United States Department of the Interior FISH AND WILDLIFE SERVICE Washington Fish and Wildlife Office 510 Desmond Dr. SE, Suite 102 Lacey, Washington 98503 AUo am ln Reply Refer to: f0 13410-2007-F-0004 Mr. Daniel Mathis U.S. Department of Transportation Federal Highway Administration 7LI Capital Way South, Suite 501 MS 40943 Olympia, Washington 98501-1284 Subject: Washington State Department of Transportation Programmatic Biological Assessment for the Western Washington Regions - Biological Opinion Dear Mr. Mathis: This document transmits the U.S. Fish and Wildlife Service's (Service) Programmatic Biological Opinion (PBO) on our review of the proposed projects described in the Washington State Department of Transportation (WSDOT) Programmatic Biological Assessment (PBA) for the Western Washington Regions (Northwest, Southwest, and Olympic Regions) located all western Washington counties west of the Cascades, and portions of Yakima and Klickitat counties, Washington, in accordance with section 7 of the Endangered Species Act (Act) of 1973, as amended (16 U.S.C. l53l et seq.). The PBA addresses the following nine programs that may be funded by Federal Highway Administration, permitted by the U.S. Army Corps of Engineers, or occur on lands administered by the National Park Service (Mount Rainier, Olympic, North Cascades), and U.S Forest Service (Mount Baker-Snoqualmie, Olympic, Gifford-Pinchot). All projects are carried out by WSDOT. 1. Pavement Preservation 2. Slide Abatement and Repair 3. Bank Stabilization and Flood Damage Repair Ex&snffiK Daniel Mathis 2 4. Bridge Repair, Retrofit, Replacement, and Maintenance 5. Mobility Improvement 6. Safety Improvement 7. Facilities Preservation and Construction 8. Environmental Retrofit and Enhancement 9. Drainage System Maintenance and Repair A detailed description of the activities that may be carried out under each of these programs can be found in the PBO. The PBA addresses effects of the nine separate programs on the following listed species: grizzly bear (Ursus arctos horribilis),gray wolf (Canis lupus), Canada lynx (Lynx canadensis), Columbia white-tailed deer, (Odocoileus virginianus leucurus), California brown pelican (Pelecanus occidentalis), bald eagle (Haliaeetus leucocephalus), western snowy plover (Charadrius alexandrinus nivosus), marbled murrelet (murrelet) (Brachyramphus marmoratus marmoratus), northern spotted owl (Strix occidentalis caurina), green sea turtle (Chelonia mydas), loggerhead sea turtle (Caretta caretta), Olive Ridley sea turtle (Lepidochelys olivacea), leatherback sea turtle (Dermochelys coriacea), bull trout (Salvelinus confluentus), Oregon silverspot butterfly (Speyeria zerene hippolyta), marsh sandwort (Arenaria paludicola), Bradshaw’s desert-parsley (Lomatium bradshawii), golden paintbrush (Castilleja levisecta), water howellia (Howellia aquatilis), Nelson’s checker-mallow (Sidalcea nelsoniana), Ute ladies’ tresses (Spiranthes diluvialis), and Kincaid’s lupine (Lupinus sulphureus kincaidii). Also considered in this PBA are project effects to designated critical habitat for bull trout, western snowy plover, murrelet, and northern spotted owls. Your December 1, 2005, request for formal consultation and conference was received in this office on December 1, 2005. We received additional information via email on April 27 and May 2, 2007 regarding brown pelican and Canada lynx, respectively. Initially, FHWA was the only Federal agency requesting consultation using the proposed programmatic. However, due to the Federal nexus provided through Federal permitting by the U.S. Army Corps of Engineers, National Park Service, and U.S. Forest Service, these other agencies provided letters to WSDOT stating that they would accept the proposed programmatic for activities that required permits for the proposed WSDOT activities. The Olympic and North Cascades National Parks also included additional conservation measures for lands under their authority as part of the proposed action. These conditions have been incorporated into the programmatic. Mount Rainier National Park requires that they first review the proposed WSDOT projects, annually, and will respond to the Service regarding their concurrence before projects under this Programmatic are approved within the boundaries of this park. The bald eagle was removed from the Federal List of Threatened and Endangered Wildlife, effective August 8, 2007. Given that the proposed action is being implemented after this date, consultation under section 7(a)(2) of the Act is not required. We have therefore not provided concurrence on your effect determination for the bald eagle. Daniel Mathis 3 Although the bald eagle is no longer listed under the Act, it is still provided protection under the Bald and Golden Eagle