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important sage grouse populations. Although maps of these areas in Colorado are not yet <br />available, the strategy has been implemented in neighboring states, such as Wyoming. <br />The project description estimates that less than 100 acre-feet of water would be depleted <br />annually. In accordance with the Final Programmatic Biological Opinion (PBO) of the <br />Management Plan for Endangered Fishes in the Yampa River Basin, section 7 consultation is <br />required on this and other future Federal actions pursuant to the Act, to determine if they fit <br />under the umbrella of this PBO. To be considered under the umbrella of the PBO, the following <br />criteria, at a minimum, must be met: <br />1. A Recovery Agreement must be offered and signed for individual projects depleting <br />more than 100 acre-feet, prior to conclusion of section 7 consultation. <br />2. For projects involving water depletions less than 100 acre-feet/year, the Federal <br />agency must document the project location, the amount of the water depletion, <br />identify if the depletion is new or historic, and provide the information to the Service <br />when consultation is initiated. <br />A fee to fund recovery actions will be submitted as described in the proposed action <br />for new depletion projects greater than 100 acre-feet/year. <br />4. Reinitiation stipulations, as described in the PBO, will be included in all individual <br />consultations. <br />5. The Service and project proponents will request that discretionary Federal control be <br />retained for all consultations under the PBO. <br />Under this opinion, future consultations that meet the criteria would avoid the likelihood of <br />jeopardy and/or adverse modification of critical habitat from depletion impacts. Projects that <br />don't meet the criteria are not covered under the PBO and would, therefore, require separate <br />consultation. <br />Please be aware of the potential application of the Migratory Bird Treaty Act (MBTA) of 1918, <br />ac ami-mip(l 1F, TT Q C 701 at cPn and the Ra1rT Faola Prntantinn Ant (RPPA) of IQAO ac <br />amended, 16 U.S.C. 688 et seq., to your project. The MBTA does not require intent to be proven <br />and does not allow for "take," (harm, harassment, etc.) except as permitted by regulations. <br />Section 70' of the MBTA provides: "Unless and except as permitted by regulations ... it shall <br />be unlawful at any time, by any means or in any manner, to.. take, capture, kill, attempt to take, <br />capture, or kill, possess ... any migratory bird, any part, nest, or eggs of any such bird ... " The <br />BEPA prohibits knowingly taking, or taking with wanton disregard for the consequences of an <br />activity, any bald or golden eagles or their body parts, nests, or eggs. which includes collection, <br />molestation, disturbance, or killing activities. <br />The project area provides habitat for a variety of migratory bird species, including nesting <br />raptors (eight nests documented within or near mining disturbance in 2006/2007). Efforts should <br />be undertaken to avoid, minimize, or mitigate impacts to migratory birds and their habitat. As <br />