administrative Procedures Act (APA), 5 U.S.C. sec. 502 et seq.; and jurisdiction to review the final administrative decision is not contested. The Multiple Plaintiffs Bringing this action on its own behalf and on behalf of its constituency, the Middle Rio Grande Conservancy District (MRGCD) claims the final rule at issue will cause a substantial curtailment of irrigated agriculture in the Middle Rio Grande Valley and will result in vast, completely negative ecological, economic, aesthetic, cultural and social changes. MRGCD is a political subdivision of the' State of New Mexico with the powers of a municipal corporation. It includes 128,787 acres of irrigatable land in the Middle Rio Grande Valley, including lands of six Indian Pueblos (Cochiti, Santo Domingo, San Felipe, Santa Ana, Sandia and Isleta), and it holds the consolidated rights of 70 community acequias (historic ditch systems for the apportioning and distribution of water) which remain senior to all other water users in the area, including municipalities. MRGCD water rights support substantial pasture and alfalfa, and green chili and vegetable, all crops valued by MRGCD at $28,000,000 annually. In addition to distributing water, MRGCD maintains the distribution system, provides flood protection, manages environmental measures and ensures recreational amenities within the conservancy district. By its First Amended Complaint MRGCD contends that the Environmental Assessment prepared in anticipation of designating critical habitat for the silvery minnow ignores critically important data, neglects consideration of alternatives and concludes in error that no Environmental Impact Statement (EIS) is required. MRGCD also claims that Defendants have failed to consider the impact of the final rule on non-federal entities and on all federal .agencies assigned responsibilities within the Middle Rio Grande Valley. Fearing that water historically used for agriculture will be diverted to provide in-stream flows for the Rio Grande silvery minnow and therefore result in drying up extensive acreage used for farming, MRGCD contends the designation of critical habitat is too broad, is not tailored to the needs of the silvery minnow and fails to account for or balance the interest of other water users. Additionally, MRGCD alleges that the rule designating critical habitat violates the Fifth Amendment to the United States Constitution. It claims MRGCD or its constituents could be subject to the ESA’s civil and criminal penalties for adversely modifying critical habitat without fair warning of prohibited conduct. MRGCD also complains it has been denied due process by FWS’s predeterminations which rendered public comment meaningless and denied the right to be heard. The State of New Mexico ex rel the Attorney General, the State Engineer and the Interstate Stream Commission alleges in its First Amended Complaint that because the final rule at issue “involves the mainstem of the Rio Grande or the active river channel including the water column,” it represents “an actual or de facto acquisition of an interest in water.” Accordingly, the State maintains that designation of the entire 163-mile section of the Middle Rio Grande as critical habitat for the silvery minnow creates an irreversible and irretrievable commitment of the State’s water resources and adversely impacts “the ability of municipalities to provide and maintain an adequate domestic water supply,” as well as the ability of the State to manage flood control and to comply with its obligations pursuant to the Rio Grande Compact. The State additionally complains of the absence of an EIS. It challenges specific facts and analyses that result in Defendant’s determination of no significant impact (FONSI), a result which, if correct, excuses the failure to prepare an EIS. The State contends the Economic Assessment published in lieu of an EIS reaches an FONSI only by ignoring the likelihood of specific economic impacts' and neglecting fundamental factors related to the nature of the Rio Grande as an active river channel. In its First Amended Complaint, the State points to a wide variety of what it terms essential considerations which it sees as omitted, slighted or viewed in error by Defendants’ Environmental Assessment and Draft Economic Analysis. The State also claims that in designating critical habitat for the Rio Grande silvery minnow, Defendants failed to make determinations absolutely required by the ESA. Specifically, the State argues that in designating the entirety of the silvery minnow’s present habitat, FWS failed (a) to determine what is essential for conservation of the species, (b) to define what specific biological and physical features are necessary to its recovery or (c) to indicate where in each reach of the Middle Rio Grande the required features exist. The State further alleges that FWS neglected reasonable alternatives directed toward designating portions of the middle river, rather than its entirety, and repeats MRGCD allegations pursuant to the Fifth Amendment. Finally, on behalf of the Interstate Stream Commission (ISC), the State, challenges the final rule’s directive promulgating a continuous flow in the Rio Grande, purportedly essential to support the silvery minnow. The ISC fears the continuous flow requirement could interfere with the State’s contractual obligations to apportion Rio Grande water pursuant to an interstate compact with Colorado and Texas. The ISC is a state agency with responsibility for conserving and protecting New Mexico water, water supplies and stream systems. 72-14-3 NMSA 1978. It bears primary responsibility for implementation of interstate compacts authorized by the United States Constitution. By reason of Congressional assent to the compacts, these stand as federal law which cannot be altered solely by those states which are parties. Texas v. New Mexico, 462 U.S. 554, 564-565, 103 S.Ct. 2558, 77 L.Ed.2d 1 (1983). The State of New Mexico, on behalf of the ISC, alleges that the final rule was implemented without any analysis of economic or other impacts likely to occur inter-state in the event contractually com-, mitted water from the San Juan River is diverted into the Rio Grande to maintain the required flow. Plaintiffs in the third case, Forest Guardians, Defenders of Wildlife and Southwest Environmental Center are nonprofit organizations which traditionally participate in efforts to protect and preserve flora and fauna in their native habitats. These Plaintiffs dedicate resources to the continued survival of threatened species, including the Rio Grande silvery minnow, and recovery of ecosystems, including the Rio Grande. All three Plaintiffs allege their members participate in the biological, recreational, educational, scientific, moral, spiritual, health and aesthetic opportunities in the silvery minnow’s historic and existing habitat and enjoy viewing and studying the Rio Grande