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• <br />17 <br />Based on current Recovery Program accomplishments (Appendix B) and the <br />expectation that the Plan will be fully implemented in a timely manner, the <br />Service determined that sufficient progress has been achieved under the <br />Recovery Program so that it could serve as the reasonable and prudent <br />alternative to avoid jeopardy to the endangered fishes by the impacts caused <br />by this permit. For historic projects, the responsibility for implementation <br />of all elements of the reasonable and prudent alternative rests with the <br />Recovery Program participants, not the individual project proponent. All <br />actions must be implemented according to the time schedule specified in the <br />Plan. For new projects, the responsibility for implementation of elements of <br />the reasonable and prudent alternative is shared by the Recovery Program and <br />the applicant. Recovery Program participants are responsible for carrying out <br />activities outlined in the Plan. <br />The Office of Surface Mining should condition the permit to retain <br />jurisdiction in the event that the Recovery Program is unable to implement the <br />Plan in a timely manner. In that case, as long as the lead Federal Agency has <br />discretionary authority over the project, reinitiation of section 7 <br />consultation may be required so that a new reasonable and prudent alternative <br />can be developed by the Service. <br />INCIDENTAL TAKE <br />• Section 9 of the Endangered Species Act, as amended, prohibits any taking <br />(harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect, or <br />attempt to engage in any such conduct) of listed species without a special <br />exemption. Under the terms of section 7(b)(4) and section 7(0)(2), taking <br />that is incidental to and not intended as part of the agency action is not <br />considered taking within the bounds of the Endangered Species Act, provided <br />that such taking is in compliance with the incidental take statement. <br />The Service does not anticipate that the proposed action will result in any <br />incidental take of the endangered fishes. <br />CONCLUSION <br />This concludes the Service's biological opinion on the impacts of the proposed <br />project. This opinion was based upon the information described herein. If <br />new 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 />(37.5 acre-feet per year) or any other project change which alters the <br />operation of the project from that which is described in your correspondence <br />and which may affect any endangered or threatened species in a manner or to an <br />extent not considered in this biological opinion (see 50 CFR 402.16), formal <br />section 1 consultation should be reinitiated. <br />Thank you for your cooperation in the formulation of this biological opinion <br />and your interest in conserving endangered species.~ / <br />• /v <br />