UNITED STATES DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration NATIONAL MARINE FISHERIES SERVICE Northwest Region 7600 Sand Point Way N.E., Bldg. 1 Seattle, WA 98115 Refer to NMFS Nos.: NWP-2013-9664 April 25, 2013 Kent Connaughton, Regional Forester Jerome E. Perez, State Director Pacific Northwest Region 6 Oregon/Washington USDA Forest Service USDI Bureau of Land Management 333 SW First Avenue 333 SW First Avenue Portland, Oregon 97204-3440 Portland, Oregon 97204 Stanley Speaks, Regional Director Northwest Region Bureau of Indian Affairs 911 NE 11th Avenue Portland, Oregon 97232-4169 Re: Reinitiation of the Endangered Species Act Section 7 Formal Programmatic Conference and Biological Opinion and Magnuson-Stevens Fishery Conservation and Management Act Essential Fish Habitat Consultation for Aquatic Restoration Activities in the States of Oregon and Washington (ARBO II). Dear Mr. Connaughton, Mr. Perez, and Mr. Speaks: This document contains a programmatic conference and biological opinion (opinion) on reinitiation of consultation on the effects of the U.S. Forest Service (Forest Service), Bureau of Land Management (BLM), and Bureau of Indian Affairs (BIA) (acting for the Coquille Indian Tribe) funding or carrying out aquatic restoration actions in the States of Oregon and Washington.1 Actions covered in this opinion are modified from those analyzed in the biological opinion, issued on April 28, 2007, as summarized in the consultation history section of the opinion. 1 The authority for restoring lands administered by the USFS, BLM and BIA derives from many laws enacted by Congress and Presidential executive orders (E.O.s) whose objectives include reestablishment and retention of ecological resilience on those lands to achieve sustainable management and provide a broad range of ecosystem services. Those statutes and E.Os include the Organic Administration Act, Weeks Law, Knutson-Vandenberg Act, Anderson-Mansfield Reforestation and Revegetation Joint Resolution Act, Granger-Thye Act, Surface Resources Act, Sikes Act, Multiple-Use Sustained-Yield Act, Wilderness Act, Wild and Scenic Rivers Act, National Environmental Policy Act, Endangered Species Act, Forest and Rangeland Renewable Resources Planning Act, National Forest Management Act, Clean Water Act, Clean Air Act, North American Wetland Conservation Act, Healthy Forests Restoration Act, Stewardship End Result Contracting Projects Guidance (i.e., Omnibus Appropriations Bill of 2003, section 323), Tribal Forest Protection Act, Wyden Amendment, E.O. 11514 as amended by E.O. 11991 (Protection and enhancement of environmental quality); E.O. 11644 (Use of off-road vehicles on the public lands, amended by E.O. 11989 and E.O. 12608), E.O. 11988 Floodplain management), E.O. 11990 (Protection of wetlands); and E.O. 13112 (Invasive Species). -2- During this consultation, NMFS concluded that the proposed action is not likely to adversely affect southern DPS green sturgeon (Acipenser medirostris) or Steller sea lion (Eumetopias jubatus), or their designated critical habitat, or southern resident killer whales (Orcinus orca), which does not have designated critical habitat within the action area. NMFS also concluded that proposed program is not likely to jeopardize the continued existence of the following fish species listed as threatened or endangered under the ESA, or result in the destruction or adverse modification of their proposed or designated critical habitats: 1. Lower Columbia River (LCR) Chinook salmon (Oncorhynchus tshawytscha) 2. Upper Willamette River (UWR) spring-run Chinook salmon 3. Upper Columbia River (UCR) spring-run Chinook salmon 4. Snake River (SR) spring/summer-run Chinook salmon 5. SR fall-run Chinook salmon 6. Puget Sound (PS) Chinook salmon 7. Columbia River (CR) chum salmon (O. keta) 8. Hood Canal chum salmon 9. LCR coho salmon (O. kisutch) 10. Oregon Coast (OC) coho salmon 11. Southern Oregon/Northern California Coasts (SONCC) coho salmon 12. Lake Ozette sockeye salmon (O. nerka) 13. SR sockeye salmon 14. LCR steelhead (O. mykiss) 15. UWR steelhead, 16. Middle Columbia River (MCR) steelhead 17. UCR steelhead 18. Snake River Basin (SRB) steelhead 19. PS steelhead 20. Southern distinct population segment eulachon (Thaleichthys pacificus) As required by section 7 of the ESA, NMFS is providing an incidental take statement (ITS) with the opinion. The ITS describes reasonable and prudent measures NMFS considers necessary or appropriate to minimize the impact of incidental take associated with this program. The ITS also sets forth nondiscretionary terms and conditions, including reporting requirements, that the Federal action agency must comply with to carry out the reasonable and prudent measures. Incidental take from actions that meet these terms and conditions will be exempt from the ESA’s prohibition against the take of the listed species considered in this opinion, except eulachon because NMFS has not yet promulgated an ESA section 4(d) rule prohibiting take of threatened eulachon. However, anticipating that such a rule is likely