Common use of Framework for Agreement Clause in Contracts

Framework for Agreement. The following describes the agreement among RIP participants on a framework for conducting Section 7 consultations on depletion impacts related to new projects (as defined in Section 4.1.5 a. of the RIP) and impacts1 associated with historic projects in the Upper Colorado River Basin. This agreement is meant to supplement and clarify the process outlined in Sections 4.1.5, 4.1.6 and 5.3.4 of the RIP. This agreement applies only to the four Colorado River endangered fishes in the Upper Colorado River Basin, excluding the San Xxxx River, and is not a precedent for other endangered species or locations. 1. Activities and accomplishments under the RIP are intended to provide the reasonable and prudent alternatives which avoid the likelihood of jeopardy to the continued existence of the endangered Colorado River fishes (hereinafter the "reasonable and prudent alternative") resulting from depletion impacts of new projects and all existing or past impacts related to historic projects with the exception of the discharge by historic projects of pollutants such as trace elements, heavy metals, and pesticides. However, where a programmatic biological opinion applies, the appropriate provisions of such an opinion will apply to future individual consultations. The RIP participants intend the RIP also to provide the reasonable and prudent alternatives which avoid the likely destruction or adverse modification of critical habitat, to the same extent as it does to avoid the likelihood of jeopardy. Once critical habitat for the endangered fishes is formally designated, the RIP participants will make any necessary amendments to the RIPRAP to fulfill such intent. 2. The RIP is intended to offset both the direct and depletion impacts of historic projects occurring prior to January 22, 1988 (the date when the Cooperative Agreement for the RIP was executed) if such offsets are needed to recover the fishes. Under certain circumstances, historic projects may be subject to consultation under Section 7 of the ESA. An increase in depletions from a historic project occurring after January 22, 1988, will be subject to the depletion charge. Except for the circumstances described in item 11 below, depletion charges or other measures will 1 All impacts except the discharge of pollutants such as trace elements, heavy metals, and pesticides. not be required from historic projects which undergo Section 7 consultation in the future. 3. The Bureau of Reclamation (BR) and the Western Area Power Administration will operate projects authorized and funded pursuant to Federal reclamation law consistent with its responsibilities under Section 7 of the ESA and with any existing contracts. No depletion charge will be required on depletions from BR projects as long as BR continues its contributions to the RIP's annual budget. 4. The FWS will assess the impacts of projects that require Section 7 consultation and determine if progress toward recovery has been sufficient for the RIP to serve as a reasonable and prudent alternative. The FWS will use accomplishments under the RIP as its measure of sufficient progress. The FWS will also consider whether the probable success of the RIP is compromised as a result of a specific depletion or the cumulative effect of depletions. Support activities (funding, research, information and education, etc.) in the RIP contribute to sufficient progress to the extent that 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. Generally, sufficient progress will be evaluated separately for the Colorado and Green River subbasins (but not individual tributaries within each subbasin). However, the FWS will give due consideration to progress throughout the upper basin in evaluating sufficient progress. 5. If sufficient progress is being achieved, biological opinions will identify the activities and accomplishments of the RIP that support it serving as a reasonable and prudent alternative. 6. If sufficient progress is not being achieved, biological opinions for new and historic projects will be written to identify which action(s) in the RIPRAP must be completed to avoid jeopardy. Specific recovery actions will be implemented according to the schedule identified in the RIPRAP. The FWS will confer with the Management Committee on the identification of these actions within established timeframes for the Section 7 consultation. For historic projects, these actions will serve as the reasonable and prudent alternative as long as they are completed according to the schedule identified in the RIPRAP. For new projects, these actions will serve as a reasonable and prudent alternative so long as they are completed before the impact of the project occurs. The FWS has ultimate authority and responsibility for determining whether progress is sufficient to enable it to rely upon the RIP as a reasonable and prudent alternative and identifying actions necessary to avoid jeopardy. 