Endangered Species Act Consultations with the U.S. Fish & Wildlife Service:
How to Seek ESA Coverage for Water-Related Activities through the Platte River Recovery Implementation Program
Water-related projects that need a federal authorization, funding, or are carried out by a federal agency require consultation with the U.S. Fish and Wildlife Service (FWS) under the Endangered Species Act (ESA). Federal agencies are required by Section 7(a)(2) of the ESA to ensure that those actions are not likely to jeopardize listed species or adversely modify their designated critical habitat. Thus, water-related activities requiring, for example, a Section 404 Clean Water Act permit from the U.S. Army Corps of Engineers, a special use permit issued by the U.S. Forest Service, or federal funding assistance are subject to Section 7 of the ESA.
Since the late 1970’s, the FWS has issued “jeopardy” biological opinions for numerous water-depleting projects in the Platte River basin, as new or continued water depletions have been considered contributing factors in jeopardizing the existence of the target species and adversely affecting designated critical habitat. Individual water projects undergoing ESA consultation are required to offset the effects of these depletions on the listed species. In the past this has involved project-specific offsetting measures. With the Platte River Recovery Implementation Program in place, streamlined procedures are available for project proponents to seek ESA coverage under the Program umbrella.
What the Program Does
The Program allows existing and most or all new water uses and water-development activities in the Platte River basin in Colorado, Wyoming, and Nebraska above the Loup River confluence to operate in regulatory compliance with the ESA for the four Platte "target species" in Nebraska (the whooping crane, the interior least tern, the northern Great Plains population of the piping plover, and the pallid sturgeon). This is made possible by the offsetting measures being implemented during the first increment of the Program, including measures which will substantially reduce shortages to target flows in the central Platte River, and which will obtain and restore habitat for the target species.
By agreeing to be covered by the Program, proponents of water-related projects subject to Section 7 ESA consultation can ensure compliance relative to the Platte target species, can avoid the potential for prohibited “take” of these species under ESA Section 9, and can take advantage of pre-defined procedures and expectations going into the ESA consultation process.
How Projects Can Seek ESA Coverage Under the Program
The U.S. Fish and Wildlife Service has developed “guidance documents” describing the process of seeking ESA coverage in each state. Links to these and other relevant materials and Web sites are provided below. Note that for all projects in the basin, a de minimis depletions threshold has been established. Below this threshold, consultation with the Service for potential depletive impacts to these species is not required.
Colorado Water Users
Nebraska Water Users
Wyoming Water Users
Federal Water Users
For Projects That Have Previously Consulted
Project proponents who completed ESA consultation with the Service prior to 2007 on the effects of their depletions to the target species under the Minor Depletions Biological Opinion (<25 acre-feet/year) have fully addressed those effects to these species, and no further action is necessary.
Project proponents whose pre-2007 consultations addressed major depletions (>25 acre-feet/year) should have been contacted by the lead federal agency with whom they originally consulted. Biological opinions resulting from the pre-2007 consultations typically included either a 'Reasonable and Prudent Alternative' or a 'Conservation Measure' that a project proponent would make an annual, monetary contribution to the National Fish and Wildlife Foundation (NFWF) for Platte River habitat improvements as an interim measure (i.e., until a Recovery Program was in place), and would participate in the Program once it was finalized. Now that the Program is in effect, such projects will receive continued ESA coverage, provided that their annual NFWF payments are up to date through calendar year 2006, and for as long as the project proponent participates in the Program consistent with procedures established in their state.
NOTICE: No 'Recovery Agreements' with the Service are Required
Program documents finalized in 2006 envisioned that water users seeking ESA coverage under the Program would need to sign a recovery agreement with the Service. The primary purposes of such an agreement would be to (a) identify requirements that the water user would need to meet in order to comply with the corresponding state plan, and (b) to affirm that the Service could re-initiate consultation on a biological opinion that relied on that state plan if those requirements were not met. Subsequent to implementation of the Program in 2007, it was determined that the ESA and the implementing criteria for the Program satisfactorily address these issues, and therefore a signed recovery agreement with the Service is unnecessary and is not required as part of the streamlined consultation process. (That said, note that procedures for coverage under state plans may, in certain cases, require a signed agreement between the water user and the state).
A Brief History of the Program's Development
USFWS Guidance: Wetland activities and Platte River depletions
Last Updated: November 4, 2009
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