§ 10005.10 Relationship of the plan to the authorities and responsibilities of other agencies. Within Utah, several federal agencies, state agencies, and tribal governments have authorities and responsibilities related to the management of fish and wildlife resources, through management of the resource itself, through management of the land and water upon which fish and wildlife depend, or, in the case of Federal reclamation projects, through involvement in mitigation activities. The Act specifically recognizes the authority of other Federal and State agencies to take actions in accordance with other applicable laws. The guidance for this is provided by Section 301(a)(2), which states that “Nothing herein is intended to limit or restrict the authorities of Federal, State, or local governments, or political subdivisions thereof, to plan, develop, or implement mitigation, conservation, or enhancement of fish, wildlife, or recreation resources in the State in accordance with applicable provisions of Federal or State law.” In preparing and implementing its plan, it is the Commission's intent to form a cooperative partnership with other agencies having fish, wildlife, and recreation responsibilities and authorities, both recognizing and relying upon their authorities. The Commission recognizes that these agencies may have specific legal obligations to take actions to maintain or restore fish, wildlife, or recreation resources that are independent of Commission mandates. While the Commission will, as appropriate, authorize the use of funds to complement the resource protection and restoration activities of these agencies, Commission involvement should not be viewed as a replacement for funding or other actions that are rightfully the responsibility of another agency. ( a ) *Agencies with land management authority.* The Commission recognizes that the Federal government, the State of Utah, and applicable Indian tribes each own and/or manage lands that are important to fish and wildlife resources and provide significant outdoor recreation opportunities. At the Federal level, the Forest Service manages National Forest System lands, the Fish and Wildlife Service manages national wildlife refuges, the National Park Service manages national parks, monuments, and recreation areas, the Bureau of Reclamation manages reservoirs and lands adjoining those reservoirs, and the Bureau of Land Management manages other public lands. Indian tribes own and manage lands in accordance with treaties between the tribes and the United States Government. The State of Utah owns and manages state parks, wildlife management areas, and public trust lands. The Commission recognizes the importance of federal, tribal, and state lands to fish, wildlife, and recreation and will entertain proposals for mitigation and conservation activities involving these lands when the following conditions are met: ( 1 ) The managing agency concurs with the proposed action,
( 2 ) All appropriate legal procedures have been followed, and
( 3 ) The land management agency is willing to assume long-term responsibility for operation and maintenance of mitigation and conservation features and to refrain from management activities that may negate or significantly diminish the effects of the project on fish, wildlife, or recreation.
( b ) *Agencies with Federal reclamation project mitigation responsibilities and/or authorities.* Several agencies also have direct authorities and responsibilities relating to mitigation for the effects of Federal reclamation projects in Utah. These include the Department of the Interior Central Utah Project Office, the Bureau of Reclamation, the Central Utah Water Conservancy District, the Fish and Wildlife Service, and the Utah Division of Wildlife Resources. The remainder of this section summarizes the authorities and responsibilities of these agencies with regards to Federal reclamation projects, with emphasis on the Commission's relationship to these agencies. This section does not identify or describe all of the potential relationships between the Commission and other agencies with Federal reclamation project mitigation obligations. As appropriate, the Commission may enter into formal agreements with any or all of the above agencies in order to provide additional detail regarding the relationship or to assign specific program or project responsibilities. The arrangements that are described in this section may also be modified through interagency agreement. ( 1 ) *Secretary of the Interior's Representative to the Central Utah Project.* As required by Section 201(e) of the Act, the Secretary of the Interior is ultimately responsible for carrying out all responsibilities specifically identified in the Act. The Secretary's Representative serves as the Secretary's official representative to the Central Utah Project. The Secretary's Representative monitors activities undertaken in fulfillment of the various aspects of the Act to ensure that these activities, including mitigation activities, are in accordance with applicable law and that Federal funds are used appropriately. The Secretary's Representative also coordinates activities among Department of the Interior agencies involved with the Central Utah Project. The Commission is a Federal Commission within the executive branch of government and its activities are subject to the direct oversight of Congress. While essentially independent of the Secretary of the Interior, the Commission nevertheless has a vital relationship with the Department via both the budget process and the similarity in missions. The Secretary's Representative serves as the principal link between the Commission and the Department of the Interior and is responsible for transmitting Congressional appropriations to fund the Commission's mitigation, conservation, and administrative activities. For purposes of plan development and implementation, the following will guide the Commission's relationship to the Secretary's Representative: ( i ) The Commission acknowledges the authority of the Secretary in overseeing implementation of the Act and recognizes that the Secretary's Representative plays an essential role in ensuring the compatibility of mitigation and conservation measures with the overall Central Utah Project. The Commission is committed to a strong and productive partnership with the Secretary's Representative in fulfilling the Commission's mitigation and conservation responsibilities.
