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REVISED DRAFT <br />November 15, 2002 <br />water related activities underwent Section 7 consultation prior to the effective date of this <br />Program (covered by the July 1997 Cooperative Agreement Paragraph VIII.A.3). Any <br />resulting payments made or measures undertaken have been credited against the <br />payments and measures set forth in the Finance Document to the extent they contribute to <br />the land acquisition and restoration purposes of the Program. Otherwise, resulting <br />payments made or measures undertaken were not, and will not be, credited as <br />contributions to mitigate the impacts of existing water related activities. [See note <br />above.] <br />C. For water related activities covered in Paragraphs IV.A and B above, FWS agrees to <br />encourage other agencies to rely upon the Program when considering agency actions <br />affecting the target species. <br />D. DOI and the states intend that the Program will provide ESA compliance during the <br />First Increment for so long as the Program is attaining its First Increment Milestones <br />(Attachment �. <br />isE. If Milestones are not being met, and FWS makes a preliminary determination that the <br />Program is not providing ESA compliance, the FWS may reinitiate ESA section 7(a)(2) <br />consultations for water related activities that relied upon the Program as a component of <br />their ESA compliance and that are subject to reinitiation pursuant to 50 C.F.R. § 402.16. <br />Before taking such action, FWS will notify the Governance Committee in writing and <br />request assistance in resolving the situation. If the Governance Committee is unable to <br />restore the ability of the Program to provide ESA compliance, the Committee shall refer <br />the matter to the Secretary of the Interior and the three Governors ( "Oversight <br />Committee ") to resolve the situation. If such attempts at resolution are unsuccessful, and <br />if FWS believes that such a situation would warrant reinitiation of section 7(a)(2) <br />consultation for any water related activity which relied upon the Program as a component <br />of its ESA compliance and which is subject to reinitiation pursuant to 50 C.F.R. § 402.16, <br />FWS would request reinitiation [Note: It does not appear necessary for the FWS to <br />withdraw from the Program before it can request reinitiation.] of section 7(a)(2) <br />consultation for all such water related activities. FWS may also request reinitiation if this <br />Program is terminated pursuant to Section II.F. of the Program Agreement or expires. <br />FWS agrees that it will not make a final determination that the Program is not providing <br />ESA compliance until it meets with the Oversight Committee. FWS agrees not to seek to <br />22 <br />