COOPERATIVE AGREEMENT
FOR PLATTE RIVER RESEARCH AND OTHER EFFORTS RELATING
TO ENDANGERED SPECIES HABITATS
ALONG THE CENTRAL PLATTE RIVER, NEBRASKA
PROPOSED PLATTE RIVER RECOVERY
IMPLEMENTATION PROGRAM
COOPERATIVE AGREEMENT FOR PLATTE RIVER RESEARCH
AND OTHER EFFORTS RELATING TO ENDANGERED SPECIES HABITATS
ALONG THE CENTRAL PLATTE RIVER, NEBRASKA
ATTACHMENT III
PROPOSED PLATTE RIVER RECOVERY
IMPLEMENTATION PROGRAM
In the Cooperative Agreement for Platte River Research and Other Efforts Relating to Endangered Species Habitats Along the Central Platte River, Nebraska ("Cooperative Agreement") among the Department of the Interior ("DOI") and the States of Colorado, Nebraska and Wyoming, DOI and the three states propose that a basin-wide cooperative program be developed relating to four target species (interior least tern, whooping crane, piping plover and pallid sturgeon) listed as threatened or endangered pursuant to the Endangered Species Act ("ESA"), 16 U.S.C. 1531 et seq., and their associated habitats.(1) In this document, DOI and the states set forth a Proposed Platte River Recovery Implementation Program ("Program"). The Program builds upon the Cooperative Agreement and includes certain activities and contributions from the states and the federal government to be conducted during incremental time periods as described below.
The signatories proposing this Program are also parties to Nebraska v. Wyoming, No. 108 Original, expected to go to trial during the term of the Cooperative Agreement. Certain matters in that proceeding may overlap with issues addressed by the Program, and it is possible that a final decision will not have been issued by the end of the term of the Cooperative Agreement. In such circumstances, the signatories may agree that the Program be implemented while the proceeding is pending, but each signatory reserves the right to reconsider its participation in the Program based upon the outcome of Nebraska v. Wyoming, whether by settlement or decision. Such reconsideration shall, without restriction, include the right to require modification of the respective obligations and undertakings proposed to be assumed by the signatories in the Program to equitably account for the outcome of Nebraska v. Wyoming, and, in the absence of an acceptable modification, the right to withdraw from the Program. Notwithstanding Paragraph IV.F below, if a signatory withdraws from the Program because an acceptable modification is not adopted, the U.S. Fish and Wildlife Service ("FWS") believes such situations would warrant reinitiation. Therefore, it will reinitiate all ESA section 7(a)(2) consultations referenced in Paragraph IV below which relied upon the Program as a component of their reasonable and prudent alternatives, and which are subject to reinitiation pursuant to 50 C.F.R. § 402.16.
I. PROGRAM PURPOSES
A. The purpose of this Program is to implement certain aspects of the FWS' recovery plans for the target species that relate to their associated habitats by providing for the following:
1. securing defined benefits for the target species and their associated habitats to assist in their conservation and recovery through a basin-wide cooperative approach that can be agreed to by the three states and DOI;
2. serving as the reasonable and prudent alternative to offset the effects of existing and new water related activities(2) in the Platte River Basin that, in the absence of such a Program, would be found by FWS to be likely to jeopardize the continued existence of the target species or adversely modify designated critical habitat;
3. helping prevent the need to list more basin associated species pursuant to the ESA;
4. mitigating new water related activities in a state in a manner that will not increase the mitigation responsibilities of other signatory states, with the intent that mitigation be implemented in the state where the new water related activity occurs to the extent described in Appendix A hereto "Water Component"; and
5. establishing and maintaining a governance structure that will ensure appropriate state government and stakeholder involvement in the implementation of the Program, if adopted, or any alternative basin-wide program.
B. Where possible, the Program will adaptively manage the associated habitats to benefit non-target, listed species as well as target species. To the extent the habitat of non-listed species is commensurate with that of listed species, the Program will also manage habitat of non-listed species of concern to reduce the likelihood of future listings. When feasible, the Program will provide regulatory certainty with respect to those non-target species.