( ii ) The Commission will maintain close communication with the Secretary's Representative regarding the relationship between the plan and Congressional appropriations. The Commission will provide the Secretary's Representative with both long range and annual funding proposals and otherwise assist in preparing the Commission's budget requests to Congress.
( iii ) The Commission and the Secretary's Representative will independently and cooperatively monitor the plan in terms of meeting Section 8 mitigation obligations as directed by the Act.
( iv ) The Commission will actively involve the Secretary's Representative in the Commission's NEPA related activities, including the identification of appropriate roles for the Secretary's Representative and Department of the Interior agencies in the preparation and review of NEPA documents.
( v ) The Commission will, as appropriate, involve the Secretary's Representative in coordinating Commission mitigation and conservation activities with the Bureau of Indian Affairs and with individual Indian tribes.
( vi ) The Commission will utilize the Secretary's Representative as its principal contact for matters regarding the Department of the Interior and, when appropriate, will seek assistance from the Secretary's Representative in coordinating activities involving agencies within the Department, especially when activities involve several agencies. The Commission will, as appropriate, involve the Secretary's Representative in resolving differences that might arise among the various agencies within the Department with regard to the Commission's plan, or the implementation of any measure contained in the plan. This provision does not alter the direct working relationships that the Commission maintains with the U.S. Fish and Wildlife Service, the Bureau of Reclamation, the Bureau of Land Management, and other applicable agencies.
( 2 ) *U.S.D.I. Bureau of Reclamation.* Prior to the Act, the Bureau of Reclamation (Bureau) had the responsibility for implementing mitigation measures associated with Federal reclamation projects within the State of Utah. Section 301(a)(1) of the Act granted authority to the Commission “to coordinate the implementation of the mitigation and conservation provisions of this Act.” Section 301(n) further transferred from the Bureau to the Commission “the responsibility for implementing Section 8 funds for mitigation and conservation projects and features authorized in this Act.” While the Act therefore clearly transfers mitigation responsibilities concerning the Bonneville Unit of the Central Utah Project from the Bureau to the Commission, it does not alter the Bureau's mitigation responsibilities with respect to other components of the Colorado River Storage Project or other Federal reclamation projects in Utah. For purposes of plan development and implementation, the following will guide the Commission's relationship to the Bureau: ( i ) The Commission recognizes that the Bureau and the Commission share fish, wildlife, and recreation mitigation responsibilities associated with Federal reclamation projects within the State of Utah and is committed to maintaining a strong and productive partnership with the Bureau in this regard.
( ii ) Except for those features that the Secretary has assigned to others in allocating the $214,352,000 increase in CRSP authorization specified in Section 201(a) of the Act, the Commission has the primary authority and responsibility for all mitigation projects involving use of Section 8 funds for the Bonneville Unit and for alternative formulations of the Uintah and Upalco units of the Central Utah Project, and all mitigation projects identified in Section 315 of the Act, or as modified in the plan.
( iii ) The Bureau retains the responsibility and primary authority to undertake fish, wildlife, and recreation mitigation and conservation activities for Federal reclamation projects in Utah other than those as described in paragraph (b)(2)(ii) of this section wherein the Bureau acts at the direction of the Commission. The Commission also has the authority to undertake selective fish, wildlife, and recreation mitigation and conservation activities concerning these same projects, as authorized in Section 315 of the Act or in the plan. The Commission will actively consult with the Bureau with regard to potential mitigation or enhancement activities in those areas in order to ensure that Bureau and Commission mitigation activities are coordinated.
