Free Motion for Summary Judgment - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS _________________________________________ ) KLAMATH IRRIGATION DISTRICT, et al., ) ) Plaintiffs, ) v. ) No. 01-591 L ) UNITED STATES OF AMERICA, ) ) Judge Francis M. Allegra Defendant, ) ) PACIFIC COAST FEDERATION OF ) FISHERMEN'S ASSOCIATIONS, ) ) Defendant-Intervenor. )

DEFENDANT'S SUPPLEMENTAL APPENDIX FILED IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFFS' CONTRACT CLAIMS EXHIBITS 70 ­ 74 PAGES 597 ­ 655

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INDEX OF EXHIBITS IN DEFENDANT'S SUPPLEMENTAL APPENDIX FILED IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFFS' CONTRACT CLAIMS1 EXHIBIT NO. 59 DESCRIPTION U.S. Fish & Wildlife Service, Threatened and Endangered Species System (TESS), Summary of Listed Species, Species and Recovery Plans as of 2/15 Document generated from FWS website at: http://ecos.fws.gov/tess_public/TESSBoxscore (last visited on February 15, 2006) 60 U. S. Fish & Wildlife Service, Threatened and Endangered Species System (TESS), Map of Listed Species by State/Territory as of January 26, 2006. Map available on FWS website at: http://ecos.fws.gov/tess_public/servlet/gov.doi.tess_public. servlets.TESSUsmap?status=listed (last visited on January 26, 2006) 61 Klamath Project 2001 Annual Operations Plan (dated April 6, 2001) Letters from Bureau of Reclamation to Van Brimmer Ditch Co., and to Klamath Drainage District, dated Sept. 2, 2000 546 545 BEGINNING PAGE NUMBER 543

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551

Defendant's Exhibit ("Def. Ex.") numbers 1 through 42 are the exhibits contained in Defendant's Appendix (dated October 3, 2003) and Supplemental Appendix (dated March 31, 2004), both of which were filed in support of its Cross-Motion for Summary Judgment on plaintiffs' takings claims. Defendant's Exhibit numbers 43 through 58 are the exhibits contained in the Appendix filed in support of Defendant's Cross-Motion for Summary Judgment on the Question of Whether the Individual Plaintiffs' Have Standing to Bring Contract Claims as Intended Third-Party Beneficiaries (dated April 26, 2004). To avoid confusion in the numbering of exhibits, the additional exhibits attached hereto begin with exhibit number 59 and appendix page number 543. i

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EXHIBIT NO. 63

DESCRIPTION Letters from Department of the Interior officials responding to letters received by the Department concerning the operation of the Klamath Project in 2001. from early 2001 stating that "[f]orecasts of water supplies in the Klamath basin for the 2001 water year are currently nearly half of average conditions" Letter from Bureau of Reclamation to Klamath Project Water Users, dated March 2, 2001. Subject: 2001 Operation Planning Update and Notice that Klamath Project Water Not Currently Available Letters from Karl E. Wirkus, Area Manager, Bureau of Reclamation, Klamath Falls, to (A) NMFS, (B) FWS and (C) Klamath Tribes, dated Nov. 22, 2000. Subject: Ongoing Klamath Project Operations ­ Draft Biological Assessment Letter from BOR to NMFS, dated January 22, 2001. Subject: Request for Initiation of Formal Consultation on the Effects of Ongoing Operations (without attachments) Memorandum from BOR to FWS, dated February 13, 2001. Subject: Request for Reinitiation of Formal Consultatin on the Effects of Ongoing Operation of the Klamath Project Biological Assessment of the Klamath Project's Continuing Operations on the SONCC coho salmon (dated Jan. 22, 2001) (excerpt) Note: A full copy of this biological assessment is available at http://www.usbr.gov/mp/kbao/esa/index.html

BEGINNING PAGE NUMBER 555

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EXHIBIT NO. 69

DESCRIPTION Biological Assessment of the Klamath Project's Continuing Operations on the Endangered Lost River Sucker and Shortnose Sucker (dated Feb. 13, 2001) (excerpt) Note: A full copy of this biological assessment is available at http://www.usbr.gov/mp/kbao/esa/index.html

BEGINNING PAGE NUMBER 593

70

Letter from FWS to Bureau of Reclamation, transmitting copy of Biological Opinion, dated April 5, 2001, and excerpt of the Biological Opinion Note: a full copy of the FWS biological opinion for 2001 is available at http://www.usbr.gov/mp/kbao/esa/index.html

597

71

Letter from NMFS to Bureau of Reclamation transmitting Biological Opinion, dated April 6, 2001, and excerpt of the Biological Opinion Noted: a full copy of NMFS biological opinion for 2001 is available at http://www.usbr.gov/mp/kbao/esa/index.html

635

72

U.S. Department of the Interior, News Release, "Water Allocation Decision Announced for Klamath Project," dated April 6, 2001 Letter from BOR to NMFS, dated April 20, 2001. Subject: BOR's Determination Regarding the Action Addressed in the NMFS April 6, 2001 Biological Opinion Department of the Interior, Office of the Secretary, News Release, "Interior Secretary to Order Water Release to Klamath Farmers," dated July 24, 2001

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Defendant's Exhibit 70

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BIOLOGICAL/CONFERENCE OPINION REGARDING THE EFFECTS OF OPERATION OF THE BUREAU OF RECLAMATION'S KLAMATH PROJECT ON THE ENDANGERED LOST RIVER SUCKER (Deltistes luxatus) ENDANGERED SHORTNOSE SUCKER (Chasmistes brevirostris) THREATENED BALD EAGLE (Haliaeetus leucocephalus) AND PROPOSED CRITICAL HABITAT FOR THE LOST RIVER/SHORTNOSE SUCKERS

