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<br />15 <br />". it is necessary to protect and manage sufficient <br />habitat to support self-sustaining populations of these <br />species. One way to accomplish this is to provide long <br />term protection of the habitat by acquiring or <br />appropriating water rights to ensure instream <br />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 proponent's one-time <br />contribution to the Recovery Program in the amount of 312.34 per acre-foot of <br />the project's average annual depletion, (b) appropriate legal protection of <br />instream flows pursuant to State law, and (c) accomplishment of activities <br />necessary to recover the endangered fishes as specified under the Recovery <br />Implementation Program Recovery Action Plan (Plan). The Service believes it <br />is essential that protection of instream flows proceed expeditiously, before <br />significant additional 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 (37.5 acre-feet) by the depletion charge in effect at <br />the time payment is made. For Fiscal Year 1994 (October 1, 1993, to <br />September 30, 1994), the depletion charge is 312.34 per acre-foot for the <br />average annual depletion which equals a total payment of 5462.75 for this <br />project. This amount will be adjusted annually for inflation on October 1 of <br />each year based on the previous year's Composite Consumer Price Index. The <br />Service will notify the applicant of any change in the depletion charge by <br />September 1 of each year. Ten percent of the total contribution (346.28), or <br />total payment, will be provided to the Service or its designated agent at the <br />time of issuance of the Federal approvals from the Office of Surface Mining. <br />The balance will be due at the time the construction commences. The payment <br />will be included by the Office of Surface Mining as a permit stipulation. The <br />amount payable will be adjusted annually for inflation on October 1 of each <br />year based on the Composite Consumer Price Index. Fifty percent of the funds <br />will be used for acquisition of water rights to meet the instream flow needs <br />of the endangered fishes (unless otherwise recommended by the Implementation <br />Committee); the balance will be used to support other recovery activities for <br />the Colorado River endangered fishes. Payment should be made to the National <br />Fish and Wildlife Foundation (Foundation). <br />National Fish and Wildlife Foundation <br />1120 Connecticut Avenue, N.W. <br />Suite 900 <br />Washington, D.C. 20036 <br />• In a letter dated April 18, 1994, Cyprus Orchard Valley Coal Corporation <br />agreed to this payment (Appendix A). <br />