| Table of Contents | Appendix A | Appendix B | Appendix C | Appendix D | Appendix E | Appendix F | Appendix G |
| Appendix H | Appendix I | Appendix J | Appendix K | Appendix L | Appendix M | Appendix N |

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Appendix L - Biological Opinion

United States Department of the Interior FISH AND WILDLIFE SERVICE Sacramento Fish and Wildlife Office 2800 Cottage Way, Room West 2605 Sacramento, California 95825

IN REPLY REFER TO:
1-1-00-F-0196

September 7, 2000

Memorandum

To:	Superintendent, Yosemite National Park, P.O. Box 577, Yosemite National Park, California
From:	Acting Field Supervisor, Sacramento Fish and Wildlife Office, Sacramento, California
Subject:	Formal Endangered Species Consultation on the Yosemite Valley Plan Environmental Impact Statement

This is in response to your May 8, 2000, request for formal consultation, pursuant to section 7(a) of the Endangered Species Act of 1973, as amended (Act), on the Yosemite Valley Plan. At issue are project effects to the threatened valley elderberry longhorn beetle (Desmocerus californicus dimorphus) (beetle), the Sierra Nevada bighorn sheep (Ovis canadensis sierrae), the bald eagle (Haliaeetus leucocephalus), and the California red-legged frog (Rana aurora draytonii). This response is in accordance with section 7 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.) (Act). The Service received your request for formal consultation on May 11, 2000.

Based on our review of the proposed action, we concur with your determination that the project is not likely to adversely affect the Sierra Nevada bighorn sheep or the bald eagle. However, we cannot concur with your no effect determination for the California red-legged frog. The Draft California Red-legged Frog Recovery Plan has identified portions of the Tuolumne River watershed that occur with the boundary of Yosemite National Park as a core area, an area where recovery actions will be focused (U.S. Fish and Wildlife Service 2000). We agree there is no evidence to indicate that California red-legged frogs currently occur within the boundaries of Yosemite National Park. However, recovery actions could be implemented in the near future to allow recolonization of the area through natural or artificial means. The Service commends the National Park Service (NPS) for your willingness to remove exotic species including bullfrog (Rana catesbeiana), crayfish, and centrachid fish to the maximum extent possible in potential future habitat for the red-legged frog. We also agree that the measures outlined under the Species-Specific Avoidance and Protection Measure of the biological assessment go a long way toward minimizing any negative affects to the California red-legged frog and other amphibian species from the implementation of the Yosemite Valley Plan. Therefore, the Service believes the project may affect but is not likely to adversely affect the California red-legged frog. Unless presented with new information, no further action would be necessary to comply with the Act for the California red-legged frog, Sierra Nevada bighorn sheep or bald eagle. The proposed action may adversely affect the valley elderberry longhorn beetle. This consultation will address potential impacts to the beetle.

As you know, the Service delisted the American peregrine falcon (Falco peregrinus anatum) on August 25, 1999. The continued recovery of the peregrine falcon is dependent upon Federal agencies continuing to carry out actions that benefit the species. In the Conservation Recommendations section below, the Service will provide recommendations to minimize disturbance to nesting peregrine falcons.

The Service has recently received petitions to list the California spotted owl (Strix occidentalis occidentalis), mountain yellow-legged frog (Rana muscosa), and Yosemite toad (Bufo canorus) as threatened and endangered species. The Service will make a determination within the next month whether or not these three petitions provide sufficient information to warrant a one-year status review that could lead to their eventual listing. We believe that it is in the best interest of the NPS to incorporate all practical actions that would minimize any impacts to these three species resulting from the implementation of the Yosemite Valley Plan. We are providing recommendations for reducing impacts to these three species in the Conservation Recommendations section of this biological opinion.

This biological opinion is based on information provided in: (1) the Draft Yosemite Valley Plan Supplemental Environmental Impact Statement, dated April 2000; (2) the Biological Assessment Draft Yosemite Valley Plan Supplemental Environmental Impact Statement, dated April 2000; (3) the Revised Biological Assessment Draft Yosemite Valley Plan Supplemental Environmental Impact Statement, dated June 2000; (4) the Merced Wild and Scenic River Comprehensive Management Plan Biological Assessment, dated June 2000; (5) additional information regarding the quantity, condition and location of elderberry plants that may be affected by the project received on July 6, 2000; and (6) additional information located in Service files. A complete administrative record is on file at the Sacramento Fish and Wildlife Office (SFWO).

