[Federal Register Volume 60, Number 185 (Monday, September 25, 1995)]
[Rules and Regulations]
[Pages 49447-49461]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-23137]



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UTAH RECLAMATION MITIGATION AND CONSERVATION COMMISSION
43 CFR Part 10005


Policies and Procedures for Developing and Implementing the 
Commission's Mitigation and Conservation Plan

AGENCY: Utah Reclamation Mitigation and Conservation Commission.

ACTION: Final rule.

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SUMMARY: This planning rule establishes the Commission's policies 
regarding the mitigation and conservation plan required by the Central 
Utah Project Completion Act (Act). It defines the procedures that the 
Commission will follow in preparing and implementing the plan and 
provides information to other agencies and the public regarding how 
they might participate. The rule meets the requirement of the Act that 
a rule be established to guide applicants in making recommendations to 
the Commission, and to ensure appropriate public involvement. It also 
fulfills the Commission's need to clearly delineate a process that will 
be followed in preparing the plan, including the identification of the 
decision factors that will be used to evaluate and select the 

[[Page 49448]]
mitigation and conservation projects to be included in the plan. The 
intended effects of this rule are that the public will have a clear 
understanding of the Commission's planning process and that the 
resultant plan will be built upon a foundation of sound public policy 
and natural resource planning theory.

EFFECTIVE DATE: The rule takes effect on September 25, 1995.

FOR FURTHER INFORMATION CONTACT: Michael C. Weland, Executive Director, 
Utah Reclamation Mitigation and Conservation Commission, 111 East 
Broadway, Suite 310, Salt Lake City, Utah, 84111. Telephone: 801-524-
3146.

SUPPLEMENTARY INFORMATION:

Background

    The establishment of this rule provides the Commission and the 
public with the necessary guidance to prepare a plan to mitigate for 
the effects of Federal reclamation projects in Utah and to take other 
actions for the conservation of important fish, wildlife, and 
recreation resources. The Commission was established to focus the 
authority for reclamation mitigation and to coordinate interagency 
efforts toward meeting mitigation needs. The Act (Public Law 102-575) 
mandates that a plan be prepared that ``shall consist of the specific 
objectives and measures the Commission intends to administer * * * to 
implement the mitigation and conservation projects and features 
authorized in this Act.''

Planning Rule Content

    The planning rule provides direction on all aspects of the plan 
development process. It assigns responsibilities, defines the 
Commission's obligation regarding mitigation projects identified in the 
Act, describes the Commission's relationship with other agencies having 
reclamation mitigation authorities, outlines the Commission's planning 
and decision process, and delineates procedures for amending the 
Commission's plan.

Timelines and Public Participation

    By law the plan must be completed by March 31, 1996. Allowing time 
for both technical analysis and appropriate public participation, the 
plan will take seven months to prepare. It is therefore essential that 
the plan be initiated in September of 1995. The immediate effect of the 
planning rule will be to permit the Commission to announce a 90 day 
period within which agencies and members of the public may submit 
proposals for mitigation and conservation projects. These proposals 
will be evaluated by the Commission using decision factors delineated 
in the planning rule. Selected proposals will be made components of the 
Commission's draft five-year plan. The public will be given 30 days in 
which to review the draft plan prior to release of a final plan. Public 
meetings and other means will be used to involve the public during the 
preparation of the plan.

Rule Preparation and Review

    The planning rule was prepared in consultation with affected 
Federal and state agencies and other interested parties. The 
availability of the draft final rule was announced at the July 31, 1995 
Commission meeting at which time copies were made available for agency 
and public review. Notice of availability was posted in the appropriate 
newspapers and copies mailed to agencies and individuals who had 
previously expressed interest. Modifications made in response to public 
comments were non-substantive in nature and largely consisted of 
clarifications. The final rule was adopted at the August 21, 1995 
Commission meeting. The preliminary step of preparing a proposed rule 
was not required as the planning rule establishes internal management 
procedures that will not have a substantive effect on the actions of 
other agencies, levels of government, or private citizens.

List of Subjects in 43 CFR Part 10005

    Administrative practice and procedure, Environmental protection, 
Fish, Intergovernmental relations, Natural resources, Reclamation, 
Recreation and recreation areas, Water resources, Watersheds, Wildlife.

    For the reasons set out in the preamble, 43 CFR chapter III is 
amended as set forth below.
    1. A new part 10005 is added to read as follows:

PART 10005--POLICIES AND PROCEDURES FOR DEVELOPING AND IMPLEMENTING 
THE COMMISSION'S MITIGATION AND CONSERVATION PLAN

Sec.
10005.1  Purpose.
10005.2  Definitions.
10005.3  Policy.
10005.4  Planning rule authority.
10005.5  Directives from the Act relating to the plan.
10005.6  Responsibilities.
10005.7  Agency consultation and public involvement.
10005.8  Mitigation obligations.
10005.9  Relationship of the plan to congressional appropriations 
and Commission expenditures.
10005.10  Relationship of the plan to the authorities and 
responsibilities of other agencies.
10005.11  Environmental compliance.
10005.12  Policy regarding the scope of measures to be included in 
the plan.
10005.13  Geographic and ecological context for the plan.
10005.14  Resource features applicable to the plan.
10005.15  Planning and management techniques applicable to the plan.
10005.16  Plan content.
10005.17  Plan development process.
10005.18  Project solicitation procedures.
10005.19  Decision factors.
10005.20  Project evaluation procedures.
10005.21  Amending the plan.

    Authority: 43 U.S.C. 620k(note); sec. 301(g)(3) (A) and (C) of 
Pub. L. 102-575, 106 Stat. 4600, 4625.


Sec. 10005.1  Purpose.

    The planning rule in this part establishes the Commission's 
policies regarding the mitigation and conservation plan required by the 
Central Utah Project Completion Act, Public Law 102- 575, 106 Stat. 
4600, 4625, October 30, 1992. It defines the procedures that the 
Commission will follow in preparing and implementing the plan and 
provides information to other agencies and the public regarding how 
they might participate.


Sec. 10005.2  Definitions.

    The Act refers to the Central Utah Project Completion Act, Titles 
II, III, IV, V, and VI of Public Law 102-575, October 30, 1992.
    Applicant refers to an agency, organization, or individual 
providing formal recommendations to the Commission regarding projects 
to be considered for inclusion in the Commission's plan.
    Commission means the Utah Reclamation Mitigation and Conservation 
Commission, as established by section 301 of the Act.
    Interested parties refers to Federal and State agencies, Indian 
tribes, non-profit organizations, county and municipal governments, 
special districts, and members of the general public with an interest 
in the Commission's plan and plan development activities.
    Other applicable Federal laws refers to all Federal acts and agency 
regulations that have a bearing on how the Commission conducts its 
business, with specific reference to the Fish and Wildlife Coordination 
Act of 1934, as amended (16 U.S.C. 661 et seq.); the National 
Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 et seq.); 
and the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et 
seq.). 

[[Page 49449]]

    Plan and five-year plan refer to the Commission's mitigation and 
conservation plan as required by section 301 of the Act.
    Planning rule refers to this part, which is a component of the 
Commission's administrative rules and which provides guidance for the 
development, and implementation, of the Commission's plan.
    Section 8 funds refers to the section of the Colorado River Storage 
Project Act that provides for congressionally authorized funds to be 
used in mitigating the effects of the Colorado River Storage Project on 
fish, wildlife, and related recreation resources.


