Working Paper 94-57, February, 1994.
By Karen Hopfl
This paper was written in conjunction with the Fall 1993 Natural Resources and Environmental Policy Seminar of the University of Colorado Interdisciplinary Graduate Certificate Program in Environmental Policy. All ideas presented are those of the author and do not necessarily represent the views of the Consortium or the University. For more information, contact the Conflict Resolution Consortium, Campus Box 327, University of Colorado, Boulder, Colorado 80309-0327. Phone: (303) 492-1635, e-mail: firstname.lastname@example.org.
© 1994 Karen Hopfl. Do not reprint without permission.
In 1922 seven states-Utah, Colorado, Wyoming, New Mexico, California, Arizona, and Nevada (Mexico was added in 1944)-divided up the rights to the water in the Colorado River and began a style of management that not only changed the flow of water, but also irrevocably impacted the river and it's supported flora and fauna. Currently the Colorado River supplies water for 20 million people in seven states, 2 million acres of farmland, and 10 dams which generate 12 million kW of electricity annually, but this progress was not achieved without altering the habitat and threatening the existence of four native fish species.
Four fish native to the Colorado River, the Colorado River squawfish, the humpback chub, the bonytail chub, and the razorback sucker are now considered endangered by the federal government. The building of dams and reservoirs, alteration of water flow patterns, introduction of non-native species, diversion of water for irrigation and urban purposes, and destruction of plant life along river banks has effected the habitat and reproductive success of the rare fish.
In the late 1970's the Colorado River Water Conservation District filed suit against the U.S. Fish and Wildlife Service (FWS) challenging the listing under the Endangered Species Act (ESA) of the Colorado squawfish and the humpback chub. The listing had caused the FWS to issue a jeopardy opinion and to take action in preventing more development along the Colorado river in order to comply with Section 7 of the ESA which calls for protection of listed endangered species. The district accused the FWS of having an obstructionist attitude that damaged property rights and hindered economic development. They also claimed that it could not be shown that the water projects sponsored by the district would have a direct harmful effect on the fish. In 1983 the issue resurfaced when water developers challenged the scientific basis for some minimum stream flow standards that were being proposed by the FWS.
By the mid 1980's it was clear to the parties involved that the confrontation between resource protection and resource development were not likely to solve their differences through litigation. In 1984 the concerned parties formed the Upper Colorado River Basin Coordinating Committee to address the fact that continued development in the Upper Colorado River would jeopardize the continued survival of the endangered fish. They were charged with the task of coming up with alternatives that would preserve the species in question, while allowing continued development along the river. The conclusion of the committee was that:
The biological requirements of the four fish species and the hydrology and management of the Upper Colorado River Basin are exceedingly complex. . .and a systematic approach was needed in order to achieve the committee's fundamental objective of accommodating rare fish species conservation with continued water resource development in the upper basin. . .the parties determined that a comprehensive program is needed to implement a broad range of measures designed not only to preserve the listed species but to insure their full recovery and eventual delisting under the Endangered Species Act.
This was the beginning of the Endangered Fish Recovery Program of the Upper Colorado River. It emerged after a history of litigation, mistrust, and animosity between concerned parties, namely water developers, government organizations, environmentalists, farmers, and the sport fishing community. These groups came to an impasse on how water from the river would be used in the future and how the many arguable issues that surrounded the river and her inhabitants would be prioritized. A Recovery Implementation Program (RIP) for the endangered fish was developed to address both environmental and water development concerns. The program aimed to work within existing water rights systems and establish and protect the habitat needs of the fish.
The following sections of this paper will address the different issues that are pertinent to the creation and implementation of the Endangered Fish Recovery Program.
The goal of the Recovery Program is to recover and delist the endangered fishes in the Upper Basin by restoring and establishing self-sustaining populations and protecting sufficient habitat to support them.
The five main elements of the the recovery program are: habitat management, habitat development and maintenance, native fish stocking, non-native species and sportfishing, and research, data management, and monitoring. All of these factors are considered to be equally important recovery elements, and it is the interrelationship between the elements that will eventually lead to the success of the recovery program.