silvery minnow. These Plaintiffs complain that the rule designating the silvery minnow’s critical habitat violates the ESA for failure to include more than the mainstem of the Rio Grande and its associated channel morphology as critical habitat. They allege in their Complaint for Declaratory and In-junctive Relief, first, that Rio Grande floodplain lands not designated critical habitat contain features essential to the conservation of the silvery minnow, and secondly, that Defendants’ failure to address the silvery minnow’s recovery needs constitutes neglect of a non-discretionary duty. Plaintiffs thus contend the final rule is a legally insufficient designation of critical habitat in need of revision and seek to have it invalidated as arbitrary and capricious. Plaintiff-in-Intervention, the City of Socorro, alleges the rule at issue threatens its municipal water supply and its ability to manage flood protection and provide essential services to its constituents. The same as other Plaintiffs, Socorro complains the rule necessitated an EIS, is too broad, is not tailored to the species’ needs and fails to balance the interests of other water users in the Middle Rio Grande Valley. The same as other Plaintiffs, Socorro contends that the final rule is inconsistent with ESA requirements because it is “generic and global,” failing to identify areas within the 163-mile designation actually suitable for the Rio Grande silvery minnow and essential to its conservation. The City of Socorro, as do the other Plaintiffs, requests a declaratory judgment that the final rule at issue is arbitrary and capricious and violates NEPA, the ESA and the APA and a permanent injunction both enjoining action based on the designation of critical habitat and directing the Secretary of the Interior to revise it in accordance with applicable law. Background Preservation of the Rio Grande silvery minnow follows a protracted path of controversy and litigation. See: Forest Guardians v. Babbitt, supra. The species (Hybognathus amarus) ■ • is a stout silver fish with emerald reflections reaching lengths of up to inches. Historically, it was one of the most abundant and widespread fishes in the Rio Grande basin.... Over the past 30 years, however, due in large part to dam construction and de-watering of a large percentage of its habitat, the silvery minnow’s presence has been reduced to 5% of its historic range.... The fish can now be found only along a 170-mile stretch of the middle Rio Grande, extending from the Cochiti Dam, in Sandoval County, New Mexico to the headwaters of the Elephant Butte Reservoir in Socorro County, New Mexico. Id. at 1181. Long in jeopardy, the United States Fish and Wildlife Service officially regarded the Rio Grande silvery minnow as endangered over seven years ago. Pursuant to the ESA, the Fish and Wildlife Service first issued a proposed rule in 1993, then in 1994 followed it with a final rule listing the species as endangered. Id.; 64 Fed.Reg. 36277. Although the ESA requires this listing be accompanied by a concurrent designation of the species’ “critical habitat,” 16 U.S.C. sec. 1533(a)(3)(A), a rule designating critical habitat was not published until court-ordered in 1999. 64 Fed. Reg. 36274; 36277. The final rule designating critical habitat followed a public hearing in April 1999, and notice published in May initiating a 30-day public comment period. Comments were received on the proposed designation of critical habitat and draft Economic Analysis. 64 Fed.Reg. 36276-36277; 36281. In June 1999, the Fish and Wildlife Service determined by an Environmental Assessment that no significant impact was attributable to the proposed designation and an Environmental Impact Statement was not required. The final rule was published in July 1999. 64 Fed.Reg. 36272-37278. The critical habitat eventually designated consists of a 163-mile stretch of the mainstem of the Rio Grande. 64 Fed.Reg. 36275. This designation, which includes virtually the entire present habitat of the silvery minnow, extends downstream from Cochiti Dam (about 25 miles southwest of Santa Fe) to San Marcial, New Mexico, near the headwaters of Elephant Butte Reservoir. Id. at 36274. “The designation involves the mainstem of the Rio Grande or the active river channel including the water column and its associated channel morphology.” Id. at 36275. The entire 163 miles of the middle river was designated “critical,” according to the Fish and Wildlife Service, because it contains or holds the potential to contain the “primary constituent elements” necessary for the minnow’s survival. These are said to be: (i) “Stream morphology that supplies sufficient flowing water to provide food and cover needed to sustain all life stages of the species,” (ii) ‘Water of sufficient quality to prevent water stagnation (elevated temperatures, decreased oxygen, carbon dioxide build-up, etc.)”, and (iii) Water of sufficient quality to prevent formation of isolated pools that restrict fish movement, foster increased predation by birds and aquatic predators, and congregate pathogens.” 64 Fed.Reg. at 36279; 36288. Defendants’ Position Defendants are the Secretary of the Interior, the United States Fish and Wildlife Service, Jamie Rappaport Clark, Director of the United States Fish and Wildlife Service, and Nancy Kaufman, Southwest Regional Director of the Fish and Wildlife Service. The Fish and Wildlife Service (FWS) is an agency of the Department of the Interior primarily responsible for the final rule, administrative record, Draft Economic Analysis, Environmental Assessment and Finding of No Significant Impact (FONSI) that are at issue in this case. Defendants rely on their interpretation of the ESA and factual findings specific to designation of critical habitat for the Rio Grande silvery minnow and urge affir-mance of the final rule. Defendants’ case rests, first of all, on a legal premise. In designating critical habitat Defendants claim the ESA at Section 4(b) requires them “to evaluate the economic impacts of the critical habitat designation only to the extent those impacts are in addition to any impacts attributable to the fisting of the species itself.” 64 Fed. Reg. 36277-36278. According to this “incremental approach,” impacts ascribed to declaring the species endangered establish a “baseline.” Defendants then consider only those economic and other impacts attributed solely to the designation of critical habitat and disregard impacts traceable to the initial fisting. “[I]t is fully appropriate,” Defendants argue,”to look only at the impacts of a proposed action on top of the existing baseline. Where the effects of existing actions will be felt regardless of the proposed action, those effects cannot, of course, be attributed to the proposed action.” Federal Defendants’ Brief in Response Plaintiffs’ Joint Opening Brief at p. 17. Defendants claim this incremental approach to an economic analysis is consistent both with the letter of the ESA, which precludes consideration of costs attributable to the fisting decision itself, and its intent, which gives the benefit of the doubt to the species. Id. Defendants’ interpretation of Section 4(b), 16 U.S.C. sec.l533(b)(2), explaining the incremental approach is part of the published final rule at issue. Congress treated fisting a species and designating critical habitat differently with regard to economic impact. On it face, Section 4(b)(2) of the ESA makes clear that consideration of economic impacts is to be limited to those impacts attributable to “specifying any particular area as critical habitat.” 