Section 7 Consultation Guidance for Projects Resulting in Platte River Depletions

United States Department of the Interior
BUREAU OF LAND MANAGEMENT
Wyoming State Office

P.O. Box 1828

Cheyenne, Wyoming 82003-1828

In Reply Refer To:
6840 (930) P
September 25, 2007
Instruction Memorandum No. WY-2007-039
Expires: 9/30/2008
To: Field Managers
From: State Director
Subject: Section 7 Consultation Guidance for Projects Resulting in Platte River Depletions
Purpose: This Instruction Memorandum (IM) will provide guidance, effective immediately, for
completing section 7 consultation in accordance with the Endangered Species Act (ESA) as
amended (16 U.S .C. 1531 et seq.) with the U.S Fish and Wildlife Service (FWS) on projects
resulting in consumptive water use in the Platte River Basin of Wyoming. These projects are
those that have a Federal nexus, either internally (BLM proposed project) or externally (a BLM
authorized or permitted project).
Policy/Action: Since 1978, the FWS has consistently found through formal section 7
consultations with Federal agencies that actions resulting in depletions to flows in the Platte
River system are likely to jeopardize the continued existence of one or more federally-listed
threatened or endangered species and adversely modify critical habitat. The four federally-listed
species that have been the focus of recovery efforts (i.e., “target species”) are the whooping
crane (Grus americana), the northern Great Plains population of the piping plover (Charadrius
melodus), the interior least tern (Sternula antillarum), and the pallid sturgeon (Scaphirhynchus
albus). Other federally listed species occurring within the Platte River Basin that may be
affected by consumptive water use within the Platte River include the western prairie fringed
orchid (Platanthera praeclara).
In 2006, an agreement was signed between the governors of Wyoming, Colorado, and
Nebraska, and the U.S. Secretary of the Interior (Interior) to implement a basin-wide Platte
River Recovery Implementation Program(Program). The purpose of this Program is to provide
ESA compliance for water users in the Platte River Basin upstream of the Loup River
confluence in Nebraska for effects on the target species and critical habitat, as well as other
federally-listed species occurring in the Platte River Basin, while managing certain land and
water resources to provide benefits for those species. This Program went into effect on January
1, 2007.
This Program will continue for as long as this recovery effort is determined to be necessary and
as long as the signatories agree to continue participating in the Program. Through this Program,
the states and the Federal government will provide land, water, and scientific monitoring and
research to evaluate Program benefits for the target species. The effectiveness of various

Program actions will be re-evaluated at the end of the Program’s ‘first
increment’ (approximately year 2020), and suitable actions for a subsequent Program increment
will be determined at that time.
With or without the three-state Program, projects within the Platte River Basin with a Federalnexus
must undergo section 7 consultation with FWS for actions that may affect federally-listed
species, including potential effects of project-related depletions. This requirement under the
ESA does not change with implementation of the Platte River Program. However, an important
benefit of the Program for individual water-related projects in the Platte River Basin of
Wyoming will be to provide, in most cases, a streamlined, programmatic processfor addressing
depletion-related impacts to the target species, whooping crane critical habitat, and the western
prairie fringed orchid.
Streamlined consultation is made possible by the programmatic biological opinion issued by
FWS on June 16, 2006 (PBO), which determined that the Program, including the continuation
of existing and certain new water-related activities in the Platte River Basin, is not likely to
jeopardize the continued existence of the four target species or the western prairie fringed
orchid, nor adversely modify designated critical habitat in Nebraska. Therefore, when an
individual project is ‘covered by the Program’ this means its flow-related effects are considered
to be already addressed under this 2006 PBO, including likely actions and effects evaluated in
the Final Environmental Impact Statement. The often laborious process of developing a standalone
biological opinion (BO) addressing the incremental effects associated with an individual
project can be replaced, under this Program, by a much simpler boilerplate “tiered BO”
confirming that the relevant water uses are covered.
The streamlined consultation procedure is detailed below. It is important to note that these
procedures are the result of several years of cooperative discussion and negotiation among the
states of Wyoming, Colorado, Nebraska, the Department of the Interior agencies, and several
other stakeholders of the Program. Consequently, these procedures have been agreed to by all
parties and should be adhered to as closely as possible in order to facilitate the completion of
BLM’s section 7 responsibilities under ESA.
Procedures for Streamlined Section 7 Consultation
(1) For water-related activities with a Federal nexus (i.e., Federal permitting; Federal monies) in
the Platte River Basin of Wyoming, the project proponent, working with BLM, first needs to
make the following two determinations:
Hydrological Connection
The depletive effects of projects whose water supply is solely derived from sources that are
considered “not hydrologically connected” to the Platte River system do not need to be
addressed in consultation with FWS. This includes wells that are located and constructed such
that, if water were withdrawn continuously for 40 years, the cumulative stream depletion would
be less than 28 percent of the total volume of groundwater withdrawn from that well, i.e., wells
that are not in the “28 percent-in-40-years zone”. Maps illustrating these zones in various North
Platte basins have been compiled by the SEO and are available on the BLM Wyoming State
Office GIS server and individual PDF maps are available at the following link:
ftp://seoftp.wyo.gov/North%20Platte%20Green%20Areas/Green%20Area%20Map%20PDFs/.

