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15 alternative to avoid jeopardy to the endangered fishes by the impacts caused by this permit. For historic projects, the responsibility for implementation of all elements of the reasonable and prudent alternative rests with the Recovery Program participants, not the individual project proponent. For new projects, the responsibility for implementation of elements of the reasonable and prudent alternative is shared by the Recovery Program and the applicant. Recovery Program participants are responsible for carrying out activities outlined in the Pi an. The Office through Colorado Division of Minerals and Geology should condition the permit to retain jurisdiction in the event that the Recovery Program is unable to implement the Plan in a timely manner. In that case, as long as the lead Federal Agency has discretionary authority over the project, reinitiation of Section 7 consultation may be required so that a new reasonable and prudent alternative can be developed by the Service. INCIDENTAL TAKE Section 9 of the Endangered Species Act, as amended, prohibits any taking (harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect, or attempt to engage in any such conduct) of listed species without a special exemption. Harm is further defined to include significant habitat modification or degradation that results in death or injury to listed species by significantly impairing behavioral patterns such as breeding, feeding, or sheltering. Under the terms of Section 7(b)(4) and Section 7(0)(2), taking that is incidental to and not intended as part of the agency action is not considered taking within the bounds of the Endangered Species Act, provided that such taking is in compliance with the incidental take statement. The Service does not anticipate that the proposed action will result in any incidental take of the endangered fishes. CONCLUSION This concludes the Service's biological opinion on the impacts of the proposed project. This opinion was based upon the information described herein. If new information becomes available, new species listed, or should there be any changes in the total average annual amount of water depleted by this project (29 acre-feet per year) or any other project change which alters the operation of the project from that which is described in the biological assessment and which may affect any endangered or threatened species in a manner or to an extent not considered in this biological opinion (see 50 CFR 402.16), formal Section 7 consultation should be reinitiated. Tfiank you for your cooperation in the formulation of this biological opinion and your interest in conserving endangered/species. .: ~ h ~ ~~ ;c~._ ; ~ ... .. cc: .Colorado Division of Minerals. and Geology Denver Attention: Christine Johnston