2010-11-22_REVISION - M2009023 (7)

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intended as part of the agency action is not considered to be prohibited taking under the Act provided that such taking is in compliance with the terms and conditions of this incidental take statement. The measures described below are nondiscretionary, and must be undertaken so that they become binding conditions of any Federal discretionary activity, for the exemption in section 7(o)(2) to apply. The participating Federal Agencies have a continuing duty to monitor the activity covered by this incidental take statement. If the Recovery Program, l) fails to assume and implement the terms and conditions or 2) fails to retain oversight to ensure compliance with the terms and conditions, the protective coverage of section 7(o)(2) may lapse for the projects covered by this incidental take, statement. The Service anticipates that take in the form of harm will occur in association with current and future water depletions. Colorado pikeminnow and razorback sucker are harmed from the reduction of water in their habitats resulting from the project in the following manner: 1) individuals using habitats diminished by the proposed water depletions could be more susceptible to predation and competition from nonnative fish; 2) habitat conditions may be . rendered unsuitable for breeding and raising of young because reduced flows?vould impact habitat formulation and maintenance as described in the biological opinion. Water depletions cause incidental take in the form of harm by reducing habitat availability and habitat maintenance capability of the San Juan River as described in the "effects of the action" section in the accompanying biological opinion. Estimating the number of individuals of these species that would be taken as a result of water depletions is difficult to quantify for the following reasons: 1) determining whether an individual failed to breed as a result of water depletions versus natural causes would be extremely difficult to determine; 2) finding a dead or injured listed fish would be difficult, due to the large size of the action area and because carcasses are subject to scavenging; 3) natural fluctuations in river flows and species abundance may mask project effects; and 4) effects that reduce fecundity are difficult to quantify. According to Service policy, as stated in the Endangered Species Consultation Handbook (March 1998) (Handbook), some detectable measure of effect should be provided, such as the relative occurrence of the species or a surrogate species in the local community, or amount of habitat used by the species, to serve as a measure for take. Take also may be expressed as a change in habitat characteristics affecting the species, such as water quality or flow (Handbook, p 4-47 to 4-48). Because estimating the number of individuals of the two listed fishes that could be taken by the water depletions addressed in this biological opinion is difficult, we have developed a surrogate measure to estimate the amount of anticipate take to listed fish in the form of harm. The surrogate we are using is the reduction of water that would occur from the proposed action. We exempt all take in the form of harm that would occur from the removal of an average of 1,535 acre-feet of future water depletions annually. Water depletions above the amount addressed in this biological opinion would exceed the anticipated level of incidental take and are not exempt from the prohibitions of section 9 of the Act. The implementation of all the Recovery Program elements, including implementing the flow recommendations, is intended to minimize impacts of water depletions and therefore, the implementation of the Recovery Program will serve as reasonable and prudent measures for 28