De Minimus Water Uses
Fish and Wildlife Service policy is that water-related activities in the Platte River Basin
resulting in less than 0.1 acre-foot/year of depletions in flow to the nearest surface water
tributary to the Platte River system have an insignificant effect on the Platte River target
species, and thus do not require consultation with FWS for potential effects on those species.
Similarly, detention basins designed to detain runoff for less than 72 hours, and temporary
withdrawals of water (e.g., for hydrostatic pipeline testing) that return all the water to the same
drainage basin within 30 days, are considered insignificant and do not require consultation.
(2) If BLM has determined that the water use is either: (a) less than 0.1 acre-foot; or (b) not
hydrologically connected to the Platte River Basin in Wyoming, then section 7 consultation is
not required. However, if BLM has determined that water use is at least 0.1 acre-feet, and that
the water used is hydrologically connected to the Platte River Basin in Wyoming, BLM sends a
letter to FWS, and a carbon copy to SEO (see ‘contact information’ section below), initiating
section 7 consultation for effects to downstream federally listed species and critical habitat
occurring in the Platte River Basin. Water depletions to the Platte River system may affect the
federally listed whooping crane (Grus americana), interior least tern (Sterna antillarum), piping
plover (Charadrius melodus), pallid sturgeon (Scaphirhynchus albus), and western prairie
fringed orchid (Platanthera praeclara). In addition, depletions may contribute to the
destruction or adverse modification of designated critical habitat for the whooping crane.
Wyoming State Engineer’s Office:
State Coordinator, Wyoming’s Depletions Plans
Platte River Recovery Implementation Program
State Engineer’s Office
Herschler Building, 4E
Cheyenne, WY 82002
(307) 777-7641
pstump@seo.wyo.gov
U.S. Fish and Wildlife Service:
Wyoming Field Office
U.S. Fish and Wildlife Service
5353 Yellowstone Road
Cheyenne, WY 82003
(307)772-2374
(3) The BLM will need to instruct the project proponent to contact Phil Stump at the SEO to
begin the project-related information sharing process through which the SEO will determine if
the water used constitutes a new or existing depletion to the Platte Basin. The BLM should
make every effort possible to assist external project proponents in contacting the SEO. This can
be done through an information letter, explained through a process document, providing the
SEO phone and email contact information, etc.
The basic project-related information that needs to be provided by the project proponent is
explained within Attachment 1 of this memorandum. Attachment 1 contains Attachment D of
the ESA guidance document developed by the FWS for project proponents conducting
consultations.

(4) Once the SEO determines the depletion status, if needed, the SEO will work with the project
proponent to develop a proposed plan. The plan may include mitigation (i.e., water
replacement) or a description of terms and conditions with which the project proponent must
comply. The project proponent may need to take other actions before the SEO can approve the
proposed project (e.g., a water right transfer or change in use petition, etc.).
(5) Once the SEO and project proponent reach agreement on a mitigation plan for the proposed
project, a Wyoming Platte River Recovery Agreement (Agreement) is signed by both the
project proponent and SEO.
(6) The SEO will send a letter to the project proponent, BLM, and FWS acknowledging
approval of the mitigation plan and signature of the Agreement by both parties.
(7) Once BLM receives the SEO’s letter, BLM will send a streamlined template Biological
Assessment (BA) incorporating information from the mitigation plan to the FWS. A copy of
this template BA is provided in Attachment 2 of this memorandum.
(8) The FWS now has all the information it needs in order to issue an ESA letter of concurrence
to BLM.
The long-term success of this streamlined section 7 consultation process will be determined by
the extent to which all participants in the Program continue to work cooperatively to fulfill our
obligations under the ESA. We ask that all BLM Wyoming staff help to facilitate this process
by following the above guidelines as closely as possible. While the learning curve may be steep
during the initial months of Program implementation, this process will become easier as we all
acquire experience.
Questions regarding this IM should be directed to Tyler Abbott, Wyoming BLM State Office
Botany Coordinator at (307) 775-6227 (Tyler_Abbott@blm.gov).
/s/ Robert A. Bennett
2 Attachments
1 - Attachment D of ESA Guidance Document (3 pp.)
2 - Template Biological Assessment (4 pp.)