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The Program has specifically been designed to address scientific uncertainties and <br />disagreements through its incremental approach, its employment of an intensive monitoring <br />process and active research plan, and its reliance on adaptive management. Id. These <br />measures are designed to ensure that Program actions are based upon improved scientific <br />information. Id. <br />Notwithstanding the Program's cooperative approach to benefit the target species in the face <br />of disagreements on the science, the BO assumes aggressive positions regarding Platte River <br />resources, as though they are matters of unquestioned fact. Colorado strongly disagrees with <br />many of the BO's characterizations concerning the status and habitat needs of the target <br />species, the importance of the Central Platte River to conservation of the species, the extent <br />of habitat degradation within the Platte River ecosystem, the processes affecting channel <br />morphology, the basis for the Service's instream flow recommendations, the effect of South <br />Platte River basin water resources development, and the effects of the Proposed Action. In <br />fairness, and to avoid mischaracterizing the issues, the BO should contain a paragraph <br />upfront emphasizing that it embodies the Service's views only. <br />5. Piping Plover Critical Habitat. Uncertainty surrounding the status of critical habitat for the <br />piping plover existed at the time of negotiation of the 1997 Cooperative Agreement, and <br />continues to this day. The expectation has been that the Program is being designed to assist <br />in conservation and recovery of the Platte target species and their associated habitats, and <br />that it will afford ESA compliance in relation to them. "Associated habitats" in the 1997 <br />C.A. was defined to "include critical habitat in the Platte River Basin which may be <br />subsequently designated by FWS for the target species." [ 1997 C.A., Blue Book footnote 1]. <br />The definition of "associated habitats" was revised in the 2003 Green Book in view of the <br />plover issues to specifically include "that portion of any designated critical habitat for piping <br />plover within th[e] Lexington to Chapman reach." It was also recognized that the GC could <br />include other critical habitat in that reach of the Platte River Basin which is subsequently <br />designated by the Service for the target species. [Program Document, 2003 Green Book, <br />footnote 1]. It is important that regulatory certainty under the Program not be compromised <br />now by legal questions concerning the critical habitat designation for the plover. <br />The Final Draft BO describes the October 13, 2005 court ruling vacating the Nebraska <br />portion of the critical habitat designation for the piping plover and remanding that portion to <br />the Service for redesignation. The Draft BO goes on to state, however, that "[i]f the Service <br />redesignates critical habitat for the piping plover within the action area, reinitiation of <br />consultation on the effects of the proposed action to designated piping plover critical habitat <br />will be necessary." [Final Draft BO p. 203]. This is inconsistent with long-standing <br />representations from the Service and the approach embraced under the Program which <br />already contemplates and addresses critical habitat considerations for the plover in the <br />associated habitat. For this reason, the Service should delete the above-quoted sentence <br />regarding the need for reconsultation. <br />-3-