II. PROGRAM GOALS
The Program's long-term goal is to improve and maintain the associated habitats. This goal includes: (1) improving and maintaining migrational habitat for whooping cranes, and reproductive habitat for least terns and piping plovers; (2) reducing the likelihood of future listings of other species found in this area; and (3) testing the assumption that it is possible to improve habitat for the pallid sturgeon by managing flow in the Central Platte River that may also affect the pallid sturgeon's Lower Platte River habitat.
III. PROGRAM ELEMENTS
A. General Description
1. Elements. DOI and the states propose a Program with three elements: (1) increasing instream flows in the Central Platte River during relevant time periods through reregulation and water conservation/supply projects; (2) enhancing, restoring and protecting habitat lands for the target species; and (3) creating protocols to permit new water related activities in a manner consistent with long-term Program goals.
2. Increments. The Program will be implemented in increments. The first increment of the Program shall begin with the signing of an agreement by DOI and the three states to implement the Program, and shall continue for ten to approximately thirteen years from that date. The Governance Committee is to agree upon the specific duration of the first increment prior to completion of National Environmental Policy Act ("NEPA") and ESA compliance, but after studies during the early stages of the Cooperative Agreement have provided additional information regarding a feasible schedule and budget to achieve water conservation/supply goals for the first increment, and the time needed to see a biological response to mitigation measures.
3. Objectives
a. Long term Objectives. The long term objectives for the Program are:
(1) to provide sufficient water to and through the Central Platte River habitat area to meet the general goal set forth in Paragraph II above by reregulation and water conservation/ supply projects;
(2) to perpetually protect and, where appropriate, restore approximately 29,000 acres of suitable habitat in the Central Platte River area in ten habitat complexes located between Lexington and Chapman, Nebraska.
The objectives in this section are subject to the provisions of Paragraph III.B.7.
b. First Increment. DOI and the states commit to achieving the following goals by the end of the first increment of the Program:
(1) improving the occurrence of Platte River flows in the associated habitats relative to the present occurrence of target flows(3) (hereinafter referred to as "reducing shortages to the target flows") by an average of 130,000 to 150,000 acre-feet per year as measured at Grand Island, through reregulation and water conservation/supply projects. DOI and the states agree that FWS' target flows are subject to adaptive management and peer review and may be modified by FWS accordingly. DOI and the states have agreed, however, that during the first increment, target flows may serve as an initial reference point for determining periods of excess and shortage in the operation of Program reregulation and water conservation/supply projects.
(2) protecting and, where appropriate, restoring at least 10,000 acres of habitat in the Central Platte River area in habitat complexes located between Lexington and Chapman, Nebraska. The Governance Committee may, through the adaptive management process, agree to undertake, fund or give credit for activities outside this area with the intent to focus activities to create the greatest biological benefit to the target species.
c. Subsequent Increments. Consistent with Paragraph VI.E, DOI and the states agree that the objectives of subsequent program increments will be defined by the DOI and the states through the Governance Committee prior to the conclusion of the first increment.
4. Progress toward Meeting Objectives. Subject to the provisions of Paragraph VI.E below, DOI and the states intend that during the first increment, progress toward the Program objectives and for ESA compliance purposes will be measured through the achievement of milestones developed by the Governance Committee. Milestones for the first increment will be developed during the term of the Cooperative Agreement, and any milestones for subsequent increments will be developed prior to the beginning of such increments. All milestones may be revised as a result of the adaptive management process, subject to the provisions of Paragraph VI.E below.
B. Adaptive Management. The Program will be administered using an incremental and adaptive management approach. By this approach, the Governance Committee will monitor and evaluate the impacts of the activities implemented in the first increment of the Program on the associated habitats and the response of the target species to those impacts. The Program will use monitoring and evaluation protocols developed during the term of the Cooperative Agreement and peer reviewed and modified as appropriate. Based on the monitoring and evaluation results, additional actions and/or adjustments to existing actions will be identified and implemented, consistent with the purposes of the Program. The adaptive management process will include:
1. Habitat Baseline Documentation. The Program will be built upon a habitat platform consisting of the existing, or baseline, quantity and quality of habitat for target species, along with the landscape features of the Central Platte River Valley.
