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Section 7 Consultations This MOU, which was signed by all parties except the Navajo Nation in October 19911, also outlined how section 7 consultations will be conducted on water projects in the San Juan subbasin. Like the Upper Basin Program, making sufficient progress in the implementation of the San Juan Program, as detailed in its Long Range Plan, will constitute the reasonable and prudent alternative in these consultations, but the question of what constitutes sufficient progress is ultimately answered by the FWS. Like the Upper Basin Program, the magnitude of the impacts is an important factor and more progress is needed for larger impacts. Unlike the Section 7 Agreement for the Upper Basin Program, this MOU does not make any distinctions between depletion and non- depletion impacts. This MOU has a lower threshold for minor depletion impacts total annual depletions cannot exceed 3,000 acre feet over the seven year research period, and provides no explicit assurance that the progress to date will be sufficient for depletions up to that threshold. During at least the seven year research period, a host of additional "conservation measures" not yet implemented by the San Juan Program can be imposed on new water projects subject to Section 7 consultation that could limit their yield. This MOU suggests that the reasonable and prudent alternative for the first 57,100 acre feet of ALP depletions also covers all existing, baseline depletions, but it does not clearly insulate existing water projects from the imposition of additional conservation measures. After the seven year research period, this MOU contemplates a much better understanding of the flows needed for fish recovery and the basis for making determinations of sufficient progress, but still allows the imposition of additional conservation measures that might limit water project yields. This MOU also anticipates another agreement on flow shortages once the flows needed for recovery are better established. Such a later agreement is anticipated because the water from Navajo Reservoir for mimicking natural flow patterns has been projected to be far less available as water development in the San Juan Basin approaches its limits under interstate compacts. The biological opinions issued under this MOU can be re-re-opened for a number of reasons. They could be re-opened if the issue of flow shortages cannot be resolved after the seven year research period. While both the ALP biological opinion and this MOU disclaim any effect on tribal or other water rights, the ALP opinion and any others dependent on its reasonable and prudent alternative could be re-opened if the assertion of tribal water rights frustrate that alternative. The withdrawal of a governmental party from the San Juan Program that was central to its implementation might also trigger the re-opening of these opinions. After this MOU was signed by all but the Navajo Nation, a Section 7 consultation was completed on Blocks 7 & 8 of the Navajo Indian Irrigation Project (NIIP), which may illustrate how such consultations on large depletions will initially be conducted under the San Juan Program. These blocks of the NIIP would have increased its depletions from the 133,000 acre feet per year already in the ALP baseline by another 57,000 acre feet to a total of 190,000, and would have increased the selenium loading of return flows from the project. While Navajo Reservoir could be operated to supply When the Navajo Nation decided not to sign this MOU and cast the. viability of the ALP biological opinion in doubt, a supplemental agreement was reached in among DOI, the state of Colorado, the two Ute Tribes in Colorado, two water district in Colorado, and a water commission to guard against the diversion of the Navajo Reservoir releases specified in the opinion or to replace them. 1.5