2012-05-03_APPLICATION CORRESPONDENCE - C2010089 (3)

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Dear Ms. Pacula: United States Department of the Interior IN REPLY REFER TO: ES- 6- RO -95 -F- 001 -GJ419 TAILS 06E24100- 2012 -F -0142 Dawn S. Pacula, Natural Resource Specialist Office of Surface Mining Reclamation and Enforcement 1999 Broadway, Suite 3320 Denver, Colorado 80202 -3050 FISH AND WILDLIFE SERVICE Ecological Services 764 Horizon Drive, Building B Grand Junction, Colorado 81506 -3946 April 9, 2012 Included in the Recovery Program was the requirement that a depletion fee would be paid by water users to help support the Recovery Program. On June 4, 2010, the Service re- issued an intra - Service biological opinion (BO) determining that the depletion fee for depletions of 100 acre -feet or less are no longer required because the Recovery Program has made sufficient progress toward recovery to serve as Conservation Measures (formally reasonable and prudent alternatives) for new and historic project depletions of 100 acre -feet or less. Therefore, the depletion fee for this project is waived and further consultation is not required. In accordance with section 7 of the Endangered Species Act of 1973 (ESA), as amended (16 U.S.C. 1531 et seq.), and the Interagency Cooperation Regulations (50 CFR 402), the Fish and Wildlife Service (Service) reviewed your March 13, 2012, correspondence regarding the impacts of the New Horizon North Mine Project on endangered Colorado River fishes. The project is located 2.5 miles northwest of Nucla, Montrose County, Colorado. The proposed action will cause an average annual depletion of 42.33 acre -feet to the San Miguel River in the Upper Colorado River Basin. A Recovery Implementation Program for Endangered Fish Species in the Upper Colorado River Basin was initiated on January 22, 1988. The Recovery Program was intended to be the reasonable and prudent alternative to avoid jeopardy and destruction or adverse modification of critical habitat to the endangered fishes caused by depletions from the Upper Colorado River Basin. In order to further define and clarify the process of the Recovery Program, a section 7 agreement was implemented on October 15, 1993, by the Recovery Program participants. Incorporated into this agreement is a Recovery Implementation Program Recovery Action Plan which identifies actions currently believed to be required to recover the endangered fishes in the most expeditious manner.