United States Department of the Interior FISH AND WILDLIFE SERVICE 10711 Burnet Road, Suite 200 Austin, Texas 78758 512 490-0057 FAX 490-0974 December 3, 2004 Wayne A. Lea Chief, Regulatory Branch Fort Worth District, Corps of Engineers P.O. Box 17300 Fort Worth, Texas 76102-0300 Consultation No. 2-15-F-2004-0242 Dear Mr. Lea: This document transmits the U.S. Fish and Wildlife Service's (Service) biological opinion based on our review of the proposed water operations by the Colorado River Municipal Water District (District) on the Colorado and Concho rivers, located in Coleman, Concho, Coke, Tom Green, and Runnels counties. These actions are authorized by the U.S. Army Corps of Engineers (Corps) under Permit Number 197900225, Ivie (Stacy) Reservoir project, pursuant to compliance with the Clean Water Act. The District and the Corps have indicated, through letters dated September 10, 2004, and September 13, 2004, respectively, that an emergency condition affecting human health and safety exists with this action. We have considered the effects of the proposed action on the federally listed threatened Concho water snake (Nerodia harteri paucimaculata) in accordance with formal interagency consultation pursuant to section 7 of the Endangered Species Act (Act) of 1973, as amended (16 U.S.C. 1531 et seq.). The emergency consultation provisions are contained within 50 CFR section 402.05 of the Interagency Regulations. Your July 8, 2004, request for reinitiating formal consultation was received on July 12, 2004. You designated District as your non-federal representative. This biological opinion is based on information provided in agency reports, telephone conversations, field investigations, and other sources of information. A complete administrative record of this consultation is on file at the Austin Ecological Services Field Office. Consultation History Conference Report On February 21, 1986, the Corps requested the Service prepare a section 7 Conference Report for the Concho water snake under Section 7(a)(4) of the Act. That report, dated May 5, 1986, concurred with the Corps' finding that Stacy Dam was likely to jeopardize the continued existence of the Concho water snake (then proposed for listing) and was likely to adversely modify proposed critical habitat. The Concho water snake was listed as a threatened species on September 3, 1986. Critical habitat, proposed for the snake on January 22, 1986, was deferred until the economic data on the impact of that proposal could be gathered and assessed. Biological Opinion, USACE/CRMWD (2-15-F-2004-0242) December 3, 2004 Original biological opinion On December 19, 1986, the Service issued its biological opinion, finding the proposed action was likely to jeopardize the continued existence of the Concho water snake and adversely modify the proposed critical habitat (Service 1986). The Federal action under consultation was the proposal by the Corps to issue a Section 404 (Clean Water Act) and Section 10 (Rivers and Harbors Act) permit to the District for the construction and operation of the proposed Stacy Dam, O.H. Ivie Reservoir, and pump station on the Colorado River in Coleman, Concho, and Runnels counties, Texas. The biological opinion was the culmination of all the research that had been completed on the Concho water snake from 1979 through 1986. It provided detailed information on the snake, its known biology, distribution, and presented a comprehensive account of the potential threats plus viability of the species based upon a computer generated risk analysis model. The opinion provided ten (10) reasonable and prudent alternatives (RPAs) to be implemented by the District to avoid jeopardizing the snake. A commitment to carry out the RPAs was confirmed in a Memorandum of Agreement (MOA), signed March 1987, between the District, the Service, and the Corps. The Corps issued a Federal permit on April 8, 1987. Amendment No. 1 On March 7, 1989, the biological opinion was amended as a result of new information that had been collected. Some of the reasonable and prudent alternatives were modified to be consistent with the new available information. Amendment No. 2 The final rule designating critical habitat for Concho water snake was published June 29, 1989. On November 28, 1989, the biological opinion was amended to address critical habitat (adverse modification was determined) and removed some requirements to move snakes within reservoir basins. Amendment No. 3 On November 23, 1992, the biological opinion was amended (labeled Amendment #2) to include District plans to construct a water pipeline from the San Angelo pump station to the Midland/Odessa metropolitan area. The pipeline crossed the Concho River roughly 3 miles (4.8 kilometers) northeast of the community of Paint Rock. Amendment No. 4 On December 21, 2000, the Service issued another amendment to the biological opinion (Consultation Number 2-15-00-F-0636). This amendment included an additional action by District to construct a pump station at Ivie Reservoir, a water pipeline to Abilene and a water