Prepared by Klamath Falls Fish and Wildlife Office April 2001

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Executive Summary This document addresses the effects of operation of the Bureau of Reclamation's (Reclamation) Klamath Project (Project) for 2001 on the endangered Lost River sucker (LRS), endangered shortnose sucker (SNS), threatened bald eagle, and proposed critical habitat for the LRS and SNS (collectively, suckers). The Project delivers water to about 220,000 acres of irrigated agriculture in the upper Klamath River Basin (Basin) in south-central Oregon (Klamath County) and northern California (Modoc and Siskiyou counties), as well as to the Tule Lake and Lower Klamath National Wildlife Refuges (NWRs). The Project consists of three main reservoirs with a total surface area of about 100,000 acres, many miles of canals and ditches, and numerous water control structures, pumps, and other structures. Interrelated and interdependent with the proposed action is operation of Pacific Corps's hydroelectric facilities on the Link River and New Earth Corporation's algae harvest facility at the "C-drop" off of the A-canal. Previous biological opinions (BOs) for the Project included determinations by the Fish and Wildlife Service (Service) that implementation of the action, as proposed, was likely to jeopardize the continued existence of the LRS and SNS. The two endangered sucker species are endemic to the Basin. The three major Project reservoirs [Upper Klamath Lake (UKL), Clear Lake, and Gerber Reservoir] represent their primary habitats. Tule Lake once supported a large population of suckers but habitat conditions there are now so degraded that only a few hundred suckers remain. Sucker populations in Clear Lake and Gerber Reservoir appear healthy, but are vulnerable to the adverse effects of droughts. Sucker populations in the Tule Lake sump are extremely small and population viability is at risk from reductions in water depth, adverse water quality, and lack of access to spawning areas. Sucker populations in UKL are at risk of extirpation from adverse water quality, loss of habitat, entrainment, and lack of passage. Populations of LRS are most at risk because self-reproducing populations are found in only two reservoirs and the viability of these populations is not assured. The environmental baseline for the suckers is characterized by degraded aquatic ecosystems throughout the Basin. The baseline has been adversely affected over the past 150 years by agriculture, grazing, forestry, and to a smaller degree, urbanization. Development of the Project and interrelated and interdependent actions have been the major factors contributing to the loss and degradation of aquatic habitats in the Basin, and the endangered status of the two suckers. Nearly all Basin streams and rivers have been degraded, some seriously, by the loss of riparian vegetation, geomorphic changes, introduction of return flows from agricultural drainage ditches and water pumped from drained wetlands, stream channelization, dams, and flow reductions from agricultural and hydroelectric diversions. Most water bodies in the Basin fail to meet state water quality criteria. Wetland losses have been especially significant since they provide habitat for larval and juvenile suckers and have crucial water quality functions. Along the perimeter of UKL, about 40,000 acres of wetlands have been diked and drained for agriculture; elsewhere in the Basin, wetland losses are even larger. Restoration of wetlands and riparian habitats on private and public lands, and implementation of Clean Water Act regulations (e.g., Total Maximum Daily Load limits) will bring much needed water quality and habitat improvements and will reduce threats and contribute to the conservation i

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of the suckers. However, it has taken over a century to create the current conditions in the Basin, and it will take decades for restorative actions to be fully implemented and functional. At UKL, implementation of the action, as proposed, is likely to have the following effects on the suckers and their proposed critical habitat: 1. Significantly increase the loss of larval and juvenile sucker habitat at critical phases of their life cycle which will reduce the frequency and magnitude of year-class development; Significantly increase the loss of all life stages, but especially larvae, through entrainment; Block passage of suckers into areas of preferred habitat or to spawning areas which will reduce their survival and reproduction; Increase the frequency and magnitude of potentially lethal water quality conditions by lowered lake levels which will optimize light and nutrient conditions that will facilitate algal blooms. These blooms adversely affect the survival of all life history stages of the suckers, and the reproduction of adults; Contribute to poor water quality conditions during algal decay cycles by reducing lake volume/surface ratios that influence dissolved oxygen concentrations. These conditions will adversely affect the survival of all sucker life history stages, but will especially reduce the number of adults, and limit their longevity and reproductive potential; Contribute to the loss of or reduction of access of suckers to water quality refuge areas that are critical to ensure adult sucker survival; and Reduce lake volume/surface ratios during winter ice-cover conditions that influence dissolved oxygen concentrations which will contribute to potentially lethal water quality conditions that could adversely affect adult and juvenile survival.

2. 3.

4.

5.

6.

7.

At Clear Lake, Gerber Reservoir, and the Tule Lake sump, implementation of the action, as proposed, is likely to have the following effects on the suckers and their proposed critical habitat: 1. Block passage of suckers into areas of preferred habitat or to spawning areas in Clear Lake and the Tule Lake sump, which will reduce sucker survival and reproduction; Reduce water volume in summer and fall when water temperatures and respiration rates are high and lead to stressful/lethal conditions for suckers, and also make them more vulnerable to disease and predators; and Reduce water volume/surface ratios during winter ice-cover conditions that influence dissolved oxygen concentrations which will contribute to potentially lethal water quality conditions that are likely to reduce adult and juvenile sucker survival. ii

2.

3.

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Collectively, these effects are likely to appreciably reduce the survival and recovery of the suckers and appreciably diminish the value of the primary constituent elements of proposed sucker critical habitat. On that basis, the Service concludes that implementation of the Project, as proposed, in calendar year 2001 is likely to jeopardize the continued existence of the suckers and adversely modify their proposed critical habitat. The proposed action is likely to result in a significant reduction or elimination of the prey base for the bald eagle in the Basin due to reduced or curtailed water deliveries to areas that contain important eagle feeding habitat. Water deliveries to critical wetlands in Tule Lake and Lower Klamath NWRs attract millions of migrating waterfowl and hold a portion of them through the winter, thereby providing food for bald eagles. The wintering population of bald eagles on the refuges is one of the largest outside of Alaska. It includes birds from Canada, the Pacific Northwest, and California and consists of 150 to 900 eagles annually. Although these effects are considered significant, the Service has concluded that they are not likely to jeopardize the continued existence of the bald eagle. A RPA has been developed for the proposed action that avoids effects that are likely to jeopardize the continued existence of the suckers and adverse modification of their proposed critical habitat. The RPA requires: (a) maintenance of minimum lake elevations in Project reservoirs; (b) coordination with the Service and the National Marine Fisheries Service in the development of Project operation plans during low water years; (c) adaptive management of water quality through monitoring and reporting; (d) installation of screens at the A-canal and Link River Dam; (e) adequate passage facilities at Link River Dam; (f) habitat and water quality improvements; and (g) additional studies to be completed to obtain information that Reclamation can use to refine reservoir management to adequately protect the suckers and their proposed critical habitat. With implementation of the RPA, incidental take of suckers is anticipated. Under the Incidental Take Statement in this BO, Reclamation is required to implement reasonable and prudent measures (RPMs) to minimize the impacts of that take. Some of these measures were previously required, but have not yet been implemented or completed. Incidental take of bald eagles is also anticipated and this opinion also includes RPMs to minimize the impacts of that take. This BO supercedes all previous Project-related BOs, including that portion of the Service's 1996 BO on Pacific Corp's operation of the Link River Dam and New Earth Company's operation of the C-drop harvest site, and excepting those BOs associated with Reclamation's application of acrolein and other chemicals.