2. Monitoring protocol. Adaptive management requires monitoring of the target species and the associated habitats to observe their response to the different Program activities. Each Program activity shall be periodically evaluated by the Governance Committee to assess its success in meeting Program goals relative to other Program activities. Evaluations will: (1) assess whether the Program activity being examined is working as originally envisioned; (2) recommend modifications if necessary; (3) determine whether there are other or better uses for the resources committed to this activity; and (4) assess whether success or failure could be determined by monitoring over the time period evaluated. Evaluations will include independent peer review by experts selected by the Governance Committee. This information will be used to direct resources to the most beneficial activities.
3. Objectives and timetables. A schedule for the implementation of adaptive management (including monitoring and evaluation) will be developed by the Governance Committee. That schedule will incorporate reviews of the overall goals and directions, and periodic reviews to assure that the Program is proceeding in accordance with the provisions of this Agreement and that resources are effectively allocated. The schedule may be modified by the Governance Committee.
4. Specific milestones and research activities. Specific milestones for land and water management and other activities during the first increment will have been developed by the Governance Committee during the term of the Cooperative Agreement. The Governance Committee will identify milestones in subsequent Program increments following evaluation of the first Program increment through the adaptive management process. Research activities will be designed to provide information useful in habitat management and evaluation consistent with the adaptive management approach of the Program. Independent peer review will be used as appropriate to review pertinent scientific data relating to the selection or implementation of specialized recovery tasks or the development of technical milestones.
5. Evaluation of habitat and species responses. Systematic observation and evaluation of the habitat and population responses of the target species and other species of concern will occur on an ongoing basis. This effort will be of sufficient duration to assess the effects of land and water management improvements undertaken by the Program. Opinions of independent peer reviewers will be compiled and summarized in the evaluation process.
6. Evaluation of program effectiveness. If one Program activity is having a beneficial response and another is not, resources may be redirected by the Governance Committee to the more beneficial activity. If an activity can be improved, changes will be made as soon as possible. If a program activity clearly is not having beneficial impact, it may be curtailed or suspended by the Governance Committee. Modifications to planned activities and their implementation schedule should be peer reviewed prior to action by the Governance Committee.
7. Review of goals and objectives. The adaptive management approach requires evaluation of information gained through the monitoring and research activities, plus the judgment of habitat managers and field biologists, to periodically examine whether habitat management practices and Program goals and objectives should be modified or should continue unchanged. Such evaluations will need to occur before the scheduled completion of each increment of the Program.
C. Land
Program objectives for habitat will be met through a program of land acquisition, restoration, maintenance and perpetual protection. Progress toward Program objectives will be measured by reference to Program milestones. Annual progress will be dependent upon market conditions and availability of willing participants. Habitat acquisition is to be on a willing seller/willing lessor basis.
1. Acquisition of Land
a. The Land Committee will identify and select suitable lands using technical criteria and other guidelines developed during the term of the Cooperative Agreement and modified as appropriate. The initial focus will be on obtaining and protecting wet meadow and channel habitat within blocks of land between Lexington and Chapman, Nebraska which are suitable for development into habitat complexes as described by the Platte River Management Joint Study.(4)
b. Because local support will be essential to the success of the land component, the Land Committee will follow plans or programs developed under the term of the Cooperative Agreement and modified as appropriate to assure that local opinions are heard, that acquisition and development are coordinated with local landowners, and that information on acquisitions and on development plans is disseminated to the local communities. Where applicable, the expertise of the University of Nebraska and other local organizations and individuals will be used. The Land Committee will develop incentive programs as needed to encourage participation in the Program.
c. Acquisition of land interests may be in the form of, but not limited to, fee simple acquisition, acquisition of suitable conservation easements, purchase or transfer of development rights, donation of lands appropriate for Program purposes, and the dedication of the use of lands acquired by the States, private or public entities or conservation entities to the Program. The Governance Committee, with the advice of the Land Committee, shall determine the type of interest in land appropriate to particular situations, subject to any applicable limitations on ownership of land purchased by federal/state funds. The Program is to avoid shifting tax burdens to adjacent landowners or communities.
d. The Governance Committee will designate an entity or entities which may, on behalf of the Program, hold title or other interests in land acquired by or contributed to the Program. In the case of lands dedicated to the Program on behalf of a state, the entity dedicating such lands may continue to hold title or other interests in those lands, provided that sufficient interest or access is granted to the Program's representatives to permit Program restoration and management of the lands, or the lands are otherwise protected for Program purposes.