One of the main problems that face the members of he RIP is the lack of knowledge about what it will take to save the fish. Much of the research being done now is concerned with instream flows (how much water is need by the fish, and where and when that water should be released). Other information needed includes where the fish spawn, what type of environment will best support young of the year fish, and whether or not the reintroduction of captive and bred fish is a possibility. In the past, attempts to capture fish from the wild, breed them, and reintroduce offspring back into the river have failed. The reintroduced fish do not survive. This is a problem considering one of the goals of the Recovery Program is to establish self sustaining populations of fish.
The organization of the Recovery Program is based on a committee structure. The committees are each charged with different missions. All committees are ruled by consensus. They prioritize different tasks and deal with the most crucial first.
At the top is the Implementation Committee and its membership consists of the Regional Director of Fish and Wildlife Service, the Regional Director of the U.S. Bureau of Reclamation, one representative from each concerned state-Colorado, Utah, and Wyoming, the area manager from the Western Area Power Administration, one representative from the water developers, one representative from conservation organizations, and two non-voting members who observe. Their responsibilities include overseeing the Recovery Program, concurring with prioritized work plans for identifying habitat needs, reviewing instream flow recommendations, overseeing public education programs, recommending annual budgets, and ensuring that all recovery efforts are fully coordinated.
The next level down is the Management Committee and it is charged with ensuring that the Recovery Program is effectively managed so that the highest priority needs of the fish are addressed. Their responsibilities include ensuring that the correct research is being done by lower committees and reporting that research to the Implementation Committee, developing and updating the long term plan and the annual budget for the Recovery Program, promoting Congressional, public, and agency support for the program, ensuring funding is provided by Congress and all participating agencies, and handling any management issues that arise in the implementation of the Recovery Program. Other committees include the Information and Education Committee, the Water Acquisition Committee, and the Biology Committee and its sub-committees: Propagation and Genetics, Non-native and Sportfish, Instream Flow, and Habitat/Life History.
Funding for the Recovery Program is provided by Congress, the FWS, the Bureau of Reclamation (through power revenues and other sources), the three states, and the water acquisition fees from new projects. There has been debate over which projects have to pay these fees depending on when they were approved. The projects implemented by the Bureau of Reclamation are exempted from the fees because of their contributions of other funds.
The participants who joined together to form the Endangered Fish Recovery Program are not traditionally allies or even groups with a history of civil, open, and honest communication between them. But, on this occasion, they have agreed to work together in an attempt to protect and encourage the recovery of native fish populations while allowing continued development on the Upper Colorado River.
The group that initiated the recovery program is the U.S. Fish and Wildlife Service. Under the ESA, they are given the responsibility to issue jeopardy opinions, designate critical habitat, and promote the recovery of a species in question. In the case of the Endangered Fish Recovery Program, the FWS has the ultimate responsibility to decide whether or not the program is working, in the sense that the fish are recovering in the Colorado River and negative depletion impacts are being offset. The FWS plays down their judgmental authority and prefers to defer to the power of the implementation committee (personal communication with Angela Kantola), however, in the end the FWS will assess the success of the RIP.
The water developers' main goal is to keep the ability to develop projects on the Colorado River. In order to do this they have agreed to the term of a one time payment per acre foot of average annual water used in a development to support fish rehabilitation and offset the impact of development. Although large developments fall under considerable scrutiny, smaller projects, involving 3,000 acre feet of water or less are basically allowed. "The FWS established the 3,000 acre foot threshold apparently because it believed that little or no flow protection was needed to offset the impacts of even a series of small water projects and that it was most important to concentrate on the bigger ones." Environmental groups do not necessarily agree with this viewpoint.
The water developers original hope was to gain a pardon from congress so that they could continue to develop the river despite the ESA. The likelihood of a pardon being granted, however, was very slim and it became clear that other alternatives needed to be explored. At first the water developers sought an agreement where in return for money from Congress and the fee per acre foot of water, they would be assured of no-jeopardy opinions for water projects upstream from river reaches occupied by endangered fishes. Environmental groups and the FWS declined to enter into this agreement. However, an agreement to work together was later forged.
The Water Conservation Board views the Recovery Program as a controversial project that they have entered into in order to be able to develop compact allocated waters. While they believe that things could be done much more efficiently in general, and that perhaps there is too much compromise, they see no other way of keeping everyone happy. (Personal communication with Sue Uppendahl)
The environmental groups taking part in the recovery program are involved to ensure that the rare fish are recovered. Their main complaint seems to be the huge amount of time progress towards that end is taking. There also appears to be a hesitancy when it comes to trust or faith in the FWS. (See Robert Wigington's A Guide to the Section 7 Agreement and the RIPRAP) and a general complaint about the bureaucracy of governmental organizations. They have made a push for exhaustive research on the amount of instream flows that the fish need and tend to question the research done by the FWS.