7. Certain situations may result in the FWS determining that the recovery action in previously rendered biological opinions are no longer serving as a reasonable and prudent alternative. These situations may include, but are not limited, to: a. Critical deadlines for specified recovery actions are missed; b. Specified recovery actions are determined to be infeasible; and c. Significant new information about the needs or population status of the fishes becomes available; 8. The FWS will notify the Implementation and Management Committees when a situation may result in the RIP not serving as a reasonable and prudent alternative. The Management Committee will work with the FWS to evaluate the situation and develop the most appropriate response to restore the RIP as a reasonable and prudent alternative (such as adjusting a recovery action so it can be achieved, developing a supplemental recovery action, shortening the timeframe on other recovery actions, etc.). 9. The RIP is responsible for providing flows which the FWS determines are essential to recovery of the endangered fishes. Whether or not a Section 7 review is required, the RIP will work cooperatively with the owners/operators of historic projects on a voluntary basis to implement recovery actions needed to recover the endangered fishes. 10. The responsibility for the efficiency and effectiveness of the RIP, and for its viability as a reasonable and prudent alternative, rests upon RIP participants, not with individual project proponents. RIP participants fully share that responsibility. 11. If the RIP cannot be restored to provide the reasonable and prudent alternative per item 8, above, as a last resort the FWS will develop a reasonable and prudent alternative, if available, with the lead Federal Agency and the project proponent. (RIP participants recognize that such actions would be inconsistent with the intended operation of the RIP). The option of requesting a depletion charge on historic projects or other measures on new or historic projects will only be used in the event that the RIPRAP does not or can not be amended to serve as a reasonable and prudent alternative. In this situation, the reasonable and prudent alternative will be consistent with the intended purpose of the action, within the Federal Agency's legal authority and jurisdiction to implement, and will be economically and technologically feasible. 12. This agreement becomes effective upon adoption of the RIPRAP by the Implementation Committee. Until the RIPRAP is adopted, the FWS will use the procedures in this agreement and the January 1993, draft RIPRAP as the basis for identifying reasonable and prudent alternatives. 13. Experience may dictate a need to modify this agreement in the future. This agreement may be modified or amended by consensus of all the RIP participants. A review of the agreement may be initiated by any voting member of the Implementation Committee.

Framework for Agreement. The following describes the agreement among RIP participants on a framework for conducting Section 7 consultations on depletion impacts related to new projects (as defined in Section 4.1.5 a. of the RIP) and impacts1 associated with historic projects in the Upper Colorado River Basin. This agreement is meant to supplement and clarify the process outlined in Sections 4.1.5, 4.1.6 and 5.3.4 of the RIP. This agreement applies only to the four Colorado River endangered fishes in the Upper Colorado River Basin, excluding the San Xxxx River, and is not a precedent for other endangered species or locations. 1. Activities and accomplishments under the RIP are intended to provide the reasonable and prudent alternatives which avoid the likelihood of jeopardy to the continued existence of the endangered Colorado River fishes (hereinafter the "reasonable and prudent alternative") resulting from depletion impacts of new projects and all existing or past impacts related to historic projects with the exception of the discharge by historic projects of pollutants such as trace elements, heavy metals, and pesticides. However, where a programmatic biological opinion applies, the appropriate provisions of such an opinion will apply to future individual consultations. The RIP participants intend the RIP also to provide the reasonable and prudent alternatives which avoid the likely destruction or adverse modification of critical habitat, to the same extent as it does to avoid the likelihood of jeopardy. Once critical habitat for the endangered fishes is formally designated, the RIP participants will make any necessary amendments to the RIPRAP to fulfill such intent. 2. The RIP is intended to offset both the direct and depletion impacts of historic projects occurring prior to January 22, 1988 (the date when the Cooperative Agreement for the RIP was executed) if such offsets are needed to recover the fishes. Under certain circumstances, historic projects may be subject to consultation under Section 7 of the ESA. An increase in depletions from a historic project occurring after January 22, 1988, will be subject to the depletion charge. Except for the circumstances described in item 11 below, depletion charges or other measures will 1 All impacts except the discharge of pollutants such as trace elements, heavy metals, and pesticides. not be required from historic projects which undergo Section 7 consultation in the future. 