3 States Counter Proposal to Take/Surrogate Provisions

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The following types of take are possible as a result of Program implementation: 1. The Program's proposed restoration or protection of 10,000 acres of habitat for the species will substantially mitigate impacts of the Program and of new and existing water related activities covered by the Program on tern and plover breeding habitat on the central Platte River. Available data show that terns and plovers have not successfully used the Platte River for the past 15 years. Depending on the outcome of investigations of the need for and potential benefits of island clearing and leveling and other sediment augmentation measures identified in the Program, existing water-related activities may continue to interfere with some hydrologic and sediment processes to some extent, potentially adversely affecting terns or plovers using habitat created under the Program. If the island clearing and leveling to be investigated under the Program are successful, or if other Program measures are carried out to maintain Program breeding habitat areas, they may further reduce any potential take of this type that might occur. Quantifying and tracking the amount of potential take in the form of harm from habitat modification in the 90-mile stretch of habitat from Lexington to Chapman is difficult. Two of the important variables believed to affect formation of sandbar nesting habitat for least terns and piping plovers in the central Platte River are high flows and sediment availability. The Program is designed to evaluate these two factors over the 13 years of the Program's first increment. If initial testing of sediment augmentation and flows prove effective and feasible, and, if they do not, also provides for the restoration and maintenance of sandbar habitat by mechanical means. Therefore, a surrogate measure of harm is performance of Program Milestones including performance of the Program's IMRP (Milestone 6). Reinitiation of consultation related to sandbar nesting habitat issues will be required if the conclusions of the Program's Section IV.E process are that Milestones have not been performed and neither the Governance Committee nor Oversight Committee can restore the ability of the Program to provide ESA compliance. 2. Although no least tern or piping plovers have been observed nesting on the Central Platte in the last 20 years, if the Program is successful in creating, restoring and/or protecting riverine nesting habitat and riverine nesting occurs, eggs and unfledged chicks might be killed by high flows. EA releases, other Program water management activities, and actions of water related activities covered by the Program, either alone or in combination with rainfall events during the summer, can result in flooding of nests and mortality of eggs and chicks. This risk is reduced by measures implemented by Central under its FERC license and incidental take permit to attenuate the magnitude of rainfall-related "spike flows." Due to the absence of nesting activity currently occurring on the central Platte River, there is currently no inundation-related take occurring. We realize that the Platte River system is highly variable and it is difficult to predict incidental take