Consultation History

April 17, 2000. The Service received a letter from the NPS, requesting concurrence that the Merced River Wild and Scenic Comprehensive Management Plan would not likely adversely affect any federally-listed threatened or endangered species.

May 11, 2000. The Service received a request for the NPS for formal consultation on the Yosemite Valley Plan Supplemental Environmental Impact Statement.

July 6, 2000. The Service received additional information from the NPS including a revised biological assessment and information on the number, condition and location of elderberry plants that may be affected by the implementation of the Yosemite Valley Plan.

July 11, 2000. The Service sent a memo to the NPS concurring with the determination that the formalization of the Merced River Plan will not adversely affect threatened and endangered species. In addition, the memo stated that since the Merced River Plan was incorporated within the Yosemite Valley Plan, formal consultation for the Yosemite Valley Plan would address project related affects to threatened, endangered and sensitive species that could occur under the Merced River Plan.

August 15, 2000. The Service received the biological assessment for the Final Yosemite Valley Plan Supplemental Environmental Impact Statement.

BIOLOGICAL OPINION

Geographic Location of Proposed Action

A majority of the proposed project occurs within the Yosemite Valley area of Yosemite National Park. Additional features of the Yosemite Valley Plan would take place outside Yosemite Valley in El Portal, Foresta, Hazel Green, and Badger Pass.

Description of the Proposed Action

The preferred alternative proposes a number of actions to meet the goals of the 1980 Yosemite National Park General Management Plan. The preferred alternative aims to restore degraded areas and reduce development within the Merced River ecosystem and other highly valued natural and cultural resource environments. In addition, the preferred alternative would reduce traffic congestion, limit crowding, and expand orientation and interpretation services. The plan would move non-essential housing, administrative headquarters, offices, and other functions out of Yosemite Valley to areas within the park boundary including the El Portal Administrative Site.

A thorough description of the proposed project can be found in the Final Yosemite Valley Plan Supplemental Environmental Impact Statement. The following list summarizes most of the actions proposed under the preferred alternative:

1) Approximately 175 acres of disturbed or degraded land in Yosemite Valley would be restored to natural conditions;

2) Day use parking for Yosemite Valley would be consolidated through the construction of a 550 vehicle parking lot at Yosemite Village and the construction of Out-of-Valley day-visitor parking areas at Badger Pass, El Portal and Hazel Green or (Foresta);

3) Removal of one or two historic bridges affecting Merced River flow;

4) Reduction in the number of camp sites and lodging units in Yosemite Valley;

5) Relocation of employee housing from Yosemite Valley to El Portal and Wawona; and

6) Relocation of NPS and concessioner stables to McCauley Ranch in Foresta;

The revised biological assessment states that there are 213 elderberry plants in the project area, 124 which have stems over one inch in diameter at ground level. Elderberry plants are distributed in the following areas throughout the project site:

1) Hillside East/Hillside West - 17 elderberry plants, all stems less than one inch in diameter;

2) Village Center - 14 elderberry plants, all with stems greater than one inch in diameter. One plant with beetle exit holes;

3) Old El Portal - Six elderberry plants, five plants have stems greater than one inch in diameter. None of the plants have beetle exit holes;

4) Rancheria - 136 elderberry plants, 74 have stems greater than one inch in diameter. Two plants with beetle exit holes;

5) Middle Road - 22 elderberry plants, 14 have stems greater than one inch in diameter. Four plants have beetle exit holes;

6) Hennessey’s Ranch - 10 elderberry plants, nine have stems greater than one inch in diameter. Four plants have beetle exit holes;

7) Sand Pit - Two elderberry plants, both with stems greater than one inch in diameter. No beetle exit holes; and

8) Railroad Flat - Six elderberry plants, all have stems greater than one inch in diameter.

Status of the Species

On August 8, 1980, the valley elderberry longhorn beetle was listed as a threatened species (45 FR 52803). Two areas along the American River in the Sacramento metropolitan area have been designated as critical habitat for the beetle. In addition, an area along Putah Creek, Solano County, and the area west of Nimbus Dam along the American River Parkway, Sacramento County, are considered essential habitat, according to the Recovery Plan for the beetle (USFWS 1984). These areas support large numbers of mature elderberry shrubs with extensive evidence of use by the beetle.

