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Land Entity White Paper <br />November 30, 1999 <br />Appcndix A <br />Autharitics and Cons#raents on Government Participation in a Land Entify <br />The discussion below describes the legaI constraints an each of the four governments <br />regarding participation in a joint federallstatelprivate effort to implement habitat measures. <br />1. Federal Government <br />a. Autharization to Particfpate FYnancially in a Platte River Recavery <br />Implementation Prngram <br />The federal agency invoived in the Caoperative Agreement and Proposed Program is #he <br />Department of the Interior (DOI), acting t}uough the U.S. Fish and Wildlife Service (FWS) and <br />the Bureau of Reclamation (BuRec). DOI has the authority under the Fish and Wildlife <br />Caordination Act of 1956, lb U.S.C. Secs. 742a-742j-1, to undertake tasks for the benefit of fish <br />and wildlife. Mast of DOI's responsibilities under the Act are delegated to FWS, but, under 16 <br />U. S.C. Sec. 743b(d), the Secreta.ry of the interior retains supervisory authon'ry over all activities <br />under the Fish and Wildlife Coordination Act, and a portion of the authority under the Act has <br />also been delegated to BuRec to take actions to benefit fish and wild]ife habitat of water systems <br />affected by BuRec projects. The Endangered Species Act (ESA), 16 U.S.C. Secs. 1531-1543, <br />likewise assigns DQI substantial responsibilities. Within DOI, for nan-marine species, FWS is <br />assigned to consult an endangered species issnes with federal agencies rnaking decisians or <br />taking actions, but the ESA charges all agencies with affirmative responsibilities regarding <br />decisions, projects and programs under their jurisdicrian. This responsibility falls on the other <br />components of DOI just as it does on other departments. 16 U.S.C. Secs. 1536. <br />At least some of the federal contribution to the Program corresponds to an anticipated <br />need to address the impacts on endangered species of dams operated by the BuRec an the North <br />Platte River. The attached letter fram DOI expiores in greater detail the authorities of BuRec to <br />participate in a Program. There appears little doubt that FWS, BuRec or both could seek <br />appropriations to participate in a Pragram such as that proposed for the Platte River basin. <br />b. Constraints on Intergovernmenta! Efjarts <br />The official policy af DOI, as reflected in the Code of Federal Regulations (CFR), is to <br />work cooperatively with the states to the maximum legal extent. Under the authoriry of the Fish <br />and Wildlife Coordination Act of 1956, DOI has entered into a number of "cooperative <br />agreernents" with states on a variety of issues. 43 CFR Secs_ 24,2,.3,.6. Funding arrangements <br />appear to be in the farm of "assistance agreements" between the federal agency and the <br />caoperating state or local government entity, in which the federal agency provides same of the <br />funding and remains acLively involved in the funded activities. See attached DOI letter <br />regarding DOI authorities (citing 43 CFR Sec. 12.911). The palicy stated in the Code of Federal <br />A- 1