Sec. 10005.3  Policy.

    (a) As directed in section 301(a) of the Act, the Commission was 
established ``to coordinate the implementation of the mitigation and 
conservation provisions of this Act among the Federal and State fish, 
wildlife, and recreation agencies. The United States Senate Committee 
on Energy and Natural Resources report accompanying the Act provided 
further clarification of Congressional intent: ``Focusing of such 
authority into a single entity is intended to eliminate past dispersion 
among several Federal and State resource management agencies of the 
responsibility, and therefore accountability, for reclamation 
mitigation in Utah.''
    (b) It is the policy of the Commission that the mitigation and 
conservation plan, in tandem with the Act, serve as the principal 
guidance for the Commission in fulfilling its mitigation and 
conservation responsibilities. Further, the Commission will use the 
development of the plan, and subsequent amendment processes, as the 
primary means to involve agencies and the public in the Commission's 
decision making process.


Sec. 10005.4  Planning rule authority.

    (a) The Commission is required to adopt administrative rules 
pursuant to the Administrative Procedures Act. The Commission adopts 
the rule in this part pursuant to that authority and to Section 
301(g)(3) (A) and (C) of the Act, which provide for establishment of a 
rule to guide applicants in making recommendations to the Commission, 
and to ensure appropriate public involvement.
    (b) Adoption of the planning rule constitutes a policy decision on 
the part of the Commission and, as such, requires formal public 
notification and approval by the Commission according to established 
procedures. The planning rule is a component of the administrative 
rules of the Commission and has the authority accorded to such 
administrative rules, as described in the Administrative Procedures 
Act.


Sec. 10005.5  Directives from the Act relating to the plan.

    The basic directions for preparation of the plan are contained in 
Section 301 of the Act. Sections 304, 314, and 315 provide additional 
guidance. Provisions that hold particular relevance are identified 
below.
    (a) Primary authority. Section 301(f)(1) directs that the 
mitigation and conservation funds available under the Act are to be 
used to ``conserve, mitigate, and enhance fish, wildlife, and 
recreation resources affected by the development and operation of 
Federal reclamation projects in the State of Utah,'' and, further, that 
these funds are to be administered in accordance with ``the mitigation 
and conservation schedule in Section 315 of this Act, and if in 
existence, the applicable five-year plan.'' Section 301 further 
clarifies that Commission expenditures ``shall be in addition to, not 
in lieu of, other expenditures authorized or required from other 
entities under other agreements or provisions of law.''
    (b) Reallocation of funds. Section 301(f)(2) provides for the 
reallocation of Section 8 funds if the Commission determines ``after 
public involvement and agency consultation * * * that the benefits to 
fish, wildlife, or recreation will be better served by allocating such 
funds in a different manner.'' Such reallocation requires the approval 
of the U.S. Fish and Wildlife Service if funds are to be reallocated 
from fish and wildlife purposes to recreation purposes. The 
Commission's authority to depart from the mitigation and conservation 
schedule specified in Section 315 of the Act is reiterated in Section 
301(h)(1).
    (c) Funding priority. Section 301(f)(3) directs that the Commission 
``shall annually provide funding on a priority basis for environmental 
mitigation measures adopted as a result of compliance with the National 
Environmental Policy Act of 1969 for project features constructed 
pursuant to titles II and III of this Act.''
    (d) Plan adoption and content. Section 301(g)(1) directs that the 
Commission adopt a plan ``for carrying out its duties'' and that the 
plan ``shall consist of the specific objectives and measures the 
Commission intends to administer * * * to implement the mitigation and 
conservation projects and features authorized in this Act.''
    (e) Recommendations. Section 301(g)(3)(A) directs that ``the 
Commission shall request in writing from the Federal and State fish, 
wildlife, recreation, and water management agencies, the appropriate 
Indian tribes, and county and municipal entities, and the public, 
recommendations for objectives and measures to implement the mitigation 
and conservation projects and features authorized in this Act or 
amendments thereto.''
    (f) Public involvement. Section 301(g)(3)(C) directs the Commission 
to provide for appropriate public involvement in the review of 
Commission documents produced subsequent to receiving recommendations.
    (g) Guidance on selecting measures. Section 301(g)(4) identifies 
the types of measures that are to be included in the plan, namely those 
that will--
    (1) Restore, maintain, or enhance the biological productivity and 
diversity of natural ecosystems within the State and have substantial 
potential for providing fish, wildlife, and recreation mitigation and 
conservation opportunities;
    (2) Be based on, and supported by, the best available scientific 
knowledge;
    (3) Utilize, where equally effective alternative means of achieving 
the same sound biological or recreational objectives exist, the 
alternative that will also provide public benefits through multiple 
resource uses;
    (4) Complement the existing and future activities of the Federal 
and State fish, wildlife, and recreation agencies and appropriate 
Indian tribes;
    (5) Utilize, when available, cooperative agreements and 
partnerships with private landowners and nonprofit conservation 
organizations; and
    (6) Be consistent with the legal rights of appropriate Indian 
tribes.
    (h) Definite plan report. Section 304 directs that mitigation 
commitments included in the 1988 draft Definite Plan Report for the 
Bonneville Unit of the Central Utah Project (DPR) which have not yet 
been completed are to be undertaken in accordance with that report and 
the schedule specified in Section 315 of the Act, unless otherwise 
provided for in the Act.
    (i) Implementation schedule. Section 315 identifies mitigation and 
conservation projects to be implemented and provides a schedule and 
budget for doing so. Details on select components of Section 315 may be 
found in Sections 302 through 313, excluding Section 304.


Sec. 10005.6  Responsibilities.

    Responsibilities concerning implementation of this planning rule 
are assigned as follows: 

[[Page 49450]]

    (a) Commission. The Commission is responsible for adopting this 
planning rule, including the project evaluation procedures contained 
herein. The Commission is also responsible for formal adoption of the 
final plan and, following this, approving, on a project by project 
basis, of agreements to implement the specific elements contained in 
the plan.
    (b) Executive Director and Commission staff. The Executive Director 
and Commission staff are responsible for preparing planning documents, 
including preliminary evaluation of projects, and for consultation with 
agencies and other interested parties regarding the various aspects of 
the planning process, in accordance with procedures set forth in this 
planning rule.
    (c) Department of Interior Solicitor. The Department of the 
Interior's Regional Solicitor acts as the agency's attorney-advisor and 
is responsible for advising the Commission on legal matters related to 
the planning rule, the plan, and the planning process as agreed upon 
between the Department and the Commission.
    (d) Secretary of the Interior's Representative to the Central Utah 
Project. The Secretary's Representative is responsible for monitoring 
the plan, and activities undertaken as components of the plan, with 
regard to their consistency with the Act and their compatibility with 
other activities required by the Act. The Secretary's Representative is 
also responsible for coordinating relevant activities of other agencies 
within the Department of the Interior and for coordinating the process 
by which Congressionally appropriated funds are made available for 
Commission mitigation and conservation activities.
    (e) Interested parties. Federal and State resource agencies, Indian 
tribes, and other interests are, should they choose to become involved, 
responsible for providing meaningful recommendations regarding 
potential projects, for coordinating the development of these 
recommendations with other appropriate agencies and organizations, and, 
as applicable, for participation in implementation of projects.


Sec. 10005.7  Agency consultation and public involvement.