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I.1 CONSULTATION HISTORY Consultation History The Bureau's request for reinitiation of consultation on the 1992 BO was received by the Service on December 18, 1999, and acknowledged in writing on December 29, 1999. On April 26, 2000, Reclamation provided the Service with a memorandum stating "the BA will be provided to the Service on about June 1, 2000." On June 20, 2000, the Service provided written clarification on what the Act required in an adequate BA, including comments on the draft "Preliminary Report Describing Historic Project Operations." On September 2, 2000, Reclamation provided the Service with a letter stating that "Reclamation now anticipates that the BA will be provided to the Service on October 1, 2000." On September 27, 2000, the Service received a schedule from Reclamation outlining the on-going consultation on the Project showing that the draft BA would be provided to the Service in October 2000. A draft BA was provided to the Service on November 8, 2000, and the Service provided written comments on November 21, 2000. A second draft BA was provided to the Service on November 22, 2000, and the Service provided additional written comments on December 19, 2000. Additional written comments were sent to Reclamation on January 19, 2001. The final BA was received on February 13, 2001, about 45 days prior to the start of Project operations in April. New information on the potential adverse effects of low lake levels on suckers, developed since the1992 BO, and massive sucker die-offs in UKL in the 1990s, indicated that higher minimum UKL levels were necessary to reduce the risk of extinction of the suckers. Some of the new information was utilized by Reclamation to manage UKL, beginning in 1997, with a new minimum September 30 elevation of 4139 ft (Table I-2). This new information was also used by Reclamation in September 2000, when it sent a letter to the Service describing the need to maintain a minimum surface elevation of 4139.0 ft in UKL by September 30 to avoid violation of section 7(d) of the Act (Table I-2).

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Table I-2. Upper Klamath Lake minimum surface elevations (in feet above mean sea level). Date April May June July August September October November December January February March
1

1992 BO 4141 4141 4139 (4137)1 4139 (4137)1 4139 (4137)1 4139 (4137)1 4139 4139 4139 4139 4139 4141

1997-200 "Low Range Elevations" 4142.6 4142.6

2001 BA Minimums 4141.1 4140.4 4139.5

4141.6

4138.8 4137.5

4139

4136.8 4136.9 4137.8

4140

4138.6 4139.5

4141.5

4140.1 4141.1

The minimum surface elevation of 4139 ft could be compromised in no more than 4 of 10 years with a minimum elevation of 4137 ft. The lowest proposed minimum September 30 surface elevation in the final BA is 4136.8 ft. (Table I-2), which is more than 2 ft below the elevation Reclamation previously considered minimally necessary to protect the suckers, and is more than 3 ft below the level that the Service recommended in its informal consultation stage, technical assistance memos dated December 19, 2000, and January 19, 2001.

Table I-3, below, summarizes previous section 7 consultations on the Klamath Project. A portion of the information used in this BO is available on Reclamation's web site: http://www.mp.usbr.gov/kbao/esa/index.html.

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Table 3. Consultation history for the Klamath Project.
Date
June 14, 1989 (superceded by this BO) August 14, 1991 (superceded by this BO)

Subject of Consultation
Formal Consultation--Use of Acrolein in Canals and Drains within the Klamath Project Service area. Formal Consultation-- Effects of the 1991 operation of the Klamath Project.

Affected Listed Species
Shortnose sucker Lost River sucker Shortnose sucker Lost River sucker Bald Eagle

Determination
Likely to jeopardize.

Likely to jeopardize the sucker species. No jeopardy to the Bald Eagle. No effect to the American Peregrine Falcon. Not likely to jeopardize the sucker species or the Bald Eagle. No effect to the American Peregrine Falcon. Likely to jeopardize the sucker species. No jeopardy to the Bald Eagle. No effect to the American Peregrine Falcon. No jeopardy to the affected species.

American Peregrine Falcon January 6, 1992 (superceded by this BO) Formal Consultation-- Effects of the 1992 operation of the Klamath Project (interim biological opinion) Shortnose sucker Lost River sucker Bald Eagle American Peregrine Falcon March 27, 1992 (superceded by this BO) Reinitiation of Formal Consultation-Effects of the 1992 operation of the Klamath Project. Shortnose sucker Lost River sucker Bald Eagle

May 1, 1992 (superceded by this BO) July 22, 1992 (superceded by this BO)

Reinitiation of Formal Consultation-Effects of the 1992 operation of the Klamath Project at Clear Lake Reservoir. Formal Consultation--Effect of the longterm operation of the Klamath Project.

American Peregrine Falcon Shortnose sucker Lost River sucker Bald Eagle American Peregrine Falcon Shortnose sucker Lost River sucker Bald Eagle

Likely to jeopardize the sucker species. No jeopardy to the Bald Eagle. No effect to the American Peregrine Falcon. One-year modification of lake elevation 4141.0 on March 1, 1993.

February 22, 1993 (superceded by this BO) August 11, 1994 (superceded by this BO)

Reinitiation of Formal Consultation on the long-term operation of the Klamath Project - Upper Klamath Lake operations. Reinitiation of Formal Consultation on the long-term operation of the Klamath Project, with special reference to operations at Clear Lake Reservoir. Formal Consultation on the use of pesticides and fertilizers on Federal lease lands and acrolein and herbicide use on the Klamath Project rights-of-way located on the Klamath Project (reinitiation of consultation on the use of acrolein for aquatic weed control in Reclamation canals and drains).

American Peregrine Falcon Shortnose sucker Lost River sucker

Shortnose sucker Lost River sucker Bald Eagle American Peregrine Falcon Shortnose sucker Lost River sucker Bald Eagle American Peregrine Falcon Applegate's milkvetch

Established new minimum elevation for Clear Lake Reservoir.

February 9, 1995 (superceded by this BO)

Not likely to jeopardize the sucker species. No effect to the Bald Eagle, American Peregrine Falcon, or Applegate's milkvetch.

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February 2, 1996 (superceded by this BO)

Reinitiation of Consultation on the use of pesticides and fertilizers on federal lease lands and acrolein and herbicide use on the Klamath Project rights-of-way located on the Klamath Project.

Shortnose sucker Lost River sucker Bald Eagle American Peregrine Falcon

Not likely to jeopardize the affected species.

July 15, 1996 (superceded in part by this BO) April 2, 1998 (superceded by this BO) April 20, 1998 (superceded by this BO) April 21, 1998 (superceded by this BO)

Reintiation of Consultation on PacifiCorp and The New Earth Company Operations, as Permitted by the Bureau of Reclamation on the Klamath Project Amendment to July 22, 1992 BO to extend date for completion of A-canal screen until 2002 Amendment to the 1992 BO to cover Operation of Agency Lake Ranch Impoundment Amendment to July 15, 1996 consultation on PacifiCorp and The New Earth Company Operations, as Permitted by the Bureau of Reclamation on the Klamath Project Amendment to the 1992 BO dealing with Anderson-Rose releases Amendment to the 1996 BO addressing lowered water levels in Upper Klamath Lake to reduce risk of flooding in spring 1999 Amendment to the 1995 BO on use of pesticides and fertilizers on leased lands and use of acrolein in canals operated by the Langell Valley Irrigation Revised amendment to the 1992 BO to cover operations and maintenance of Agency Lake Ranch impoundment

Shortnose sucker Lost River sucker

Not likely to jeopardize the affected species.

