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<br />e <br /> <br />e <br /> <br />001515 <br /> <br />anticipated. As stated in 50 CFR 402.14(i)(2) "reasonable and prudent measures along with the <br />terms and conditions that implement them, cannot alter the basic design, location, scope, duration, <br />or timing of the action and may involve only minor changes. " <br /> <br />The reasonable and prudent measures provided in an incidental take statement are <br />nondiscretionary, and must be undertaken so that they become binding conditions of any federal <br />discretionary activity, fur the exemption in section 7(0)(2) to apply. The federal agency has a <br />continuing duty to regulate the activity covered by an incidental take statement included in a <br />biological opinion. If the federal agency (I) fails to assume and implement the terms and <br />conditions or (2) fails to retain oversight to ensure compliance with the terms and conditions, the <br />protective coverage of section 7(0)(2) may lapse. <br /> <br />5.0 Section 7 Consultations <br /> <br />The Program is intended to identify and implement actions that assist in the recovery of the species <br />and provide compliance with sections 7 and 9 of the ESA for water development and water <br />management activities in the Basin. It is recognized that federal agencies and/or project sponsors <br />may wish to carry out actions that provide ESA compliance for their activities independently of the <br />Program, and not rely on the Program to provide actions for ESA compliance. In addition, federal <br />agencies and/or project sponsors may modifY their activities to eliminate or minimize adverse <br />effects, avoid jeopardy, and/or avoid adverse modification of critical habitat, and by so doing, <br />remove the need for actions by the Program to provide ESA compliance. <br /> <br />5.1 Consultations on New and Existing Water Development and Water Management <br />Activities in the Basin <br /> <br />A. For the purposes of the Program and section 7 consultations, it is assumed that: (1) the <br />Program will produce a list of actions defined in the LRP that can be implemented to assist in <br />the recovery of the species, (2) the funding will be available to implement the LRP, (3) <br />participants will take appropriate steps to implement those actions, and (4) actions will be <br />implemented in accordance with the schedule in the LRP, as periodically amended. <br /> <br />B. Actions and accomplishments under the Program, as defined in the LRP, are intended to assist <br />in the recovery of the species and provide the reasonable and prudent alternatives that avoid <br />the likelihood of jeopardy and/or destruction or adverse modification of critical habitat from <br />water development and water management activities in the Basin. Program actions are also <br />intended to provide the reasonable and prudent measures needed to minimize take of listed <br />fish. <br /> <br />C. When Section 7 consultation is initiated, the Service will determine if progress toward <br />recovery has been sufficient for the Program to serve as a reasonable and prudent alternative or <br />measure. The Service will also consider whether the probable success of the Program is <br />compromised as a result of a specific water depletion or the cumulative effect of depletions. <br />The Service will consider Program and non-Program actions throughout the Basin in <br />evaluating the sufficiency of the Program to serve as a reasonable and prudent alternative or <br /> <br />3 <br />