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listed fishes. Several conservation groups have ques- tioned this premise and are unwilling to accept this CDOW proposal. SECTION 7 Agreement and Recovery Action Plan A key to the Upper Basin Program is its agreement on Section 7 consultations on water projects that are located entirely upstream from river reaches occupied by the listed fishes and whose impact on those fishes is limited to flow depletions. The water users and at least two of the Upper Basin states maintained that there was an agreement from the program's outset under which such water projects would be assured of non- jeopardy opinions if a minimum of $10 million was appropriated by Congress for the purchase of water rights to protect instream flows for the listed fishes, each new water project paid a one-time charge starting at $10 per acre foot of average annual depletion, and the Upper Basin Program was in place. The participating conservation groups and the FWS asserted a different understanding of the program's Blue Book and cooperative agreement. In its 1989 resolution, for example, the Environmental Defense Fund supported the Upper Basin Program on the condition that non-jeopardy opinions not be guaran- teed "prior to adequate assurance that the water rights or reservoir operations needed to recover and maintain the endangered fishes in their natural habi- tat will be acquired or established and enforced". The conservation groups also declined to support the water community's campaign in 1987 to obtain a $10 million appropriation to fund water rights acquisi- tion without knowing how much flow protection it would buy and whether it would be enough to recov- er the listed fishes. The FWS agreed that there was significant uncertainty that the instream flows needed for recovery would be legally protected in a timely manner, and concluded that its biological opinions could not rely solely on the Upper Basin Program being in place or funded. In May 1989 the FWS was advised by its solicitor that these opinions still had to guard against large new depletions until there was reasonable assurance that the requisite instream flows would be protected. The FWS then made a judgement that new water projects that would deplete generally more than 3,000 acre feet per year on average would only be assured of non-jeopardy opinions if the FWS determined that "the progress to legally protect the instream flow needs of the endan- gered fishes has been sufficient to offset the impacts of the proposed [water] project': The FWS took this position in its February 1990 bio- logical opinion on the Muddy Creek reservoir which would deplete about 7,700 acre feet per year from the upper reaches of the Colorado River. The FWS found that progress on flow protection under the Upper Basin Program up to that date had been insufficient to offset the depletion impacts of this project and condi- tioned its biological opinion on the set aside of 3,000 acre feet of the project's non-firm yield for the listed fishes in the Colorado River just above its confluence with the Gunnison. In issuing this biological opinion, the FWS broadened its criteria for making "sufficient progress" determinations to consider progress on other recovery elements besides flow protection and in drainages besides the one in which the depletion impacts would occur. Upper Basin water projects authorized under federal reclamation law (e.g., the Flaming Gorge and Aspinall Units of the Colorado River Storage Project (CRSP), and participating projects in the CRSP like the Central 55