The Bureau of Reclamation traditionally has been responsible for the management of government dams and reservoirs. They have operated the dams to benefit peak power needs and this has helped to wipe out habitat and fish populations. The Implementation Committee has begun to look at these water releases and attempted to have them altered so as to mimic natural patterns as closely as possible. Historically, the Bureau also has been involved in the stocking of non-native fishes and the maintenance of these populations for sport fishing. Some members tend to get rather touchy about the "newly acknowledged problems" in the interactions of non-native and native fish species (personal communication with Bureau of Reclamation employee who requested not to be named).
State governments are also involved in the Recovery Program. The fact that three different states are involved tends to complicate issues because each state has its own water laws and regulations relating to instream flows. The migratory nature of the rare fish also complicates issues. In general the states want to protect the fish, but they are also concerned about water and power for their citizens, irrigation for their farmers, the economic benefits gained through water development, and tourist activities, such as water sports and fishing which rely on the levels of water in the river.
The farming community is important to mention because of their effect on the rare fishes. Irrigation ditches historically trapped fish in their narrow streams where they died. There is much concern in rural agricultural areas where people make a living off the land because a major part of the Recovery Program is water diversions which could directly effect this type of community. People in metropolitan areas tend to be more in favor of saving the fish because they are further removed from the direct effects of the program and have the economic luxury of being more concerned.
The Recovery Program stresses the importance of educating the population and the farming community about the endangered fish. In the past misidentification of species has led to a lack of concern about the seriousness of the fish population problem. When people lump different species together it becomes harder to realize that one species may be rarer and in need of more help than another. Add to this the general opinion that has developed over the years that the four rare fish species are trash fish (and historically have been treated as such) and it becomes imperative to educate people on the value of the endangered fish. It is also important that people understand why flows and releases from dams and reservoirs are being altered in way which may effect human activities and property.
The Recovery Program is designed to be a win win situation for everyone. It has tied together organizations as non-delighted bedfellows. But even so, the parties involved have all committed to making the Recovery Program work. In fact it is very hard to drop out of the program. In order to do so one must submit in writing their reasons for wanting to leave and the committee has the opportunity to work out a solution before the petitioning party may quit.
Although historically the four rare fish were eaten, they were clearly no match in a popularity contest for the much more appetizing catfish, trout, and other non-native fish species that were introduced into the river for game purposes. Of the four listed fish, the squawfish (or whitefish) appears to be the most preferred and commonly eaten, although there are documented accounts of people hunting and eating all four of the endangered fish in the first half of the twentieth century when the fish were much more abundant. In fact the squawfish was even passed off as trout in some restaurants according to Carl Gaensslen who recalls selling Colorado squawfish to two chinese restaurants who in turn would sell them as trout. The chubs and suckers were also eaten but because of their bony structures they were canned, fried, and pressure cooked to make them more edible. There are also accounts of people using the fish as fertilizer for crops and trees.
The decline of the squawfish is attributed, at least in part, by many locals to the introduction of the catfish. Catfish have horns or barbs that became lodged in the throats of the squawfish when they attempted to eat them and the squawfish would choke and die.
The introduction of trout to the Colorado River has had a long term, detrimental effect on the native fish populations. In 1962 a project to rid the Colorado river of "trash fish" and make way for trout was undertaken. The poison rotenone was put in the water to kill the fish in certain areas so that trout could become more prevalent. The rotenoning project was supported by a majority of the public and carried out by the game and fish departments of Utah, Colorado, and Wyoming, and the U.S. Fish and Wildlife Service.
Although the project was considered a great success in the sense that native fish disappeared and non-native trout and salmon began to thrive, historical accounts of the project seem to imply that hardly any squawfish or razorback suckers were effected by the poison. This could be attributed to the belief that many had already died off before the rotenone due to pollution and changed habitat. However, it was the long term interaction between native and non-native fish that had the most harmful effect on the endangered four fish, not the actual poisoning. (Personal communication with Angela Kantola).
