|The Mountain-Prairie Region|
U.S. Fish and Wildlife Service
134 Union Boulevard
Lakewood, Colorado 80228
Congressional Offices: MT, ND, SD, NE, and KS
Dear Congressional Staff:
As you know, on November 3, 2003, I asked the U.S. Fish and Wildlife Service (Service) to convene a team of Service experts to conduct a section 7 consultation under the Endangered Species Act on the U.S. Army Corps of Engineers (Corps) operations on the Missouri River. Today, I am pleased to transmit the results of that consultation. The team of Service experts has produced a biological opinion that is based on the best and most current science; that ensures protections for the listed species in the Missouri River basin; and that respects the needs of those who depend on the Missouri River for water, navigation, power, and recreation.
The biological opinion issued by the Service on December 16, 2003 reflects the vast body of scientific and engineering expertise that the Service, the Corps, and numerous others have developed over the past decade, including new information available since the issuance of the 2000 biological opinion. For example, the most recent data indicate that the population of the endangered least tern is increasing and indeed exceeds the recovery goal. Similarly, there has been a dramatic 460 percent increase in the population of threatened Piping Plovers on the Missouri River between 1996 and 2001. By contrast, the population of the endangered pallid sturgeon remains at very low levels.
The 2003 biological opinion retains the vast majority of the measures included in the previous biological opinion, but incorporates for the first time in the Missouri basin a performance-based approach that allows greater flexibility while providing equal or greater biological benefits to all three listed species as compared to the 2000 biological opinion. Among other things, the biological opinion proposes a watershed approach, habitat creation and restoration, test rises along the river, and an aggressive adaptive management and monitoring program. Specific measures are included to address spawning cues and habitat improvement for the sturgeon. This comprehensive approach builds on the very measures that were endorsed by the National Academies of Sciences when it conducted its review of the Missouri River science in 2000.
Unlike the previous biological opinion, the success of the 2003 biological opinion will be measured not simply by process or prescriptive flow rates, but by results. The Service has provided biological targets to be met for the three listed species. The Corps has latitude to determine how best to achieve those targets, while still fulfilling its mission. It can do so through flow modifications, habitat improvements, or a combination of measures. Furthermore, over the next two years, the Corps has the opportunity to evaluate several measures that are expected to benefit the sturgeon in particular, including the feasibility of a temperature control device at Fort Peck. If, however, the Corps does not implement measures to provide adequate flows and habitat for the three species, the biological opinion provides for a flow regime that is similar to a plan currently circulating among the Missouri River Basin states for review. The Corps plan for the establishment of a Recovery Implementation Committee provides the forum for stakeholder discussion and development of a modified flow regime.
I am particularly pleased with the team approach that the Service used to develop this biological opinion. Completing the biological opinion for complex river operations affecting eight States, Tribes, and numerous other interests was a significant challenge. Their task was further complicated by factors resulting from the extended drought that has impacted the Missouri River basin and limited the availability of flows to create habitat and an accelerated time frame in which to complete their review. Under the leadership of Regional Directors Dale Hall from the Southwest Region and Robyn Thorson from the Great Lakes-Big Rivers Region, the Service team of experts met these challenges with professionalism and dedication.
Enclosed is a copy of the memo to me from the two Regional Directors regarding their assignment. The Amended Biological Opinion in its entirety, including an Executive Summary, is now available on the Fish and Wildlife Service website www.fws.gov.
Thank you for your continued interest in the management of the Missouri River. If you have any questions or would like to discuss the report in detail, please do not hesitate to contact me or Steve Williams, Director, U.S. Fish and Wildlife Service.
December 17, 2003
To: Assistant Secretary, Fish, Wildlife and Parks
From: Regional Director, Great Lakes-Big Rivers Region
Regional Director, Southwest Region
Subject: Missouri River Biological Opinion Assignment
On November 3, 2003, you assigned us to select and lead a team of Fish and Wildlife Service (Service) scientists to respond to a Biological Assessment on Missouri River Operations submitted by the U.S. Army Corps of Engineers (Corps). Today we are pleased to transmit a copy of the Biological Opinion that was drafted by our team. This was a collaborative effort that we believe meets the standards that you set forth for us on November 3: (1) it is based on where the science led us; (2) it was developed through a deliberative process, with each team member involved in every decision, and was not driven by a predetermined outcome; and (3) the process was objective and transparent. This memorandum explains how we approached this assignment.