16 U.S.C. sec. 1533(b)(2). In - contrast, Section 4(b)(1)(A) of the ESA .requires'the Secretary to make decision whether to list a species ■ “solely on the basis of the best scientific and commercial data available.” 16 U.S.C. sec. 1533(b)(1)(A)... In other words, the Secretary is restricted to considering only biological factors when making a fisting determination, and cannot be influenced by economic impacts. Id. Thus, to come full circle, where the effects of listing a species as endangered will occur regardless of the designation of critical habitat, these effects cannot be attributed to the designation, and if not attributed to the designation, the designation need not (and must not) be modified to ameliorate economic impact. Defendants’ case depends, secondly, then, on the factual findings and the conclusion of the Fish and Wildlife Service that designation of critical habitat for the Rio Grande silvery minnow creates no economic impact beyond what is attributed to fisting the species as endangéred. Id. at 36276-36282. This conclusion, Defendants maintain, is neither extraordinary nor unexpected: “Where habitat destruction is a major cause of endangerment for a species, there is likely to be substantial overlap between a ‘jeopardy’ analysis required for listed species and an ‘adverse modification’ analysis for designated critical habitat.” Federal Defendants’ Brief, supra at p. 22; 64 Fed.Reg. at 36278. Therefore, Defendants argue the adverse impacts enumerated by Plaintiffs in these consolidated cases are immaterial. All impacts complained of, Defendants insist, accompany the listing of endangered and exist regardless of the designation of critical habitat. Applying the incremental approach, the Service concluded that the critical habitat designation for the silvery minnow would have no economic effects in addition to those resulting, from listing.... This conclusion resulted from the Service’s determination that, because the silvery minnow is so severely endangered, and its endangerment is so heavily due to habitat loss, any adverse modification of the silvery minnow’s critical habitat is by definition likely to jeopardize the continued existence of the species (which is prohibited by the listing of the species). Thus, the Service found, with respect to the silvery minnow, that the “jeopardy” and “adverse modification” standards .are co-extensive and, consequently, that the designation of silvery minnow critical habitat has no economic effects beyond those caused by the silvery minnow’s listing. 64 Fed.Reg. at 36277. This determination is a scientifically-based factual determination due substantial deference by a reviewing court. Id. at 21-22. Defendants support their position, both as to statutory interpretation and application to the case at hand, by stating that the incremental approach has been the position of the Fish and Wildlife Service for more than a decade, is dictated by common sense, arises from the plain language of the statute, and is entitled to deference. Defendants also cite legislative history. The excerpt of the legislative record Defendants provide, however, speaks only to the undisputed point that economic considerations are not a part of determining whether a species should be listed as endangered. “The addition of the word “solely” is intended to remove from the process of the listing or delisting any factor not related to the biological status of the species. The committee strongly believes that economic considerations have no relevance to determinations regarding the status of species.... Applying economic criteria to ... any phase of the species listing process is applying economics to the determinations made under Section 4 of the Act and is specifically rejected by the inclusion of the work ‘solely.’ ” H.R.Rep. No. 567, 97th Cong., 2d Sess. 20, 1982 U.S.C.C.A.N. 2807, 2820. In terms of legal precedent or judicial endorsement, Defendants cite only a recent district court case: New Mexico Cattle Growers Assn. v. United States Fish and Wildlife, 81 F.Supp.2d 1141 (D.N.M.1999) (appeal pending No. 00-2050). This case reviewed a final rule designating critical habitat for the Southwestern Willow Flycatcher. The district court accepted the baseline approach, the Economic Analysis that resulted in no Environmental Impact Statement and the factual conclusions which “found that the critical habitat designation would have no incremental effect beyond that caused by listing.” Id. at 1148. There are some facts common to the Cattle Growers case and the present one. The Southwestern Willow Flycatcher is “a migratory songbird which nests and breeds during spring and summer in dense cottonwood-willow riparian habitat.” Southwest Center for Biological Diversity v. United States Bureau of Reclamation, 143 F.3d 515, 516 (9th Cir.1998). The flycatcher is primarily threatened by loss of its habitat, particularly by the mass destruction of willow and cottonwood trees necessary to nesting and the protection of young. Id. FWS designated a critical habitat which involved a substantial amount of river miles along the Tularosa and San Francisco Rivers in Arizona and New Mexico. It designated nearly all of the riparian system in order to preserve “current and potential nesting” areas “crucial to ■ the survival and recovery of the species,”.and it assessed economic and other impact by adopting a “baseline” which attributed all impacts to the listing, rather than to the designation of critical habitat. FWS concluded, in addition, that the designation required no Environmental Impact Statement because it did not constitute a major federal action that would significantly affect the quality of the human environment. New Mexico Cattle Growers Assn. v. United States Fish and Wildlife, supra at 1147-1148; footnote 3. This single judicial decision, however, does not dispose of the issues in the present case as readily as Defendants suggest because critical differences exist between the Cattle Growers case and the one at hand. For one, there is no indication in the Cattle Growers case that the rivers impacted by ESA protections were consistently over-appropriated, frequently below optimum water levels and at times clearly without a flow of water sufficient to support the existence