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Appendix L Section 1 Consultation SECTION 7 CONSULTATION PROCESS Forward to Biological Assessment As a major construction activity requiring an EIS, the Yankee Gulch Sodium Minerals Project required development of a Biological Assessment (BA) by the BLM in accordance with Section 7 of the Endangered Species Act (ESA). The initial BA (dated 29 April 1999) was a request for written concurrence with a mixed "no effect" and "may affect, unlikely to adversely affect" determination based on information used in preparing the Draft EIS. This document culminated the BLM's informal consultation effort with the U.S. Fish and Wildlife Service (USFWS) Grand ]unction Field Office, which began in April 1998 with USFWS attendance at a preliminary scoping meeting and its review of and comment on eazly project scoping documents. Information available at that time indicated to the BLM that the water American Soda intended to use for its project (i.e., purchase of a portion of Unocal's water rights) was unfettered by depletion concems because this water was the subject of consultation in 1985 and had, in fact, remained in the USFWS' depletion baseline for the Upper Colorado River Basin. Operating on this premise, the BLM submitted a "no effect" determination (see 2"' paragraph, 1" sentence of the 29 April letter) for listed fish. Anticipating that depletion could resurface as an issue, the BLM also provided a tabulaz accounting of consumptive water use in this document. Prompted by submission of the BA and after consulting with its solicitors, USFWS determined that this water was more properly considered a new use and depletion, especially with regazd to • the more contemporary listing of razorback sucker and the designation of critical habitat along the Colorado River above Palisade in 1994. Similazly, concerns for potential direct impacts to introduced populations of razorback sucker and Colorado pikeminnow developed later in the informal consultation process. Coordination with the Colorado Division of Wildlife and ongoing informal consultation with USFWS revealed plans for razorback and pikeminnow recovery efforts in that portion of the Colorado River surrounding American Soda's river intake soon after the original BA was submitted. In order for this consultation effort to have concluded in an informal mode, the USFWS would have needed to concur in writing that BLM's finding of "no effect" or "may affect, but unlikely to adversely affect" (i.e., the effects aze completely beneficial, insignificant, or discountable) extended to all of the expected effects on listed species or critical habitat. Formal consultation becomes necessary when: 1) the BLM requests consultation after determining the proposed action may affect listed species or critical habitat or 2) the USFWS, through informal consultation, does not concur with the BLM's finding that the Proposed Action is not likely to adversely affect the listed species or critical habitat. Upon review of the original BA, the USFWS advised the BLM that the "no effect" finding for listed fish was inappropriate because of: 1) uncertainties regazding depletion issues and 2) potential for influencing imminent and future planned recovery efforts in the Rifle to Palisade reach of the Colorado River. Since issues associated with water use and direct impacts from the river withdrawal system would not permit a letter of concurrence, the USFWS informally . suggested that BLM request formal consultation and amend its Biological Assessment to reflect a "may affect, likely to adversely affect" determination for fish. The USFWS'also questioned the L-1