Shortnose sucker Lost River sucker Shortnose sucker Lost River sucker

Not likely to jeopardize the affected species. Not likely to jeopardize the affected species.

Shortnose sucker Lost River sucker

Not likely to jeopardize the affected species.

July 13, 1998 (superceded by this BO) April 15, 1999 (superceded by this BO)

Shortnose sucker Lost River sucker Lost River sucker Shortnose sucker

Not likely to jeopardize the affected species. Not likely to jeopardize the affected species.

August 18, 1999 (superceded by this BO)

Lost River sucker Shortnose sucker

Not likely to jeopardize the affected species.

September 10, 1999 (superceded by this BO)

Lost River sucker Shortnose sucker

Not likely to jeopardize the affected species.

History of Previous Biological Opinion Requirements Being Incorporated The BA describes Reclamation's compliance with reasonable and prudent alternatives, and terms and conditions associated with 1992, 1994, and 1996 BOs (Service 1992, 1994b, 1996). For the most part, Reclamation has complied with those requirements (USBR 2001). However, several requirements from previous biological opinions that were not completely satisfied, as discussed below, are incorporated in this BO. A-Canal Screening Reclamation was required to reduce entrainment of larval, juvenile, and adult suckers into the ACanal by July 1997. In 1995, Reclamation provided a grant to the Klamath Irrigation District (KID) to evaluate sucker entrainment and identify alternatives for entrainment reduction. A final report was completed in 1997 (Natural Resource Scientists 1997). Several meetings were held in 1995 and 1996 to discuss this issue with representatives of the KID, Tule Lake Irrigation District (TID), Section I, Page 4

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Oregon Department of Fish and Wildlife (ODFW), Cell Tech, Reclamation and the Service. From these meetings, the group agreed that entrainment reduction strategies and associated fish passage issues at Link River Dam should be integrated. Subsequently, the UKL Entrainment and Fish Passage Working Group was formed to integrate all fish entrainment and passage issues. The working group consists of Reclamation, Klamath Tribes, Service, KID, Cell Tech, PacifiCorp, TID, and ODFW. Reclamation facilitated meetings 2-3 times per year from 1997 through 1999 to discuss progress and recommend future activities. In 1997, the Service requested that Reclamation conduct additional entrainment monitoring on the ACanal to compare with entrainment monitoring data from Link River Dam and B- and C-Canals. Reclamation funded an A-Canal fish entrainment monitoring study in 1997 and 1998 (Gutermuth et al. 2000a). In 1998, Cell Tech evaluated several mesh sizes of wedge-wire screen material to determine debris loading characteristics and sizes of fish that were excluded (Gutermuth 1999). On April 2, 1998, the Service amended the July 22, 1992, BO extending the date for entrainment reduction to July 22, 2002. In 1999, Reclamation's Klamath Basin Area Office hired a fish passage biologist to coordinate Reclamation's fish entrainment and passage activities. The University of Wyoming was contracted to conduct swimming performance tests of juvenile LRS suckers in a range of water temperatures to help with the development of fish screen facility criteria (Meyer 1999). In 1999, Reclamation also performed field evaluations of Reclamation's Universal Stream Bottom Retrievable Flat Plate Fish Screen. Preliminary results were promising and plans were made to test two, 100 cubic feet per second (cfs), Reclamation-designed screens in the A-Canal during the 2000 irrigation season. Reclamation proceeded with the development of preliminary designs for the test installation during the fall of 1999 and developed draft specification and final drawings of the screens in the spring of 2000. In a March 29, 2000, letter to Reclamation, KID did not support the testing of Reclamation's prototype screen and instead wanted to pursue other flat plate screen alternatives. Reclamation and KID met with the Service and ODFW to discuss the conceptual screen designs and identify acceptable design criteria. Reclamation has provided KID with a grant to develop preliminary designs for A-Canal screens. On June 29, 2000, the Service met with ODFW and KID to develop screening criteria. The agreedupon screening criteria was to be that used by the National Marine Fisheries Service (NMFS) in the Pacific Northwest, with several minor exceptions (Appendix 1). Link River Dam Fish Ladder A July 15, 1996, BO addressing PacifiCorp and New Earth Corporation operations as permitted by Reclamation required that Reclamation complete a fish ladder report by December 31, 1998 (Service 1996). That report has not been completed. Reclamation has been working on fish passage issues since early 1998, when the Service requested Reclamation lead the UKL Entrainment and Fish Passage Working Group. Reclamation, with assistance from fish passage engineers from the Section I, Page 5

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Denver Technical Service Center, developed conceptual designs for a new ladder at Link River Dam in the fall of 1999 (USBR, unpubl. data). The Service has not seen these designs. Other Biological Opinion Requirements The 1992 BO required that Reclamation develop and implement a long-term plan to avoid and minimize incidental take associated with the Project. A draft plan was developed during the summer of 1995 and circulated to the Service and state resource agencies. The Service is not aware that Reclamation has taken any action to finalize or implement this plan. The 1992 BO also required that Reclamation conduct a comprehensive survey of the Project service area to delineate the location of potential sources of take, develop and implement a program to reduce or eliminate this take, and for education purposes notify landowners and/or irrigation districts that the potential for take exists and advise them of protection afforded listed species under the Act. This activity was to be completed by July 22, 1995. On February 15, 2001, Reclamation provided the Service with an inventory of Project water diversions that potentially entrain endangered suckers; 193 diversions were identified. According to the BA, Reclamation plans to complete the written report by September 2001. Reclamation has not notified the Service of when it plans to take actions to reduce entrainment at these diversions. Reclamation's Contributions to Sucker Recovery According to the BA, Reclamation has initiated or completed most of the Priority 1 and 2 action items identified in the Lost River and Shortnose Sucker Recovery Plan. Reclamation has funded over $10.5 M in ecosystem restoration projects benefitting the recovery of these species and has purchased the 7,200-acre Agency Lake Ranch.

