Memorandum: April 27 2009 Formal Section 7 Consultation for 2009 Projects

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Page 3 Water - related activities requiring federal approval will be reviewed by the Service to determine if. (1) those activities comply with the definition of existing water - related activities and /or (2) proposed new water- related activities are covered by the applicable state's or the federal depletions plan. The Service has determined that the Project meets the above criteria and, therefore, this Tier 2 biological opinion regarding the effects of the Project on the target species, whooping crane critical habitat, and the western prairie fringed orchid in the central and lower Platte River can tier from the June 16, 2006 PBO. CONSULTATION HISTORY Table II -1 of the PBO (pages 21 -23) contains a list of species and critical habitat in the action area, their status, and the Service's determination of the effects of the Federal Action analyzed in the PBO. The Service determined in the Tier 1 PBO that the Federal Action, including the continued operation of existing and certain new water - related activities, may adversely affect but would not likely jeopardize the continued existence of the federally endangered whooping crane, interior least tern, and pallid sturgeon, or the federally threatened northern Great Plains population of the piping plover, western prairie fringed orchid, and bald eagle in the central and lower Platte River. Further, the Service determined that the Federal Action, including the continued operation of existing and certain new water - related activities, was not likely to destroy or adversely modify designated critical habitat for the whooping crane. The bald eagle was subsequently removed from the Federal endangered species list on August 8, 2007. Bald eagles continue to be protected by the Bald and Golden Eagle Protection Act and the Migratory Bird Treaty Act. For more information on bald eagles, see the Service's webpage at: http:// www. fws. gov /migratorybirds /BaIdEagle.htm The Service also determined that the PBO Federal Action would have no effect to the endangered Eskimo curlew. There has not been a confirmed sighting since 1926 and this species is believed to be extirpated in Nebraska. Lastly, the Service determined that the PBO Federal Action, including the continued operation of existing and certain new water - related activities, was not likely to adversely affect the endangered American burying beetle. The effects of the continued operation of existing and certain new water - related activities on the remaining species and critical habitats listed in Table II -1 of the PBO were beyond the scope of the PBO and were not considered. The Service has reviewed the information contained in the BA and an email received by this office on March 12, 2009, and April 3, 2009, respectively. We concur with your determinations of "likely to adversely affect" for the endangered whooping crane, interior least tern, pallid sturgeon, the threatened northern Great Plains population of the piping plover, and the western prairie fringed orchid in the central and lower