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San Acacia Levee Project) New Mexico Ecological Services Field Office 2105 Osuna Road NE Albuquerque, New Mexico 87113 Phone: (505) 346-2525 Fax: (505) 346-2542 February 28, 2013 Consultation No. 02ENNM00-2012-F-0015 Previous Consultation No. 2-22-95-F-0180 Julie A. Alcon, Acting Chief Planning Branch, Albuquerque District Department of the Army Corps of Engineers 4101 Jefferson Plaza NE Albuquerque, New Mexico 87109-3435 Dear Ms. Alcon: This document transmits the U.S. Fish and Wildlife Service’s (Service) final programmatic biological opinion (Opinion) on effects of the U.S. Department of the Army, Corps of Engineers, Albuquerque District (Corps) proposed action of construction, operation and maintenance of the Rio Grande Floodway, San Acacia to Bosque del Apache Unit, in Socorro County, New Mexico (i.e., proposed action or San Acacia Levee Project). The Corps proposes construct a new 43- mile levee by replacing an existing, earthen spoil bank in order to better protect nearby communities from a 100-year flood. The levee plan was divided into six segments, with construction occurring within those segments at approximately two miles per year, over a period of 20 years. Some of the excavated spoil bank material will be used in the construction of the new levee, but a large amount of excavated material will be transported and disposed on a 300- acre location at the south end of the project area. With continued operations and maintenance, the new levee will have a functional regional flood control life of 50 years. Construction is estimated to occur over the next 20 years, so this project will continue to at least 2082. This Opinion addresses the effects of the San Acacia Levee Project on the endangered Rio Grande silvery minnow (Hybognathus amarus) (silvery minnow), its designated critical habitat, the endangered southwestern willow flycatcher (Empidonax traillii extimus) (flycatcher), and its designated critical habitat. Your request for formal consultation, in accordance with Section 7 of the Endangered Species Act (ESA) of 1973, as amended (16 U.S.C. 1531 et seq.), was received as complete on May 8, 2012. A draft Opinion was issued by the Service on August 16, 2012. A request to extend the deadline to allow Corps to comment on the draft Opinion was received on September 20, 2012. The Corps and Service met multiple times and exchanged information regarding the project and analysis of effects to endangered species. No permit or license applicants (16 U.S.C. 1532 and 1536(3)) were identified by Corps as part of this ESA consultation. Julie A. Alcon, Acting Chief 2 This Opinion is based on information submitted in the May 8, 2012, San Acacia Levee Project Biological Assessment (BA; USACE 2012a), the draft General Reevaluation Report and Supplemental Environmental Impact Statement II (USACE 2012b), Geographic Information System (GIS) files and information from Restoration Analysis and Recommendations for the San Acacia Reach of the Middle Rio Grande, New Mexico (Parametrix 2008), and the Conceptual Restoration Plan for the Active Floodplain of the Rio Grande San Acacia – San Marcial, New Mexico (Tetra Tech EM Inc. 2004), conference calls, e-mails, and meetings between Corps and the Service, supplemental information provided electronically (USACE 2012d,e), and other sources of information available to the Service. The administrative record for Consultation No. 02ENNM00-2012-F-0015 is on file at the Service’s New Mexico Ecological Services Field Office in Albuquerque, New Mexico. The Service concurs with Corps’ findings that the proposed action “may affect, but is not likely to adversely affect” Aplomado falcon (Falco femoralis) (falcon) or least tern (Sternula antillarum) (tern). As documented in Corps BA (USACE 2012a), the timing and location of Corps activities are unlikely to disturb foraging or resting behavior of the falcon or the tern and therefore, are discountable. No critical habitat is designated for the falcon or the tern in the project area and therefore, none is affected by the proposed action. Critical habitat is currently designated for flycatcher and silvery minnow within the San Acacia Levee Project area. This Opinion assesses effects of the proposed action on designated flycatcher critical habitat, and designated silvery minnow critical habitat. The Service does not rely on the regulatory definition of "destruction or adverse modification" of critical habitat at 50 CFR 402.02. Instead, the Service relied upon the statute and August 6, 2004, Ninth Circuit Court of Appeals decision in Gifford Pinchot Task Force v. USDI Fish and Wildlife Service (CIV No. 03-35279) to complete the following analysis with respect to designated critical habitat. This consultation analyzes the effects of the action and its relationship