of the species due protection. For another, the protections afforded the flycatcher by the designation of critical habitat were generally viewed as efficacious, adequate as a whole to provide for both short-term and long-term conservation of the species. The Cattle Growers case is notably absent those facts most acute to the present one. Where Plaintiffs in the Cattle Growers case asserted adverse impacts on aesthetic enjoyment, reduced recreational opportunities and impaired spiritual well-being, Id. at 1154, Plaintiffs in the present case fear an immediate threat to economic development and irrigated farmland. Where the plaintiffs in the Cattle Growers case complained that extensive fencing blocked access to large segments of river and grazing areas, forcing the use of agricultural water rights to sustain livestock, Id. at 1153, Plaintiffs in the present case fear a unilateral modification of water rights accompanied by the complete withdrawal of water essential for residential, agricultural and commercial uses and a total cessation of local projects supporting water users throughout the Middle Rio Grande Valley. The present case also presents numerous questions, such as whether- the' silvery minnow’s most essential needs have been identified and whether river management is capable by itself of saving the species from extinction, that were not issues in the Cattle Growers case. Further, Defendants neglect cases which .reject the proposition that designation of critical habitat provides neither impact nor benefit beyond what is provided by a fist-ing of endangered alone. See, e.g.: Catron County Board of Commissioners v. United States Fish and Wildlife Service, 75 F.3d 1429 (10th Cir.1996); Natural Resources Defense Council v. United States Department of the Interior, 113 F.3d 1121 (9th Cir.1997); Conservation Council for Hawai‘i v. Babbitt, 2 F.Supp.2d 1280 (D.C.D.Ha.1998); Northern Spotted Owl v. Lujan, 758 F.Supp. 621 (W.D.Wash.1991). “Merely because the Secretary says it does Hot make it so,” notes the Tenth Circuit in the Catron County case. Supra at 1436. Looking at the record in 1996, the Tenth Circuit expected designation of critical habitat for the Rio Grande silvery minnow to create impacts both immediate and disastrous. Id. Plaintiffs and amici curiae also cite legislative history which opposes Defendants’ premise. Both Plaintiffs and amici contend that Defendants’ interpretation of the ESA opposes the intent of Congress when it amended the Act to require consideration of economic and other impacts, and both refer to Senate sponsors of the amendment who stated a desire for “balancing and flexibility” so that the ESA “accommodates people and their needs.” 124 Cong. Rec. S19286 (June 28, 1978). “Virtually any public works can be stopped under the act,” states one amicus, “unless some balancing and flexibility is blended into the operation” of the ESA and Defendants made to consider impact when designating critical habitat. At least according to the statement of one Senator sponsoring the amendment, “the designation of critical habitat is more important than the designation of an endangered -species itself. In many cases, it will not be until habitat is declared to be critical to the continued existence of an endangered species that it will have impacts in the real world.” 124 Cong. Rec. S21575 (July 19, 1978, statement of Sen. Jake Garn). Defendants nevertheless stand by. their interpretation of the what the law requires. They repeatedly insist that at the time a designation of critical habitat occurs, effects are correctly assessed only by an “incremental economic impacts approach” that takes into account the baseline established by the initial declaration of endangered and the statutory protections afforded at that point. Similarly, Defendants maintain that in this particular instance “there will be no appreciable impacts which will result from the critical habit designation that would not have occurred but for the designation.” Federal Defendants’ Brief, supra at 17. Even though Defendants’ position on the law is crucial to the approach taken by FWS both in establishing the administrative record now up for review and in making the determinations under attack, I need not decide whether Defendants correctly interpret the Endangered Species Act or whether the incremental approach is within the Secretary’s discretion. Whether, on the one hand, utilization of a baseline attributing all impact to a listing of endangered is a concept compatible with or dictated by the language and intent of the ESA, or whether, on the other hand, some impacts inevitably must be credited to designation of critical habitat, the administrative record in this case is so overwhelmingly insufficient that the final rule fails and must be set aside regardless of how Defendants read the ESA. Wholly apart-from the approach taken, the record fails to establish either an in-depth analysis of facts and circumstances or a sound rational basis for the choices made. Therefore, without regard for whether or not Defendants’ position on the ESA is well-founded, the administrative record leaves the final rule unsupportable. The Endangered Species Act The Endangered Species Act was passed in 1978 to preserve ecosystems upon which threatened and endangered species depend and “to halt and reverse the trend toward species extinction.” Tennessee Valley Authority v. Hill, 437 U.S. 153, 184, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978); 16 U.S.C. sec. 1531(b). The Act’s “core purpose” is to prevent the extinction of species by preserving and protecting the habitat upon which they depend from the intrusive activities of humans. Id.; Ca-tron County, supra at 1437. a. Duties of the Secretary The ESA obligates the Secretary of the Interior, according to enumerated criteria, to list species determined to be threatened or endangered and in need of protection. 16 U.S.C. sec. 1533. A species is “endangered” if it is “in danger of extinction throughout all or a significant portion of its range” and “threatened” if it is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Id. at sec. 1532(6); sec. 1532(20). The Secretary must determine which species are threatened or endangered “solely on the basis of the best scientific and commercial data available to him after conducting a review of the status of the species and after taking into account those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect such species .... ” Id. at sec. 1538(b)(1)(A). Additionally, the Secretary is to “designate any habitat of such species which is then considered to be critical habitat .... ” Id. at sec. 1533(a)(3)(A). Critical habitat is defined as (i) the specific area within the geographic area occupied by the species, at the time it is listed... on which are found those physical and biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographic area occupied by the species at the time it is listed ... upon a determination by the Secretary that such areas are essential for the conservation of the species.” Id. at 1532(5)(A). The designation of critical habitat must be determined “on the basis of the best scientific data available and after taking into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat.” 16 U.S.C. sec. 1533(b)(2). It must be limited geographically to what is essential to the conservation of the threatened or endangered species and may require spécial management or protection. 