2. Restoration and Protection. The Governance Committee, through the Land Committee and the executive director of the Program, will be responsible for restoring and maintaining lands obtained through the Program. Plans for developing and maintaining each block of land as a habitat complex will be prepared at the direction of the Land Committee. Plans are initially expected to include identifying the habitat baseline for the block of land in question, adapting the recommendations of the Platte River Management Joint Study to the specific geography of the block of land, and developing site-specific monitoring and maintenance requirements. Habitat management practices will be evaluated as part of the adaptive management regime used by the Program.
3. Credit Toward Program Objectives
a. Land currently protected and managed for the benefit of endangered and threatened species by the Platte River Whooping Crane Critical Habitat Maintenance Trust, the National Audubon Society and the Nature Conservancy within the Central Platte River Valley will be credited to the Program's long-term objectives if such land meets criteria established by the Governance Committee, but not toward the objectives of the first Program increment without the prior approval of the managing entity.
b. Land acquired by or on behalf of existing water related activities completing section 7 consultation prior to or during the term of the Cooperative Agreement (as described in Paragraph VIII of that Agreement) will be credited to both the Program's long-term objective set forth in Paragraph III.A.3 and the objective for the first Program increment.
D. Water
Program objectives for reducing shortages to target flows will be met through a combination of reregulation and water conservation/supply projects (see Appendix A: Tab 1A, "An Environmental Account for Storage Reservoirs on the Platte River System in Nebraska"; Tab 2A, "Wyoming's Pathfinder Modification Project"; Tab 3A, "Colorado's Tamarack Plan"; and Tab 4, "Water Conservation/Supply Component"). During the first increment, progress toward Program objectives will be measured by reference to milestones.
1. Water Projects. A portion of the instream flow objectives will be met through reregulation of flows by three new and existing water projects.
a. Inclusion in the Program. The three water projects to be included initially are: An Environmental Account for Storage Reservoirs on the Platte River System in Nebraska, which includes activities by Federal Energy Regulatory Commission ("FERC") Project No. 1417 and FERC Project No. 1835 in Nebraska (Appendix A, Tab 1A); the Pathfinder Modification Project to expand the Pathfinder Reservoir in Wyoming (Appendix A, Tab 2A); and the Tamarack Plan in Colorado (Appendix A, Tab 3A). If implemented and operated as described, these three projects together will provide an average contribution of 70,000 acre-feet toward the first increment objective of reducing shortages to target flows by an average of 130,000-150,000 acre-feet per year.
b. Operation of Program Water Projects. The operations of the three water projects shall be coordinated with the Program's Environmental Account Manager and with other Program water project operators. The Environmental Account Manager, in consultation with the states, will each year discuss an annual operations plan for all Program reregulation activities by the three water projects and any reregulation facilities later included pursuant to Paragraph III.D.2 below. The annual operating plan will be consistent with the flow-related goals of the Program and provide for coordinated operation of all reregulation facilities and the individual state operations described in Appendix A, Tabs 1A, 2A and 3A. Any disputes relating to development or implementation of the annual operating plan that cannot be resolved among the operating parties will be resolved through the Governance Committee.
It is an operational goal to coordinate upstream Program activities so as to increase storage water in the Environmental Account for Storage Reservoirs on the Platte River System in Nebraska. It is recognized, however, that not all water reregulated for environmental purposes will be storable in that Environmental Account, and that water need not be stored or storable to contribute toward Program objectives. The Water Management Committee, with the approval of the Governance Committee, shall develop protocols for determining what quantities of water are to be credited to the Environmental Account.
c. Verification. The Water Management Committee, with the approval of the Governance Committee, will establish monitoring programs and protocols for verifying that the three reregulation projects have the intended and modeled effects on instream flows.
2. Water Conservation/Supply Activities. A portion of the instream flow objectives will be met through a program of incentive-based water conservation and water supply activities (see Appendix A, Tab 4). New reregulation projects may be considered for inclusion as part of the Program Water Conservation/Supply Component, subject to the operational, verification and mitigation provisions described below.
a. Inclusion in the Program. Subject to modification as additional information becomes available, the Water Conservation/Supply Action Plan developed and approved during the term of the Cooperative Agreement will be considered a component of the Program. Consistent with that Action Plan, the Governance Committee, with the advice of the Water Management Committee, shall determine whether any specific proposed reregulation project, water supply project or conservation project or program shall be funded by and included in the Program, and to what extent any reregulated or conserved water can be credited toward Program objectives of reducing shortages to the target flows. During the first increment, the goal will be to provide at least 60,000 acre-feet per year on average of net hydrologic benefit through water conservation/supply projects.
