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action for purposes of administrative or judicial appeals. FWS further believes that no • <br />person or entity should be deemed to have waived or relinquished any right to challenge <br />the legal, scientific, or technical validity of any aspect of the new biological opinion or <br />agency action by virtue of its acceptance of or reliance on the Cooperative Agreement <br />or this Program, or by virtue of its support for the Cooperative Agreement or this <br />Program in other judicial or administrative proceedings. <br />V. FAIR SHARE <br />DOI and the states have determined that each has a responsibility to the success of the <br />Program and that contributions for Program elements addressing existing water related <br />activities should be made to the Program on the basis of "fair share." For purposes of <br />the first Program increment, DOI and the states agree that federal contribution and the <br />collective state contributions should be as equal as possible. DOI and the states have <br />agreed that their contributions in the first Program increment will include credit for <br />certain contributions made during the term of the Cooperative Agreement, and will be <br />shared among them as reflected in Appendix B hereto. Specific contributions by the <br />states take into account the value of both water provided through that state's water <br />projects and cash or cash equivalent contributions to other components of the Program. <br />By accepting this distribution of "fair share" for the first Program increment, the states <br />do not intend to suggest that such distribution accurately reflects how responsibility <br />should be assigned in any process other than for the first Program increment or that it is • <br />appropriate for the long term. What constitutes "fair share" will be renegotiated for <br />subsequent Program increments. Contributions addressing new water related activities <br />pursuant to the "Plan[s] for Future Depletions" elements of the Program are separately <br />determined based on the impacts of those activities, and will not be credited toward a <br />state's "fair share" contributions toward the remainder of the Program. <br />VI. OTHER PROVISIONS _. <br />A. State . Each state shall efficiently manage costs in <br />implementing Program activities and encourage habitat protection by local authorities. <br />B. Section 7 Consultation. As described in Paragraph IV, "Regulatory <br />Certainty," DOI and the states have proposed this Program to serve as the reasonable <br />and prudent alternative for existing and certain new water related activities. Pursuant <br />to section 7 of the ESA, FWS will make determinations as to whether the'Program can <br />serve or can continue to serve in such capacity. Consistent with Appendix C, <br />"Governance Agreement," and Paragraph IV.E above, FWS has agreed to meet with <br />the Governance Committee and the Oversight Committee to offer the opportunity to <br />modify the Program, if necessary, before making a final determination that. the Program <br />cannot serve as the reasonable and prudent alternative. <br />• <br />16 <br />