16 U.S.C. sec. 1532(5)(A); Northern Spotted Owl v. Lujan, supra at 623. “Thus, even though more extensive habitat may be essential to maintain the species over the long term, critical habitat only includes the minimum amount of habitat needed to avoid short-term jeopardy or habitat in need of immediate intervention.” Id. A species long-term protection is properly addressed by a “recovery plan” developed for the “conservation and survival” of the species listed as endangered. 16 U.S.C. sec. 1533(f)(1). The ESA gives designation of critical habitat the same priority as the listing. It requires that critical habitat, specified to the maximum extent prudent and determinable, “shall” be made concurrently with listing the species as endangered or threatened. Id. at sec. 1533(3)(A); 50 C.F.R. sec 424.12(a); Forest Guardians v. Babbitt, supra. The statute compels the designation despite other methods of protecting the species the Secretary might consider more beneficial. Id.; Natural Resources Defense Council v. United States Department of the Interior, supra at 1127. Formal designation of critical habitat is a key protection. The statute clearly intends to do more than save endangered species and threatened species from jeopardy; it is intended to bring endangered and threatened species back from the brink of extinction to a point where statutory protections are no longer necessary. Tennessee Valley Auth. v. Hill, supra; Catron County, supra at 1437. The designation of critical habitat therefore serves as the principal means for conserving an endangered species, by protecting not simply the species, but also the ecosystem upon which the species depends. Id.; Forest Guardians v. Babbitt, supra. Both the ESA and agency regulations speak to how critical habitat is to be evaluated. Critical habitats are to be designated only on land that is essential to a species’ conservation. 16 U.S.C. sec. 1532(5)(A); Conservation Council for Hawaii v. Babbitt, supra at 1286. Prior to designation, there must be a determination of the constituent elements of air, land and water areas essential to the species. These constituent elements are defined as including physical structures and topography, biota, climate human activity, and the quality and chemical content of the land, water, and air, with a focus on the physical and biological needs of the species. 50 C.F.R. sec. 424.12. “To designate critical habitat, the Secretary must use the best scientific data available to identify a geographic area that satisfies the statutory definition of critical habitat, consider the ‘economic impact, and any other relevant impact,’ of designating the habitat, and weigh the benefits of exclusions against those of inclusion of particular areas within the designated habitat.” Catron County Board of Commissioners v. United States Fish and Wildlife Service, supra at 1434-1435. The Secretary may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned. 16 U.S.C. sec. 1533(b)(2). Finally, the Secretary is directed to develop and implement “recovery plans” “for the conservation and survival of endangered species and threatened species listed .. .unless he finds that such a plan will not promote the conservation of the species.” Id. at sec. 1533(f)(1). “A recovery plan presents a set of recommendations for recovery of the species than can involve federal, state, and local agencies as well as the private sector. Federal agencies use the recommendations as a guide for refining their management plans, procedures, and strategies.... ” Draft Economic Analysis at p. 6. Priority in recovery planning is to be given to those species “that are most likely to benefit from such plans, particularly those species are, or may be, in conflict with construction or other development projects or other forms of economic activity....” Id. at sec. 1533(f)(1)(A). In all of these primary duties, the Secretary “shall cooperate to the maximum extent practicable with the States.” Id. at sec. 1535(a). This cooperation is to include “consultation with the States concerned before acquiring any land or water, or interest therein, for the purpose of conserving any endangered species or threatened species.” Id. In this regard, the Secretary “may enter into agreements with any State for the administration and management of any area established for the conservation of endangered species or threatened species.” Id. at sec. 1535(b). b. Protection Against Federal Action All federal agencies are to work in furtherance of ESA purposes. 16 U.S.C. sec. 1536(a)(1). Once listed as endangered or threatened, a species is protected against federal activity likely to “jeopardize its continued existence.” 16 U.S.C. sec. 1536(a)(2). “Jeopardize” is defined as “to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species.” 50 C.F.R. sec. 402.02. This proscription against putting in jeopardy is contained within Section 7 of the ESA and pertains solely to federal activity. Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 704, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995), quoting S.Rep. No. 93-307, p.7 (1973), 1973 U.S.C.C.A.N. 3001. It reaches non-federal activities which are federally-funded, in whole or in part, or for which a federal agency holds a primary responsibility. Ross v. Federal Highway Administration, 162 F.3d 1046 (10th Cir.1998). The Tenth Circuit defines “major federal action” as “actions by the federal government ... and nonfederal actions ‘with effects that may be major and which are potentially subject to Federal control and responsibility.’ ” Id. at 1051. With formal designation of habitat considered to be “critical,” a listed species’ habitat is also protected from'federal activity which might result in its destruction or adverse modification. 16 U.S.C. sec. 1536(a)(2). “Activities which may destroy or adversely modify critical habitat include those that alter the primary constituent elements ... to an extent that the value of designated critical habitat for both the survival and recovery of the silvery minnow is appreciably reduced.” 64 Fed.Reg. 36278. “Destruction or adverse modification” is defined by regulation as “a direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species. Such alterations include, but are not limited to, alterations adversely modifying any of those physical or biological features that were the basis for determining the habitat to be critical.” 