The beetle is dependent on its host plant, elderberry (Sambucus sp.), which is a common component of the remaining riparian forests of the Central Valley. Use of the plants by the beetle, a wood borer, is rarely apparent. Frequently, the only exterior evidence of the shrub’s use by the beetle is an exit hole created by the larva just prior to the pupal stage. Recent field work along the Consumnes River and in the Folsom Lake area indicates that larval galleries can be found in elderberry stems with no evidence of exit holes; the larvae either succumb prior to construction of an exit hole or are not far enough along in the developmental process to construct an exit hole. Larvae appear to be distributed in stems which are 1.0 inch or greater in diameter at ground level. The Valley Elderberry Longhorn Beetle Recovery Plan (USFWS 1984) and Barr (1991) contain further details on the beetle’s life history.

Population densities of the beetle are probably naturally low (USFWS 1984), and it has been suggested, based on the spatial distribution of occupied shrubs (Barr 1991), that the beetle is a poor disperser. Low density and limited dispersal capability may cause the beetle to be vulnerable to the negative effects of the isolation of small subpopulations due to habitat fragmentation.

Environmental Baseline

Extensive destruction of California's Central Valley riparian forests has occurred during the last 150 years due to agricultural and urban development (Katibah 1984, Katibah et al. 1984, Smith 1977, Thompson 1961). Based on a 1979 aerial survey, only about 102,000 acres out of an estimated 922,000 acres of Central Valley riparian forest remain (Katibah et al. 1981). More extreme figures were given by Frayer et al. (1989), who reported that approximately 85 percent of all wetland acreage in the Central Valley was lost before 1939, and that from 1939 to the mid-1980s, the acreage of wetlands dominated by forests and other woody vegetation declined from 65,400 acres to 34,600 acres. Differences in methodology may explain the differences between the studies. In any case, the historical loss of riparian habitat in the Central Valley strongly suggests that the range of the beetle has been reduced and its distribution greatly fragmented. Loss of non-riparian habitat where elderberry occurs (e.g., savanna and grassland adjacent to riparian habitat, oak woodland, mixed chaparral-woodland), and where the beetle has been recorded (Barr 1991), suggests further reduction of the beetle’s range and increased fragmentation of its upland habitat.

The beetle's current distribution is patchy throughout the remaining habitat of the Central Valley from Redding to Bakersfield. Surveys conducted in 1991 (Barr 1991) found evidence of beetle activity at 28 percent of 230 sites with elderberry plants present. The beetle appears to be only locally common, found in population clusters which are not evenly distributed across available elderberry shrubs. Frequently only particular clumps or trees in the study areas were found to harbor the beetle. Plants used by the beetle usually show evidence of repeated use over a period of several years, but sometimes only one or two exit holes are present. Similar observations on the clustered distribution of exit holes were made by Jones and Stokes (1987). Barr (1991) noted that elderberry shrubs and trees with many exit holes were most often large, mature plants; young stands were seldom occupied.

As stated above, two areas are designated as critical habitat for the beetle. The American River Parkway (Parkway), extending from Nimbus Dam to the confluence with the Sacramento River, represents a 22-mile long corridor of mixed riparian forest and grassland confined by

flood-control levees and urban development along its entire length. Elderberry shrubs occur throughout this corridor. With the exception of levee maintenance, the Parkway is managed primarily for recreation, including a bike path. Evidence of use by the beetle can be found throughout the Parkway.

Within the project area, elderberry plants are commonly found in areas below 3,000 feet in elevation, especially the El Portal area. Elderberry plants represent a subdominant species within interior live oak forests, interior live oak woodlands, blue oak woodlands, canyon live oak forests, mixed north slope forests, foothill pine/live oak/chaparral woodlands, northern mixed chaparral, interior live oak chaparral, and westside ponderosa pine forests in the project area.

To summarize, the Service believes that the beetle, though wide-ranging, is in long-term decline due to human activities which have resulted in widespread alteration and fragmentation of riparian habitats, and to a lesser extent, upland habitats, which support the beetle.

Effects of the Proposed Action

Direct Effects

Up to 124 elderberry shrubs with stems measuring greater than one inch in diameter could be directly affected by the proposed project. A total of 651 stems large enough to harbor beetle larvae could be directly impacted. All beetle larvae inhabiting these shrubs/stems could be killed during the removal process.

