43 CFR § 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. 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 § 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.