50 C.F.R. sec. 402.02. A designation of critical habitat “effectively prohibits all subsequent federal or federally funded or directed actions likely to destroy or disrupt the habitat.” Catron County Board of Commissioners v. United States Fish and Wildlife Service, supra at 1434. Pursuant to Section 7 of the ESA, the listing as endangered or threatened and the designation of critical habitat each trigger a consultation and conferencing requirement, intended to ensure that activities authorized, funded or carried out by federal agencies do not jeopardize the species or harm its critical habitat. Id.; 16 U.S.C. sec. 1536(a)(3). This consultation and conferencing is mandatory. Natural Resources Defense Council v. United States Department of the Interior, supra at 1127. The process demands that any prospective federal action to occur in an area where endangered species or threatened species may be present be preceded by Section 7 compliance, and ultimately, a final approval of the Secretary of the Interior. ■ 16 U.S.C. sec. 1536(a)(3). “Conferencing” is defined as a process which involves informal discussions between a Federal agency and the Service under section 7(a)(4) of the Act regarding the im: pact of an action on proposed species or proposed critical habitat and recommendations to minimize or avoid the adverse effects.” 50 C.F.R. sec. 402.02. A formal consultation begins with a written request from the federal agency planning an action and ends with the issuance of a biological opinion. 50 C.F.R. sec. 402.14. A biological opinion is defined as an opinion of the Fish and Wildlife Service “as to whether or not the Federal action is likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat.” Id. at 402.02. The biological opinion constitutes a formal assessment of the proposed federal activity. However, a federal agency proposing an action, having consulted with FWS, is not bound by the findings of the biological opinion or its final conclusion as it pertains to the proposed action. National Wildlife Federation v. Coleman, 529 F.2d 359, 371 (5th Cir.1976), citing 119 Cong. Rec., S. 14536 (July 24, 1973). Once an agency has completed “meaningful consultation with the Secretary ... the final decision of whether or not to proceed with the action lies with the agency itself. Section 7 does not give the Department of Interior a veto over the actions of other federal agencies, provided that the required consultation has occurred.” Id. Consistent with Defendants’ argument in the present case, FWS takes the position that an endangered species is equally protected by Section 7 requirements with or without a designation of critical habitat; FWS regulations interpreting consultation requirements do not distinguish between determinations of “jeopardy” from inquiry into “destruction or adverse modification of critical habitat.” 50 C.F.R. sec. 402.14. Some authorities, on the other hand, read Section 7 requirements as providing sound reason for designation of critical habitat, with the listing of endangered by itself insufficient to accomplish the goals of the ESA. See, e.g.: Natural Resources Defense Council v. United States Department of the Interior, supra; Conservation Council for Hawaii v. Babbitt, supra. In the Conservation Council case, plaintiffs challenged an FWS decision not to designate critical habitat for 245 plant species in Hawaii listed as endangered or threatened. At the time, FWS had listed “approximately 700 plants nationwide as endangered or threatened ... and designated a critical habitat for twenty-four.” Id. at 1280-1281. The bases FWS claimed for its nondesig-nation in Conservation Council parallels reasons given in the present case to support a finding of no impact: “the designation of a critical habitat provides little or no additional benefit beyond the existing precautions the federal government must take because the plant species are listed as endangered or threatened.” Id. at 1281. The district court in Conservation Council for Hawaii v. Babbitt wholly rejected the FWS position. The court concluded, first, that Section 7 requirements were enhanced with designation of critical habitat. Rather than simply considering “jeopardy” in general terms, “[ajfter a critical habitat is designated, the consultation requirement also includes consideration of whether the federal activity would ‘result in the destruction or adverse modification’ of the critical habitat.’ ” Id. at 1286. Secondly, the decision emphasized “significant substantive and procedural protections” which may result from the designation of critical habitat apart from what a declaration of endangered provides. Id. at 1287. “Although a designation of critical habitat may not provide more specific information regarding the location of a species,” the court stated, “it may provide more information regarding the importance of certain elements of the species’ environment; a critical habitat is designated only on land that is essential to the species’ conservation.” Id. at 1286, footnote 8. “Procedurally, the designation of a critical habitat educates the public as well as state and local governments, and affords them the opportunity to participate in the designation.... Congress envisioned a process in which the public is informed and participates in the designation of a critical habitat; these procedures do not occur when a federal agency consults the FWS under Section 7.” Id. at 1288. Designation also “may better inform other federal agencies regarding areas in which consultation is required.” Id. at footnote 11. Substantively, designation establishes a uniform protection plan prior to consultation. In the absence of such designation, the determination of the importance of a species’ environment will be made piecemeal, as individual federal projects arise and agencies consult with the FWS. This may create an inconsistent or short-sighted recovery plan... Thus, the designation ensures that the proper attention and focus is provided in determining a recovery plan. Id. at 1287-1288. FWS itself provides some evidence to buttress a conclusion that a listing of endangered and designation of critical habitat do not provide identical protections. See: Draft Economic Analysis at p.8, Table 1.1 (“Brief Comparison of Listing vs. Designation”). In National Wildlife Federation v. Coleman, supra, FWS used a designation of critical habitat to overcome the Department of Transportation’s proposed highway construction which clearly threatened the habitat of the Mississippi Sandhill Crane, declared an endangered species in 1973. In 1974, the Federal Highway Administration approved a draft EIS for the construction of Interstate 10 through Mississippi to the Mississippi-Alabama state line. Id. at 363. Into 1975, the Department of the Interior expressed its opposition to a 5.7 mile segment of the new highway on the ground the EIS inadequately addressed potential adverse effects