The Governance Committee shall consider cost-benefit analysis, impacts on groundwater and return flow, gross amount of water conserved or supplied, net water provided at the habitat, and other factors identified in Appendix C, "Program Water Conservation/ Supply Component." Only projects which yield a quantifiable net water benefit toward Program objectives may be funded. The Governance Committee shall also consider the effects of the proposed water conservation/supply project on shortages in instream flows at the associated habitats and on the operation of other reregulation projects and water conservation/water supply projects. If adverse effects cannot be avoided, the Governance Committee may nevertheless include a conservation, reregulation or water supply activity in the Program if its adverse effects are offset, mitigated or compensated concurrently.
b. Operation of Program Water Conservation/Supply Projects. The operations of any Governance Committee-approved water conservation, reregulation or supply program will be coordinated with other activities in the Program through the Water Management Committee and, where applicable, through the Environmental Account Manager, to manage water stored for environmental purposes. Operation of reregulation projects will be coordinated with other Program reregulation projects through the planning process described in Paragraph III.D.1.b.
It is an operational goal to coordinate upstream Program conservation activities so as to increase storage water in the Environmental Account for Storage Reservoirs on the Platte River System in Nebraska. It is recognized, however, that not all water conserved for environmental purposes will be storable in the Environmental Account, and that water need not be stored or storable to contribute toward Program objectives. Consistent with Paragraph VI.E, the Water Management Committee, with the approval of the Governance Committee, shall develop protocols for determining what quantities of water are to be credited to the Environmental Account and toward Program objectives.
c. Verification. The Water Management Committee, with the approval of the Governance Committee, will establish monitoring programs and protocols for verifying that water conservation/ supply projects have the intended effects on instream flows.
E. Institutional Protections/New Water Related Activities
DOI and the states intend that flow characteristics in the associated habitats which are determined by the process described in the Milestones for the Cooperative Agreement to be relevant shall be protected from adverse change. Any water dedicated to environmental use as a result of the three Program water projects and any new water conservation/supply projects must be protected to and through the associated habitats, subject to conveyance losses. Any impacts of Program water conservation/supply projects (including Program projects addressing new depletions not mitigated under Appendix A, Tab 3B) on flow characteristics relied upon by other Program reregulation facilities should be avoided, if possible, or offset, mitigated or compensated. New water related activities should be permitted consistent with applicable state laws, decrees and compacts, provided that such activities are monitored and mitigated as set forth in Appendix A, Tabs 1B, 2B, and 3B.
1. Mitigation Measures. Consistent with the principle that activities in one state should not increase the mitigation burden of another, adverse effects of new water related activities on the associated habitats during the term of the Cooperative Agreement are to be mitigated, compensated or offset by the operator of the new water related activity or its state under the future depletions component of the Program. Mitigation for impacts on flows in the associated habitats shall be water related. The states' plans to develop and implement programs to mitigate the impacts of new water related activities consistent with Program goals are described Appendix A, Tabs 1B, 2B and 3B, "Plan[s] for Future Depletions" for the respective states. DOI and the states intend to work within the Governance Committee to develop criteria as may be necessary to help the states identify acceptable measures to mitigate the impacts of new water related activities consistent with the depletion impact analysis developed during the terms of the Cooperative Agreement. Water conservation/supply projects implemented to mitigate new water related activities will not be counted against the Program's goal of reducing shortages to target flows, as these contributions are mitigation for new water related activities, not existing ones.
2. Mitigation Banking. Any state's program to address new water related activities may include mitigation water banking to assure that non-Program conservation programs are encouraged and efficiencies are not compromised when a program yields more water than is immediately needed for mitigation purposes. A mitigation water bank will not be counted against the Program's goal of reducing shortages to target flows, as it is held in reserve for future mitigation of new water related activities, not existing ones. In implementing water conservation/supply projects, the Program will first meet its water supply goals for existing water related activities. Mitigation water banking of such waters will not be credited if use for that purpose impedes the timely completion of water conservation/supply goals to mitigate existing depletions (Appendix A, Tab 4).
