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35 result in a one-time contribution to be paid to the Service by water project proponents in the amount of $10.00 per acre-foot based on the average annual depletion of the project. . . . This figure will be adjusted annually for inflation [the current figure is $13.81 per acre-foot] , . . . Concurrently with the completion of the Federal action which initiated the consultation. e.g., . . . issuance of a 404 permit. 10 percent of the total contribution will be provided. The balance. . . will be , . . due at the time the construction commences . . . ." It is important to note that these provisions of the Recovery Program were based on appropriate legal protection of the instream flow needs of the endangered Colorado River fishes. The Recovery Program further states: ". . . it is necessary to protect and manage sufficient habitat to support self-sustaining populations of these species. One way to accomplish this is to provide long term protection of the habitat by acquiring or appropriating water rights to ensure instream flows . . . , Since this program sets in place a mechanism and a commitment to assure that the instream flows are protected under State law. the Service will consider these elements under section 7 consultation as offsettino proiect depletion impacts." Thus, the Service has determined that depletion impacts. which the Service has consistently maintained are likely to jeopardize the listed fishes, can be offset by (a) the water project proponent's one-time contribution to the Recovery Program in the amount of $13.81 per acre-foot of the project's average annual depletion. (b) appropriate legal protection of instream flows pursuant to State law. and (c) accomplishment of activities necessary to recover the endangered fishes as specified under the Plan. The Service believes it is essential that protection of instream flows proceed expeditiously, before significant additional water depletions occur. With respect to the depletion charge described above, the applicant will make a one-time payment which has been calculated by multiplying the project's average annual new depletion 5.769 acre-feet (7,716 acre-feet is existing) by the depletion charge in effect at the time payment is made. For Fiscal Year 1998 (Qctober 1. 1997. to September 30, 1998). the depletion charge is $13.81 per acre-foot for the average annual depletion which equals an additional payment of $79,670 for this project. The CRWCD has already paid a depletion fee of $88,734 in 1992 for the 7.716 acre-feet depletion. Ten percent of the total contribution ($7,967). or total payment, will be provided to the Service's designated agent. the National Fish and Wildlife Foundation. at the time of issuance of the Federal approvals from the BLM. The balance will be due at the time of implementation. The payment will be included by the BLM as