    The Commission considers agency consultation and public involvement 
to be central components of the planning process. Interested parties 
will be given the opportunity to become involved at several stages in 
the plan development, process. The major opportunities are as follows:
    (a) Planning rule development. The initial opportunity for 
involvement occurs in the preparation of this planning rule, through 
providing written or oral comment to the Commission prior to adoption.
    (b) Project recommendations. The next opportunity is in the 
preparation of recommendations for projects to be included in the 
Commission's plan. The Commission will make a formal announcement that 
it is soliciting recommendations for potential projects. Interested 
parties will have ninety days within which to respond. Commission staff 
will, upon request and as dictated by work load, provide guidance and 
other assistance in the preparation of project recommendations. 
Interested parties are encouraged to work cooperatively with others in 
the preparation of joint recommendations. Commission staff will 
facilitate this as appropriate. Section 10005.18 provides additional 
direction on this. At the end of the ninety day period the Commission 
will make all recommendations received during that time available for 
public review. These will be available at the Commission office during 
normal business hours. Copies will also be provided to those requesting 
them at a reasonable charge.
    (c) Plan preparation. At the close of the ninety day project 
solicitation period, the Commission will proceed to prepare a draft 
plan. Several opportunities for agency consultation and public 
involvement will be provided during the preparation of the plan. One or 
more public briefings will be held during this period. Briefings will 
be announced in appropriate local and regional media. Work sessions may 
also be held, sponsored either by the Commission or jointly with other 
interested parties, to discuss individual projects or other topics of 
general interest. Interested parties may also request meetings with 
Commission staff to discuss specific projects or issues. The 
availability of staff for such meetings will be dictated by work load. 
During this time, interested parties may also attend, and participate 
in, Commission meetings where the various aspects of the plan are 
discussed. Written comments will also be accepted during the plan 
preparation period.
    (d) Review of draft plan. Following release of the draft plan, 
interested parties will be given thirty days within which to provide 
formal written comments. During this time, interested parties may 
request meetings with Commission staff to discuss aspects of the draft 
plan. The Commission will also receive comments on the draft plan at 
appropriate times during regularly scheduled Commission meetings. The 
Commission may, at its discretion, convene one or more public meetings 
to discuss issues related to the draft plan.
    (e) Final plan. The release of the final plan will be announced in 
the media and copies made available to the public. As warranted, the 
Commission may hold one or more meetings to brief interested parties on 
the final plan.
    (f) Amendments to the plan. The opportunities for agency 
consultation and public involvement described above will also be 
provided each time the Commission undertakes a comprehensive revision 
of the plan. In addition, the Commission will give appropriate public 
notice and grant an opportunity to comment at such times as the 
Commission is considering other, less comprehensive amendments. Section 
10005.21 provides additional information on how agencies and the public 
may become involved in the plan amendment process.


Sec. 10005.8  Mitigation obligations.

    While the Act authorizes the Commission to undertake a wide range 
of general planning and mitigation activities, it also specifies 
certain projects or groups of projects that the Commission is to 
implement. The Commission considers these obligations from the Act to 
be integral components of the mitigation and conservation plan and of 
the planning process used to develop this plan. From the perspective of 
the plan, two issues are germane. These are the extent to which these 
obligations must take priority over other projects, either in terms of 
funding or sequencing and the extent to which there is flexibility in 
the specific actions to be taken in fulfillment of these obligations. 
Through this planning rule and other means the Commission will ensure 
that interested parties are made aware of the implications of these 
obligations in order that they might use this information when 
participating in the development and implementation of the plan.
    (a) Description of mitigation obligations. Obligations principally 
derive from three portions of the Act: Title II, section 304, and 
section 315. Following is a description of the obligations contained in 
each.
    (1) Title II. Title II authorizes funding and provides guidance for 
completion of certain features of the Central Utah Project. It also 
provides for Commission involvement in several specific activities 
relating to Central Utah Project mitigation, including funding for 
specific Section 8 mitigation activities. 

[[Page 49451]]
In the future, additional Title II features will be implemented. These 
will be subject to environmental review through NEPA or other 
applicable Federal laws and will, in many instances, be coupled with 
mitigation measures. Section 301(f)(3) of the Act directs that priority 
be given for funding of mitigation measures that are associated with 
Central Utah Project features identified in either Title II or III of 
the Act that have been, or will be, authorized through compliance with 
NEPA.
    (2) Section 304. This section directs that mitigation and 
conservation projects contained in the DPR be completed and that this 
be accomplished in accordance with the DPR and the schedule specified 
in section 315 of the Act. Several elements of the DPR have been either 
completed or initiated.
    (3) Section 315. This section identifies several mitigation and 
conservation projects that are to be implemented to enhance fish, 
wildlife, and recreation resources. It also identifies the funds that 
are to be authorized for each project. Initial phases of selected 
section 315 projects have already received Commission funding approval. 
Additional section 315 projects have undergone substantial review and 
detailed implementation plans have, in some cases, been prepared.
    (b) Commission policy on fulfilling obligations. As referenced in 
Sec. 10005.5, Section 301(f)(1) and (2) of the Act provides for re-
programming of Section 8 funds to other projects in accordance with the 
plan and/or following appropriate public involvement and agency 
consultation, and provided ``that the benefits to fish, wildlife, or 
recreation will be better served'' by doing so. The Commission 
interprets this as giving the Commission broad discretion to determine, 
with appropriate agency consultation and public involvement, whether to 
implement projects delineated in the above stated sections and, should 
the Commission choose to implement these, the form that this 
implementation will take.
    (1) This notwithstanding, the Commission recognizes that the 
projects referenced in Title II, Section 304, and Section 315 have, in 
most cases, undergone considerable planning as well as agency and 
public scrutiny. Their inclusion in the Act represents a consensus 
among Federal and state agencies, water developers, and the national 
and state environmental communities that these mitigation measures have 
merit. Further, NEPA proceedings have, in some instances, been 
completed.
    (2) Absent the plan, the Commission will rely on Title II, Section 
304, and Section 315 as the principal guidance in authorizing projects. 
Once adopted, the plan will become the principal form of guidance. In 
selecting projects for the plan, mitigation measures referenced in 
Title II, Section 304, and Section 315 will be given priority 
consideration. They will, however, be subjected to the same analysis as 
other proposed projects. Should these projects be found to not meet the 
Commission's standards for project approval, they will be rejected. 
Title II, Section 304, and Section 315 projects that meet Commission 
standards will only be superseded in the plan if it can be demonstrated 
that the contributions to be made by other projects proposed through 
the project solicitation process significantly outweigh those of the 
aforementioned Title II, Section 304, and/or Section 315 projects.
    (3) Regardless, the Commission will retain flexibility regarding 
how Title II, Section 304, and Section 315 projects will be 
implemented. Interested parties may, if they choose, propose 
modifications or enhancements to these projects through the normal 
project solicitation process. The Commission will pay particular 
attention to proposals that will accomplish Title II, Section 304, or 
Section 315 measures at lower cost, thereby freeing up funds for 
heretofore unidentified projects.
    (4) The Commission is aware that future NEPA procedures related to 
the development of Title II features may result in the identification 
of additional impacts and mitigation measures. The Commission considers 
implementation of measures that result from a formal NEPA procedure to 
be non-discretionary. The Commission recognizes a commitment to 
implement such measures as are within its authority. Further, in 
accordance with Section 301(f)(3), the Commission is committed to 
giving these measures high priority. In order to ensure that such 
measures are consistent with the Commission's overall program, and can 
be implemented within budget, the Commission will take an active role 
in NEPA procedures that are likely to result in significant mitigation 
obligations for the Commission.
    (5) If the Commission chooses not to implement a mitigation measure 
or, for any reason be unable to implement a measure resulting from NEPA 
procedures, the Commission will conduct, or cause to have conducted, a 
supplemental environmental evaluation to determine suitable alternative 
mitigation measures. The Commission will implement the findings of that 
evaluation to the extent possible. The only exception will be when the 
Commission proposes to substitute an equivalent mitigation measure that 
meets with the approval of applicable Federal, State, or Tribal fish 
and wildlife agencies, the Secretary of the Interior, and other 
affected parties.
    (6) In order to assist agencies and other interested parties in 
understanding the scope of the obligations contained in Title II, 
Section 304, and Section 315, and others that may arise in the future, 
the Commission will, at the time it invites recommendations on measures 
to be included in the plan, prepare and distribute a list of projects 
that the Commission considers to be obligations as defined in this 
section.


