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r- <br />"All future section 7 consultations completed after approval and implementation <br />of this program (establishment of the Implementation Committee, provision of <br />congressional funding, and initiation of the elements) will result in a one-time <br />contribution to be paid to the Service by water project proponents in the amount <br />of $10.00 per acre-foot based on the average annual depletion of the project ... <br />This figure will be adjusted annually for inflation [the current figure is $18.29 per <br />acre-foot] ... Concurrently with the completion of the Federal action which <br />initiated the consultation, e.g., ... issuance of a 404 permit, 10 percent of the total <br />contribution will be provided. The balance ... will be ... due at the time the <br />construction commences ...." <br />It is important to note that these provisions of the Recovery Program were based on <br />appropriate legal protection of the instream flow needs of the endangered Colorado River <br />fishes. The Recovery Program further states: <br />"... it is necessary to protect and manage sufficient habitat to support <br />self-sustaining populations of these species. One way to accomplish this is to <br />provide long term protection of the habitat by acquiring or appropriating water <br />rights to ensure instream flows. Since this program sets in place a mechanism arid <br />a commitment to assure that the instream flows are protected under State law, the <br />Service will consider these elements under section 7 consultation as offsetting <br />project depletion impacts." <br />BIOLOGICAL OPINION <br />DESCRIPTION OF THE PROPOSED ACTION <br />The proposed Red Cliff Mine project area is located in west-central Colorado <br />approximately 11 miles north of the towns of Mack and Loma, Colorado, and 1.5 miles <br />east of Colorado State Highway (SH) 139. The proposed action consists of a new <br />underground coal mine including the construction of mine portals and associated <br />processing facilities in section 3. T. 8 S., R. 102 W. Coal would be transported from the <br />mine site to the existing Union Pacific Railroad (UPRR) Grand Valley rail line, via a new <br />spur line that will be constructed between Mack, Colorado and the mine site. <br />Central Appalachia Mining LLC (CAM) proposes to utilize public and private lands to <br />mine the coal and transport it to market. Underground mining would be conducted 24 <br />hours per day, 7 days per week, and 365 days per year by room and pillar and longwall <br />mining techniques. CAM's production from the Red Cliff Mine would be up to 8 million <br />tons per year of coal, with an estimated life of the mine of 30 years. CAM is proposing <br />to load the coal onto rail cars at the mine site and ship it to coal consumers via the UPRR. <br />CAM is proposing to construct new mine entries (portals) and associated facilities to <br />extract low-sulfur coal from existing Federal coal leases; potential new Federal coal <br />leases; and a small amount of private coal. In addition to locating facilities on the <br />existing and potential new coal leases, CAM would locate surface facilities on <br />approximately 1,140 acres of BLM lands. These facilities would include the waste rock <br />3