It can also be argued that habitat changes that were implemented for the trout had an effect on the continued survival of native fish. The squawfish were used to silty and free running streams, but those streams were cleared up, blocked, and the temperature altered, and in the end the squawfish were not able to survive in the changed habitats. Pollution from railroads dumping oil and gas, along with the gravel industry removing sand and gravel from the river also added to the rare fishes' changed habitat and eventual decline.
There are now more than twice the number of non-native species in the Colorado River than native species. These fish not only compete with the endangered fish for habitat and food, but also prey on the rare fish. Perhaps if the recovery program is successful, in the future native species will once again be abundant enough to supply a challenging fight for sport fishers.
The four rare fishes were once found in most reaches of the upper and lower basins of the Colorado River, however, due to man made obstructions, changes in water flow, and other biological and physical factors the distribution of the fish has become altered and restricted.
Habitat management is essential for the continued survival and recovery of the rare fish species and will be handled primarily through the acquisition of instream flows. Habitat development includes building and maintaining backwaters, spawning habitat, grow-out areas, and fish ladders and passages, in order to create more areas for fish to spawn and grow. Fish ladders will be built in an attempt to allow the migratory squawfish to travel their traditional distances through dams and reservoirs that block their passage.
In the spring of 1993, over five years after the development of the recovery program, a study to assess the possibility of introducing the first fish ladder in the upper basin was begun. The sight for the ladder is the Gunnison River, and the ladder, if built, would expand the range of the squawfish and razorback suckers by 50 miles. While ladders have been used successfully by northern squawfish and salmon, none have been tried with the upper Colorado River rare fish. The ladder would cost close to one million dollars, but before the investment is made, biologists want to look at the flow patterns of fish already downstream from the Blue Mesa Dam (where the ladder would be built) and the types and quantity of fish habitat in the Gunnison.
This is an example of the time and amount of research only one of these projects require and one must wonder how many similar projects will and can be researched and successfully completed in the fifteen years allotted to the recovery program. Other interests impacted by the flows that may be altered to benefit the endangered fish must also be considered. For example, while the rare fish seem to benefit from high spring flows and low flows during the rest of the year, the rafting community prefers high flows year round. The altered flows could also prove detrimental to trout fishing in the the lower Gunnison and the rainbow trout and kokanee salmon fishery in Blue Mesa Reservoir. With the number of complex issues requiring research and the many political interests involved in each project put in place by the Recovery Program, it is not hard to visualize a political atmosphere developing between different interest groups with conflicting agendas.
There are successful projects that have come out of he recovery program such as the water diversion dam in Craig, Colorado, which allows for both fish passage and water diversion. This project is serving as a model for other diversion dams on the Yampa River.
The issue of obtaining instream flows is highly complex. The problem is compounded because each state has different instream flow laws. In Colorado only the state can own instream flows. The Colorado Water Conservation Board owns a flow enforcement agreement with the state of Colorado which entitles them to use and manage instream flows. The Water Conservation Board in turn has an agreement with the Recovery Program to supply the instream flows needed for the recovery of the endangered fish. In Utah obtaining instream flows has not been as complex an issue, because the needed flows are delivered from the reoperation of Flaming Gorge Dam.
However, the Nature Conservancy has suggested that although Utah and Wyoming may not presently have a policy "under which new or presently filed applications are subject to accepted instream flow recommendations... the withdrawal of a reach from appropriation should be considered so as to guard against the risk that instream flows and inflows as needed for recovery are depleted before they can be legally protected."
A problem arises when disagreement flares on how many instream flows the fish need. In general the Instream Flow Committee is responsible for reviewing research done on the instream flows. In many cases the data is provided by FWS projects. Debate has emerged with regards to the efficacy of the methods used by the FWS to justify flow recommendations to protect the fish. A study was commissioned to review the science used to come up with instream flow needs and recommendations (see report by Jack A. Stanford for the Instream Flow Committee). The report concluded that trial and error methods were necessary in some cases to decide which flows were beneficial to the fish, and that flows could not be studied in a vacuum because of other related and important factors in rehabilitation.