Sec. 10005.9  Relationship of the plan to congressional appropriations 
and Commission expenditures.

    (a) The plan itself does not constitute a commitment of resources 
for any given project. The commitment to expend resources is dependent 
upon Congressional appropriation, and, following this, Commission 
approval of specific projects.
    (b) The Commission will rely on the plan as the primary source of 
information for the development of the agency's annual budget. For each 
fiscal year, projects identified in the plan will be arranged into a 
series of programs based on project type or ecological and geographical 
associations. These programs will serve as the basis for the agency's 
budget request.
    (c) Once the budget request is formulated and submitted to the 
Congress, the request may be altered or reformulated by the Congress 
before the appropriation statute is finally approved. The appropriation 
statute will then control the implementation of the plan. In light of 
the controlling nature of the appropriation statute over the 
implementation of the plan, the plan must maintain sufficient 
flexibility to allow adjustments to comply with appropriations. The 
amendment process described in Sec. 10005.21 provides the mechanism for 
modifying the plan to correspond to changes in Congressional 
appropriations. Changes to the annual project portfolio will, in most 
instances, constitute a ``substantive'' amendment as described in 
Sec. 10005.21.
    (d) Once appropriations have been approved by the Congress, the 
plan will serve as the principal guidance to the Commission in entering 
into agreements and approving the expenditure of funds for specific 
projects. 

[[Page 49452]]



Sec. 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 

[[Page 49453]]
    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, 

[[Page 49454]]
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 

[[Page 49455]]
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.


Sec. 10005.11  Environmental compliance.

    (a) Section 301(c)(3) establishes that the Commission is to be 
considered a Federal agency ``for purposes of compliance with the 
requirements of all Federal fish, wildlife, recreation, and 
environmental laws, including (but not limited to) the Fish and 
Wildlife Coordination Act, the National Environmental Policy Act of 
1969 (NEPA), and the Endangered Species Act of 1973.'' While not 
specifically referenced in that section, the Federal Water Pollution 
Control Act (Clean Water Act) (33 U.S.C. 1251 et seq.) also contains 
environmental compliance provisions that are directly relevant to the 
Commission's mitigation and conservation activities. The Commission is 
committed to full and active compliance with these laws as well as 
applicable State environmental law.
    (b) The Commission's NEPA procedures are addressed in a different 
chapter of the agency's administrative rules. Because the plan is 
subject to alteration or amendment under a number of circumstances, the 
plan does not constitute an irretrievable commitment of resources and 
thus is not subject to NEPA. Projects preliminarily selected for 
funding by the Commission will, however, be subject to formal NEPA 
review. The Commission recognizes that these procedures may affect both 
project budgets and scheduling and will therefore give specific 
consideration to this when preparing the plan. As described in 
Sec. 10005.16 the plan will identify, at a reconnaissance level, the 
need for individual projects to comply with NEPA and other Federal and 
State environmental laws and the opportunities available for 
consolidating NEPA review into programmatic or watershed-wide analysis 
as appropriate.


Sec. 10005.12  Policy regarding the scope of measures to be included in 
the plan.

    The terms ``mitigation'' and ``conservation'' are used repeatedly 
throughout the Act and committee reports accompanying the Act. The 
importance of these terms is exemplified by the fact that Congress saw 
fit to include them in the official name of the Commission. The 
Commission interprets the term ``mitigation'' to mean activities 
undertaken to avoid or lessen environmental impacts associated with a 
Federal reclamation project or, should impact occur, to protect, 
restore, or enhance fish, wildlife, and recreation resources adversely 
affected by the project. Mitigation at the site of the impact typically 
involves restoration or replacement. Off-site mitigation might involve 
protection, restoration, or enhancement of a similar resource value at 
a different location. Mitigation may also involve substituting one 
resource feature for another. In meeting its mitigation 
responsibilities, the Commission sees an obligation to give priority to 
protection and restoration activities that are within the same 
watershed as the original impact and that address the same fish, 
wildlife, or recreation resource that was originally affected. The 
Commission's ``conservation'' authority allows it to invest in the 
conservation of fish, wildlife, and recreation resources generally, and 
not directly associated with any Federal reclamation project. 
Conservation projects may, therefore, be 

[[Page 49456]]
considered for any area of the state, regardless of the presence of a 
reclamation project. Nothing in this section is meant to restrict 
consideration of conservation projects directly associated with a 
Federal reclamation project. The Commission recognizes that, with 
limited resources, it is not possible to address the entire range of 
fish, wildlife, and recreation needs throughout the State. Indeed, 
addressing only the most critical issues will require prudent and 
judicious planning and use of resources. This section defines the areas 
where the Commission intends to focus its attention over the long-term 
and, in so doing, provides guidance for the development of the 
Commission's mitigation and conservation plan. By defining priorities, 
the Commission narrows the options of applicants in making 
recommendations for potential projects, and of the Commission itself in 
selecting measures to be incorporated into the plan.
    (a) Priority resources. The Commission's intent is to focus 
expenditures and activities on those areas and resources where the 
Commission believes that it can, consistent with its mandate, have the 
greatest positive impact. Accordingly, it is the policy of the 
Commission that projects selected for the plan must accomplish one or 
more of the following:
    (1) Protect and/or restore aquatic systems that provide essential 
habitat for fish and wildlife,
    (2) Protect and/or restore wetland and riparian systems that 
provide essential habitat for fish and wildlife,
    (3) Protect and/or restore upland areas that contribute to 
important terrestrial ecosystems and/or support aquatic systems,
    (4) Provide outdoor recreation opportunities that are dependent on 
the natural environment and that support the conservation of aquatic 
systems, and/or
    (5) Address fish, wildlife, or recreation resources from a 
statewide context in order to provide essential information on aquatic 
systems or to assist in the establishment of statewide programs for 
fish, wildlife, or recreation conservation.
    (b) Priority projects. In recognition of its responsibility to 
mitigate for Federal reclamation projects, the Commission will give 
special consideration to projects that:
    (1) Address fish, wildlife, and recreation resources affected by 
the development of the Central Utah Project, including projects 
authorized in Title II, section 304, or section 315 of the Act, as 
described in Sec. 10005.8,
    (2) Address fish, wildlife, and recreation resources affected by 
the development of other features of the Colorado River Storage Project 
in Utah, or
    (3) Address fish, wildlife, and recreation resources affected by 
the development of other Federal reclamation projects in Utah.
    (c) Specific objectives for five-year plans. Each five-year plan 
will contain a set of specific objectives derived from the above 
elements. Objectives will be based on the Commission's determinations 
of the issues and resources that are in most need of attention, and the 
potential for making a substantial contribution to fish, wildlife, and 
recreation resources. Objectives may include the targeting of certain 
watersheds and/or basins for priority attention based on these same two 
factors.


