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• FWS/GJ-6-CO-92-F-007 Page 6 <br />on the previous year's Composite Consumer Price Index. The Service will <br />notify the applicant of any change in the depletion charge by September 1 of <br />each year. Ten percent of the total contribution (54.03) or total payment, <br />will be provided to the Service or its designated agent at the time of <br />issuance of the Federal approvals from the OSM. The balance will be due at <br />the time the construction commences. The payment will be included by the OSM <br />as a permit stipulation. The amount payable will be adjusted annually for <br />inflation on October 1 of each year based on the Composite Consumer Price <br />Index. Fifty percent of the funds will be used for acquisition of water <br />rights to meet the instream flow needs of the endangered fishes (unless <br />otherwise recommended by the Implementation Committee); the balance will be <br />used to support other recovery activities for the Colorado River endangered <br />fishes. Payment should be made to the National Fish and Wildlife Foundation <br />(see appendix A). In a letter dated March 25, 1992, (Appendix B), Salt Creek <br />Mining Company agreed to this payment. <br />INCIDENTAL TAKE <br />Section 9 of the Act, as amended, prohibits any taking (harass, harm, pursue, <br />hunt, shoot, wound, kill, trap, capture or collect, or attempt to engage in <br />any such conduct) of listed species without a special exemption. Harm is <br />further defined to include significant habitat modification or degradation <br />• that results in death or injury to listed species by significantly impairing <br />behavioral patterns such as breeding, feeding, or sheltering. Under the terms <br />of Section 7(b)(4) and Section 7(0)(2), taking that is incidental to and not <br />intended as part of the agency action is not considered taking within the <br />bounds of the Act provided that such taking is in compliance with the <br />incidental take statement. <br />The Service has determined the incidental take associated with this project to <br />be zero. <br />CONCLUSION <br />This concludes our biological opinion on the impacts of the proposed project. <br />This opinion was based upon the information described herein. If new <br />information becomes available, new species listed, or should there be any <br />changes in the total average annual amount of water depleted by this project <br />(3.5 acre-feet per year) or any other project change which alters the <br />operation of the project from that which is described in the biological <br />assessment and which may affect any endangered or threatened species in a <br />manner or to an extent not considered in this biological opinion (see 50 CFR <br />402.16), formal Section 7 consultation should be re-initiated. Section 7 <br />consultation must also be re-initiated if there is failure to carry out the <br />Conservation Measures upon which this opinion was based. The Service requests <br />that the OSM incorporate the letter from Salt Creek Mining Company as a <br />condition of their approval documents. Also, the OSM should condition its <br />approval documents to retain jurisdiction should Section 7 consultation need <br />• to be re-initiated. <br />