treatment plant in Taylor County. Present Consultation The Corps requested the Service reinitiate consultation on this project by letter dated July 8, 2004. The Service responded by letter to the Corps dated July 16, 2004, to reinitiate formal 2 Biological Opinion, USACE/CRMWD (2-15-F-2004-0242) December 3, 2004 consultation (Consultation Number 2-15-F-2004-0242). District indicated to the Service by letter dated September 10, 2004, that an emergency situation existed due to a limited water supply endangering public health and safety to their municipal customers (450,000 people). The Corps concurred with the emergency consultation by email to the Service, dated September 13, 2004. The Interagency Regulations define an emergency as "situations involving acts of God, disasters, casualties, national defense or security emergencies, etc." The 10-year drought and the implementation of the conditions in the Service's December 19, 1986, biological opinion, were the basis for this emergency. District documented, by letter dated September 16, 2004, their intent to decrease reservoir releases from Spence and Ivie reservoirs as a result of the ongoing low water situation. District indicated the low water situation would be alleviated when both reservoirs reach 50 percent capacity (at the time Spence Reservoir was at 7 percent capacity and Ivie Reservoir was at 30 percent capacity). The Service concurred with the District emergency procedures by letter dated September 21, 2004. This consultation will apply once the current emergency has ended, in other words when both Spence and Ivie reservoirs are at, or above, 50 percent capacity in water storage or once the District, in discussions with the Corps and the Service, has determined that other factors have ended the emergency condition. The District will notify the Corps and the Service when either of the above conditions trigger the end of the emergency condition. This Revised Biological Opinion replaces the Biological Opinion dated December 19, 1986. When the emergency condition ends, the requirements of this Revised Biological Opinion will go into effect. BIOLOGICAL OPINION I. Description of Proposed Action Historical Operation. The District was authorized in 1949 by an Act of the 51st Legislature of the State of Texas for the purpose of providing water to the District's Member Cities of Odessa, Big Spring, and Snyder (see Figure 1). The District also has contracts to provide specified quantities of water to the Cities of Midland, San Angelo, Stanton, Robert Lee, Grandfalls, Pyote, and Abilene (through the West Central Texas Municipal Water District). A twelve-member Board of Directors governs the District. Each Member City appoints four Board members. Members serve on the Board for two-year terms. The District owns and operates three major surface water supplies on the Colorado River in west Texas. These are Lake J. B. Thomas, the E. V. Spence Reservoir, and the O. H. Ivie Reservoir. Together, the full combined capacity of these reservoirs is 1.247 million acre-feet (1,538 million cubic meters). Additionally, District operates four well fields for water supply. The Member Cities prior to 1949 developed two of these fields. The third field, located in Martin County, began delivering water in 1952. The fourth field, located in Ward County southwest of Monahans, can supply up to 21 million gallons (79,500 cubic meters) of water per day. The District primarily uses these well fields to supplement surface water deliveries during the summer months when municipal demand is high. 3 Biological Opinion, USACE/CRMWD (2-15-F-2004-0242) December 3, 2004 The District also operates a "diverted water" supply system. The primary function of this system is to prevent the highly mineralized low flow of the Colorado River and Beals Creek (a tributary of the Colorado River) from reaching the Spence Reservoir. The system delivers this highly mineralized water to oil companies for use in oil field secondary recovery operations. Figure 1. Member and customer cities of the District. Colorado River Municipal Water District Water Supply System. The District's water supply system includes three major reservoirs, three diversion works, numerous storage reservoirs, and more than 600 miles (966 kilometers) of transmission line. Lake J. B. Thomas is the oldest water supply reservoir. It was constructed in Borden and Scurry counties in 1952. The E. V. Spence Reservoir was completed in Coke County in 1969, and the O. H. Ivie Reservoir, the District's newest water supply reservoir, was finished in 1990. Five of the reservoirs are used to control and evaporate poor quality "diverted water". The Barber Reservoir and its diversion works, located near Colorado City, were built in 1969 to reduce the chloride pollution entering the Spence Reservoir downstream. Red Draw Reservoir was constructed in 1985 along with a diversion works on Beals Creek. Both the Natural Dam Lake improvements and the Sulphur Draw Reservoir were built following the 1986 spill of poor quality water from Natural Dam Lake.