Indirect Effects

Indirect effects to the beetle could result from habitat fragmentation through the removal of 124 shrubs in the proposed project area. Habitat fragmentation can inhibit dispersal and colonization of beetles between remaining habitat areas. Fragmentation may lead to population declines and localized extinctions by dividing a population into smaller, isolated subpopulations in restricted areas. These smaller populations may then be adversely affected by inbreeding depression, genetic drift, and other problems associated with small population size (Primack 1998).

Cumulative Effects

Cumulative effects include the effects of future State, Tribal, local, or private actions that are reasonably certain to occur in the action area considered in this biological opinion. Future Federal actions that are unrelated to the Yosemite Valley Plan are not considered in this section, because they require separate consultation pursuant to section 7 of the Act.

The Service is not aware of specific projects that might affect the beetle or its habitat that are currently under review by State, county, or local authorities. Nevertheless, continued human population growth in the Central Valley, in general, is expected to drive further development of agriculture, cities, industry, transportation, and water resources in the foreseeable future. Some of these future activities will not be subject to Federal jurisdiction (and thus are considered to enter into cumulative effects), and are likely to result in loss of riparian and other habitats where elderberry shrubs and the beetle occur.

Conclusion

After reviewing the current status of the beetle, the environmental baseline for the action area, the effects of the proposed Yosemite Valley Plan, and the cumulative effects, it is the Service’s biological opinion that the project, as proposed, is not likely to jeopardize the continued existence of the beetle. Critical habitat has been designated for the beetle. However, this action does not affect areas designated as critical habitat for the beetle, therefore, no destruction or adverse modification of critical habitat is anticipated .

INCIDENTAL TAKE STATEMENT

Section 9(a)(1) of the Act and Federal regulation pursuant to section 4(d) of the Act prohibit the take of endangered and threatened fish and wildlife species, respectively, without special exemption. Take is defined as harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect, or to attempt to engage in any such conduct. Harass is defined by the Service as an intentional or negligent act or omission which creates the likelihood of injury to a listed species by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering. Harm is defined by the Service to include significant habitat modification or degradation that results in death or injury to listed species by impairing behavioral patterns including breeding, feeding, or sheltering. Incidental take is defined as take that is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. Under the terms of section 7(b)(4) and section 7(o)(2), taking that is incidental to and not 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 this Incidental Take Statement.

The measures described below are non-discretionary, and must be implemented by the NPS in order for the exemption in section 7(o)(2) to apply. The NPS has a continuing duty to ensure that the covered activity complies with the terms and conditions of this incidental take statement. If the NPS fails to adhere to the terms and conditions of the incidental take statement, the protective coverage of section 7(o)(2) may lapse.

Amount or Extent of Take

The Service expects that incidental take of the valley elderberry longhorn beetle will be difficult to detect or quantify. The cryptic nature of these species and their relatively small body size make the finding of a dead specimen unlikely. The species occurs in habitats that make them difficult to detect. Due to the difficulty in quantifying the number beetles that will be taken as a result of the proposed action, the Service is quantifying take incidental to the project as the number of elderberry stems one inch or greater in diameter at ground level (beetle habitat) that could become unsuitable for beetles due to direct or indirect effects as a result of the action. Therefore, the Service estimates that 651 elderberry stems could become unsuitable for use by the beetle as a result of the proposed action.

Upon implementation of the following reasonable and prudent measures, incidental take associated with the Yosemite Valley Plan on the beetle in the form of harm, harassment, or mortality from habitat loss or direct mortality will become exempt from the prohibitions described under section 9 of the Act for direct impacts; in addition, incidental take in the form of harm, harassment, or mortality associated with the Yosemite Valley Plan will be exempt from the prohibitions described under section 9 of the Act for indirect impacts as a result of the management activities described. The incidental take associated with the proposed action is hereby exempted from prohibitions of take under section 9 of the Act.

Effect of the Take

The Service has determined that this level of anticipated take is not likely to result in jeopardy to the beetle or result in destruction or adverse modification of critical habitat for the beetle.

Reasonable and Prudent Measures

The Service believes the following reasonable and prudent measure is necessary and appropriate to minimize incidental take of the beetle:

1. Minimize the effects of project impacts to the beetle and to elderberry shrubs (habitat) throughout the proposed project area.

Terms and Conditions

In order to be exempt from the prohibitions of section 9 of the Act, the NPS must ensure compliance with the following terms and conditions, which implement the reasonable and prudent measure described above. These terms and conditions are non-discretionary.

