White Paper: Options for Managing the Land Protection Component of the PRRIP

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Land Entity White Paper November 30, 1999 Appendix A Authorities and Constraints on Government Participation in a Land Entity The discussion below describes the legal constraints on each of the four governments regarding participation in a joint federal /state /private effort to implement habitat measures. 1. Federal Government a. Authorization to Participate Financially in a Platte River Recovery Implementation Program The federal agency involved in the Cooperative Agreement and Proposed Program is the Department of the Interior (DOI), acting through the U.S. Fish and Wildlife Service (FWS) and the Bureau of Reclamation (BuRec). DOI has the authority under the Fish and Wildlife Coordination Act of 1956, 16 U.S.C. Secs. 742a- 742j -1, to undertake tasks for the benefit of fish and wildlife. Most of DOI's responsibilities under the Act are delegated to FWS, but, under 16 U.S.C. Sec. 743b(d), the Secretary of the Interior retains supervisory authority over all activities under the Fish and Wildlife Coordination Act, and a portion of the authority under the Act has also been delegated to BuRec to take actions to benefit fish and wildlife habitat of water systems affected by BuRec projects. The Endangered Species Act (ESA), 16 U.S.C. Secs. 1531 -1543, likewise assigns DOI substantial responsibilities. Within DOI, for non -marine species, FWS is assigned to consult on endangered species issues with federal agencies making decisions or taking actions, but the ESA charges all agencies with affirmative responsibilities regarding decisions, projects and programs under their jurisdiction. This responsibility falls on the other components of DOI just as it does on other departments. 16 U.S.C. Secs. 1536. At least some of the federal contribution to the Program corresponds to an anticipated need to address the impacts on endangered species of dams operated by the BuRec on the North Platte River. The attached letter from DOI explores in greater detail the authorities of BuRec to participate in a Program. There appears little doubt that FWS, BuRec or both could seek appropriations to participate in a Program such as that proposed for the Platte River basin. b. Constraints on Intergovernmental Efforts The official policy of DOI, as reflected in the Code of Federal Regulations (CFR), is to work cooperatively with the states to the maximum legal extent. Under the authority of the Fish and Wildlife Coordination Act of 1956, DOI has entered into a number of "cooperative agreements" with states on a variety of issues. 43 CFR Secs. 24.2,.3,.6. Funding arrangements appear to be in the form of "assistance agreements" between the federal agency and the cooperating state or local government entity, in which the federal agency provides some of the funding and remains actively involved in the funded activities. See attached DOI letter regarding DOI authorities (citing 43 CFR Sec. 12.911). The policy stated in the Code of Federal A- 1