We cannot go further without conveying our appreciation for the manner in which you both have allowed us to operate. From the beginning, you have "walked your talk" regarding independent scientific integrity with no influence from the Department. As co-leaders of the team, we have 47 years of Federal service between us. We can think of no other time in our careers when we were given an assignment of this magnitude and public profile and left alone to do the task with no involvement or interference from our superiors. We, and the entire team, are extremely grateful for this freedom to pursue science to the best of our abilities.
Assembling the team: Our first challenge was putting together the right team of biologists to analyze a complex river system in a short time frame. You asked us to complete this assignment by December 15, 2003, and to accomplish our task in this period, we recruited team members with experience and outstanding credentials in dealing with the Endangered Species Act section 7 consultation process, particularly for complex projects. We balanced the team membership to make certain we had strong foundations in Missouri River biological studies and section 7 processes that had already taken place, and also had "new eyes" to ask questions and offer approaches used successfully elsewhere. Seven members of the team either worked on the 2000Biological Opinion or had worked on the Missouri River; six members from other parts of the country were able to bring perspective on ESA implementation and ideas in pursuit of solutions. These are the team members:
Charles Wooley, Mary Henry, Michael Thabault, Mike Olson, Charlie Scott, Joyce Collins, Noreen Walsh, Joy Nicholopoulos, Phil Delphey, Mark Dryer, Renne Lohoefener, Teresa Woods and Lynn Lewis.
Two scientists from the U.S. Geological Survey, Robert Jacobson, Ph.D., and David Galat, Ph.D.,served as technical advisors and joined us during presentations and discussion the first two weeks of the project, and helped us analyze the technical details of the Corpsí proposal. At the end of our first two weeks of work, they presented summaries of their views on the science, possible areas for us to give extra attention, and committed to be available through phone and e-mail in an advisory capacity. As we neared the end of our process to address this assignment, Drs. Jacobson and Galat gave vitally important comments and support, particularly regarding our work to address conservation of the pallid sturgeon.
Establishing the process: In the first week of this task we faced the immediate need to determine whether the Biological Assessment provided by the Corps was sufficient to invoke the ESA section 7 formal consultation process. From November 6-10 a group of Service biologists applied themselves to this question. The sub-group was led by Charles Wooley and included Michael Thabault, Mary Henry, Lynn Lewis, and Charlie Scott. On November 10 they informed us that they believed Biological Assessment was sufficient to initiate formal consultation, and we notified the Corps
The next challenge was for the full team to set procedures and a schedule that would allow us to meet the deadline while giving everyone an opportunity to participate fully in the discussions and review of the science and decision-making. The team assembled in the Great Lakes Ė Big Rivers Regional Office in Minneapolis, Minnesota, November 12 - 14, 2003. We described the assignment to the team, including the points you had emphasized on November 3, and then we asked them how we should proceed. This approach governed our five weeks together: all decisions were addressed as a full team. Based on discussion, team members started to identify information needs in order to fully understand the Corpsí proposal and obtain current information about the three species at issue: Interior least tern, piping plover, and pallid sturgeon. We received briefings from Service biologists on the species and river issues, and the Corps briefed us on two occasions to explain the Biological Assessment elements and to present their new report on tern and plover mortality, and answer questions.
As part of our data gathering and to fulfill our section 7 obligations, we mailed (and faxed) letters to all Missouri River basin states and tribes on November 17, 2003, to request any new information on the species since the 2000 Biological Opinion. All information received is included in our Administrative Record. Data collection was limited to new information gained since 2000 because this opinion is only an amendment to, and not a replacement of, the 2000 Biological Opinion. As our Record indicates, we were aggressive in our pursuit of data, with calls to potential sources of information. We are confident that all relevant new data was gathered and considered for this assignment.
Analyzing the latest information: The team met again in Minneapolis November 18 through 21 to continue briefings and discussion. At the end of that week we outlined sequential steps for an amended biological opinion. The team then divided into sub-groups to focus on each of the three species and the newly designated critical habitat (2002) for the piping plover. We committed to a process whereby all decisions would continue to be made by the whole team; sub-groups investigated information, prepared materials and briefings for the whole team, and then wrote up the teamís decisions.