( iv ) The Bureau retains responsibility for implementation of fish, wildlife, and recreation mitigation measures associated with Federal reclamation projects in Utah that were initiated prior to the establishment of the Act where that responsibility has not specifically been transferred to the Commission, a water district, or other entity.
( v ) The Bureau retains responsibility for operation, maintenance, and replacement of facilities related to fish, wildlife, and recreation mitigation measures undertaken by the Bureau where that responsibility has not specifically been transferred to the Commission, a water district, or other entity.
( vi ) The Bureau retains responsibility for mitigating future impacts to fish, wildlife, and recreation caused by operation, maintenance, and replacement of water resource development facilities where that responsibility has not specifically been transferred to the Commission, a water district, or other entity.
( vii ) The Commission has no responsibility or authority for mitigation or replacement measures associated with Federal reclamation projects in Utah that are not related to fish, wildlife, and recreation.
( 3 ) *Central Utah Water Conservancy District.* The Central Utah Water Conservancy District (District) is responsible for construction, operation, and management of the various features of the Central Utah Project. NEPA compliance regarding many of these features has resulted in the identification of several measures that are to be undertaken as mitigation for the Central Utah Project's impacts to fish, wildlife, and/or recreation. NEPA compliance for future project features is likely to identify additional fish, wildlife, and recreation mitigation and conservation measures. The Act directs that the Commission give funding priority to measures that result from applicable NEPA procedures. The Act does not, however, specify what role the Commission is to have in determining, or planning for, these measures. For purposes of plan development and implementation, the following will guide the Commission's relationship to the District: ( i ) The Commission is committed to maintaining a strong and productive partnership with the District in order to adequately plan for and implement mitigation measures associated with the Central Utah Project.
( ii ) The Commission recognizes that the District and the Commission have complementary responsibilities for fish, wildlife, and recreation mitigation regarding the Central Utah Project. The District retains the overall responsibility for planning for mitigation activities associated with its completion of the Central Utah Project. The Commission has the responsibility for ensuring that mitigation measures meet with the intent of the Act with regard to protection and restoration of fish, wildlife, and recreation resources and for approving and implementing mitigation and conservation measures. Accordingly, the Commission will monitor District mitigation and conservation planning activities and provide such assistance as is mutually agreed upon.
( iii ) The Commission will actively monitor or, as appropriate, participate in NEPA procedures undertaken by the District that may result in the identification of mitigation and conservation measures that, if implemented, would require Commission funding or may affect other mitigation activities of interest to the Commission. For NEPA procedures that are likely to result in significant Commission obligations, the Commission may request “joint lead agency” status with the District. In such instances the specific involvement of the Commission in the preparation of NEPA documentation will be determined through agreement with the District.
( iv ) The District retains responsibility for mitigating future impacts to fish, wildlife, and recreation caused by the operation, maintenance, and replacement of its water resource development facilities, unless that responsibility has been specifically transferred to the Commission or other entity.
( v ) The District retains responsibility for operation, maintenance, and, where necessary, replacement of fish, wildlife, and recreation mitigation features managed by the District, unless that responsibility has been specifically transferred to the Commission or other entity.
