2013-03-06_REVISION - C1992081 (6)

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18 of flows needed for recovery, or a reduction in the threat of immediate extinction; (b) status of fish populations; (c) adequacy of flows; and (d) magnitude of the project impact. In addition, the Service considered support activities (funding, research, information and education, etc.) of the Recovery Program if they help achieve a measurable population response, a measurable improvement in habitat for the fishes, legal protection of flows needed for recovery, or a reduction in the threat of immediate extinction. The Service evaluated progress separately for the Colorado River and Green River subbasins; however, it gave due consideration to progress throughout the Upper Basin in evaluating progress toward recovery. Based on current Recovery Program accomplishments (Appendix A, attached) and the expectation that the Plan will be fully implemented in a timely manner, the Service determined that sufficient progress has been achieved under the Recovery Program so that it could serve as the reasonable and prudent 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. All actions must be implemented according to the time schedule specified in the Plan. For new projects, the responsibility for implementation of elements of the reasonable and prudent alternative are shared by the Recovery Program and the applicant. Recovery Program participants are responsible for carrying out activities outlined in the Plan. The Office of Surface Mining 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 1(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.