Sec. 10005.13  Geographic and ecological context for the plan.

    In accordance with the Act, the Commission has the authority to 
implement projects throughout the State of Utah. The Commission 
believes that, to be effective, the plan must be prepared, and 
evaluated, from a state-wide perspective and that, within the state, an 
ecosystem-based approach is appropriate. There is no one correct way to 
define an ecosystem or to approach ecosystem planning. The Commission 
concludes that, for its planning purposes, the watershed provides the 
appropriate geographic and ecological reference within which to 
evaluate proposed projects and otherwise plan its activities. In 
delineating watersheds, the Commission will be consistent with the best 
ecological and hydrological science and, to the extent possible, with 
the ecological and hydrological units currently used by the State of 
Utah, the U.S. Fish and Wildlife Service, and other applicable Federal 
agencies. The Commission recognizes that mitigation and conservation 
projects may vary in scale and that, therefore, one standard set of 
watersheds is not necessarily appropriate for all projects. For 
example, a more localized project may best be analyzed from a 
``watershed within a watershed'' perspective. Alternatively, a large-
scaled project may need to be visualized from the perspective of a 
major river basin consisting of several watersheds. The Commission will 
prepare, and have available for public use, a list or map that 
identifies major basins, watersheds, and, where appropriate, hydrologic 
units within watersheds, that the Commission will use to organize its 
mitigation and conservation activities. This list or map may be revised 
from time to time as circumstances change.


Sec. 10005.14  Resource features applicable to the plan.

    In accordance with the Act, projects selected for funding must make 
substantial contributions to fish, wildlife and/or recreation 
resources. Biological projects may focus on the protection or 
restoration of an individual species, a group of inter-related species, 
or the habitats upon which these species depend. Projects that target 
sensitive plant species may also be included in the plan, particularly 
if they contribute to the overall health of the ecosystem. Recreation 
projects should be targeted at increasing the quality of and/or access 
to outdoor recreation opportunities that rely on the natural 
environment or at providing opportunities that have been reduced 
through Federal reclamation projects. Following is a representative 
list of the types of resources that projects may target, along with 
examples of possible activities that might be undertaken for each. The 
following list is not intended to limit the scope of projects that may 
qualify for inclusion in the Commission's plan:
    (a) Fish and Wildlife Production, including:
    (1) Enhancement of natural production,
    (2) Restoration of indigenous species,
    (3) Scientific studies,
    (4) Development of new or upgraded culture facilities.
    (b) Plant Propagation, including:
    (1) Protection of critical habitat for sensitive species or 
communities,
    (2) Reintroduction of native plants in conjunction with habitat 
restoration projects,
    (3) Vegetation manipulation to achieve desired ecological 
conditions.
    (c) Stream Habitat, including:
    (1) Protection or enhancement of instream flow,
    (2) Restoration of natural flow regimes,
    (3) Improvement to water quality,
    (4) Restoration of natural channel, bank, and riparian conditions,
    (5) Restoration of natural instream and bank cover conditions.
    (d) Lake Habitat, including:
    (1) Stabilization of water level,
    (2) Water quality protection or improvement,
    (3) Restoration of natural lakebed conditions,
    (4) Riparian area maintenance,
    (5) Outlet flow maintenance.
    (e) Wetlands Habitat, including:
    (1) Protection of existing wetlands,
    (2) Restoration of drained or otherwise degraded wetlands, 

[[Page 49457]]

    (3) Enhancement of wetland habitat.
    (f) Upland Habitat, including:
    (1) Protection or restoration of migration corridors,
    (2) Re-connection of fragmented habitats,
    (3) Protection of critical habitats,
    (4) Habitat condition improvement.
    (g) Outdoor Recreation, including:
    (1) Establishment of fishing and boating access,
    (2) Establishment of greenways and low impact trails,
    (3) Providing opportunities for wildlife related recreation, 
including hunting and observation,
    (4) Providing opportunities for passive recreation and sightseeing,
    (5) Stocking waters with fish (where not incompatible with 
biological objectives),
    (6) Education and interpretation related to fish, wildlife, and 
their habitats.


Sec. 10005.15  Planning and management techniques applicable to the 
plan.

    The Commission recognizes that there are a wide range of techniques 
that may be employed to protect or restore natural resources. The 
Commission will consider projects that make use of techniques that 
either have previously been proven to be effective at meeting stated 
objectives or represent new and innovative approaches that hold promise 
for being effective and establishing positive precedents for future 
activities. Following is a representative list of techniques that the 
Commission may choose to fund. This list is not exhaustive. Other 
appropriate techniques may exist or be developed in the future.
    (a) Acquisition of property (land or water), or an interest in 
property, for fish, wildlife, or recreation purposes.
    (b) Physical restoration of ecological functions and habitat values 
of lands or water courses.
    (c) Construction and reconstruction of facilities, such as trails, 
fish culture facilities, instream spawning facilities, water control 
structures, and fencing that aid in the conservation of fish and 
wildlife resources, and/or provide recreation opportunities.
    (d) Regional planning aimed at conserving fish and wildlife, and/or 
providing recreation opportunities.
    (e) Management and operations agreements, strategies, and other 
institutional arrangements aimed at conserving fish and wildlife and 
their habitats, and/or providing recreation opportunities.
    (f) Inventory and assessment of biological resources.
    (g) Applied research that targets specific biological information 
or management needs.
    (h) Development of educational materials and programs aimed at 
increasing public enjoyment and awareness of fish and wildlife 
resources and the ecosystems upon which they depend.


Sec. 10005.16  Plan content.

    (a) Minimum requirements. At a minimum, the plan will include:
    (1) A summary of basic information from the planning rule, 
including project evaluation procedures and plan amendment procedures,
    (2) The identification of measurable objectives for the term of the 
plan,
    (3) A list, and description, of the projects selected for 
implementation during the term of the plan--with particular emphasis on 
projects to be implemented early in the planning cycle,
    (4) A description of the relationship between the projects to be 
included in the plan and the Commission's mitigation obligations,
    (5) A preliminary determination regarding environmental review 
requirements for each project,
    (6) A preliminary determination of management and operation 
requirements and how these will be met,
    (7) A budget, both for the next fiscal year and for the entire 
five-year period,
    (8) A project phasing plan spanning the term of the plan, and
    (9) A strategy for monitoring progress and evaluating 
accomplishments, and
    (b) Potential additions. At the Commission's discretion, the plan 
may also include:
    (1) A discussion of the relationship of the plan to other 
activities affecting fish, wildlife, and recreation resources within 
the State of Utah, and/or
    (2) Discussions of, or information on, other topics that the 
Commission determines to be relevant. For example, the Commission may 
wish to identify mitigation and/or conservation measures that the 
Commission may wish to consider in later years of the five-year plan or 
in subsequent five-year plans.


Sec. 10005.17  Plan development process.