The benefits gained from different flows patterns are not one sided. For example while high flows are needed to maintain backwaters, wetlands, and channels necessary for the survival of young fish, the same high flows cause the loss of fish larvae. In other words by insuring high peak flows to create habitat for young of the year and adult fish, one may be decreasing the annual reproductive success of the fish. Conflicts such as these confuse the issue of flows. The report by Jack A. Stanford suggests that the effects of different flows be more throughly monitored and a peer review of research be implemented.
In general the move has been to return the Colorado River to its natural flow patterns. It is believed that this will benefit the fish and allow them to develop self sustaining populations. But, unfortunately, it is not that simple. Years of altered flows have changed the structure and make-up of the river. Havens for young fish do not exist as abundantly as they once did because of the introduction of non-native predator species. Factors such as these must be taken into account when flows patterns and needs are determined.
The Sierra Club Legal Defense Fund, as attorneys for the Colorado Wildlife Federation, has chosen to follow the path of litigation rather than take part in the Endangered Fish Recovery Program. Although many environmental groups are in favor of the program and believe that it is working, albeit slowly, the Sierra Club feels that no progress is being made through the RIP and instead time is being wasted while the fish face further peril. In the case Colorado Wildlife Federation vs. John Turner, Director of the U.S. Fish and Wildlife Service, Lori Potter and Andrew P. Caputo claim that the FWS only fulfilled part of the ESA when they listed the razorback sucker as endangered. The second task was to designate critical habitat for the species so that they are able to receive the full benefits of the ESA.
Instead of complying with a Congressional mandate to designate the habitat by May 1992, the FWS requested two more years to get the job done, even though they have stated that the adult razorback suckers found in the wild are likely to die off in the next five to fifteen years making extinction a possible reality. The Colorado Wildlife Federation wants habitat designated now so that the FWS can head off any federal actions which might harm the critical habitat as per the no-adverse-modification standard in the ESA. They also point out that the recovery program only takes into account the upper basin, while habitat in the lower basin also needs to be classified and protected.
The FWS claimed that the habitat was being duly protected by virtue of the no-jeopardy standard in the ESA. Through this alternative legal method the FWS is ensuring that no harm come to the habitat. The problem with this argument is that in 1991 the FWS itself reasoned that "the thresholds for section 7 'jeopardy' and 'destruction or adverse modification of critical habitat' are different and that, in most cases, designation of critical habitat may provide greater conservation benefits to the species." The FWS in fact seemed to be giving itself its own license to protect the razorback in a way in which it saw fit, without regard for Congressional ruling or the clear intentions of the ESA.
On August 25, 1992, the FWS conceded liability to the charges and since then a proposal has been presented for critical habitat, however it is still not approved and therefore it is not official. The Sierra Club Legal Defense Fund feels that the designation of critical habitat is the primary action that needs to be taken in order to save the species. (Personal communication with Lori Potter) Indeed, they state in their brief that once habitat is designated, it will have to be protected, and once habitat is protected, the razorback will be removed from the endangered species list.
The Sierra Club Legal Defense Fund also claims that the Recovery Program has not done anything to improve the well being or ensure the continued survival of the fish. Fish populations have decreased since the onset of the RIP and instream flows, while analyzed to the hilt, have not been gained for the fish. (Personal communication with Lori Potter). They also sight bad care taking of endangered fish captured for restocking purposes. In April,1992 a series of mishaps, including the accidental exposure to chlorinated water, killed thirty of thirty six fish kept in a New Mexico hatchery. However, Tom Smylie, assistant regional director for the U.S. Dish and Wildlife Service in New Mexico is quoted as saying, "There's no doubt it's a step backward, but it's not the end of a species. It's not going to put them into extinction."
Although the Recovery Program seems to be working in the sense that all parties have agreed to work together to fulfill the goals of the program for the benefit of the fish populations, their progress has been extremely slow and this is only one of the points of contention of many of the participants. The snails pace of the process might be attributed to the traditionally slow and multi-tiered functioning of governmental organizations that tend to get caught up in the bureaucratic process. The slow going is also caused by the committee structure of the program and the fact that every decision is made by consensus. While this may be good for the concerned parties in as much that no side has the ability to gain a majority vote and therefore the advantage in terms of decision making, it may not be as beneficial for the fish who do not have the time to wait for all human parties involved to agree on courses of action to ensure the fish's survival. The program is considered to be a fifteen year process, but as discussed above, experts have given species like the razorback sucker only 5 to 15 years until extinction.