to be issued in the future, we have included terms and conditions to minimize take of eulachon. These terms and conditions are identical to the terms and conditions required to minimize take of listed salmon and steelhead. Therefore, we expect the action agencies would follow these terms and conditions regardless of whether take of eulachon is prohibited. The take exemption for eulachon will take effect on the effective date of any future 4(d) rule prohibiting take of eulachon. The proposed action addressed in this consultation includes projects that will replace or relocate an existing irrigation diversion structure, or modify an existing irrigation diversion structure so -3- that it will meet NMFS’s fish screen criteria. However, the proposed action does not include the issuance of any easement, permit, or right-of-way that would authorize construction of a new diversion structure, or conveyance of water across Federal land. Those types of action require an individual consultation under section 7 of the ESA whenever they may affect an ESA-listed species or designated critical habitat. Moreover, any take that may be due to the use of an existing irrigation diversion structure to withdraw water, or to the use of a water system to convey water across Federal land, is not incidental to the proposed action, and is not exempted from the ESA’s prohibition against take by the ITS of this document. This document also includes the results of our analysis of the action’s likely effects on essential fish habitat (EFH) pursuant to section 305(b) of the Magnuson-Stevens Fishery Conservation and Management Act (MSA), and includes three conservation recommendations to avoid, minimize, or otherwise offset potential adverse effects on EFH. Section 305(b)(4)(B) of the MSA requires Federal agencies to provide a detailed written response to NMFS within 30 days after receiving these recommendations. If the response is inconsistent with the EFH conservation recommendation, the Forest Service, BLM, or BIA must explain why the recommendations will not be followed, including the scientific justification for any disagreements over the effects of the action and the recommendations. In response to increased oversight of overall EFH program effectiveness by the Office of Management and Budget, NMFS established a quarterly reporting requirement to determine how many conservation recommendations are provided as part of each EFH consultation and how many are adopted by the action agency. Therefore, in your statutory reply to the EFH portion of this consultation, we ask that you clearly identify the number of conservation recommendations accepted. If you have questions regarding this consultation, please contact Kenneth Phippen, OSHO Branch Chief, in the Roseburg Oregon State Habitat Office, at 541.957-3385. Sincerely, William W. Stelle, Jr. Regional Administrator cc: Pauly Bridges, USFWS Paul Henson, USFWS Scott Lightcap, BLM Scott Peets, Forest Service, Michael Pond, BIA Endangered Species Act – Section 7 Programmatic Consultation Conference and Biological Opinion and Magnuson-Stevens Fishery Conservation and Management Act Essential Fish Habitat Response for Reinitiation of Aquatic Restoration Activities in States of Oregon and Washington (ARBO II) NMFS Consultation Number: NWR-2013-9664 Federal Action Agencies: USDA Forest Service USDI Bureau of Land Management USDI Bureau of Indian Affairs Affected Species and Determinations: Is the action Is the Is the action likely to Action likely to destroy adversely ESA likely to or adversely ESA-Listed Species affect this Status jeopardize modify critical species or this habitat for this its critical species? species? habitat? Lower Columbia River Chinook salmon T Yes No No Upper Willamette River spring-run Chinook salmon T Yes No No Upper Columbia River spring-run Chinook salmon E Yes No No Snake River spring/summer-run Chinook salmon T Yes No No Snake River fall-run Chinook salmon T Yes No No Puget Sound Chinook salmon T Yes No No Columbia River chum salmon T Yes No No Hood Canal summer-run chum salmon T Yes No No Lower Columbia River coho salmon T Yes No No* Oregon Coast coho salmon T Yes No No Southern Oregon/Northern California Coasts coho salmon T Yes No No Lake Ozette sockeye salmon T Yes No No Snake River sockeye salmon E Yes No No LCR steelhead T Yes No No UWR steelhead T Yes No No Middle Columbia River steelhead T Yes No No Upper Columbia River steelhead T Yes No No Snake River Basin steelhead T Yes No No Puget Sound steelhead T Yes No No* Southern green sturgeon T No No NA Eulachon T Yes No No Southern resident killer whale T No No NA Steller sea lion T No No NA *Critical habitat has been proposed for LCR coho salmon and PS steelhead. Fishery Management Plan that Describes EFH Would the action adversely Are EFH conservation in the Action Area affect EFH? recommendations provided? Coastal Pelagic Species Yes Yes Pacific Coast Groundfish Yes Yes Pacific Coast Salmon Yes Yes Consultation Conducted By: National Marine Fisheries Service Northwest Region Issued by: ________________ William W.