Section I, Page 6

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II.1 DESCRIPTION OF THE PROPOSED ACTION A. Definition of the Action Area The "action area" is defined as "all areas to be affected directly or indirectly by the Federal action and not merely the immediate area involved in the action" 50 CFR 402.02. Based on information contained in the description of the proposed action, the status of the species, and the effects of the action, we have determined that the action area for this consultation extends from Iron Gate Dam upstream in the Klamath River to Link River Dam, including Lake Ewauna and Link River; Upper Klamath Lake to its highwater line, and tributaries as far upstream as are affected by Project operations; Clear Lake and Gerber Reservoir to their high water lines, and tributaries as far upstream as are affected by Project operations; the entire Lost River from Clear Lake Dam to the Tule Lake sumps, including all of Miller Creek, and any tributaries of the Lost River that are affected by Project actions. Also included in the action area are dams, canals, drains, and facilities owned or operated, or related by contract or agreement to Reclamation's Klamath Project, and the approximate 220,000 acres of irrigated land serviced by the Project. Service actions on Refuge lands serviced by the Project are not included because they will undergo separate section 7 consultation. B. Authorizations/Responsibilities/Obligations that Affect or Influence Project Operations These include: 1. Reclamation Act of 1902. Project construction was authorized by the Secretary of the Interior on May 15, 1905, in accordance with the Reclamation Act of 1902. The Act of February 9, 1905 provides: "The Secretary of the Interior is hereby authorized in carrying out any irrigation project that may be undertaken by him under the terms and conditions of the national reclamation act and which may involve the changing of the levels of Lower or Little Klamath Lake, Tule or Rhett Lake, and Goose Lake, or any river or other body of water connected therewith, in the States of Oregon and California, to raise or lower the level of said lakes as may be necessary..."; The Klamath River Compact of 1957. Entered into between the states of Oregon and California and approved by the U.S. Congress, the compact establishes goals and objectives for the development and management of water resources of the Klamath River Basin; Federal Energy Regulatory Commission (FERC) license, Project No. 2082. The license establishes terms and conditions for operation of the Eastside and Westside Powerplants at Link River Dam, J.C. Boyle, Copco No. 1 and No. 2, and Iron Gate hydroelectric projects and Keno Dam. This license sets certain minimum flows at IGD. Minimum flows, however, are subject to water availability and senior water rights. Pursuant to1956 contract with Reclamation, PacifiCorp operates Link River Dam and its appurtenant power generation facilities. Reclamation and PacifiCorp entered into a Letter Agreement on June 5, 1997, to clarify for FERC that PacifiCorp was operating Link River Dam pursuant to Reclamation authority and directives under the 1956 contract, because the 1997 Klamath Project annual operations plan required Klamath River flows that were both greater and less than those in PacifiCorp's FERC license. The Agreement has been extended each year to include that year's operation; Endangered Species Act. Project operations affect four threatened and endangered species including the Lost River and shortnose suckers, southern Oregon/northern California coho Section II, Part 1, Page 1

2.

3.

4.

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salmon and the bald eagle. In 1992, the Service issued BOs on the effects of the Project on the endangered suckers and the bald eagle; this opinion was amended in 1994. The Service provided "reasonable and prudent alternatives" (RPAs) regarding minimum water elevations in project reservoirs that would allow Project operation to continue without jeopardy to the listed species. A 1996 BO addresses the effects of operations by Reclamation permittees on suckers; 5. Tribal Trust. The United States has a trust responsibility to protect tribal trust resources. In general, the trust responsibility requires the United States to protect tribal fishing, gathering, hunting, and water rights, which are held in trust for the benefit of the tribes. Reclamation is obligated to ensure that Project operations not interfere with the tribes' senior water rights. With respect to the tribes' fishing rights, Reclamation must, pursuant to its trust responsibility and consistent with its other legal obligations, prevent activities under its control that would adversely affect those rights, even though those activities take place off reservation. Fishery and other resources in the Klamath River and Upper Klamath Lake provide religious, cultural, subsistence, and commercial support for the Klamath Basin Indian tribes. The Klamath Basin Indian tribes include the Klamath, Hoopa Valley, Karuk, and Yurok Tribes; Refuge Water Supplies. Four national wildlife refuges lie adjacent to or within Project boundaries-Lower Klamath, Tule Lake, Clear Lake, and Upper Klamath Lake National Wildlife Refuges. The refuges either receive water from, or are associated with Project facilities; and Contracts and Water Rights. The Project supplies water to irrigation districts and individual irrigators pursuant to contracts entered into with Reclamation, subject to the availability of water. These contracts and water rights are described in Reclamation's 1992 BA (Reclamation 1992a) and Report on Historic Operation (Reclamation 2000a). They are further discussed below as well.

6.

7.

C. Reclamation's Proposed Action The proposed action consists of Reclamation's operation of the Project, as a single entity, in accordance with historic operations. The Project includes a vast array of facilities (e.g., reservoirs, canals, pumping plants, diversions, and drains). These are all managed in concert for the unified purpose of running the Project. A partial description of project operations is presented in the BA prepared in 1992 (USBR 1992a) and a report (USBR 2000a) briefly describing historic project operations. More detailed descriptions of the project features and their operations are presented below under "Project Facilities and Operations". In 1992 and1994 Bos, the Service determined that the Project would jeopardize the continued existence of the suckers and specified minimum lake and reservoir levels to avoid that effect, but since 1997, Reclamation has been operating at even higher minimum lake/reservoir levels to protect suckers. In this consultation, Reclamation proposes to operate the Project in a manner that meets or exceeds minimum lake levels that occurred during the period from 1960 to 1998. Under this proposal, Reclamation would maintain minimum lake levels that are lower than the levels it agreed to meet or exceed since 1997. Four water year types are proposed for evaluation based upon inflows: (1) above average (>500,000 acre feet of inflow); (2) below average (312,000-500,000 acre feet); (3) dry (185,000 acre feet); and (4) critical dry (<185,000acre feet). These are determined using Reclamation's Section II, Part 1, Page 2

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benefit from these lands is that management will emphasize water quality improvement. Management actions on these lands that once contributed nutrients to UKL have been stopped or significantly reduced. Restoration on the Running Y Ranch Resort has included up to 1000 acres of marsh habitat. Other activities likely to occur include extensive riparian restoration along the major tributaries of UKL through fencing and improved grazing practices, and wetland restoration. The Nature Conservancy (TNC) and other partners recently purchased Tulana and Goose Bay Farms, totaling 8000 acres at the mouth of the Williamson River. Acquisition and restoration of this property has great potential for restoring sucker habitat and improving water quality in UKL. TNC has also purchased an additional 7,000 acres at Sycan Marsh, expanding its preserve to over 25,000 acres. This acquisition and restoration of the Marsh should improve water quality and hydrologic function in the Sycan and Sprague Rivers, tributaries to UKL. Other restoration projects are underway by ODFW and by private land owners. Restoration of aquatic habitats and uplands to improve watershed function will be essential for recovery of the suckers and other aquatic species. Such activities also will increase stream flows, raise the water table in pastures, increase wildlife habitat, and have other general benefits. Walker (2001) states that some improvement in water quality has already been detected since TP levels in UKL have been reduced by about 10% in the past decade. If anthropogenic phosphorus can be cut another 20 to 40%, it is anticipated that water quality in UKL will significantly improve. 5.0 CONCLUSION After reviewing the current status of the LRS and SNS, the environmental baseline for the action area, the effects of the proposed action, and the cumulative effects, it is the Service's biological and conference opinion that implementation of the Reclamation's operation plan for the Klamath Project is likely to jeopardize the continued existence of the LRS and SNS and adversely modify their proposed critical habitat. The Service reached these conclusions for the following reasons: At Upper Klamath Lake, implementation of the action, as proposed, is likely to: 1. Significantly increase the loss of larval and juvenile sucker habitat at critical phases of their life cycle which will reduce the frequency and magnitude of year-class development; 2. Significantly increase the loss of all life stages, but especially larvae, through entrainment; 3. Block passage of suckers into areas of preferred habitat or to spawning areas which will reduce their survival and reproduction; 4. Increase the frequency and magnitude of potentially lethal water quality conditions by lowered lake levels which will optimize light and nutrient conditions that will facilitate algal blooms. These blooms adversely affect the survival of all life history stages of the suckers, and the reproduction of adults; 5. Contribute to poor water quality conditions during algal decay cycles by reducing lake volume/surface ratios that influence dissolved oxygen concentrations. These conditions will adversely affect the survival of all sucker life history stages, but will especially reduce the Section III, Part 2, Page 142