3. The Bureau of Reclamation (BR) and the Western Area Power Administration will operate projects authorized and funded pursuant to Federal reclamation law consistent with its responsibilities under Section 7 of the ESA and with any existing contracts. No depletion charge will be required on depletions from BR projects as long as BR continues its contributions to the RIP's annual budget. 4. The FWS will assess the impacts of projects that require Section 7 consultation and determine if progress toward recovery has been sufficient for the RIP to serve as a reasonable and prudent alternative. The FWS will use accomplishments under the RIP as its measure of sufficient progress. The FWS will also consider whether the probable success of the RIP is compromised as a result of a specific depletion or the cumulative effect of depletions. Support activities (funding, research, information and education, etc.) in the RIP contribute to sufficient progress to the extent that 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. Generally, sufficient progress will be evaluated separately for the Colorado and Green River subbasins (but not individual tributaries within each subbasin). However, the FWS will give due consideration to progress throughout the upper basin in evaluating sufficient progress. 5. If sufficient progress is being achieved, biological opinions will identify the activities and accomplishments of the RIP that support it serving as a reasonable and prudent alternative. 6. If sufficient progress is not being achieved, biological opinions for new and historic projects will be written to identify which action(s) in the RIPRAP must be completed to avoid jeopardy. Specific recovery actions will be implemented according to the schedule identified in the RIPRAP. The FWS will confer with the Management Committee on the identification of these actions within established timeframes for the Section 7 consultation. For historic projects, these actions will serve as the reasonable and prudent alternative as long as they are completed according to the schedule identified in the RIPRAP. For new projects, these actions will serve as a reasonable and prudent alternative so long as they are completed before the impact of the project occurs. The FWS has ultimate authority and responsibility for determining whether progress is sufficient to enable it to rely upon the RIP as a reasonable and prudent alternative and identifying actions necessary to avoid jeopardy. 7. Certain situations may result in the FWS determining that the recovery action in previously rendered biological opinions are no longer serving as a reasonable and prudent alternative. These situations may include, but are not limited, to: a. Critical deadlines for specified recovery actions are missed; b. Specified recovery actions are determined to be infeasible; and c. Significant new information about the needs or population status of the fishes becomes available; 8. The FWS will notify the Implementation and Management Committees when a situation may result in the RIP not serving as a reasonable and prudent alternative. The Management Committee will work with the FWS to evaluate the situation and develop the most appropriate response to restore the RIP as a reasonable and prudent alternative (such as adjusting a recovery action so it can be achieved, developing a supplemental recovery action, shortening the timeframe on other recovery actions, etc.). 9. The RIP is responsible for providing flows which the FWS determines are essential to recovery of the endangered fishes. Whether or not a Section 7 review is required, the RIP will work cooperatively with the owners/operators of historic projects on a voluntary basis to implement recovery actions needed to recover the endangered fishes. 10. The responsibility for the efficiency and effectiveness of the RIP, and for its viability as a reasonable and prudent alternative, rests upon RIP participants, not with individual project proponents. RIP participants fully share that responsibility. 11. If the RIP cannot be restored to provide the reasonable and prudent alternative per item 8, above, as a last resort the FWS will develop a reasonable and prudent alternative, if available, with the lead Federal Agency and the project proponent. (RIP participants recognize that such actions would be inconsistent with the intended operation of the RIP). The option of requesting a depletion charge on historic projects or other measures on new or historic projects will only be used in the event that the RIPRAP does not or can not be amended to serve as a reasonable and prudent alternative. In this situation, the reasonable and prudent alternative will be consistent with the intended purpose of the action, within the Federal Agency's legal authority and jurisdiction to implement, and will be economically and technologically feasible. 12. This agreement becomes effective upon adoption of the RIPRAP by the Implementation Committee. Until the RIPRAP is adopted, the FWS will use the procedures in this agreement and the January 1993, draft RIPRAP as the basis for identifying reasonable and prudent alternatives. 13. Experience may dictate a need to modify this agreement in the future. This agreement may be modified or amended by consensus of all the RIP participants. A review of the agreement may be initiated by any voting member of the Implementation Committee.