to the function and conservation role of the physical and biological features of critical habitat to determine whether the current proposed action adversely affects or adversely modifies silvery minnow or flycatcher designated critical habitat. The Service is unable to concur with Corps findings that the San Acacia Levee Project “may affect, is not likely to adversely affect” flycatcher, or flycatcher designated critical habitat because effects of the proposed action are not wholly beneficial, discountable, or insignificant. As described in this Opinion, direct and indirect effects of the proposed action to flycatchers and flycatcher habitat are likely to adversely affect flycatchers, and their designated critical habitat. Additionally, Corps found that the proposed action, “may affect, likely adversely affect” silvery minnow and silvery minnow designated critical habitat. Therefore, this Opinion describes adverse effects to silvery minnows, flycatchers, and their designated critical habitats. Julie A. Alcon, Acting Chief 3 BIOLOGICAL OPINION I. DESCRIPTION OF PROPOSED ACTION Structural Flood Control Historically, the predominant approach to flood control in the United States has been the use of engineered structures, such as levees, floodwalls, and dams. Human development within the historical floodplain near Socorro, New Mexico, has resulted in the need for structural flood control measures including engineered levees to limit the area over which the Rio Grande can move (USACE 2012b). Twelve alternatives were considered and presented in the Draft General Reevaluation Report/Supplemental Environmental Impact Statement II (GRR/SEIS) by the Corps (USACE 2012b). The GRR/SEIS provides details as to the plan formulation process, the entire array of alternatives considered, alternatives not considered, and why the proposed action considered in this Opinion was chosen. The BA (USACE 2012a) also described the purpose and need for the proposed action, details of the proposed action, the environmental consequences, details of the Corps conservation measures for fish and wildlife, and Corps findings of effects of the proposed action on silvery minnows, flycatchers, and their critical habitats. Corps (USACE 2012d, 2012e, 2013) provided supplemental material specifying additional conservation measures for silvery minnow and flycatcher. The purpose of the proposed action is provision of improved flood control to the portion of the Middle Rio Grande Valley (MRGV) extending from San Acacia, New Mexico downstream to San Marcial, New Mexico (Figure 1). The proposed action includes construction, operation and maintenance of engineered levees and other associated activities associated with the Corps Rio Grande Floodway, San Acacia to Bosque del Apache Unit (San Acacia Levee Project or Project or proposed action). The Project area specifically occurs in the southern most section of the MRGV, from approximately one-half mile upstream of the San Acacia Diversion Dam (SADD) and the Rio Grande to just below the Burlington Northern Santa Fe Railroad crossing of the Low Flow Conveyance Channel near Tiffany and San Marcial, New Mexico, and next to the Low Flow Conveyance Channel (LFCC) (Figure 1). The design limits of engineered, earthen levees must be considered in river valleys because variations in flow and the sinuosity of the river channel can result in uncertainty in flow trajectory within a valley under high river flow conditions as well as levee integrity. The Corps refers to the probabilities of a particular flow or flood event as a percentage exceeded in any one year, such as, 0.2%, 1%, 5%, 10%, 14 %, 20%, and so on (USACE 2012b). The previous nomenclature often referred to the “100-year flood,” but is more properly defined as the flood having a 1 percent chance of being exceeded in any one year (USACE 2012b). Similarly, the 5% flood was previously called the “20-year” flood, the 2% flood was previously called the “50- year” flood, and the 0.2% flow was called the “500-year” flood (USACE 2012b). Julie A. Alcon, Acting Chief 4 Figure 1. Map of the San Acacia Levee Project area. (Source: USACE 2012a) Julie A. Alcon, Acting Chief 5 The proposed levees would be designed such that they would convey the 1%-chance flood event with a high level of confidence of not failing during flows as high as 29,900 cfs measured at SADD. The proposed action would further reduce potential flood-damage to inhabitants of the historical floodplain, the LFCC, open space, historic and archaeological sites, natural vegetation and trees, agricultural land and facilities, residential and commercial development, recreation, and numerous railroad, irrigation, drainage, transportation, industrial, and municipal facilities within the historical floodplain west of the levee
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