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17 <br />National Fish and Wildlife Foundation <br />Suite 900 <br />1120 Connecticut Avenue, N.W. <br />Washington, O.C. 20036 <br />The Proposed Decision and Findings of Compliance for a New Permit prepared by <br />Minerals and Geology and dated April 19, 1993, includes a permit stipulation <br />to compensate the Service for water depletion from the Yampa River. However, <br />the correct process is payment to the Foundation. Each payment is to be <br />accompanied by a cover letter that identifies the project and biological <br />opinion that is requiring the payment, the amount of payment enclosed, check <br />number, and any special conditions identified in the biological opinion <br />relative to disbursement or use of the funds (there are none in this <br />instance). The cover letter also shall identify the name and address of the <br />payor, the name and address of the Federal Agency responsible for authorizing <br />the project, and the address of the Service office issuing the biological <br />opinion. This information will be used by the Foundation to notify the payor, <br />the lead Federal Agency, and the Service that payment has been received. The <br />Foundation is to send notices of receipt to these entities within 5 working <br />days of its receipt of payment. <br />In order to further define and clarify processes outlined in Sections 4.1.5, <br />4.1.6, and 5.3.4 of the Recovery Program, an additional agreement addressing <br />Section 7 consultation on depletion impacts was developed. The Section 7 <br />agreement establishes a framework for conducting all future Section 7 <br />consultations on depletion impacts related to new projects and those <br />associated with historic projects in the Upper Basin. Procedures outlined in <br />the Section 7 agreement will be used in conjunction with the Plan to determine <br />if sufficient progress is being accomplished in the recovery of the endangered <br />fishes to enable the Recovery Program to serve as a reasonable and prudent <br />alternative to avoid jeopardy. The Plan is expected to be finalized in <br />September 1993 and will be reviewed annually. <br />In accordance with the agreement, the Service has agreed to assess impacts of <br />projects that require Section 7 consultation and determine if progress toward <br />recovery has been sufficient for the Recovery Program to serve as a reasonable <br />and prudent alternative. If sufficient progress is being achieved, biological <br />opinions will be written to identify activities and accomplishments of the <br />Recovery Program that support it as a reasonable and prudent alternative. If <br />sufficient progress in the recovery of the endangered fishes has not been <br />achieved by the Recovery Program, actions from the Plan will be identified <br />which must be completed to avoid jeopardy to the endangered fishes. For <br />historic projects, these actions will serve as the reasonable and prudent <br />alternative as long as they are completed according to the schedule identified <br />in the Plan. For new projects, these actions will serve as the reasonable and <br />prudent alternative so long as they are completed before the impact of the <br />project occurs. The Hayden Gulch Loadout facility is considered a new <br />project. <br />The evaluation by the Service to determine if sufficient progress has been <br />achieved considered (a) actions which result in a measurable population <br />response, a measurable improvement in habitat for the fishes, legal protection <br />