Drafting the Amended Biological Opinion: Over Thanksgiving week,the sub-groups, working from their own offices, researched to find information and drafted initial reports on the status of the species. We reconvened in Albuquerque, New Mexico, December 1, and worked every day through December 12 to fulfill our tasks. Each sub-group made presentations to the full group regarding the status of the species, the requirements in the 2000 RPA for each species, and their preliminary recommendations on the effects of the Corpsí proposal on the species in the action area. These briefings were tiered over the course of the two weeks, leading to the groupís deliberations on whether or not the Corpsí proposed action, in combination with the underlying requirements of the 2000 Biological Opinion, continued to avoid jeopardy to each of the three species. This process alternated between individual and sub-group work, and full group discussion. At the end of group discussions, when we reached a decision point, each team member was asked for their opinion. This process was followed for analysis of each of the three species, and for the analysis of critical habitat for determination of adverse modification or destruction.
In 2000 the Service had provided the Corps with a Biological Opinion on operations of the Missouri River, Kansas River, and Bank Stabilization and Navigation Project. That opinion determined that the Corpsí operations would jeopardize the three species at issue, so the Service provided the Corps with a Reasonable and Prudent Alternative (RPA) that would alleviate jeopardy to the species. In their briefings to the team in November 2003, the Corps emphasized that they accepted the vast majority ("95 %") of the 2000 Biological Opinion. What the Corps proposed was to substitute some specific elements for those in the 2000 RPA. Specifically, they proposed to remove the requirements for a spring water rise and low summer habitat flows from Gavins Point Dam. In their place, they proposed several actions to minimize impacts to the listed species, including: a modified drought conservation plan; a Gavins Point Dam summer release flow test; accelerated construction of shallow water habitat; pallid sturgeon hatchery improvements; accelerated pallid sturgeon brood stock collection; and an adaptive management framework (including research, monitoring and evaluation, and flow tests). For our reinitiation of consultation in November and December 2003, we gathered and analyzed information in order to address the question: do the requirements in 2000 Biological Opinion and RPA, as modified by the Corps proposal, continue to alleviate jeopardy?
As the Administrative Record reflects, there was unanimity on our team in the decision that the Corpsí proposal, considered with the 2000 Biological Opinion, would continue to avoid jeopardy for the least tern, and would not adversely modify or destroy piping plover critical habitat. It was also unanimous that the proposal was not sufficient to alleviate jeopardy to the sturgeon. For piping plover, a significant majority of the team believed the Corps proposal would continue to avoid jeopardy, while other members of the team raised concerns. After considerable discussion, we resolved the matter by moving forward with a determination that jeopardy to the plover would still be avoided by the Corpsí proposal, and that team members who had expressed concerns would be actively involved in writing Reasonable and Prudent Measures and Terms and Conditions for the plover. All team members agreed this was a reasonable approach.
On Wednesday, December 10, 2003, Director Steve Williams visited the team in Albuquerque and each of the species sub-groups presented the teamís findings and rationale. On Thursday, December 11, 2003, the same briefing was given (by phone) to Assistant Secretary Craig Manson. The team members noted and appreciated the fact that, during these briefings, both of you respected the teamís independence and honored the integrity of our process and conclusions.
On December 12 most of the team members returned home, with some continuing through the weekend to put the groupís final edits in order. During the week of December 15, 2003, we and seven members of the team went to Washington, D.C., to the final presentation of the document. We met with our Solicitors and made final changes to the document to better display the bases for our decisions. We signed the document December 16, 2003.
Conclusion: There are many thanks to express. We appreciate Service professionals from around the country who responded generously to our calls for information Ė if they didnít have information, they helped us find who did, and they contributed in great part to the thoroughness of our data search. We are grateful to the two technical advisors from the USGS for their analyses and help. We appreciate the responsiveness by the Corps, providing us data on short deadlines. But there is no question where we direct our greatest thanks: the thirteen biologists who worked on this assignment evidenced good will, in addition to exemplary skill, throughout the process. They sacrificed time with their families during the holiday season, and worked exhaustively in order to accomplish this task with thoroughness, scientific acumen, and ethics. Any shortcomings in the management of this effort are ours to bear; the accomplishments and credit belong to these thirteen people.
The Biological Opinion we are transmitting to you today represents the teamís serious and thoughtfully considered response to your direction to go "where the science leads us." We are proud of our teamís product.
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