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Practical Problems The above discussion is intended to illustrate some basic concepts. The required mitigation ratios are offered for discussion only. Other ratios could be required within the conceptual framework offered. In addition to working out appropriate mitigation requirements, however, there are several other key issues related to the practical problems of implementing the offered concepts. When is a colony "incidentally taken?" When is a colony successfully "rehabili- tated?" These are key threshold questions that must be clearly resolved at the outset in order to foster landowner participation in the approach outlined. What obligation does a landowner incur as a result of rehabilitating a colony? The recommended approach will accomplish nothing if a landowner rehabilitates a colony to mitigate his own or another's incidental taking and then manages his land inconsistently with the maintenance of the rehabilitated colony. The easiest situation, perhaps, is when the landowner with a rehabilitated colony plans to take action that will result in the colony's incidental taking. In such circumstances, that landowner should be subject to the same mitigation requirements as anyone else (i.e., two-for-one mitigation initially; one-for-one mitigation after a prescribed population goal is achieved). The more difficult situation is when the loss of the rehabilitated colony is threat- ened, not as a result of any planned action of the landowner, but as a result of his inaction (e.g., failure to control woody understory). Perhaps the solution in this situation is to require that the landowner who rehabilitates a colony agree to carry out certain prescribed maintenance activities for a specified period (e.g. 20 years). That agreement could be enforced either through contract or deed restriction (the latter would address the problem of sale of the property to a new owner). Some RCW colonies, either those to be incidentally taken or those to be rehabili- tated, may straddle property boundaries. The success of rehabilitation efforts would depend, in such circumstances, upon the actions of more than one land- owner. In theory, there is no reason why two adjoining landowners could not agree between themselves as to the sharing of the mitigation credit they earn as a result of rehabilitating a colony, particularly where they intend to sell that credit to another landowner who needs to mitigate a planned incidental taking. In practice, however, it seems likely that rehabilitation that can be accomplished within a single ownership would be easiest to accommodate. Another practical issue may concern timing. At least some colony rehabilitation has already occurred; should it be credited in the program outlined here? Simi- larly, the activities expected to result in the incidental taking of a particular colony may already have occurred, even though the colony or some part of it clings to survival. Should such colonies be treated as having already been incidentally taken, and thus not subject to the mitigation requirements proposed here, or 22