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number of adults, and limit their longevity and reproductive potential; 6. Contribute to the loss of or reduction of access of suckers to water quality refuge areas that are critical to ensure adult sucker survival; and 7. Reduce lake volume/surface ratios during winter ice-cover conditions that influence dissolved oxygen and un-ionized ammonia concentrations which will contribute to potentially lethal water quality conditions that could adversely affect adult and juvenile survival. At Clear Lake, Gerber Reservoir, and the Tule Lake sump, implementation of the action, as proposed, is likely to: 5. Block passage of suckers into areas of preferred habitat or to spawning areas in Clear Lake and the Tule Lake sump, which will reduce sucker survival and reproduction; 6. Reduce water volume in summer and fall when water temperatures and respiration rates are high and lead to stressful/lethal conditions for suckers, and also make them more vulnerable to disease and predators; and 7. Reduce water volume/surface ratios during winter ice-cover conditions that influence dissolved oxygen concentrations and un-ionized ammonia will contribute to potentially lethal water quality conditions that are likely to reduce adult and juvenile sucker survival. Collectively, these effects are likely to appreciably reduce the survival and recovery of the suckers and preclude the conservation needs of these species from being met, and appreciably diminish the value of critical habitat constituent elements essential to the conservation of the suckers. 6.0 REASONABLE AND PRUDENT ALTERNATIVES Regulations implementing section 7 define reasonable and prudent alternatives as alternative actions identified during formal consultation that: (a) can be implemented in a manner consistent with the intended purpose of the action; (b) can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction; (c) are economically and technically feasible; and (d) would avoid the likelihood of jeopardizing the continued existence of listed species or result in the destruction or adverse modification of critical habitat (50 CFR 402.02). A reasonable and prudent alternative (with 8 elements) with respect to the proposed operation of the Klamath Project is as follows: 1. Maintenance of Minimum Surface Elevations in Upper Klamath Lake Reclamation shall not divert water from UKL for irrigation purposes if surface elevations are anticipated to go below 4141.0 ft on January 1, 4141.5 ft on February 15, 4142.0 ft on March 15, 4142.5 ft on April 15 and June 1, 4141.5 ft on July 15, 4141.0 on August 15, 4140.5 ft on September 15, and 4140.0 ft on October 15, regardless of inflow year type.

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Reclamation shall formally notify the Service as to how it will ensure that these levels will not be violated owing to gage error or malfunction, such as occurred in 2000. Reclamation shall be responsible for verification that UKL water level readings are accurate, at least to 0.05 ft. Implementation of the Project with these minimum elevations is necessary to avoid jeopardy and adverse modification of proposed critical habitat for the following reasons: A. Minimum surface elevations of 4141.0 ft on January 1, 4141.5 ft on February 15, 4142.0 ft on March 15, and 4142.5 ft on April 15 are necessary to provide adequate water depth in shoreline spawning habitat along the UKL eastern shore from February-May to ensure adequate development of LRS and SNS year classes. Suckers that spawn along the east shore of UKL represent a unique population that must be maintained to allow for survival and recovery of both LRS and SNS. Year-class development is essential to provide for future generations of suckers as adults die from fish kills, predation, or from other factors. These minimum surface elevations will provide adequate spawning habitat which constitutes a primary constituent element of proposed critical habitat. In this way, operation of the Project will provide, in part, for functional critical habitat. B. Minimum surface elevations of 4142.5 ft on April 15 and June 1, 4141.5 ft on July 15, and 4141.0 on August 15 are necessary to provide adequate water depth in emergent vegetation habitat in the lower Williamson River and in UKL for larval and juvenile suckers to ensure adequate year-class development. Emergent vegetation habitat is critical for survival of larval and juvenile suckers which are essential to provide for future generations of suckers as adults die from fish kills, predation, or from other factors. These minimum surface elevations will avoid jeopardy and adverse modification of proposed critical habitat, in part, by providing adequate rearing habitat where young suckers feed and avoid predators. C. Minimum surface elevations of 4142.5 ft on June 1, 4141.5 ft on July 15, 4141.0 on August 15, 4140.5 ft on September 15, and 4140.0 ft on October 15 are necessary to maintain adequate water depths in UKL to reduce the magnitude and frequency of fish kills resulting from lethal water-quality conditions as a result of algal blooms occurring between June and October. If the frequency and magnitude of the fish kills are not reduced LRS and SNS populations will decline and reproduction will be reduced. Without adequate adult survival and reproduction, extirpation of UKL populations is likely to occur due to a reduction in individuals of sufficient age (up to 10 years for LRS) to spawn, which are essential for long-term survival and recovery of the species. Implementation of the Project with these minimum surface elevations will avoid jeopardy, in part, by reducing the frequency and magnitude of fish kills involving the LRS and SNS and provide for a diverse year-class population structure that will be more resilient to stochastic events. Maintenance of good water quality will provide for adequate functioning of one of the primary constituent elements of proposed critical habitat. D. Minimum surface elevations of 4141.5 ft on July 15, 4141.0 on August 15, 4140.5 ft on September 15, and 4140.0 ft on October 15 are needed to maintain adequate water depths in Section III, Part 2, Page 144