Protection Act (BGEPA) and the Migratory Bird Treaty Act. The BGEPA prohibits activities that “disturb” bald eagles. The definition for “disturb” under BGEPA is very similar to definitions for harm and harass under the Endangered Species Act. The definition for “disturb” under the BGEPA is as follows: Disturb: to agitate or bother a bald or golden eagle to a degree that causes, or is likely to cause, based on the best scientific information available, 1) injury to an eagle, 2) a decrease in its productivity, by substantially interfering with its breeding, feeding, or sheltering behavior, or 3) nest abandonment by substantially interfering with its breeding, feeding, or sheltering behavior. In addition to immediate impacts, this definition also covers impacts that result from human-caused alterations initiated around a previously used nest site during a time when eagles are not present, if, upon the eagle’s return, such alterations, agitate or bother an eagle to a degree that injures an eagle or substantially interferes with normal breeding, feeding, or sheltering habits and causes, or is likely to cause, a loss of productivity or nest abandonment (USFWS 2007a; , US Army Corps of Engineers, in litt. 2009, p. 117). The Service has published national bald eagle management guidelines that assist in compliance with BGEPA. These guidelines also state that more or less restrictive measures may be necessary based on site-specific information. At this time in Western Washington, we recommend that the guidelines set forth by the Washington Department of Fish and Wildlife be considered as “best available science” for bald eagles west of the Cascades to avoid disturbance and “take” of bald eagles under the BGEPA. We recommend that you continue to condition permits for activities that might result in disturbance of bald eagles to assist applicants in complying with the BGEPA. The FHWA and WSDOT determined that activities covered under the nine programs as described in the PBA would have no effect on short-tailed albatross and western snowy plover critical habitat. There is no requirement for U.S. Fish and Wildlife Service concurrence. Your determination that theses projects and activities will have “no effect” on these species and critical habitat rests with the action agency. In addition, based on information provided by the Service to WSDOT (Cindy Callahan, Washington Department of Transportation, Consultant, in litt. March 20, 2007), several other species were included in this list. The list of species that have been determined by WSDOT and FHWA to have “no effect” from the proposed action includes the following: Leatherback sea turtle Green sea turtle Ridley sea turtle Ute ladies tresses Daniel Mathis 4 Concurrence by the Service is not required when an action is determined to have “no effect” on listed species by the action agency. Therefore, we will not address these species or critical habitat further. For the following species, FHWA and WSDOT determined that the activities covered under the nine programs as described in the PBA “may affect, but are not be likely to adversely affect” the following species: grizzly bear, gray wolf, Canada lynx, Columbia white-tailed deer, short-tailed albatross, California brown pelican, western snowy plover, Oregon silverspot butterfly, marsh sandwort, Bradshaw’s desert-parsley, golden paintbrush, water howellia, Nelson’s checker- mallow, and Kincaid’s lupine (Table 1). The Service concurs with the “not likely to adversely affect” determinations for these species, provided the projects’ activities being proposed are consistent with the parameters specified in the PBA and are implemented with these parameters. The rationale for our concurrence for each of these species is provided in the enclosed document. Any activity or project that does not meet the parameters described in the PBA, including the conditions and conservation measures provided, or that would cause an adverse effect to the species named in this paragraph, will require a separate individual consultation outside of this programmatic consultation. Table 1. Species proposed for “may affect, not likely to adversely affect” determination. Endangered Species California Brown Pelican Pelecanus occidentalis Columbia White-tailed Deer Odocoileus virginianus leucurus Arenaria paludicola Marsh Sandwort Lomatium bradshawii Bradshaw’s Lomatium Threatened Species Canada Lynx Lynx canadensis Gray Wolf Canis lupus Grizzly Bear Ursus arctos horribilis Oregon Silverspot Butterfly Speyeria zerene hippolyta Western Snowy Plover Charadrius alexandrinus nivosus Castilleja levisecta Golden Paintbrush Howellia aquatilis Water Howellia Lupinus sulphureua kincaidii Kincaid’s Lupine Sidalcea nelsoniana Nelson’s Checker-mallow The Service agrees