3 States Counter Proposal to Take/Surrogate Provisions

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October 6, 2004 3 States Counter Proposal to the Take/Surrogate Provisions of the dB0 Section 9 of ESA and federal regulations pursuant to section 4(d) of ESA prohibit the take of endangered and threatened species, respectively, without special exemption. Take is defined as to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect, or to attempt to engage in any such conduct, and applies to individual members of a listed species. Harm is further defined by the Service to include significant habitat modification or degradation that results in death or injury to listed wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering. Harass is defined by the Service as intentional or negligent actions that create the likelihood of injury to listed wildlife by annoying it to such an extent as to significantly disrupt normal behavior patterns which include, but are not limited to, breeding, feeding or sheltering. Incidental take is defined as take that is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. Under the terms of section 7(b)(4) and section 7(0)(2), taking that is incidental to and not intended as part of the agency action is not considered to be prohibited taking under ESA provided that such taking is in compliance with the terms and conditions of this incidental take statement. Sections 7(b)(4) and 7(0)(2) of ESA do not apply to the incidental take of federally listed plant species (i.e., Colorado butterfly plant, Ute ladies' tresses orchid, and western prairie fringed orchid). However, limited protection of listed plants from take is provided to the extent that ESA prohibits the removal and reduction to possession of federally listed endangered plants or the malicious damage of such plants on non- federal areas in violation of state law or regulation or in the course of any violation of a state criminal trespass law. Such laws vary from state to state. The Service has developed the incidental take statement based on the premise that the Program as analyzed in this biological opinion will be implemented in accordance with the Program Documents and has concluded that the measures included in the Program are sufficient to avoid jeopardy as a result of actions of the Program and covered water-related activities. During the first thirteen year increment the Program will improve the occurrence of Platte River flows in the central Platte associated habitats relative to the present occurrence of species and annual pulse target flows by an average of 130,000 to 150,000 acre feet per year at Grand Island, through re- regulation and water conservation/supply projects. In addition during the first thirteen year increment the Program will protect, restoring where appropriate, and maintain at least 10,000 acres of habitat in the Central Platte River area between Lexington and Chapman, Nebraska. Finally the Program will mitigate the adverse impacts of new