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23 Thus, a consenatioo measure in addition to the depletion charge will be required in onIer to avoid jeopardizing the continued existence of the listed species. The ~tional conservation measure is embodied in a Memorandum of Understanding DIU) (Appendix C) whereby the Colorado River Water Conservation District has a,vftd with the Service to release 3,000 acre-feet of water from Muddy Creek Iesenoir approximately 3 out of 5 years (as a long-term average) for delivery to tile 15-mile reach during the period from July 15 to October 15. The Service ~ MMlyzed the potential benefits of the releases (Appendix D) and has detenrined that they will contribute to aChieving the Service's 700 to 1,200 cfs fllll feclllllllendation for the IS-mile reach and thus contribute to offsetting tile _ts of the Muddy Creel< Project. The 3,000 acre-feet of water from MUddy Creel< is being provided by the River District until sudl time as the Recovery Program acquires and legally protects an equivalent ~ of water in the IS-mile reach. However, the Service, if requested by tile liver Di s tri ct, will evaluate whether progress under the Recovery ~that results in significant protection of instream flows in other parts of the Upper Colorado River Basin is sufficient to relieve the River District of its commitment under this MOU. The MOU describes I legal mechanism and the River District's responsibility for assuring that tile water from Muddy Creek. Reservoi r wi II be del ivered to the head of the l5-mJe reach. We anticipate that legal protection of the Muddy Creek releases ~h the IS-mile reach will be accomplished by the Colorado Water Consel'Rtioa Board (Board>' Thus, the Service is issuing this Biological Opinion in reli~on Board action to protect Muddy Creek. releases through the 15-mile read. It is understood by the Bureau and the Corps that the River District, the State of Colorado, and the Service will be entering into an agreement/COlltnlCt whereby the State agrees (1) not to subordinate or otherwi se cOll'C>romise tile prvlection of Muddy Creek. releases, (2) to take all steps necessary to,ntect those releases, and (3) that the Service also will have the authoritJ to lt9illly protect those releases in the event that the State defaults on its~ upon responsibility described in (1) and (2) above. INCIDENTAL TME Section 9 of tile Act, as amended, prohibits any taking (harass, harm, pursue, hunt, shoot, IDIIL kiJl, trap, capture or collect, or attempt to engage in any such conduct) !If listed species without a special exemption. Harm is further defined to illCJIIIe significant habitat modification or degradation that results in death or ., to listed species by significantly impairing behavioral patterns s~iS~ing, feeding, or Sheltering. Under the terms of Section 7(b)(4)" Section 7(0) (2), tak.ing that is incidental to and not intended as JIlt" the agency action is not considered tal<ing within the bounds of the Act JrOvided that such tak.i ng is in comp 1 i ance with the incidental tiIrI ~V'ent.