Area Manager, Bureau of Reclamation 2 This programmatic biological opinion is based on information provided in the June 8, 2001, assessment for Reclamation’s, Corps’, and non-Federal activities and other relevant sources of information. A complete administrativerecord of thisconsultation is on file at the New Mexico Ecological Services Field Office in Albuquerque. Consultation History Reclamation and the Corps, submitted a comprehensive assessment in October 1999 and supplements in April and July 2000. The Service confirmed initiation of formal consultation by letter on July 6, 2000. In a July 20, 2000, faxogram Reclamation requested that the Service not issue opinions on either the comprehensive or supplemental assessments. The Corps requested reinitiation of formal consultation on their water operations, separate from Reclamation’s actions on November 16, 2000. However, the Corps did not provide a new assessment at that time. The Service responded on December 19, 2000, asking the Corps to submit an assessment of their actions alone. Reclamation submitted a new biological assessment of discretionary actions related to water management on January 6, 2001. The Service issued a draft jeopardy/adverse modification biological opinion to Reclamation on February 9, 2001 (#2-22-01-F-137). On March 5, 2001, the State of New Mexico (State) submitted a settlement proposal for the Minnow v. McDonald litigation. On April 13, 2001, the Corps submitted a biological assessment regarding the effects of their water operations rules (#2-22-01-I-085). Since that time, Reclamation, the Corps, the State, and the Service have been negotiating a settlement agreement that would provide a conservation pool of credit water for the next three years. Because it appeared that the settlement agreement could obviate the need to issue a final biological opinion to the Reclamation and a draft biological opinion to the Corps, the Service halted work on those two opinions to focus our efforts on the proposed settlement agreement. The Corps submitted an environmental assessment with a biological assessment on April 11, 2001, for the storage of water in the conservation pool. On April 12, 2001, the Service concurred with the determination of effects for that action (#2-22-01-I-332). The June 8, 2001, assessment outlining the effects of the combined actions of Reclamation, the Corps, and non-Federal entities constitutes a new request for consultation (#2-22-01-F-431). BIOLOGICAL OPINION I. Description of Proposed Action The State and the United States of America, through the Corps and Reclamation, recently entered into a Memorandum of Understanding (MOU) providing for the storage of native Rio Grande flow in upstream reservoirs. Negotiations are currently underway between Federal parties and the State to develop a Conservation Water Agreement (CWA), which provides for the release of this water for the benefit of endangered species downstream. Federal and non-Federal actions included in this consultation are integral components of this broad water management strategy. Area Manager, Bureau of Reclamation 3 The MOU and proposed CWA address the storage of up to 100,000 acre-feet (af) of Conservation Water in Jemez Canyon and Abiquiu Reservoirs over the next three years and release of that water at a rate of up to 30,000 af/year to: 1) reduce the risk that conditions in the Middle Rio Grande for the next three years will jeopardize the continued existence of the silvery minnow and flycatcher, 2) promote the recovery of listed species, 3) contribute to and support the efforts of the Middle Rio Grande ESA Collaborative Program and others to develop and implement a regional plan to address endangered species issues, 4) address and protect the interests, needs, and rights of all stakeholders, including Indian Tribes and Pueblos, and 5) recognize the hydrologic realities that exist in the Middle Rio Grande Basin. The proposed CWA allows the United States to carry over for release in a future year of the CWA any portion of the 30,000 af water that was not released in a particular year. It provides the framework within which the Federal and non-Federal actions described in this assessment will be considered. Both this document and the CWA are controlled by and should be interpreted in compliance with Article XVI of the Rio Grande Compact of 1938 (Compact), which provides: “Nothing in this Compact shall be construed as affecting the obligations of the United States . to the Indian tribes, or as impairing the rights of the Indian tribes.” Both the MOU and the proposed CWA refer to the storage of native Rio Grande water “that, if not stored, would otherwise have flowed downstream to Elephant Butte Reservoir and contributed to New Mexico’s compact deliveries.” The State asserts that it executed the MOU (and will implement the CWA) pursuant to its compact management authority, including its ability to manage and control depletions that result from non-Indian water uses under State