    Following adoption of the planning rule, the Commission will 
proceed with the preparation of the plan, in adherence with the 
following procedures and in the order stated:
    (a) A formal request for recommendations regarding potential 
projects will be made to Federal and State resource agencies, Indian 
tribes, and other interested parties. An appropriate announcement will 
also be made in the Federal Register. Those choosing to participate 
will have 90 days to submit project proposals. The project solicitation 
process is discussed in detail in Sec. 10005.18.
    (b) The Commission will compile all recommendations and make these 
available for public review at the Commission's office. The Commission 
will also provide copies upon request for a reasonable cost.
    (c) The Commission will evaluate each project proposal according to 
the decision factors, standards, and evaluation procedures described in 
Sec. 10005.19 and prepare a preliminary list of priority projects.
    (d) One or more public meetings will be scheduled in which 
Commission staff will present the Commission's analysis and preliminary 
conclusions.
    (e) The Commission will prepare a final list of projects proposed 
for implementation during the term of the plan.
    (f) A draft plan will be prepared, approved by the Commission, and 
released for public review. Availability of the document will be 
announced in the Federal Register. The public will be given a minimum 
of thirty days to review the draft and submit written comments.
    (g) The Commission will make necessary revisions and formally adopt 
a final version of the plan. Completion of the plan will be announced 
in the Federal Register. The Act requires that the initial final plan 
be completed by March 31, 1996 and be revised at least every five years 
thereafter.


Sec. 10005.18  Project solicitation procedures.

    As provided for in Section 301 of the Act, the Commission will make 
a formal invitation to Federal and State resource agencies, Indian 
tribes, and other interested parties to prepare recommendations 
concerning projects that will be considered for funding. This 
invitation will take the form of a ``project solicitation packet.'' The 
packet will contain a cover letter, this planning rule or a reference 
as to where it may be obtained, a format for preparing applications, 
and other materials that the Commission concludes will assist in the 
preparation of recommendations. Appropriate announcement will also be 
made in the Utah media and in the Federal Register in order that other 
interested parties might be made aware of the opportunity to 
participate. To assist applicants, the format for preparing application 
may be made available in electronic form upon request. As warranted, 
the Commission 

[[Page 49458]]
may propose specific projects and/or assist others in the preparation 
of recommendations in order to fully execute its obligations as 
described in Sec. 10005.8. The following information will be requested 
of applicants:
    (a) An abstract of the proposed project,
    (b) Information on the applicant, including the name of the person 
preparing the recommendation, the official authorizing the 
recommendation, and partners to the application, if any,
    (c) The location of the proposed project,
    (d) The overall goal for the project and the specific fish, 
wildlife, or recreation objective(s) that the project's proponent seeks 
to achieve,
    (e) The relationship, if any, of the proposed project to Federal 
reclamation mitigation and, especially, to measures delineated in Title 
II, Section 304, or Section 315,
    (f) A description of the project, including tasks to be undertaken, 
products to be produced, and the expected results,
    (g) A proposed budget, including, where applicable, a description 
of contributions to be provided by project implementors or other 
sources,
    (h) A proposed time schedule,
    (i) The identification of the entity (ies) to be involved with the 
project (project implementation and post-project operation and 
management), including their qualifications for undertaking this type 
of work,
    (j) A description of any consultation with landowners, agencies, or 
other affected entities, to include documentation where appropriate,
    (k) An evaluation of the project in relationship to the 
Commission's first five decision factors identified in Sec. 10005.19,
    (l) An evaluation of the anticipated need for NEPA documentation 
and compliance with the ESA, the Clean Water Act, and other applicable 
environmental laws, and
    (m) At the option of the applicant, other information that might 
assist the Commission in evaluating the recommendation.


Sec. 10005.19  Decision factors.

    This section identifies the principle decision factors that the 
Commission will use to evaluate the relative merit of proposed projects 
and the way that the Commission will apply these decision factors. The 
Commission has selected six general decision factors that will be used 
to evaluate the relative priority of proposed projects. ``Standards'' 
related to each decision factor provide a means for measuring the 
extent to which each proposed project responds to the decision factors. 
The Commission's decision factors and standards are as follows:
    (a) Decision Factor 1: Benefits to fish, wildlife, and recreation 
resources. The following three standards apply:
    (1) Biological integrity. Projects will contribute to the 
productivity, integrity, and diversity of fish and wildlife resources 
within the State of Utah. To meet the Biological Integrity standard, 
projects should accomplish one or more of the following:
    (i) Protect, restore, or enhance the ecological functions, values, 
and integrity of natural ecosystems supporting fish and wildlife 
resources,
    (ii) Provide conservation benefits to both species and their 
habitats,
    (iii) Provide benefits to multiple species,
    (iv) Promote biodiversity and/or genetic conservation,
    (v) Aid long-term survival/recovery of species, or groups of 
species, that are of special concern, including:
    (A) Species on the Federal List of Endangered or Threatened 
Wildlife and Plants,
    (B) Federal category 1 or 2 candidates for listing,
    (C) Species identified by the UDWR as wildlife species of special 
concern,
    (D) UDWR Natural Heritage Program G1 and G2 plant and animal 
species,
    (E) On lands managed by the U.S. Forest Service or the Bureau of 
Land Management, species of special concern as recognized by the 
appropriate agency, and
    (F) the sensitive species conservation list developed by the Utah 
Interagency Conservation Committee,
    (vi) Provide protection to important aquatic, riparian, or upland 
habitats, especially those that are either critical to a sensitive 
indigenous species or useful to a variety of species over a range of 
environmental conditions, and/or
    (vii) Restore self-sustaining, naturally functioning aquatic or 
riparian systems, especially through the use of natural recovery 
methods.
    (2) Recreation opportunities. Projects with recreation objectives 
will provide opportunities for high quality outdoor recreation 
experiences for the general public that are compatible with, and 
support, the conservation of biological resources and natural systems. 
To meet the Recreation Opportunities standard, projects should 
accomplish one or more of the following:
    (i) Create opportunities for the public to enjoy fish, wildlife, 
and native plants in their natural habitats,
    (ii) Provide permanent access to aquatic areas for recreation 
purposes,
    (iii) Create opportunities for walking or bicycling that complement 
protection and restoration of riparian and aquatic corridors,
    (iv) Create opportunities for fishing, boating, and other water-
based recreation activities that complement protection and restoration 
of aquatic areas,
    (v) Provide outdoor recreation opportunities that are lacking 
within the watershed or State,
    (vi) Provide outdoor recreation opportunities near to or accessible 
by urban populations,
    (vii) Provide outdoor recreation opportunities for people who are 
physically challenged or economically disadvantaged,
    (viii) Provide opportunities for environmental education and 
interpretation, and/or
    (ix) Do not cause a disruption to the natural environment that 
will, itself, require mitigation.
    (3) Scientific Foundation. Projects will be based on and supported 
by the best available scientific knowledge. To meet the Scientific 
Foundation standard, projects should accomplish one or more of the 
following:
    (i) Include specific and sound biological objectives,
    (ii) Be supported by appropriate population and/or habitat 
inventories or other scientific documentation,
    (iii) Provide tangible results and, to the extent possible, 
measurable benefits to species, habitats, and/or recreation 
opportunities,
    (iv) Involve accepted techniques that have been demonstrated to 
produce significant results, or, alternatively, innovative techniques 
that hold promise for resolving significant issues and that might serve 
as models for other initiatives,
    (v) Make a significant contribution to the scientific knowledge 
concerning ecosystem protection and restoration, and/or
    (vi) Be recognized as scientifically valid by the American 
Fisheries Society, the Wildlife Society, or other applicable 
professional scientific organization.
    (b) Decision Factor 2: Fiscal responsibility. The following three 
standards apply:
    (1) Fiscal accountability. Projects will provide a substantial 
return on the public's investment. To meet the Fiscal Accountability 
standard, projects should accomplish one or more of the following:
    (i) Provide significant benefit at reasonable cost,
    (ii) Where alternatives exist, utilize the least cost alternative 
that fully meets objectives,

