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Middle Rio Grande Water Ops BO 2 1531 et seq.), was received on February 19, 2003. The Bureau of Reclamation (Reclamation) is the lead Federal agency for this consultation, representing the Army Corps of Engineers (Corps) and the non-Federal agencies that are parties to this consultation. These non-Federal agencies include the State of New Mexico and the Middle Rio Grande Conservancy District (MRGCD). Although the City of Albuquerque (City) has been closely involved in this consultation, it is not a party to the consultation, but willing to assist in various activities that will benefit the silvery minnow and the flycatcher. For the purposes of this opinion, the non-Federal agencies will collectively be referred to as “parties to the consultation.” Indian Pueblos and Tribes within the action area did not request to be a party to this consultation and are not “parties to the consultation” in this biological opinion. These biological and conference opinions are based on information submitted in the biological assessment dated February 19, 2003; meetings between the Service and Reclamation, the Corps, and other parties to the consultation; meetings with affected Indian Pueblos and Tribes; and other sources of information. A complete administrative record of this consultation is on file at the Service’s New Mexico Ecological Services Field Office (NMESFO). Reclamation requested concurrence with the determination of “may affect, is not likely to adversely affect” the bald eagle and interior least tern. The Service concurs with Reclamation’s determination of “may affect, is not likely to adversely affect” the bald eagle and interior least tern for the following reasons: • The bald eagle is not present on the Rio Grande or Rio Chama during the spring runoff and summer monsoon season. Therefore, no direct impacts to bald eagles from the proposed actions during and after spring runoff are anticipated. In addition, there are no foreseeable indirect effects of the proposed actions during the irrigation season on riparian habitats that are used by wintering bald eagles within the action area. Potential indirect effects on riparian vegetation are not likely to be significant for the bald eagle, because existing habitat in the action area appears to be suitable to sustain bald eagles into the future. • The February 19, 2003, biological assessment describes environmental commitments from completed or early consultations that assist in avoiding potential adverse impacts to the bald eagle. These measures include the following: (1) If a bald eagle is present within 0.25 mi upstream or downstream of the active project site in the morning before project activity starts, or following breaks in project activity, the contractor should be required to suspend all activity until the bird leaves of its own volition, or the Reclamation biologist, in consultation with the Service, determines that the potential for harassment is minimal. If a bald eagle arrives during 3 construction activities or if a bald eagle is beyond that distance, construction need not be interrupted; (2) If bald eagles are found consistently in the immediate project area during the construction period, Reclamation should contact the Service to determine whether formal consultation is necessary; and (3) Reclamation will continue to conduct winter bald eagle surveys from Elephant Butte Dam to the southern boundary of the Bosque del Apache National Wildlife Refuge (Refuge). If these environmental commitments for the bald eagle are not carried out, Reclamation must contact the Service to determine if further consultation is necessary. • The interior least tern occurs as a vagrant along the Middle Rio Grande, and no nesting has been recently documented. Therefore, effects from the proposed action are likely to be insignificant or discountable. The remainder of these biological and conference opinions will deal with the effects of implementation of the proposed action on the silvery minnow and its critical habitat and on the flycatcher. Reclamation has determined that the proposed action “may affect, and is likely to adversely affect” the silvery minnow and flycatcher and “may adversely modify” designated critical habitat of the silvery minnow. The designation of critical habitat for the silvery minnow was published on February 19, 2003 (68 FR 8088). The final designation of critical habitat will become effective on March 21, 2003. The biological and conference opinions will be finalized before this date. Reclamation has requested a formal conference opinion on the proposed designation; however, the Service has elected to provide a formal conference opinion on the final designation, because the designation will become effective less than a week after the biological and conference opinions are finalized and the final designation is slightly different than the proposed designation. At that time, Reclamation can request in writing that the Service confirm this conference opinion as a biological opinion issued through formal consultation. If the Service reviews the proposed action and finds that there have been no significant changes in the action as planned or in the information used during the conference, the Service will confirm the conference opinion as the biological opinion on the action and no further section 7 consultation will be necessary. This biological opinion seeks to represent current knowledge about population dynamics and habitats for the flycatcher and silvery minnow. We expect that the action agencies and parties to the consultation will continue to aggressively seek more information, which will assist in the survival and recovery of these species and the ecosystems upon which they depend. This biological opinion is intended to be adaptive, and may changed as our knowledge of the species increases. The Middle Rio Grande Endangered Species Act Collaborative Program Interim Steering Committee is working in consultation with the Service to develop a long-term management plan, which will reflect the most recent information regarding the listed species in 4 the Middle Rio Grande. Current prescriptions for rescue and captive breeding and rearing of silvery minnows are considered necessary in response to drought emergencies. However, it should be clearly understood that the primary objective of the ESA is to maintain and recover wild populations of threatened and endangered species. Consultation History On June 8, 2001, Reclamation and the Corps submitted to the Service a biological assessment for proposed “U.S. Bureau of Reclamation’s Discretionary Actions Related to Water Management, U.S. Army Corps of Engineers Water Operations Rules, and Non-Federal Actions Related to Ordinary Operations on the Middle Rio Grande, New Mexico,” for the period June 30, 2001, through December 31, 2003 (Reclamation 2001). The Service issued a final biological opinion on June 29, 2001, concluding that the proposed actions were likely to jeopardize the continued existence of the silvery minnow and the flycatcher, and it contained a reasonable and prudent alternative (RPA) and incidental take statement, which the Federal agencies are implementing. Although the consultation was to be effective through December 31, 2003, in June 2002, Reclamation predicted it would not be possible to meet the biological opinion’s flow requirements for the remainder of the water year because of extreme drought. On August 2, 2002, Reclamation submitted a request for reinitiation of section 7 consultation. This request was subsequently amended by a letter on August 30, 2002. On September 12, 2002, the Service issued a new biological opinion addressing proposed water management through December 31, 2002. The new biological opinion found that Reclamation’s proposed action was likely to jeopardize the continued existence of the silvery minnow, and that there was no RPA to the proposed action. Late season rains enabled Reclamation to use its remaining supplemental water consistent with the June 2001, biological opinion and its incidental take statement. Therefore, the June 2001, biological opinion remained in effect throughout the 2002 water year, and the September 12, 2002, biological opinion was not implemented. On September 23, 2002, Federal District Court Judge Parker entered an order that found the September 12, 2002, biological opinion to be arbitrary and capricious, and he ordered: (1) Reclamation to release San Juan- Chama Project water to maintain river flows ordered by the Court and, (2) Reclamation and the Service to reinitiate consultation. On October 17, 2002, the Tenth Circuit Court of Appeals issued a stay of Judge Parker’s order. The Tenth Circuit Court of Appeals heard arguments for this case on January 14, 2003. In accordance with Judge Parker’s ruling, Reclamation, the Corps, and the Service have reinitiated consultation on water management activities on the Middle Rio Grande. Numerous meetings among involved Federal and State agencies, Pueblos and parties to the consultation have been conducted regarding reinitiation of this consultation. On January 28, 2003, Reclamation released the draft biological assessment for this consultation and issued a final assessment on February 19, 2003. The Service issued draft biological and conference opinions on February 21, 2003. Prior to finalization of the opinions, the Service conducted numerous meetings with Reclamation, the Corps, other parties to the consultation, and Pueblos and Tribes 5 to discuss their comments on the draft opinions. Because the Department of the Interior must begin the
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