( 4 ) *U.S. Fish and Wildlife Service.* The U.S. Fish and Wildlife Service (Service) has mandated responsibility to implement several acts relevant to the Commission's activities. In Section 301(b)(3), the Act specifically references a Commission obligation to comply with the Fish and Wildlife Coordination Act (FWCA) and the Endangered Species Act (ESA). Other acts administered by the Service and relevant to Commission activities include, but are not necessarily limited to, the Migratory Bird Treaty Act (16 U.S.C. 703 *et seq.*) and the Bald Eagle Protection Act (16 U.S.C. 668-668d). The FWCA directs that the Service, and the state fish and wildlife agency, must be consulted where the “waters of any stream or other body of water are proposed or authorized to be impounded, diverted * * * or otherwise controlled or modified * * * by any department or agency of the United States, or by any public or private agency under Federal permit or license. * * *” The purpose of this consultation is to provide for “the conservation of wildlife resources by preventing loss of and damage to such resources.” The FWCA provides the major mechanism for Service involvement in the Federal reclamation project decision process. The Service's most important role in Federal reclamation projects is in the development and later the monitoring of fish and wildlife mitigation measures. The Service is also responsible for reporting to the Secretary of the Interior on the status of mitigation programs. The Fish and Wildlife Coordination Act provides for the funding of Service FWCA consultation by the agency sponsoring the proposed activity. The Service's ESA responsibilities that are most relevant to Commission activities include listing of new species, preparation and implementation of recovery plans and consultations regarding adverse effects on listed species. Section 7(a)(1) of the Endangered Species Act authorizes Federal agencies to carry out programs for the conservation of endangered and threatened species. Participating in, and being consistent with, recovery plans is a fundamental component of this obligation. Section 7(a)(2) of the ESA requires that, prior to taking any action that may affect a listed species, a Federal agency must consult with the Service to ensure that the action will not jeopardize the continued existence of the species or adversely modify critical habitat. The Migratory Bird Treaty Act (MBTA) establishes a Federal role in protecting bird species that generally migrate across national boundaries. In Utah, these include most indigenous bird species. The MBTA is not intended as a substitute for state wildlife management authority but rather as a complement. The Service is responsible for implementing many of the features of the MBTA, and for encouraging states to undertake actions to protect migratory bird species. The Bald Eagle Protection Act prohibits the taking or possession of either bald or golden eagles, both of which commonly inhabit areas near Utah's rivers and wetlands. For purposes of plan development and implementation, the following will guide the Commission's relationship to the Service: ( i ) The Commission acknowledges the biological expertise of the Service with regard to Federal reclamation projects and other Commission activities relating to the protection and restoration of fish and wildlife resources and will seek to utilize this expertise to the fullest extent. The Commission further recognizes the similarity in agency missions with regard to fish and wildlife mitigation and conservation and is committed to a strong and productive partnership with the Service in this regard.
( ii ) The Commission acknowledges the Service's mandated responsibility with regard to Federal reclamation projects and will specifically consult with the Service regarding activities that are subject to the FWCA. These include both projects directly related to mitigation for Federal water resource projects and applicable fish, wildlife, and recreation conservation projects. In developing its plan and adopting specific projects, the Commission will give significant weight to the Service's recommendations. Should the Commission choose to not follow Service recommendations, it will seek resolution through active consultation with the Service. As appropriate, the Utah Division of Wildlife Resources will be asked to be involved in these consultations as that agency also has co-responsibilities under the FWCA. Should no agreement be reached, the Commission will document its decision and provide this to the Service. The Commission recognizes that the Service has a responsibility to forward its FWCA reports to the Secretary regardless of the resolution of issues contained in the reports. The Commission recognizes that several projects contained in Title II, Section 304, and Section 315 have previously been subjected to Service evaluation pursuant to FWCA. Prior to reallocating funds authorized for these projects, the Commission will formally consult with the Service regarding the relative adequacy of proposed new projects, or significant modifications to Title II, Section 304, or Section 315 projects, in mitigating for impacts to fish and wildlife resources.
( iii ) The Commission will comply with applicable provisions of the ESA and, accordingly, will consult with the Service regarding activities that may affect a listed or candidate species, regardless whether the effect is beneficial or adverse. In addition, the Commission will endeavor to undertake mitigation and conservation projects that are consistent with an adopted recovery plan for a listed species and that aid in the protection of candidate species.
( iv ) The Commission will, in accordance with the Act, formally seek the Service's approval prior to reallocating funds from a project whose primary objectives are the protection and/or restoration of fish and wildlife resources to a project whose objectives are primarily related to recreation. No such funds will be reallocated unless this meets with the approval of the Service.
