PART 10005—POLICIES AND PROCEDURES FOR DEVELOPING AND IMPLEMENTING THE COMMISSION'S MITIGATION AND CONSERVATION PLAN Authority: 43 U.S.C. 620k(note); sec. 301(g)(3) (A) and (C) of Pub. L. 102-575, 106 Stat. 4600, 4625. Source: 60 FR 49448, Sept. 25, 1995, unless otherwise noted. § 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. § 10005.2 Definitions. The Act Applicant Commission Interested parties Other applicable Federal laws et seq. et seq. et seq. Plan five-year plan Planning rule Section 8 funds § 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. § 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. § 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. (b) Reallocation of funds. (c) Funding priority. (d) Plan adoption and content. (e) Recommendations. (f) Public involvement. (g) Guidance on selecting measures. (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. (i) Implementation schedule. § 10005.6 Responsibilities. Responsibilities concerning implementation of this planning rule are assigned as follows: (a) Commission. (b) Executive Director and Commission staff. (c) Department of Interior Solicitor. (d) Secretary of the Interior's Representative to the Central Utah Project. (e) Interested parties. § 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. (b) Project recommendations. (c) Plan preparation. (d) Review of draft plan. (e) Final plan. (f) Amendments to the plan. § 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. (1) Title II. (2) Section 304. (3) Section 315. (b) Commission policy on fulfilling obligations. (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. § 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 § 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 § 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. § 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. (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. (1) Secretary of the Interior's Representative to the Central Utah Project. (i) The Commission acknowledges the authority of the Secretary in overseeing implementation of the Act and recognizes that the Secretary's Representative plays an essential role in ensuring the compatibility of mitigation and conservation measures with the overall Central Utah Project. The Commission is committed to a strong and productive partnership with the Secretary's Representative in fulfilling the Commission's mitigation and conservation responsibilities. (ii) The Commission will maintain close communication with the Secretary's Representative regarding the relationship between the plan and Congressional appropriations. The Commission will provide the Secretary's Representative with both long range and annual funding proposals and otherwise assist in preparing the Commission's budget requests to Congress. (iii) The Commission and the Secretary's Representative will independently and cooperatively monitor the plan in terms of meeting Section 8 mitigation obligations as directed by the Act. (iv) The Commission will actively involve the Secretary's Representative in the Commission's NEPA related activities, including the identification of appropriate roles for the Secretary's Representative and Department of the Interior agencies in the preparation and review of NEPA documents. (v) The Commission will, as appropriate, involve the Secretary's Representative in coordinating Commission mitigation and conservation activities with the Bureau of Indian Affairs and with individual Indian tribes. (vi) The Commission will utilize the Secretary's Representative as its principal contact for matters regarding the Department of the Interior and, when appropriate, will seek assistance from the Secretary's Representative in coordinating activities involving agencies within the Department, especially when activities involve several agencies. The Commission will, as appropriate, involve the Secretary's Representative in resolving differences that might arise among the various agencies within the Department with regard to the Commission's plan, or the implementation of any measure contained in the plan. This provision does not alter the direct working relationships that the Commission maintains with the U.S. Fish and Wildlife Service, the Bureau of Reclamation, the Bureau of Land Management, and other applicable agencies. (2) U.S.D.I. Bureau of Reclamation. (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. (i) The Commission is committed to maintaining a strong and productive partnership with the District in order to adequately plan for and implement mitigation measures associated with the Central Utah Project. (ii) The Commission recognizes that the District and the Commission have complementary responsibilities for fish, wildlife, and recreation mitigation regarding the Central Utah Project. The District retains the overall responsibility for planning for mitigation activities associated with its completion of the Central Utah Project. The Commission has the responsibility for ensuring that mitigation measures meet with the intent of the Act with regard to protection and restoration of fish, wildlife, and recreation resources and for approving and implementing mitigation and conservation measures. Accordingly, the Commission will monitor District mitigation and conservation planning activities and provide such assistance as is mutually agreed upon. (iii) The Commission will actively monitor or, as appropriate, participate in NEPA procedures undertaken by the District that may result in the identification of mitigation and conservation measures that, if implemented, would require Commission funding or may affect other mitigation activities of interest to the Commission. For NEPA procedures that are likely to result in significant Commission obligations, the Commission may request “joint lead agency” status with the District. In such instances the specific involvement of the Commission in the preparation of NEPA documentation will be determined through agreement with the District. (iv) The District retains responsibility for mitigating future impacts to fish, wildlife, and recreation caused by the operation, maintenance, and replacement of its water resource development facilities, unless that responsibility has been specifically transferred to the Commission or other entity. (v) The District retains responsibility for operation, maintenance, and, where necessary, replacement of fish, wildlife, and recreation mitigation features managed by the District, unless that responsibility has been specifically transferred to the Commission or other entity. (4) U.S. Fish and Wildlife Service. et seq. (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. (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. § 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. (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 § 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. § 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 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. (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. (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 § 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. § 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. § 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, (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. § 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. § 10005.16 Plan content. (a) Minimum requirements. (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. (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. § 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. (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 § 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. (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. § 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 (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 § 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. § 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. (1) Biological integrity. (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. (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. (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. (1) Fiscal accountability. (i) Provide significant benefit at reasonable cost, (ii) Where alternatives exist, utilize the least cost alternative that fully meets objectives, (iii) Continue to provide value over the long term, and/or (iv) Encourage and facilitate economic efficiency among agencies. (2) Shared funding. (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. (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. (1) Partnerships. (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. (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. (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. (1) Laws and tribal rights. (2) Complementary activities. (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. (1) Public benefits. (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. (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. (1) Commission obligations. (2) Project mix. (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. (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. (5) Budget. § 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 § 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 § 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 § 10005.8 will be identified. (e) Using best professional judgement, Commission staff will evaluate each project according to the standards delineated in § 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. § 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. (1) Comprehensive revision. (2) Substantive revision. (3) Technical revision. (b) Public petitions.