United States Department of the Interior Fish and ,Vildlife Service Arizona Ecological Services Office 2321 West Royal Palm Road, Suite 103 Phoenix, Arizona 85021-4951 Telephone: (602) 242-0210 Fax: (602) 242-2513 In reply refer to: AESO/SE 22410-2006-F-0459 April 13, 2016 Memorandum To: Regional Director, Fish and Wildlife Service, Albuquerque, New Mexico (ARD-ES) (Attn: Michelle Shaughnessy) Chief, Arizona Branch, Re.. gul 7/to . D'vision, Army Corps of Engineers, Phoenix, Arizona From: Acting Field Supervisor~ Subject: Biological and Conference Opinion on the Pima County Multi-Species Conservation Plan, Arizona This biological and conference opinion (BCO) responds to the Fish and Wildlife Service (FWS) requirement for intra-Service consultation on the proposed issuance of a section lO(a)(l)(B) incidental take permit (TE-84356A-O) to Pima County and Pima County Regional Flood Control District (both herein referenced as Pima County), pursuant to section 7 of the Endangered Species Act of 1973 (U.S.C. 1531-1544), as amended (ESA), authorizing the incidental take of 44 species (4 plants, 7 mammals, 8 birds, 5 fishes, 2 amphibians, 6 reptiles, and 12 invertebrates). Along with the permit application, Pima County submitted a draft Pima County Multi-Species Conservation Plan (MSCP). On June 10, 2015, the U.S. Army Corps of Engineers (ACOE) requested programmatic section 7 consultation for actions under section 404 of the Clean Water Act (CW A), including two Regional General Permits and 16 Nationwide Permits, that are also covered activities in the MSCP. This is an action under section 7 of the ESA that is separate from the section 10 permit issuance to Pima Couny. However, this BCO provides section 7 coverage of these actions provided they are consistent with the MSCP covered activities. The ACOE will implement or assure implementation of all avoidance, minimization, and mitigation measures that are associated with the MSCP to minimize incidental take of listed and covered species, as applicable, and in compliance with section7 of the ESA. As a separate action, the MSCP permit covers non-Federal land in Pima County, AZ as shown in Figure 1 of this BCO. As outlined in the MSCP and associated Environmental Impact Statement (EIS), the FWS worked closely with Pima County and the ACOE, as well as other Federal and non-Federal partners to develop the MSCP, EIS, and other associated documents. 2 Pima County MSCP Federal actions considered in this BCO include: 1) the issuance of a section 10(a)(1)(B) incidental take permit by the FWS, and 2) specified actions by the ACOE related to section 404 of the CWA that are consistent with, and including implementation of, the MSCP. The focus of our evaluation is to ensure that all Federal actions considered in this consultation do not appreciably reduce the likelihood of survival and recovery of the covered species, do not destroy or adversely modify proposed or designated critical habitat, and that the MSCP minimizes and mitigates the effects of incidental take to the maximum extent practicable. In the late 1990s, Pima County embarked on a county-wide planning process to address the unique natural and cultural resources of the county. This effort is known as the Sonoran Desert Conservation Plan (SDCP), and included the development of the MSCP to address endangered species compliance and conservation. During the 15+ year development of the MSCP, the FWS worked with Pima County and the ACOE to evaluate the effects (and resultant incidental take) of their actions to the range of habitats in Pima County, especially riparian and aquatic habitats, that support a diversity of wildlife species, including species and habitats protected under the ESA. Many of the activities proposed for coverage by Pima County require the involvement of the ACOE as they implement section 404 of the CWA. This requirement makes it difficult to separate out the effects of project approval by Pima County and the effects of the actions requiring permitting by the ACOE. By combining the consultation requirements of these two Federal actions, it also streamlines the regulatory processes that applicants must navigate to make their project compliant. As a result, there is a reduction in time and work required by Pima County and the two agencies but, more importantly, it provides a framework for the consistent application of landscape-level conservation and mitigation measures that are more effective and efficient at achieving meaningful conservation of the species covered by the MSCP. This single analysis of effects for both Federal actions is included in this BCO to address the effects to species from both the section 7 perspective of the Federal agencies, but also the section 10(a)(1)(B) permit perspective of the