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<br />0315bS <br /> <br />. <br /> <br />. <br /> <br />measures and implementing terms and conditions that minimize take. The Service will include <br />incidental take statements in all biological opinions for activities in the Basin, even when no take <br />is anticipated. As stated in 50 CFR 402.14(i)(2) "reasonable and prudent measures along with the <br />terms and conditions that implement them, cannot alter the basic design, location, scope, duration, <br />or timing of the action and may involve only minor changes." <br /> <br />The reasonable and prudent measures provided in an incidental take statement are <br />nondiscretionary, and must be undertaken so that they become binding conditions of any federal <br />discretionary activity, for the exemption in section 7(0)(2) to apply. The federal agency has a <br />continuing duty to regulate the activity covered by an incidental take statement included in a <br />biological opinion. If the federal agency (1) fails to assume and implement the terms and <br />conditions or (2) fails to retain oversight to ensure compliance with the terms and conditions, the <br />protective coverage of section 7(0)(2) may lapse. <br /> <br />5.0 Section 7 Consultations <br /> <br />The Program is intended to identifY and implement actions that assist in the recovery of the <br />species and provide compliance with sections 7 and 9 of the ESA for water development and <br />water management activities in the Basin. It is recognized that federal agencies and/or project <br />sponsors may wish to carry out actions that provide ESA compliance for their activities <br />independently of the Program, and not rely on the Program to provide actions for ESA <br />compliance. In addition, federal agencies and/or project sponsors may modify their activities to <br />eliminate or minimize adverse effects, avoid jeopardy, and/or avoid adverse modification of <br />critical habitat, and by so doing, remove the need for actions by the Program to provide ESA <br />compliance. <br /> <br />5.1 Consultations on New and Existing Water Development and Water Management <br />Activities in the Basin <br /> <br />A. For the purposes of the Program and section 7 consultations, it is assumed that: (I) the <br />Program will produce a list of actions defined in the LRP that can be implemented to assist in <br />the recovery of the species, (2) the funding will be available to implement the LRP, (3) <br />participants will take appropriate steps to implement those actions, and (4) actions will be <br />implemented in accordance with the schedule in the LRP, as periodically amended. <br /> <br />B. Actions and accomplishments under the Program, as defined in the LRP, are intended to assist <br />in the recovery of the species and provide the reasonable and prudent alternatives that avoid <br />the likelihood of jeopardy and/or destruction or adverse modification of critical habitat from <br />water development and water management activities in the Basin. Program actions are also <br />intended to provide the reasonable and prudent measures needed to minimize take of listed <br />fish. <br /> <br />C. When Section 7 consultation is initiated, the Service will determine if progress toward <br />recovery has been sufficient for the Program to serve as a reasonable and prudent alternative <br /> <br />3 <br />