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h . 38 SECTION 7.(d) ANALYSIS Section 7.(d) of the Act (Limitation On Commitment Of Resources) states: After initiation of consultation required under subsection (a)(2), the Federal agency and the permit or license applicant shalt not make any irreversible or irretrievab]e commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures which would not violate subsection (a)(2). cn. Development of the reasonable and prudent alternative identified in this -~, biological opinion successfully completes section 7 consultation for the ~;~,~ construction of the proposed pipeline and water depletions equal to the '~ ~ ~ historic depletion plus new depletions up to the sufficient progress threshold ~~- (historic plus Phases 1 and 2 depletions). However, the proposed pipeline has ~ ,~~ been sized to provide a capacity which could cause a larger depletion ~~~- (historic pi us Phase 3 depletions). The Service has determined that this `-' commitment of resources does not foreclose the future formulation or ~-~,r implementation of any reasonable and prudent alternative for the Phase 3 level ~ y ° of depletion and, therefore, does not violate section 7.(d) of the Act. The Service has made this determination based on the following facts: (1) the existing pipeline must be replaced because it is deteriorated and frequently ~,~ fails; (2) construction of the larger pipeline would cause identical ~,se`~~ondepletion impacts as construction of a smaller pipeline; and (3) the ~. depletion caused by operation of the pipeline will be monitored and limited to %, the historic plus Phases I and 2 level of depletion. Additionally, Ute Water is willing to assume the risk of constructing the larger pipeline knowing that the Phase 3 level of depletion might not receive successful section 7 consultation. ~ ~ 5~~ INCIDENTAL TAKE Section 9 of the Endangered Species Act, as amended, prohibits any taking (harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect, or attempt to engage in any such conduct) of listed species without a special exemption. Under the terms of section 7(b)(4) and section 7(0)(2), taking that is incidental to and not intended as part of the agency action is not considered taking within the bounds of the Endangered Species Act, provided that such taking is in compliance with the incidental take statement. The Service does not anticipate that the proposed action will result in any incidental take of the endangered fishes. CONCLUSION This concludes the Service's biological opinion on the impacts of the proposed project. This opinion was based upon the information described herein. If new information becomes available, new species listed, or should there be any changes in the total average annual amount of water depleted by this project or any other project change which alters the operation of the project from