3. Verification. The Water Management Committee, with the approval of the Governance Committee, shall establish monitoring programs and protocols for verifying that the effects of new water related activities are adequately mitigated as described above by water conservation/supply programs carried out for those purposes.
4. Institutional Protections. Each state shall take whatever steps are necessary to provide institutional protections within that state for waters intended for environmental purposes, including without limitation: statutory and regulatory reform; granting of any necessary water rights; and water accounting systems. Accounting methodologies shall be provided to the Water Management Committee.
IV. REGULATORY CERTAINTY
DOI and the states intend that this Program, if implemented, provide regulatory certainty under the ESA to existing water related activities and to certain new water related activities subject to review under section 7 of the ESA. DOI and the states anticipate that the Program, as it may be modified after NEPA and ESA evaluation and over time, will serve as the reasonable and prudent alternative under section 7 for existing water related activities and covered new water related activities during the term of the Program. Notwithstanding that Program activities described below will generally be focused on the geographic area defined herein as "associated habitats," the implementation of such activities is to serve as the reasonable and prudent alternative for impacts to the target species and their habitats within the Platte River Basin downstream from the confluence of the North and South Platte Rivers. Regulatory certainty will be provided by the following mechanisms:
A. For water related activities existing as of the effective date of the Cooperative Agreement, FWS intends that the reasonable and prudent alternative during the term of the Program shall be the activities carried out by or on behalf of those water related activities through the Program, as described above and as set forth in Appendix B, "Contributions of the Parties During the First Increment," and as may be set forth in the future for subsequent Program increments. For water related activities existing as of the effective date of the Cooperative Agreement for which consultation pursuant to section 7 was completed prior to or during the term of the Cooperative Agreement (covered by Cooperative Agreement Paragraphs VIII.A.1, 2 and 4), payments made or measures undertaken by or on behalf of these water related activities during the term of the Cooperative Agreement shall be credited against the payments and measures set forth in Appendix B to the extent they contribute to the land acquisition and restoration purposes of the Program.
B. For new water related activities subject to section 7(a)(2) of the ESA, FWS intends that the reasonable and prudent alternative during the term of the Program shall be the activities carried out by or on behalf of those water related activities through the Program, as described below and as set forth in Appendix A, Tabs 1B, 2B, 3B, "Plan[s] for Future Depletions" for the respective states. For such water related activities for which consultation pursuant to section 7 was completed during the term of the Cooperative Agreement (covered by Cooperative Agreement Paragraph VIII.A.3), payments made or measures undertaken by or on behalf of such water related activities during the term of the Cooperative Agreement shall be credited against the payments and measures set forth in Appendix A, Tabs 1B, 2B and 3B, to the extent they contribute to the acquisition and restoration purposes of a Program. Payments made or measures undertaken by or on behalf of such water related activities shall not be credited against the payments and measures shown in Appendix B, "Contributions of the Parties During the First Increment," or any future contributions identified in subsequent Program increments to mitigate the impacts of existing water related activities.
C. For water related activities covered in Paragraphs IV.A and B above, FWS agrees to encourage other agencies to rely upon the Program when considering agency actions affecting the target species.
D. DOI and the states intend that the Program will function as a reasonable and prudent alternative for so long as the Program is attaining its goals and milestones. Regulatory certainty for the first increment of the Program will depend on timely attainment of the first increment objectives described above as measured by the achievement of specific milestones.
E. If the Program is not meeting its milestones during the first increment or its objectives during subsequent increments, and FWS makes a preliminary determination that the Program is not serving as a reasonable and prudent alternative, the basis for that determination shall be articulated to the Governance Committee. As required in Appendix C, "Governance Agreement," the Governance Committee will work with FWS to evaluate the situation and to develop an appropriate response, if necessary, to restore the ability of the Program to serve as the reasonable and prudent alterative. If the Governance Committee is unable to identify or implement appropriate measures, pursuant to the Governance Agreement, FWS and the Governance Committee shall refer the matter to the Secretary of the Interior and the three Governors ("Oversight Committee"). FWS agrees that it will not make a final determination that the Program is not serving as the reasonable and prudent alternative until it meets with the Oversight Committee. FWS agrees not to seek to reinitiate section 7 consultation on any of the water related activities covered by the Program until such a final determination is made.