on the Mississippi Sandhill Crane habitat and no ESA consultation with FWS had occurred. Id. at 366. The State of Mississippi and the Federal Highway Administration nonetheless proceeded with their plans for I — 10; and plaintiffs, the National Wildlife Federation, filed suit on May 23, 1975. “The day before the trial ... June 25, 1975, the Director of the Fish and Wildlife Service issued ... an emergency determination of ‘critical habitat’....” Id. at 367. On September 3, 1975, FWS published a proposal “to amend 50 C.F.R. Part 17 by adding a new Subpart F thereto for ‘critical habitat’ and a new sec. 17.80 thereunder which would designate ‘critical habitat’ for the Mississippi Sandhill Crane.” Id. at 368, footnote 10. It appears from the decision in the Coleman case that FWS was correct in finally designating “critical” habitat; the designation apparently made a substantial difference to the outcome. “It is beyond question from the record,” the Fifth Circuit Court of Appeals stated, “that the excavation of borrow pits within the area determined by the Secretary of Interior to be ‘critical habitat’ for the crane will destroy and modify their habitat, in violation of sec. 7.” Id. at 374. When defendant, Department of Transportation, argued that a refuge for the crane to be acquired by FWS and the recognition of certain areas for conservation by the Gulf Regional Planning Commission saved the crane from jeopardy and sufficiently lessened “the impact of the highway on the crane,” the Fifth Circuit answered that “even if these actions were taken, the Department of Interior has determined that approximately 100,000 acres of habitat in Jackson County is critical within the meaning of sec. 7....” Id. at 373. The primary reason, then, the Fifth Circuit concluded that the proposed action stood in violation of the ESA was not that the federal action jeopardized the crane, but that the Secretary had delineated “an area of 100,000 acres in Jackson County as ‘critical habitat’ under sec. 7 ... and the proposed segment of I — 10 traverses an extensive portion of this 100,000 acres.” Id. at 374. c. Protection Against Private Action Designations of critical habitat may include private land. Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, supra at 688, 115 S.Ct. 2407; Natural Resources Defense Council v. United States Department of Interior, supra at 1128; Conservation Council for Hawai'i v. Babbitt, supra at 1285; 65 Fed. Reg. 24340 (Department of the Interior Final Rule to be codified at 50 C.F.R. Part 17). The ESA neither requires nor suggests that private land containing the constituent elements necessary to a protected species’ survival be excluded from designation. Areas containing primary constituent elements may be excluded only if the Secretary finds that economic or other impacts outweigh the benefit of designation. 16 U.S.C. sec. 1533(b)(2). “In fact, there are at least two benefits to designation of critical habitats on private property. First, even if no federal activity currently occurs on the land, there may be such activity in the future, and there is no assurance that the FWS would designate a critical habitat at that time or that such a designation would be timely.” Conservation Council for Hawai'i v. Babbitt, supra. Second, the designation itself informs the public as well as the state and local governments.... Although the determination that a species is endangered or threatened is also publicized, the designation of the critical habitat provides greater information to the public and state and local government by informing not only that the species is endangered or threatened but also what area is essential to the conservation of the species.” Id. at 1286. A listed species is also protected from “taking”. by individuals and private entities. 16 U.S.C. sec. 1538(1)(B). Listed with other proscriptions, “taking” means harassment, harm, pursuit, hunting, shooting, wounding, killing, trapping, capture or collection. Id. at sec. 1532(19). The ESA’s legislative history indicates Congress intended protection against “taking” to be as broad as possible and “to include every conceivable way in which a person can ‘take’ or attempt to ‘take’ any fish or wildlife.” Babbitt v. Sweet Home Chapter, supra, quoting S.Rep. No. 93-307, p.7 (1973). “Taking” and “harm” are also defined by regulation to include “significant habitat modification or degradation where it actually kills or injures wildlife.” 50 C.F.R. sec. 17.3; Babbitt v. Sweet Home Chapter, supra at 691, 115 S.Ct. 2407. The prohibition on “taking” is referred to as a Section 9 protection. Section 9 protections, unlike the directives in Section 7, apply to “any person.” Id. at 703, 115 S.Ct. 2407. In addition, “Section 7 imposes a broad, affirmative duty to avoid adverse habitat modifications that Section 9 does not replicate, and Section 7 does not limit its admonition to habitat modification that ‘actually kills or injures wildlife.’ ” Id. The National Environmental Policy Act Clearly, the Tenth Circuit Court of Appeals views NEPA as furthering the goals of the ESA, without a conflict between the two. Catron County Board of Commissioners v. United States Fish and Wildlife Service, supra. “NEPA ensures that a federal agency makes informed, carefully calculated decisions when acting in such a way as to affect the environment and also enables dissemination of relevant information to external audiences potentially affected by the agency’s decision.” Id. at 1437. “By contrast, ESA’s core purpose is to prevent the extinction of species by preserving and protecting the habitat upon which they depend from the intrusive activities of humans.” Id. “While the protection of species through preservation of habitat may be an environmentally beneficial goal, Secretarial action under ESA is not inevitably beneficial or immune to improvement by compliance with NEPA procedure.” Id. a. Requirement of an EIS NEPA is intended to guarantee that government agencies are informed of and fully consider environmental consequences when undertaking “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. sec. 4332. “NEPA’s requirements are not solely designed to inform the Secretary of the environmental consequences of his action. NEPA documentation notifies the public and relevant government officials of the proposed action and its environmental consequences and informs the public that the acting agency has considered those consequences.” Catron County Board of Commissioners v. United States Fish and Wildlife Service, supra at 1437. Thus, NEPA demands federal agencies work with a focus. They must “ ‘use all practicable means and measures’ to avoid environmental degradation, preserve historic, cultural and natural resources, and promote ‘the widest range of beneficial uses of the environment without ... undesirable and unintended consequences.’ ” Lori H. Patterson, “NEPA’s Stronghold: A Noose for the Endangered Species Act,” 17 Cumb. L.Rev. 753, 755 (1996-1997), quoting 42 U.S.C. sec. 4331. Federal officials are expressly required to consult with and obtain the comments of “any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved” and to “study, develop, and describe appropriate alternatives to recommended courses of action ....”42 U.S.C. sec. 4332(E). The Act’s principal means for accomplishing its goals is requirement of an impact statement. For every major Federal action, the Act requires “a detailed statement” setting out (i) the environmental impact of the proposed action, (ii) any adverse environmental effect which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.” Id. sec. 4332(C). “The primary purpose of an environmental impact statement is to serve as an action-forcing device to insure that the policies and goals defined in the Act are infused into the ongoing programs and actions of the Federal Government.” 40 C.F.R. sec. 1502.1. By the EIS, both the public and relevant government officials are notified of the proposed action and its environment-al consequences and both are told that the acting agency has considered those consequences. Catron County Board of Commissioners v. United States Fish and Wildlife Service, supra; Committee to Save the Rio Hondo v. Lucero, 102 F.3d 445, 451 (10th Cir.1996); Weinberger v. Catholic Action of Hawaii, 454 U.S. 139, 143, 102 S.Ct. 197, 70 L.Ed.2d 298 (1981). In addition, the EIS must discuss reasonable alternatives to the proposed agency action. 42 U.S.C. sec. 4332(2)(C)(iii); 40 C.F.R. sec. 1502.14. An agency need not include an infinite range of alternatives, but is required to cover those which are feasible and briefly explain why other alternatives, not discussed, have been eliminated. City of Carmel-By-The-Sea v. United States Department of Transportation, 123 F.3d 1142, 1155 (9th Cir.1997); 40 C.F.R. sec. 1502.14(a)-(c). The threshold for arriving at a “major federal action” requiring preparation of an EIS is generally low. Davis v. Morton, 469 F.2d 593, 597 (10th Cir.1972). “Section 102 duties are not inherently flexible. Considerations of administrative difficulty, delay or economic cost will not suffice to strip the section of its fundamental importance.” Id. at 597, quoting Calvert Cliffs’ Coord. Comm. v. United States Atomic Energy Comm’n, 146 U.S.App.D.C. 33, 449 F.2d 1109, 1115 (1971). Because Federal agencies “must comply with NEPA ‘to the fullest extent possible,’ ” NEPA and its demand of an EIS are broadly applied. Catron County Board of Commissioners v. United States Fish and Wildlife Service, supra at 1433. “[U]nless the obligations of another statute are clearly mutually exclusive with the mandates of NEPA, the specific requirements of NEPA will remain in force.” Davis v. Morton, supra. Unlike some of the federal circuit courts, therefore, in the Tenth Circuit the requirement of an EIS is specifically applied when the Secretary of the Interior designates critical habitat pursuant to the Endangered Species Act. Catron County Board of Commissioners v. United States Fish and Wildlife Sevice, supra at 1436. b. Allowance for an Environmental Assessment Whenever an agency is uncertain whether a EIS is required, the agency may prepare a preliminary Environmental Assessment (EA): 40 C.F.R. sec. 1501.4 and sec. 1508.9. An-EA is defined as “a concise public document for which a Federal agency is responsible that serves to (1) briefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact.” Id. The EA aids the agency in determining whether a significant effect will result from the proposed action. Id.; Catron County Board of Commissioners v. United States Fish and Wildlife Service, supra. With the preparation of an EA, the agency makes either a finding of no significant impact (FONSI) and does not move on to an EIS, or the agency determines a significant environmental impact will result and prepares an EIS. Id.; 40 C.F.R. sec. 1501.4. If the EA results in a FONSI, the EA serves to complete the agency’s obligations pursuant to NEPA. 40 C.F.R. sec. 1508.9(a)(2). The Administrative Procedures Act Jurisdiction to review Plaintiffs’ claims rests in the APA. Biodiversity Legal Foundation v. Babbitt, 146 F.3d 1249 (10th Cir.1998); Committee to Save the Rio Hondo v. Lucero, supra. The function of APA review is to determine “(1) whether the agency acted within the scope of its authority, (2) whether the agency complied with prescribed procedures, and (3) whether the action is otherwise arbitrary, capricious or an abuse of discretion.” Olenhouse v. Commodity Credit Corporation, 42 F.3d 1560, 1574 (10th Cir.1994); Committee to Preserve Boomer Lake Park v. Department of Transportation, 4 F.3d 1543, 1549 (10th Cir.1993). A court is to look for a rational connection between the facts found and the choice made and to determine whether there has been “a clear error of judgment.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Committee to Preserve Boomer Lake Park v. Department of Transportation, supra; Ross v. Federal Highway Administration, supra. “The APA provides that ‘the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall ... compel agency action unlawfully withheld or unreasonably delayed.’ ” Forest Guardians v. Babbitt, supra at 1186, citing 5 U.S.C. sec. 706(1) and Mt. Emmons Mining Co. v. Babbitt, 117 F.3d 1167, 1170 (10th Cir.1997). “[W]hen a statute uses the word ‘shall,’ Congress has imposed a mandatory duty upon the subject of the command;” and judicial review may not extend agency discretion or authority beyond what a statute provides. Forest Guardians v. Babbitt, supra. Standard of Review Judicial inquiry into administrative decisions is limited to whether the agency “considered the relevant factors and articulated a rational connection between the facts found and the choice made.” Baltimore Gas and Electric Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 105, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). A court is not permitted to substitute its judgment over that of the administrative decision-maker. Committee to Preserve Boomer Lake Park v. Department of Transportation, supra at 1543. Administrative decisions must be upheld unless the decision is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. sec. 706(2)(A); Biodiversity Legal Foundation v. Babbitt, supra at 1252; State of Utah v. Babbitt, 137 F.3d 1193, 1203 (10th Cir.1998). An agency decision regarding the need for an Environmental Impact Statement is also reviewed under the arbitrary and capricious standard of the APA. Ross v. Federal Highway Administration, supra at 1050. Without question, the scope of judicial review is narrow. Id.; Motor Vehicle Manufacturers Assoc. v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). A court is generally restricted in its determinations to the administrative record in existence at the time the agency made its decision. Citizens to Preserv