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water quality refuge habitat in Pelican Bay-Fish Bank areas in UKL from July to October to protect adult suckers from the lethal effects of adverse water quality conditions as a result of algal blooms. By ensuring adequate water depths in this refuge area, it will allow some suckers to find good water quality during periods when lethal water quality conditions exist over most of UKL. Without adequate adult survival, which is essential for survival and recovery of these species, extirpation of UKL sucker populations is likely to occur. Implementation of the Project with these minimum surface elevations will avoid jeopardy, in part, by reducing the numbers of adult suckers that die in water quality-related fish kills and provide for a diverse year-class population structure that will be more resilient to stochastic events. Maintenance of good water quality will provide for adequate functioning of one of the primary constituent elements of proposed critical habitat. E. Minimum surface elevations of 4140.0 ft on October 15, 4141.0 ft on January 1, 4141.5 ft on February 15, and 4142.0 ft on March 15 are needed to maintain adequate water depths in UKL to reduce risk of lethal water quality under ice-cover conditions from December to March to protect juvenile and adult suckers. High lake levels in October will ensure that adequate levels of dissolved oxygen (DO) will be present in the water column once UKL freezes in November or December. High water levels during freeze-up (generally November to March), will ensure adequate DO to support adult and juvenile suckers in winter when DO is decreased by sediment oxygen demand and an ice cover prevents atmospheric reaeration. These higher lake levels will also dilute and toxic un-ionized ammonia that might also build up under ice cover conditions when mixing is reduced. Without adequate winter survival, extirpation of these populations, which are essential for survival and recovery of these species, is likely to occur. These minimum surface elevations are also necessary to ensure there is some year-to-year carryover of water to address, in part, drought conditions. Carry-over will help maintain UKL elevations in critically-dry years when inflow might be inadequate to do so. Implementation of the Project with these minimum surface elevations will avoid jeopardy, in part, by reducing the numbers of adult and juvenile suckers that die during the winter when UKL is covered by ice and oxygen is not reaching the water column, will help dilute un-ionized ammonia which becomes more toxic at lower temperatures, and will help maintain adequate depths during droughts; this will provide for a diverse year-class population structure that will be more resilient to stochastic events. Maintenance, in part, of adequate water quality will provide for adequate functioning of one of the primary constituent elements of proposed critical habitat. 2. Operation Plan for Low Water Year The Service has determined that a minimum surface elevation of 4140 ft in UKL, as set forth in RPA component 1 above, is necessary to avoid Project effects that jeopardize the suckers and and adversely modify their proposed critical habitat. However, the Service anticipates there will be low water years where inflow is inadequate for Reclamation to meet both RPA component 1 and NMFS's RPA requirement for Klamath River flows downstream for the threatened coho salmon. When Reclamation anticipates, based on the best available information (e.g., the April 15, NRCS Section III, Part 2, Page 145

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forecasts and associated model output), that it will be unable to satisfy RPA component 1 and requirements for Klamath River flows for coho salmon, this RPA component 2 shall be implemented. The coordination procedures set forth below outline the method by which FWS and NMFS shall develop a plan that will best satisfy the requirements of listed species in low water years where inflow is inadequate to satisfy both RPA component 1 and Klamath River flows downstream for the coho salmon. Reclamation shall incorporate the plan developed by FWS and NMFS into the Project operation plan for a low water year. Coordination Procedure for Low Water Years: 1. Data Collection, Dissemination, and Analysis A. Reclamation shall provide FWS and NMFS with a projection of total available water in all Project lakes and reservoirs; this total will identify total available water for satisfaction of RPA component 1 and Klamath River flows downstream for coho salmon; and Reclamation, FWS, and NMFS shall provide and use current data and information to determine the status of listed species.

B.

2. Coordination Between Federal, Tribal, and Other Parties Representatives from Reclamation, FWS, and NMFS shall coordinate with representatives from USGS, OSU, ODFW, CDFG, BIA, affected Tribes, and other parties, as appropriate, to consider and discuss available options for Project operation during a low water year that maximize implementation of RPA components for FWS and NMFS listed species. FWS and NMFS shall consider the results of this discussion when the agencies coordinate to determine how to best satisfy RPA component 1 and Klamath River flows downstream for the coho salmon in order to best protect each listed species. 3. FWS and NMFS Coordination FWS and NMFS shall coordinate to determine how to best satisfy RPA component number 1 and Klamath River flows downstream for the threatened coho salmon, and how to best protect each listed species. The agencies shall employ a risk analysis process to be concluded in no more than two or three days during which the following factors shall be considered: A. Data collected, disseminated, and analyzed during step 1 of this Coordination Procedure; Results of discussions with Federal, Tribal, and other parties; Minimum UKL surface levels required by RPA component 1 and NMFS's RPA Section III, Part 2, Page 146

B. C.

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requirement for Klamath River flows downstream for the threatened coho salmon; D. Current status of affected listed species, including: 1. Location, size and movement of young-of-the-year and juvenile fish;

2.

Water quality in Project lakes and reservoirs and Klamath River below IGD in relation to anticipated water supply; and Other risk factors, such as status of AFA blooms and potential DO demands; observed or anticipated fish kills; presence of pathogens; anticipated discharges of UKL springs that could affect water quality refuge areas; and any other relevant factors.

3.

E.

Implementation of emergency contingency measures to avoid impending extirpation or extinction for each listed species: 1. For suckers: FWS, NMFS, BOR, and other relevant Federal and State agencies and Tribes, potentially including USGS, ODFW, CDFG, and BIA, will immediately convene to determine most appropriate course of action, relating to: (1) adverse water quality most likely to occur between July and October resulting from low DO levels; and (2) lake and reservoir levels below those minimums specified in RPA component 1 likely to occur between September and October. Potential ways to improve DO levels to be considered include: oxygenation, aeration, and artificial mixing. Reclamation, in coordination with the Service and the agencies listed above, should develop a plan by August 2001 to use the best method to increase DO levels for each project lake and reservoir that can be immediately implemented should that need arise. Ongoing water quality monitoring in Project lakes and reservoirs (see RPA component 3 and RPM 4) will provide advance warning that DO levels are reaching levels where corrective action will be necessary. Reclamation shall coordinate with the Service to ensure that a salvage plan for each reservoir is available for implementation by August 2001 should that become necessary to salvage suckers and move them to secure areas. Supplemental oxygenation, aeration, or mixing may be needed to minimize risk of hypoxia.

2.

4. FWS and NMFS Coordination with Reclamation FWS and NMFS shall provide, in writing, the results of the coordination and risk analysis process to Reclamation with detailed instructions regarding measures that must be implemented to best protect each listed species.