F. After the result in Nebraska v. Wyoming is final and agreement to continue the Program has been reached, if: (1) this Program is subsequently terminated or expires, or (2) activities under the Program are not adequately completed, FWS may reinitiate ESA section 7(a)(2) consultations which relied upon the Program as a component of their reasonable and prudent alternatives and which are subject to reinitiation pursuant to 50 C.F.R. § 402.16. Before taking such action, FWS will notify the Governance Committee and request its assistance in resolving the situation. If the Governance Committee is unable to resolve the situation, the Committee shall notify the Oversight Committee and request its assistance. If such attempts at resolution are unsuccessful, and if FWS believes that such a situation would warrant reinitiation of section 7(a)(2) consultation for any water related activity which relied upon the Program as a component of its reasonable and prudent alternative and which is subject to reinitiation pursuant to 50 C.F.R. § 402.16, FWS would request reinitiation of section 7(a)(2) consultation for all such water related activities. FWS agrees that it will not request reinitiation of section 7(a)(2) consultation for any water related activity which relied upon the Program as a component of its reasonable and prudent alternative and which is subject to reinitiation pursuant to 50 C.F.R. § 402.16, unless it requests reinitiation for all such water related activities. FWS further agrees that it will expeditiously pursue all available means to consult on all agency actions for which it requested reinitiation, and if it identifies new or additional reasonable and prudent alternatives, that it will expeditiously pursue all available means to amend or modify the agency authorizations. If a state continues to carry out its responsibilities under the Program, there is a presumption that such actions are sufficient to avoid violation of the ESA with respect to all water related activities in that state pending completion of any reinitiated consultations. When a state continues to carry out its responsibilities under the Program, that state and any water related activities covered retain the ability to argue that the responsibilities undertaken are sufficient to constitute the long-term reasonable and prudent alternative for the reinitiated consultations. FWS agrees to consider these undertakings in any reinitiated section 7 consultations, including in the development of new reasonable and prudent alternatives.
G. When reinitiating section 7 consultation for a particular water related activity upon cancellation or termination of the Program, FWS agrees to consider the cause of the cancellation or termination of the Program, as appropriate. In developing any new reasonable and prudent alternative to meet the requirements of the ESA, FWS agrees to give credit for any contributions made to this Program by the relevant state or the owner or operator of the water related activity under the Cooperative Agreement and/or the Program, and the degree to which the relevant state or owner or operator met its obligations under the Cooperative Agreement or the Program.
H. No person or entity undertaking or proposing to undertake any water related activity will be required to accede to the provisions of this document or to rely on this Program. Reliance on the Program shall be voluntary. In the event such person or entity chooses not to so rely, or chooses to revoke reliance on the Program at any time, FWS will not consider this Program as a reasonable and prudent alternative for such water related activity. FWS believes that revoking reliance on the Program warrants a reopening of any federal action or authorization based thereon, and will reinitiate any ESA section 7(a)(2) consultation for that water related activity which relied upon this Program.
I. Any time that FWS reinitiates section 7(a)(2) consultation, it will issue a new biological opinion based on then current conditions. FWS believes that the new biological opinion and any subsequent amendment, restatement, or modification of a federal action based on the new biological opinion, would constitute a new federal action for purposes of administrative or judicial appeals. FWS further believes that no person or entity should be deemed to have waived or relinquished any right to challenge the legal, scientific, or technical validity of any aspect of the new biological opinion or agency action by virtue of its acceptance of or reliance on the Cooperative Agreement or this Program, or by virtue of its support for the Cooperative Agreement or this Program in other judicial or administrative proceedings.
V. FAIR SHARE
DOI and the states have determined that each has a responsibility to the success of the Program and that contributions for Program elements addressing existing water related activities should be made to the Program on the basis of "fair share." For purposes of the first Program increment, DOI and the states agree that federal contribution and the collective state contributions should be as equal as possible. DOI and the states have agreed that their contributions in the first Program increment will include credit for certain contributions made during the term of the Cooperative Agreement, and will be shared among them as reflected in Appendix B hereto. Specific contributions by the states take into account the value of both water provided through that state's water projects and cash or cash equivalent contributions to other components of the Program. By accepting this distribution of "fair share" for the first Program increment, the states do not intend to suggest that such distribution accurately reflects how responsibility should be assigned in any process other than for the first Program increment or that it is appropriate for the long term. What constitutes "fair share" will be renegotiated for subsequent Program increments. Contributions addressing new water related activities pursuant to the "Plan[s] for Future Depletions" elements of the Program are separately determined based on the impacts of those activities, and will not be credited toward a state's "fair share" contributions toward the remainder of the Program.
