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<br />11> <br /> <br />~ <br /> <br />Using the priority system of the 1981 Solicitor's Opinion, <br />the FWS would ascribe a "priority" to a project based on <br />the date the action federal agency entered into formal <br />Section 7 consultation. This "priority" would then <br />determine the order in which projects are allocated a <br />portion of the remaining increment, i.e., flows, available <br />for depletion. <br /> <br />Private project sponsors maintain that this is a de facto <br />"taking" of their state water rights. Junior water <br />appropriators who have successfully skirted the ESA <br />consultation (or who never had to go through it) may be <br />allowed to continue diverting, while projects with senior <br />water rights, but requiring federal permits, may be <br />required to curtail diversions in order to maintain <br />minimum stream flows. <br /> <br />-37- <br />