law. Since depletions resulting from current non-Indian water uses are related to the MOU and proposed CWA, this biological opinion analyzes the effects of these depletions on the listed species. Depletions that result from the exercise of Federal Indian water rights are not subject to State law restrictions or administered by the State. In addition, pursuant to Article XVI of the Compact, no Indian water rights may be impaired by the State’s compact management activities. Indian Pueblos and Tribes within the action area did not request to have the effects of their actions analyzed in this biological opinion. However, depletions related to existing Indian uses are included within the depletion figures compiled and provided by the State. Using the information provided for this consultation, the Service is unable to identify the depletions attributable to individual water users, Indian or non- Indian. Thus, this biological opinion analyzes the effects on the listed species from existing depletions that result from both Indian and non-Indian water uses within the action area, and extends incidental take coverage to those uses.1 1 The Service is aware that the Indian Pueblos and Tribes do not concede that the ESA applies to their actions. Area Manager, Bureau of Reclamation 4 The following section describes proposed actions to be covered in this programmatic biological opinion. The description includes both Federal and non-Federal actions. The intent is that coverage be extended to ordinary net depletions in the action area, as they have existed historically and as they will continue through December 31, 2003, so long as these actions do not affect threatened or endangered species or their habitat beyond what is considered in this opinion. Previous assessments filed by Reclamation and the Corps contained descriptions of Federal actions only. Non-Federal actions included within the framework of the Compact were assumed in those biological assessments as part of baseline conditions. The present assessment seeks consultation on future actions as described here without regard to whether they are Federal or non-Federal. Past actions, including depletions and diversions whether Federal or non-Federal, continue to be described as part of the environmental baseline. Also, the CWA, while not yet finalized, is included as a proposed action in this opinion at least in so far as it makes available additional native Rio Grande water for storage. Failure to complete the CWA will require a new consultation. As outlined below, flows in the Rio Grande are governed in large part by the requirements and the administration of the Compact, and also by the administration of non-Indian water rights through the New Mexico State Engineer. The Compact sets depletion limits, and administration by the State enforces those limits under State law, resulting in a reliable general description of native flows. Further, the Middle Rio Grande Basin is a Declared Ground Water Basin, which means that the New Mexico State Engineer has determined that ground water usage impacts surface flows of the Rio Grande and must be offset, creating further insurance that flow descriptions will be reliable, even if particular actions and actors maintaining those flows change. Thus, with respect to river flows, particular actions that do not affect net depletions of water need not be specifically described. Generally, the actions under consultation are those that cause depletions and diversions of water from the Rio Grande, although some specific actions under consultation are also identified and described, e.g., river maintenance. With respect to types of actions that might affect listed species or their habitat other than flows in the river, such actions are generally described for non-Federal entities, and programmatically described for Federal entities. Unless specifically stated, this consultation does not address activities which may affect habitat other than river flow as described here--building a road or clearing vegetation, for example. Indian water rights are in no way affected by any statement in this document. Reclamation, the Corps, and non-Federal entities propose to carry out the following actions from June 30, 2001 through December 31, 2003. 1. Non-Federal Actions Middle Rio Grande water operations must be conducted in conformance with the Compact (including Article XVI of the Compact), which is administered by the Rio Grande Compact Commission. The Commission is comprised of a Commissioner from Colorado, New Mexico, Area Manager, Bureau of Reclamation 5 and Texas, as well as a Federal Commissioner who chairs Commission meetings. Any deviation from the terms of the Compact requires unanimous approval from the three State Commissioners. Under the Compact, Colorado is prohibited from accruing a debit, or under-delivery to the Colorado-New Mexico State Line, of more than 100,000 af; while New Mexico's accrued debit to Texas at Elephant Butte reservoir is limited to 200,000 af.