[[Page 49459]]

    (iii) Continue to provide value over the long term, and/or
    (iv) Encourage and facilitate economic efficiency among agencies.
    (2) Shared funding. While not an absolute requirement, projects 
should, when practical, be funded through cost sharing with project 
participants or involve other contributions. To meet the Shared Funding 
standard, projects should accomplish one or more of the following:
    (i) Have guaranteed partial funding from other sources,
    (ii) Have a high potential for leveraging additional funding by 
others in the future,
    (iii) Be coupled with other ongoing or proposed projects that have 
compatible objectives and secured non-Commission funding, and/or
    (iv) Involve significant in-kind contributions by the applicant and 
participating agencies or organizations.
    (3) Protection of investment. Successful implementation of projects 
over time will be ensured. To meet the Protection of Investment 
standard, projects should accomplish one or more of the following:
    (i) Result in permanent, as opposed to temporary, protection to 
fish and/or wildlife habitats,
    (ii) Have low maintenance cost and/or be self sustaining over the 
long term,
    (iii) Have clearly assigned operations and management 
responsibilities and assurances of long term support on the part of 
implementors,
    (iv) For those projects likely to require substantial operations 
and management expenditures, have in place a realistic strategy for 
obtaining the necessary funds, including, where applicable, a 
commitment by the applicable agency(ies) to seek necessary 
appropriations,
    (v) Contain guarantees on the part of the applicable landowner(s) 
or manager(s) that incompatible land uses will not be allowed, and/or
    (vi) Have a high probability that action will not be negated by 
other activities outside of the control of the land owner/manager.
    (c) Decision Factor 3: Agency and public involvement and 
commitment. The following three standards apply:
    (1) Partnerships. Projects should, when practical, involve a 
partnership among Federal and State agencies, local governments, 
private organizations, and/or landowners or other citizens. To meet the 
Partnerships standard, projects should accomplish one or more of the 
following:
    (i) Span multiple jurisdictions or otherwise require, or benefit 
from, inter- organizational cooperation and involvement,
    (ii) Have been proposed through a cooperative effort among two or 
more agencies, governments, and/or private entities, each having a 
stake in the outcome and/or possessing complementary expertise, and/or
    (iii) Encourage, or facilitate, the establishment of complementary 
management plans and programs among land and resource managers.
    (2) Authority and capability. The entities charged with undertaking 
and, after completion, managing each project must have the authority to 
be involved in the proposed activity and possess the administrative, 
financial, technical, and logistical capability necessary for 
successful implementation. To meet the Authority and Capability 
standard, projects should:
    (i) Be supported by documented evidence that the entities involved 
have previously undertaken similar work successfully, and/or
    (ii) Be supported by fully developed implementation plans.
    (3) Public support. Projects should, wherever possible, enjoy broad 
support within the natural resource community, and/or with the public 
at-large. To meet the Public Support standard, projects should:
    (i) Build upon previous compatible efforts that have undergone 
public involvement and are widely supported,
    (ii) Be supported by implementation plans that have previously been 
subjected to peer and/or public review,
    (iii) Have documented support from affected interests, and/or
    (iv) Have a high probability that agency and public support will be 
sustained into the future. This is especially important for multi-year 
projects and projects that are part of a larger, long-term initiative.
    (d) Decision factor 4: Consistency with laws and programs. The 
following two standards apply:
    (1) Laws and tribal rights. Projects will be consistent with the 
legal rights of Indian tribes and with applicable State and Federal 
laws.
    (2) Complementary activities. Projects will complement the 
policies, plans, and management activities of Federal and State 
resource management agencies and appropriate Indian tribes. To meet the 
Complementary Activities standard, projects should:
    (i) Complement, or contribute to, established, documented fish and 
wildlife protection and/or restoration programs,
    (ii) Be a component of, or support, a recognized ecosystem or 
watershed planning initiative where protection or restoration of fish, 
wildlife, or recreation is a primary goal, and/or
    (iii) For projects involving Federal or state lands, be consistent 
with, and supported by, an adopted management plan.
    (e) Decision Factor 5: Other contributions. The following two 
standards apply:
    (1) Public benefits. Projects will, wherever practicable, provide 
benefits in addition to those provided to fish, wildlife, and 
recreation. To meet the Public Benefits standard, projects should:
    (i) To the extent that this is compatible with the primary 
objective of protecting or restoring fish, wildlife, or outdoor 
recreation, provide opportunities for multiple use of resources,
    (ii) Provide benefits to aspects of the environment beyond fish, 
wildlife, and recreation,
    (iii) Not result in unacceptable impacts to other aspects of the 
environment, and/or
    (iv) Contribute to the social and/or economic well-being of the 
community, the region, and/or the State.
    (2) Unmet needs. Projects will satisfy significant needs that would 
not otherwise be met. To meet the Unmet Needs standard, projects 
should:
    (i) Address significant fish, wildlife, or recreation needs that 
are unable to secure adequate funding from other sources,
    (ii) Not duplicate actions already taken or underway, and/or
    (iii) Not substitute for actions that are the responsibility of 
another agency and that must be implemented regardless of Commission 
involvement. This is not meant to restrict the Commission's ability to 
be involved in projects advanced by land management or other agencies 
that, while within the general responsibility of the agency, cannot be 
implemented because of internal funding limitations.
    (f) Decision Factor 6: Compatibility with the Commission's overall 
program. This decision factor is relevant to the overall project 
portfolio rather than to individual projects. The following five 
standards apply:
    (1) Commission obligations. Taken as a whole, the project portfolio 
must help fulfill the Commission's obligations for mitigation of 
Federal reclamation projects as described in Sec. 10005.8.
    (2) Project mix. The Commission's portfolio should provide an 
appropriate mix of projects in terms of project type, geographical 
distribution, and other appropriate factors. While the Commission 
desires to implement a broad range of projects, and to have an effect 
throughout the State, this alone will not determine the Commission's 

[[Page 49460]]
mix of projects. Among the factors that the Commission will consider 
when selecting projects are the following:
    (i) The Commission will consider concentrating projects in one 
watershed or basin if these projects are ecologically connected and are 
likely to result in a significant cumulative effect on fish, wildlife, 
and/or recreation that could not otherwise be realized.
    (ii) The Commission will consider implementing a major, high cost 
project--as opposed to several smaller projects with the same total 
cost--if that project is likely to produce net cumulative benefits to 
fish, wildlife, and/or recreation that exceed those of the smaller 
projects.
    (iii) The Commission will consider small projects that appear 
unconnected to other Commission activities if these can serve to 
demonstrate the viability of a certain type of protection and 
restoration project, or to establish the groundwork for additional 
fish, wildlife, and recreation initiatives.
    (3) Timing. Projects should address needs that are time sensitive. 
To meet the Timing standard, projects should:
    (i) Target immediate, high priority needs,
    (ii) Target opportunities that are of limited duration,
    (iii) Preempt future crises, and/or
    (iv) Be consistent with identified ``critical paths'' or other 
logical, multiple-year project phasing plans.
    (4) Project completion. Ongoing projects that are making 
satisfactory progress will generally be approved for continued funding 
prior to allocating funds for new projects.
    (5) Budget. The total cost of proposed projects for any given 
fiscal year must not exceed the Commission's anticipated budget 
allocation for that year. When the total cost of qualified projects 
exceeds funding capability, the Commission will re-evaluate all 
qualified projects and identify those that, in combination, produce the 
most meaningful results. High cost projects will be subjected to 
particular scrutiny and may be scaled back, phased over multiple years, 
or deferred if doing otherwise would preclude other worthwhile but 
lower cost projects.