1. The following terms and conditions implement reasonable and prudent measure one (1):
2. Confine clearing to the minimal area necessary to facilitate project activities.
3. All elderberry shrubs to be avoided within the vicinity of the proposed project would be flagged and surrounded with high-visibility fencing for the duration of construction activities.
4. Movement of heavy equipment to and from the project site shall be restricted to established roadways to minimize habitat disturbance.
5. Restore any damage occurring within 100 feet of elderberry shrubs that are not removed by the project.
6. Prevent the application of all pesticides within 100 feet of all retained elderberry shrubs with stems measuring 1 inch or greater in diameter at ground level.
7. Work crews shall be briefed on the status of the beetle, the need to protect its host plant (elderberries), requirements to avoid damaging elderberry shrubs, and possible penalties for not complying with identified avoidance and minimization measures.
8. To further compensate for impacts to beetles inhabiting 651 elderberry stems that would be lost or otherwise adversely affected due to activities associated with the Yosemite Valley Plan, the NPS shall establish a 22.55 acre valley elderberry conservation area (conservation area), complete with a 100-foot buffer, within the park boundary in close proximity to one of the impact sites. Within the conservation area, the NPS would be required to establish 2,728 elderberry seedlings or cuttings and 1,096 associated native species plantings according to the Service’s Conservation Guidelines for the Valley Elderberry Longhorn Beetle (enclosure). For the purposes of this consultation, the Service has assumed a worst case scenario where 651 stems measuring greater than one inch in diameter would be taken during the construction of the Yosemite Valley Plan (See Appendix A for a discussion and calculation of the worst case scenario).
9. The conservation area should be incorporated into the General Management Plan for Yosemite National Park as an area that will be managed specifically for the long-term protection of the valley elderberry longhorn beetle.

10. Transplant all elderberry shrubs with stems measuring one inch in diameter or greater at ground level, following the Service’s July 9, 1999, Conservation Guidelines for the Valley Elderberry Longhorn Beetle, from all impacted sites to the conservation area.
11. Develop and implement a Service approved management plan for the conservation area. This plan should provide measures for insuring long-term protection and survival of all elderberry shrubs that are transplanted, planted or naturally occurring within the conservation area. In addition, the plan should include a monitoring program that conforms to the Service’s July 9, 1999, Conservation Guidelines for the Valley Elderberry Longhorn Beetle.

Reasonable and prudent measures, with their implementing terms and conditions, are designed to minimize the impact of incidental take on a species that might result from the proposed action. The Service believes that no more than the number of beetles inhabiting 651 elderberry stems will be incidentally taken. If, during the course of the action, this level of incidental take is exceeded, such incidental take would represent new information requiring review of the reasonable and prudent measures provided. The Federal agency must immediately provide an explanation of the causes of the taking and review with the Service the need for possible modification of the reasonable and prudent measures.

Reporting Requirements

The Sacramento Fish and Wildlife Office is to be notified within three working days of the finding of any listed species or any unanticipated take of species addressed in this biological opinion. The Service contact person for this is the Division Chief for Endangered Species at (916) 414-6620.

Any dead or severely injured beetles found (adults, pupae, or larvae) shall be deposited in the Entomology Department of the California Academy of Sciences. The Academy’s contact is the Senior Curator of Coleoptera at (415) 750-7239. All observations of valley elderberry longhorn beetles - live, injured, or dead - or fresh beetle exit holes shall be recorded on California Natural Diversity Data Base (NDDB) field sheets and sent to California Department of Fish and Game, Wildlife Habitat Data Analysis Branch, 1416 Ninth Street, Sacramento, California 95814.

A post-construction compliance report prepared by a Service approved monitoring biologist(s) shall be forwarded to the Chief, Endangered Species Division, at the Sacramento Fish and Wildlife Office within 60 calendar days of the completion of each project. This report shall detail: (I) dates that construction occurred; (ii) pertinent information concerning the applicant's success in meeting project compensation measures; (iii) an explanation of failure to meet such measures, if any, and recommendations for remedial actions and request for approval from the Service, if necessary; (iv) known project effects on federally listed species, if any; (v) occurrences of incidental take of federally listed species, if any; and (vi) other pertinent information.

Conservation Recommendations

Section 7(a)(1) of the Act directs Federal agencies to utilize their authorities to further the purposes of the Act by carrying out conservation programs for the benefit of endangered and threatened species. Conservation recommendations are discretionary agency activities that can be implemented to further the purposes of the Act, such as preservation of endangered species habitat, implementation of recovery actions, or development of information and data bases.