( v ) The Commission anticipates that the Service will be an active participant in the planning for, and implementation, of mitigation and conservation projects undertaken pursuant to the Commission's plan.
( vi ) The Commission will invite the Service to participate in NEPA activities undertaken or funded by the Commission that bear on fish and/or wildlife resources. The form that this participation will take will be determined on a case-by-case basis and will require agreement on the part of both agencies.
( 5 ) *Utah Division of Wildlife Resources.* As is the case with other states, the State of Utah has the exclusive jurisdiction over non-migratory fish and wildlife and shared jurisdiction (with the U.S. Fish and Wildlife Service) over all migratory birds and Federally listed threatened and endangered fish and wildlife within the state. The applicable state law is Utah Code, Section 23-15-2, which states that “All wildlife within the state, including but not limited to wildlife on public or private lands or in public or private waters within the state, shall fall within the jurisdiction of the Division of Wildlife Resources.” The Utah Division of Wildlife Resources (UDWR) has authorities and responsibilities at the state level similar to those of the U.S. Fish and Wildlife Service at the Federal level, and, like the Service, has mandated authorities under the Federal Fish and Wildlife Coordination Act that relate directly to Federal Reclamation project mitigation. These authorities are described in paragraph (b)(4) of this section. In addition, the Act provides for the UDWR to assume primary responsibility for implementing measures associated with the Act after the Commission expires. In addition to the UDWR's responsibilities and authorities discussed above, the State of Utah also has jurisdiction over other activities that are relevant to the Commission's plan, including the granting of water rights and, except on Federal and tribal lands, management of land use. For purposes of plan development and implementation, the following will guide the Commission's relationship to the UDWR: ( i ) The Commission acknowledges the biological expertise of the UDWR with regard to Federal reclamation projects and other Commission activities relating to the protection and restoration of fish and wildlife resources and will seek to utilize this expertise to the fullest extent practicable. The Commission further recognizes the similarity in agency missions with regard to fish and wildlife mitigation and conservation and is committed to a strong and productive partnership with the UDWR in this regard.
( ii ) The Commission acknowledges the UDWR's authority over the management of fish and wildlife within the State and will take no action that is inconsistent with this authority.
( iii ) The Commission acknowledges that the UDWR has a mandated authority regarding the planning and monitoring of Federal reclamation mitigation. As is the case with the Service, the Commission will formally consult with the UDWR regarding projects that are subject to the FWCA. These include both projects directly related to mitigation for Federal reclamation projects and applicable fish and wildlife conservation projects not directly related to any Federal reclamation project. Consultation will be in accordance with procedures defined in the FWCA. It is anticipated that this consultation will be conducted in conjunction with the Service. However, the Commission recognizes that the UDWR has the right to prepare recommendations independent of the Service should it so desire. The Commission will, in making its decisions, give significant weight to recommendations made by the UDWR. Should the Commission choose to not follow the UDWR's recommendations, it will seek to resolve outstanding issues through active consultation with the UDWR. As appropriate, the Service will be asked to be involved in these consultations. Should no agreement be reached, the Commission will document its decision and provide this to the UDWR. The Commission recognizes that several mitigation projects contained in Title II, Section 304, and Section 315 have previously been subjected to the UDWR evaluation pursuant to FWCA. As is the case with the Service, the Commission will specifically consult with the UDWR prior to significantly modifying or reallocating funds away from these projects.
( iv ) The Commission will specifically consult with the UDWR regarding any project that might have an affect on species identified by the UDWR as wildlife species of special concern and species listed by the UDWR Natural Heritage Program as G1 and G2 plant and animal species.
( v ) The Commission anticipates that the UDWR will be an active participant in the planning for, and implementation, of mitigation and conservation projects undertaken pursuant to the Commission's plan.
( vi ) The Commission will invite the UDWR to participate in NEPA activities undertaken or funded by the Commission that bear on fish and/or wildlife resources. The form that this participation will take will be determined on a case-by-case basis and will require agreement on the part of both agencies.