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• "Recovery Implementation Program for Endangered Fish Species in the Upper <br />Colorado River Basin" (Recovery Program). An objective of the Recovery <br />Program was to identify reasonable and prudent alternatives that would ensure <br />the survival and recovery of the listed species while providing for new water <br />development in the Upper Colorado River Basin. <br />The following excerpts are pertinent to the consultation because they <br />summarize portions of the Recovery Program that address depletion impacts, <br />Section 7 consultation, and project proponent responsibilities: <br />"All future Section 7 consultations completed after <br />approval and implementation of this program <br />(establishment of the Implementation Committee, <br />provision of congressional funding, and initiation of <br />the elements) will result in a one-time contribution <br />to be paid to the Service by water project proponents <br />in the amount of SI0.00 per acre-foot based on the <br />average annual depletion of the project.... This <br />figure will be adjusted annually for inflation (ihe <br />current figure is 511.98 per acre-foot].... <br />Concurrently with the completion of the Federal action <br />which initiated the consultation, e.g., ...issuance of <br />a 404 permit, 10 percent of the total contribution <br />will be provided. The balance...will be...due at the <br />• time the construction commences...." <br />It is important to note that these provisions of the Recovery Program were <br />based on appropriate legal protection of the instream flow needs of the <br />endangered Colorado River fishes. The Recovery Program further states: <br />" ..it is necessary to protect and manage sufficient <br />habitat to support self-sustaining populations of <br />these species. One way to accomplish this is to <br />provide long term protection of the habitat by <br />acquiring or appropriating water rights to ensure <br />instream flows.... Since this program sets in place a <br />mechanism and a commitment to assure that the instream <br />flows are protected under State law, the Service will <br />Thus, the Service has determined that project depletion impacts, which the <br />Service has consistently maintained are likely to jeopardize the listed <br />fishes, can be offset by (a) the water project proponents one-time <br />contribution to the Recovery Program in the amount of S]1.98 per acre-foot of <br />the project's average annual depletion, and (b) appropriate legal protection <br />of instream flows pursuant to State law. The Service believes it is essential <br />that protection of instream flows proceed expeditiously, before significant <br />water depletions occur. <br />• With respect to (a) above (i.e., depletion charge), the applicant will make a <br />one-time payment which has been calculated by multiplying the project's <br />average annual depletion (30.4 acre-feet) by the depletion charge in effect at <br />