VI. OTHER PROVISIONS
A. State Responsibilities. Each state shall efficiently manage costs in implementing Program activities and encourage habitat protection by local authorities.
B. Section 7 Consultation. As described in Paragraph IV, "Regulatory Certainty," DOI and the states have proposed this Program to serve as the reasonable and prudent alternative for existing and certain new water related activities. Pursuant to section 7 of the ESA, FWS will make determinations as to whether the Program can serve or can continue to serve in such capacity. Consistent with Appendix C, "Governance Agreement," and Paragraph IV.E above, FWS has agreed to meet with the Governance Committee and the Oversight Committee to offer the opportunity to modify the Program, if necessary, before making a final determination that the Program cannot serve as the reasonable and prudent alternative.
C. NEPA Compliance. No Program will be implemented prior to DOI completing, in compliance with NEPA, rigorous environmental evaluation of this proposed Program along with a range of reasonable alternatives which achieve Program objectives.
D. Legislative Approval. Certain funding commitments made in this proposed Program are subject to approval and appropriations by the appropriate state and federal legislative bodies.
E. No Delegation or Abrogation. Although this document sets forth a cooperative process, all signatories to this Program recognize that they each have statutory responsibilities that cannot be delegated, and that this Program does not and is not intended to abrogate any of their statutory responsibilities.
F. Consistency with Applicable Law. This Program is subject to and is intended to be consistent with all applicable federal and state laws and interstate compacts and decrees.
G. Effect on Litigation. With the exception of the pending trial in Nebraska v. Wyoming, each state agrees that during the term of the Program, it shall not, in any judicial or administrative proceeding: (1) assert a position adverse to either of the other states on any issue relating to the target species or the associated habitats; or (2) assert a position adverse to a water related activity in either of the other states on any issue relating to the target species or the associated habitats if that water related activity is covered by the Program, unless the other State consents to that assertion.
H. Conforming Federal Funding or Authorizations. Any person or entity undertaking a water related activity which accepts federal funding or a federal authorization and which relies on the Program as a component of its reasonable and prudent alternative in section 7 consultation must agree: (1) to the inclusion in its federal funding or authorization documents of reopening authority, including reopening authority to accommodate reinitiation upon the circumstances described in Paragraph IV.F; and (2) to request appropriate amendments from the federal action agency as needed to conform its funding or authorization to any Program adjustments negotiated among the three states and DOI, including specifically new requirements, if any, at the end of the first increment and any subsequent Program increments. FWS believes that the Program should not serve as the reasonable and prudent alternative for any water related activity for which the funding or authorization document does not conform to any Program adjustments. Notwithstanding Paragraph VI.G above, the states shall not be restrained from taking a position adverse to one another in administrative or judicial proceedings to compel the action agency to include reopening authority in any such federal funding or authorization. Nothing in this paragraph in intended to waive the right of any person or entity undertaking a water related activity to withdraw from the Program pursuant to Paragraph IV.H.
1. 1 For purposes of this Program document and its appendices, the term "associated habitats" means, with respect to the interior least tern, whooping crane, and piping plover, the Platte River Valley beginning at the junction of U.S. Highway 283 and Interstate 80 near Lexington, Nebraska, and extending eastward to Chapman, Nebraska, including designated critical habitat for the whooping crane. With respect to the pallid sturgeon, the term "associated habitat" means the Lower Platte River between its confluence with the Elkhorn River and its confluence with the Missouri River. "Associated habitats" shall include critical habitat in the Platte River Basin which may be subsequently designated by the U.S. Fish and Wildlife Service for the target species. The Governance Committee may, through the adaptive management process, agree to undertake, fund or give credit for activities outside the associated habitats with the intent to focus activities to create the greatest biological benefit to the target species.
2. " " " " " " " "
For further information about the Partnership,
contact any Governance Committee member.For comments and questions about this website, please email Buck Feist or call 406-247-7607