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Results of Implementing the Coordination Procedure for 2001 In March 2001, Reclamation informed the Service that water supplies were inadequate to satisfy RPA component 1 and NMFS's RPA requirement for Klamath River flows downstream for the threatened coho salmon. Consequently, the Service and NMFS implemented the coordination procedure described above. As a result of implementing the Coordination Procedure, the Service determines that, based on the available water supply for 2001 identified by Reclamation, a deviation from the required minimum surface elevation of 4140 ft in UKL under RPA component 1 is warranted in order to address the conservation needs of both suckers and coho salmon during this low water year so long as the minimum surface elevation of 4140 ft in UKL is sustained on a long-term basis. In addition, the Service and NMFS may direct implementation of the contingency measures identified as a result of this Coordination Procedure in order to ensure that long-term viability of the species are maintained. The information considered during this Coordination Procedure is presented in Appendix 2 of this BO, along with the specific instructions for allocating available water supplies. 3. Adaptive Management through Water Quality Monitoring and Reporting Reclamation shall, in coordination with the Service, plan and implement a water-quality/algal growth and nutrient cycling study/monitoring program for UKL that will provide information to be used by Reclamation to manage UKL. The plan shall focus on factors such as how lake levels affect: AFA growth, light availability, internal nutrient loading, DO levels, and how DO levels are affected by sediment DO demand during the summer and below an ice cover. Because of the highly technical nature of these physical/chemical/biological interactions, and consistent with available funding, Reclamation, in cooperation with the Service and the U.S. Geological Survey (USGS), if available, shall convene a scientific review panel comprised of recognized experts in the field of freshwater primary production, especially scientists that have worked with algae, and nutrient cycling in shallow, hypereutrophic lakes. The panel's objective shall be to develop a multi-year study/monitoring plan for UKL that would further refine knowledge regarding lake management to reduce the frequency and/or magnitude of water qualityrelated fish kills. Based on recommendations from the panel, agencies, and Klamath Tribes, a draft multi-year monitoring plan shall be prepared by August 1, 2001. Annual progress reports shall be prepared by Reclamation that synthesize monitoring data and make recommendations on ways to improve management of UKL so as to avoid catastrophic fish kills. The reports shall be distributed by January 1 of each year to the Service, Klamath Tribes, USGS and other Federal and State agencies [e.g., BIA, NMFS, ODEQ, ODFW, CDFG, and the North Coast Water Quality Control Board (NCWQCB)] for review and comment. The annual reports shall also be sent to the scientific panel for their comments. The comments will be used to revise the monitoring studies, if needed. Final reports shall be prepared as soon as projects are completed. Reclamation shall use the comments to revise the monitoring studies, if needed. Section III, Part 2, Page 148

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Reclamation shall seek funding for these monitoring and reporting requirements on an annual basis. The studies and reporting shall continue until water quality in UKL has improved to a point where it no longer is a significant threat to the survival and recovery of the suckers. These studies are necessary to provide better information on factors that cause lethal water quality in UKL in summer and below ice cover in winter. Adverse water quality is a major threat to the continued existence of the suckers. This information will avoid jeopardy by providing information that is crucial for better management of UKL to prevent water qualityrelated sucker die-offs. 4. Entrainment Reduction and Fish Passage at A-Canal and Link River Dam and Monitoring and Restoration of Sucker Habitats from Keno to Link River A. Reclamation shall reduce sucker entrainment at A-Canal using criteria developed by the Service and ODFW at a June 29, 2000, meeting (Appendix 1). A-Canal screening shall be completed by July 22, 2002, as previously required under the July 22, 1992, BO, as amended on April 2, 1998. A draft plan and implementation schedule have already been presented to the Service and ODFW. B. Reclamation or its designee shall reduce sucker entrainment at Link River Dam using screening or some comparable means of entrainment reduction by January 1, 2004. Unless consultation is reinitiated on the 1996 BO, a draft entrainment reduction plan and implementation schedule shall be presented to the Service and ODFW for approval by July 1, 2001. In the interim, operational measures shall be implemented at the Link River Dam by Reclamation or its designee to reduce entrainment until screening is completed. PacifiCorp may be Reclamation's designee with respect to these requirements by virtue of the interrelated nature of its operations at Link River Dam. Because most of the entrainment appears to occur during a few months, primarily August and September, and is concentrated at night, entrainment shall be reduced by not diverting water through the west side hydrofacilities during August and September, and water diversions shall be reduced to the greatest extent possible at east side hydrofacilities (not more than 200 cfs) at night (dusk to dawn during periods when entrainment is likely to be most significant (>100 age 0 and older suckers/day). Incidental take monitoring shall be performed annually from July through October to determine when hydropower diversions need to be temporarily suspended or reduced. C. By January 1, 2004, Reclamation or its designee shall provide adequate passage at Link River Dam for mature LRS and SNS. A draft of the Link River fish passage plan shall be provided to the Service by July 1, 2001, for review and comment. Passage facilities shall be adequate to pass LRS and SNS of all spawning sizes, approximately 25-30 cm FL and above. Reclamation or its designee shall conduct a study in the Link River to determine what instream flows will be necessary to allow passage and if there are other passage barriers in the Link River. In support of the plan, Reclamation or its designee shall monitor suckers in the lower Link River for a minimum of two years (with a provision for extending the study if the two-year data set is inadequate) beginning in 2002, to determine the timing of sucker movements in relationship to season and flows, sizes and species composition of suckers in the river, and the ability of Section III, Part 2, Page 149

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suckers to pass obstructions in the river below Link River Dam at different flows. Radiotracking of adult suckers in the Keno-Link River reach is recommended as a means to determine when adult suckers migrate, and to provide information on habitat use in this reach, as described below. Available entrainment data indicate that tens of thousands of juvenile suckers will annually be by-passed into the reach extending from lower Link River to Keno Dam, when necessary screening is in place. It is critical to determine if these fish have adequate habitat to ensure their survival. Therefore, Reclamation shall plan and implement a study to examine habitat requirements for suckers in the Link River, Lake Ewauna, and the Keno Reservoir. The study shall focus on what habitats are available to suckers and monitor sucker survival in these areas. If insufficient/inadequate habitat are available, Reclamation shall determine what restoration actions are needed and begin taking corrective actions after coordination with ODFW, ODEQ, Klamath Tribes, and the Service. The study plan shall be provided to the State resource agencies, Tribes, and the Service by September 1, 2001, for review and comment. The study and any necessary restoration shall continue until goals are achieved, as determined by the Service. Annual progress reports shall be provided to the Service, State resource agencies, and Klamath Tribes by January 1. These actions are necessary to avoid jeopardy and adverse modification of proposed critical habitat for the following reasons. This biological opinion identifies entrainment by the Project as a major threat to suckers in UKL, amounting to the take of millions of suckers annually. Entrainment reduction is needed to prevent suckers from being harmed or killed in Project irrigation canals or in the Link River hydroproject diversions. Passage at Link River is needed to allow suckers, by-passed downstream by the Project, the ability to migrate back into UKL and upstream tributaries where they can complete their life cycle and spawn. There is no known spawning habitat between Link River and Keno Dam, nor is it known that larval habitat is present in this reach. Without adequate passage long-term survival and recovery of suckers in UKL is not likely to occur. Habitat studies are necessary to provide better information on habitat quality in the reach between Link River Dam and Keno Dam. Information obtained in the studies will be used to manage suckers in this reach and to direct habitat restoration and improvement actions. Implementation of these actions is