non-Federal applicants. In this combined BCO, the FWS will document the intra-Service consultation for our Federal action of the issuance of a permit authorizing incidental take under section 10(a)(1)(B) of the ESA for the non-Federal actions proposed for coverage under the MSCP. A summary of these non-Federal actions is provided in the Description of the Proposed Action section of this BCO, with a complete description found in the MSCP and relevant appendices that are included herein by reference. As indicated, this BCO also serves as the consultation document for ACOE actions included in the consultation. The ACOE has included specific portions of their discretionary programs within the MSCP permit area in their request for consultation. A summary of these ACOE actions is provided in the Description of the Proposed Action section of this BCO, with a more detailed discussion of these actions in the MSCP and in the ACOE’s request for consultation; these documents are incorporated herein by reference. In the standard analysis to determine the amount of take in a section 7 consultation on Federal actions, the FWS determines the amount of take that would occur, and provides reasonable and prudent measures, with associated terms and conditions, to minimize the amount of take. For the issuance of a section 10(a)(1)(B) permit, the amount of incidental take is to be minimized to the 3 Pima County MSCP “maximum extent practicable”. This is a more robust standard than for Federal agencies under section 7, but is consistent with Federal agency responsibilities under section 7(a)(1) owned by the Pima County. Because this is a combined BCO and there is no separation of effects and the resultant incidental take for the Federal and non-Federal covered actions, this section 7 consultation will use the standard for reduction of incidental take to the “maximum extent practicable” as required for section 10(a)(1)(B) permits with the understanding that this standard does not apply to Federal agencies generally, but only applies to the ACOE actions as provided herein due to the inclusive nature of the covered actions in the MSCP. In other words, the ACOE will ensure that their actions (issuance of permits) as covered in the MSCP and this BCO will be mitigated to the maximum extent practicable. The FWS and ACOE have determined that the proposed action may affect, and is likely to adversely affect the following listed covered species and/or designated critical habitats: Pima pineapple cactus (Coryphantha scheeri var. robustispina): endangered Huachuca water umbel (Lilaeopsis schaffneriana ssp. recurva): endangered with critical habitat Lesser long-nosed bat (Leptonycteris curasoae yerbabuenae): endangered Yellow-billed cuckoo (Coccyzus americanus; western distinct population segment): threatened DPS with proposed critical habitat Southwestern willow flycatcher (Empidonax traillii extimus): endangered with critical habitat Gila chub (Gila intermedia): endangered with critical habitat Gila topminnow (Poeciliopsis occidentalis occidentalis): endangered Chiricahua leopard frog (Lithobates chiricahuensis): threatened with critical habitat Northern Mexican gartersnake (Thamnophis eques megalops): threatened with proposed critical habitat Jaguar (Panthera onca): endangered with critical habitat. For all other listed or proposed species, and their designated or proposed critical habitats that occur within Pima County, FWS and the ACOE have determined that the proposed actions will have no effect and these species and critical habitat are not addressed in this BCO. This includes the jaguar for which we have determined there are effects to designated critical habitat, but do not anticipate effects to or take of individual jaguars and, therefore, is not a covered species under the MSCP. Consistent with our policies for intra-Service consultations dealing with the consideration of candidate species and those regarding treatment of unlisted species in applications for section 10(a)(1)(B) permits, for the purposes of this BCO, the 35 unlisted animal and plant species included for coverage under the MSCP are considered to be proposed for listing as threatened or endangered. Therefore, in addition to the 10 federally-listed species listed above, we have determined that the following candidate species and species not currently listed under the ESA may also be adversely affected by the proposed actions: Needle-spined pineapple cactus (Echinomastus erectocentrus var. erectocentrus) Tumamoc globeberry (Tumamoca macdougalii) 4 Pima County MSCP Mexican long-tongued bat (Choeronycteris mexicana) Western red bat (Lasiurus blossevillii) Western yellow bat (Lasiurus xanthinus) California leaf-nosed bat (Macrotus californicus) Pale Townsend’s big-eared bat (Corynorhinus