The progress of the RIP is further hindered by the fact that the different concerned states have different and extremely complex laws and regulations relating to the river and water rights. Any issue in the west that deals with the allocation of water rights is going to be a touchy one. The question of how one justifies ones need for water when that water could be used for other purposes becomes a very important aspect of debate. The debate is confounded by the basic lack of proven and effective methods to determine the exact amount of flows needed to revive the fish populations.
Each group, while claiming to be in a open forum, may not be willing to lay all their cards on the table and be completely open about their individual agendas. For example, some environmental groups were overly cautious about discussing their opinions regarding the recovery program or their goals for the eventual outcome of the program. This relatively paranoid attitude may be attributed to tactics of environmental conservation that involve buying land and space for conservation purposes. In other words guarded reaction to questions regarding agendas may be motivated by a plain, old fashioned, economic business sense. (Personal communication with Guy Burgess).
When I communicated directly with the policy makers I observed that at the root of many political standstills lay the inability for different parties to trust each other. This may sound like a workable stumbling block, however, while all involved parties voiced the desire to work together, to get things done, and to achieve success, they also feared giving up the possibility of having or gaining an upper hand which would enable them to come out ahead in the decision making process. This desire to have the upper hand is an illustration of one party wanting to dominate another. Give and take does not seem to be an option, however obvious it may be, instead the win-lose attitude prevails and impedes the policy making process by eliminating the option of compromise.
The concerned parties allege that all members of the program carry equal weight and are there voluntarily out of a desire to ensure both the survival of the fish and the rehabilitation of fish habitat, and the continued development of water projects on the Colorado river. However, one must ask why these parties who at face value, and indeed are historically, seem destined to disagree about almost everything and who have very different agendas, are willing to put aside their differences and attempt to work together to reach a consensus about the management of the Upper Colorado River?
The answer appears to be that all parties lack a better alternative. The water developers' only hope of escaping jeopardy opinions by the FWS is to seek a pardon from congress or to weaken the ESA itself through lobbying. Indeed they tried the latter to much avail. However, the possibility of receiving help from Congress in this case would be almost nil, and therefore their only hope for continued development without too much interference is to stick with the recovery program. (In fact, the program allows for projects that involve 3,000 acre feet of water or less to be approved without much debate.) In order for the water developers to be able to continue building, they have to be willing to make concessions to the U.S. Fish and Wildlife Service. In turn, the Service needs the assistance of the water developers, the states, and the Bureau of Reclamation, to get the water flows, funding, and basic cooperation they needed to help the fish. It is clear that litigation is not an alternative in this case simply because no settlement can be reached without disregarding federal mandates. However had litigation been a viable option, it no doubt, for many, would be the chosen way to go.
It is emphasized in the RIP that the administrative power and responsibilities of the committees does not in any way detract from or add to the responsibility and authority of the States or Federal government. Likewise the FWS, remains responsible for making sure that the ESA is adhered to and carried out. Because of this the FWS holds the trump card in the proceedings. Although all sides contend to work together with equal say it is hard to imagine that the water developers have forgotten the ultimate power of the FWS or that the environmental groups, such as the Environmental Defense Fund or the Nature Conservancy do not remind the FWS of its ultimate responsibility to the endangered fish species if the environmental groups feel that not enough is being done to help the fish populations.
The Recovery Program is a good model of a number of opposed parties working with their differences to achieve a common goal. All information is supposed to put on the table in order to avoid hidden agendas and mistrust. The program is not without its faults. Progress is extremely slow, reliable research data is still needed, complex scientific studies continue to be interpreted differently by different parties, the program is costly, and one must question if after fifteen years the fish populations will actually be living within self sustaining populations. Unfortunately, at this time, it does not appear possible to speed up the pace of action by the Recovery Program without taking some chances. If action is taken without sound scientific backing, the fish may suffer in the long run. On the other hand if action is avoided for too long, the fish will certainly suffer.
In any case the Endangered Fish Recovery Program is a good example of an attempt at alternative mediation methods, rather than litigation. The committee framework enables every party to have a voice, and the ruling by consensus allows for no one party to "win". Hopefully the project will enable the endangered fish populations to bounce back. Meanwhile, water development continues and economic hardships that might be incurred by the states and their citizens if development was stopped and water flows completely altered for the benefit of the fish, are being avoided.
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