Colorado's Plan for Future Depletions (3)

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~ 2. Water User agrees not to take any action which would probably prevent the imPlementation of the Program. To the extent imPlementing the Program re9uires active cooperation by Water User, including membership in the South Platte Water Related Activities Program, Inc. (SPWRAP), Water User agrees to fulfill those responsibilities required of Program participants in Colorado. Water User will not be required to take any action that would violate its decrees or the statutory authorization for Water Project, or any applicable limits on Water User's legal authority. 3. If the Service believes that Water User has violated paragraph 2 of this Recovery Agreement, the Service shall notify both Water User and the Governance Committee. Water User and the Governance Committee shall have a reasonable opportunity to comment to the Service regarding the existence of a violation and to recommend remedies, if appropriate. The Service will consider the comments of Water User and the comments and recommendation of the Governance Committee, but retains the authority to determine the existence of a violation. If the Service reasonably determines that a violation has occurred and will not be remedied by Water User despite an opportunity to do so, the Service may request reinitiation of consultation on Water Project without reinitiating other consultations as would otherwise be required by the reinitiation provisions in the Program and 2006 Biological Opinion. In that event, the Water Project's depletions would be excluded from the depletions covered by the Biological Opinion and the protection provided by the Incidental Take Statement. 4. Nothing in this Recovery Agreement shall be deemed to affect the authorized purposes of Water User's Water Project or the Service's statutory authority. 5. The signing of this Recovery Agreement does not constitute any admission by Water User regarding the application of the ESA to the depletions of Water User's Water Project or regarding the validity of the facts or analyses relied upon by the Service or by the Program. The signing of this Recovery Agreement does not constitute any agreement by either party as to whether the Service's flow recommendations in the Biological Opinion are biologically or hydrologically necessary to recover the target species or meet the needs of designated critical habitat in Nebraska. 6. This Recovery Agreement shall be in effect until one of the following occurs: A. The Service removes the target species in the Platte River Basin from the endangered or threatened species list and determines that the Program is no longer needed to prevent the species from being relisted under the ESA; or B. The Service determines that the Program is no longer needed to recover or offset the likelihood of jeopardy to the target species in the Platte River Basin; or C. The Service declares that the target species in the Platte River Basin are extinct; or ? October 24, 2006 Colorado Depletions Plan 29