Sec. 10005.20  Project evaluation procedures.

    Projects proposed for inclusion in the plan will be subjected to a 
systematic evaluation using the decision factors delineated in 
Sec. 10005.19. The Commission may, at any time in the project 
evaluation process, contact applicants to ask for clarification, to 
propose modifications, or to otherwise cause the formulation of project 
proposals that are in keeping with the Commission's authority and 
mission. The result of the evaluation will be a preliminary list of 
eligible projects, arrayed by year over the term of the plan. The 
evaluation will adhere to the following process:
    (a) Each project will be arrayed according to location (by 
watershed), project type, and the resource that the project seeks to 
address.
    (b) Each project's consistency with Commission policy delineated in 
Sec. 10005.12 will be determined.
    (c) Complementary, competing, and duplicative projects will be 
identified. (If warranted, applicants may be asked to combine efforts 
or otherwise modify projects.)
    (d) Projects that satisfy obligations described in Sec. 10005.8 
will be identified.
    (e) Using best professional judgement, Commission staff will 
evaluate each project according to the standards delineated in 
Sec. 10005.19 with the exception of Decision Factor 6, which relates to 
the Commission's overall portfolio and is, therefore, not applicable to 
the evaluation of a specific project.
    (1) For each standard, a preliminary rating will be made, with the 
project rated as:
    (i) Exceeding minimum standard,
    (ii) Meeting minimum standard,
    (iii) Minor deficiency in meeting standard,
    (iv) Deficient, or
    (v) Not applicable.
    (2) Commission ratings will be contrasted to those of applicants 
and major discrepancies re-evaluated. Commission findings will be 
recorded and will be available for review.
    (f) Each project will be given an overall rating based on the 
extent to which it meets Commission criteria as defined in paragraphs 
(b) through (e) of this section. The rating will be made on the basis 
of best professional judgement using quantitative and/or qualitative 
rating techniques as appropriate. A given project need not meet all 
standards to be selected for inclusion in the Commission's plan. A 
project may, for example, be deficient in an area that the Commission 
determines is not important for that type of project or, alternatively, 
deficiencies in some areas may be off-set by major assets in others. A 
tiered rating scale will be used, with projects grouped into two or 
more categories according to how well they meet Commission criteria.
    (g) Projects with moderate to high ratings will then be re-
evaluated from a multiple project perspective. Decision Factor 6, 
Compatibility with the Commission's Overall Program, will be the focus 
of this evaluation. For those areas with a concentration of projects 
this might involve a watershed-wide analysis. It will also involve a 
state-wide analysis. As with the previous step, the evaluation will be 
conducted using best professional judgement and may involve a variety 
of applicable techniques.


Sec. 10005.21  Amending the plan.

    The Commission considers the plan to be a dynamic instrument that 
guides decisions over time and is capable of responding to changing 
circumstances. Amendments to the plan provide the vehicle for 
maintaining this dynamic quality.
    (a) Types of plan amendment. The Commission recognizes three 
distinct types of plan amendment: comprehensive revisions, substantive 
revisions, and technical revisions. The particulars regarding each is 
as follows:
    (1) Comprehensive revision. The Act requires that the Commission 
``develop and adopt'' a plan every five years. At the end of each five 
year period the Commission will undertake a comprehensive review of the 
plan to determine its adequacy and the need for revision. The need to 
revise, and add to, the Commission's portfolio of proposed projects 
will be central to this review. Other elements, for example, 
reconsideration of the Commission's objectives for the preceding five-
year period and the Commission's standards for selecting projects, may 
also be reconsidered. Based on this review the Commission may call for 
the preparation of a new plan. The consultation procedures described in 
Sec. 10005.7 will apply, as will the procedures described in 
Sec. 10005.17, and the procedures described in Sec. 10005.18. The 
Commission is not obligated to wait five years to undertake such 
revision to the plan. This may be undertaken at any time that the 
Commission deems appropriate.
    (2) Substantive revision. The Commission may, from time to time, 
determine that changes to the plan's list of projects are in order. 
Typically this will take the form of substituting a project in the plan 
with a new project, changing the order for implementation, or making 
significant modifications to previously selected projects. When the 
Commission determines that there is a need for such substantive 
changes, a formal announcement will be made and interested parties will 
be given the opportunity to provide recommendations following the 
procedures described in Sec. 10005.18. Changes of this nature will not 
necessitate a total revision to the plan but rather involve select 
modifications 

[[Page 49461]]
to specific portions of the plan. Changes to other specific elements of 
the plan may also be amended in this way. Portions of the plan that are 
proposed for modification will be released in draft form, with the 
public given thirty days to provide comments prior to formal adoption 
by the Commission. Substantive amendments provide a way to 
incrementally amend the plan over time without the necessity of a major 
rewrite and will be central to the Commission's planning process. The 
Commission will specifically consider the need for substantive 
amendments on at least an annual basis. Consideration of substantive 
amendments will typically be made in concert with preparation of the 
annual budget request.
    (3) Technical revision. Technical revisions include changes that 
correct inadvertent errors or provide current information, other minor 
revisions that do not substantively modify the plan, or, changes in the 
particulars of one or more projects that do not change basic project 
goals and objectives nor substantively modify expected environmental 
effects. Technical revisions to projects might include, but are not 
limited to, changes in the list of participating organizations, changes 
in the exact location of certain project activities, and changes to 
specific tasks. Substitution of one project for another, or aggregation 
of projects, may also be considered a technical revision if the 
projects possess similar qualities and the action is supported by 
affected parties and the general public. Technical revisions do not 
constitute a formal amendment to the plan and do not require the 
notification and reporting procedures of a formal amendment. Affected 
agencies and interests must, however, be consulted, and the rationale 
for making the technical revision documented. The plan document will be 
corrected to reflect technical revisions, and a historical record kept 
in order to track the plan's evolution.
    (b) Public petitions. Agencies and members of the public have the 
right to, at any time, petition the Commission to open the plan to 
comprehensive or substantive amendments. Petitions must be made in 
writing and should state the specific reason why the action is 
requested. The petition may be accompanied by a specific project 
recommendation. The Commission will, during the public session of the 
next official Commission meeting, announce that such a petition has 
been received. The Commission may choose to vote on the petition at 
that time or to take the matter under advisement until the following 
Commission meeting at which time the Commission must vote to determine 
if the petition has merit. Following acceptance of a petition the 
Commission will promptly establish the procedures and schedule that 
will be followed in considering amendments. Project recommendations 
made pursuant to a petition must be presented using the format 
described in Sec. 10005.18 and will be evaluated in the manner 
described in Sec. 10005.20. Proposals for technical amendments do not 
require a formal petition. Written requests for technical amendment 
will be acted upon by the Commission in a timely manner.

Michael C. Weland,
Executive Director.
[FR Doc. 95-23137 Filed 9-22-95; 8:45 am]
BILLING CODE 4310-05-P