Tamarack Plan Implementation and Governance Issues

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TAMARACK PLAN IMPLEMENTATION AND GOVERNANCE ISSUES This Paper proposes an institutional structure for the implementation and governance of the Tamarack Plan. The Paper is meant to help frame discussions concerning issues related to development of the Tamarack Plan. 1. Background A number of species located in the Central Platte region in Nebraska have been listed under the Endangered Species Act. Under Section 7 of the ESA, federal agencies with discretionary authority over permitting or funding are required to consult with the U.S. Fish and Wildlife Service if the exercise of that discretion may affect the listed species or their designated critical habitat. The current position of the FWS is that any federal discretionary action related to an activity that causes depletions to or changes in timing of water flows in the Central Platte region will cause "jeopardy" to the species and cannot proceed without additional mitigation. In particular, the FWS has identified flow levels in the Platte River in Central Nebraska("Target Flows")that they believe are necessary for the species. It has also compared actual flows in the river with the Target Flows and determined that there is an annual average 417,000 acre-foot shortage between actual flows and the Target Flows. The FWS attributes these shortages to historic water development. In an attempt to avoid the costs and uncertainty associated with individual Section 7 consultations under the ESA,the State of Colorado and Colorado water users have participated in an a comprehensive process to develop a"Program" that would provide ESA compliance for all existing and future water uses in Colorado. As originally proposed in the 1997 Cooperative Agreement among the States of Colorado,Nebraska, Wyoming and the U.S. Department of Interior,the parties have put aside the requirements to make-up the entire 417,000 acre-feet of shortages to the Target Flows and have identified a goal to reduce the shortages by an average of 130,000 to 150,000 acre-feet per year. As proposed,this water, along with land obtained for habitat, would constitute the mitigation needed to offset the impact of existing water projects on the habitat in the Platte River in Central Nebraska during the first increment(13 years) of the Program. ESA compliance for future water related activities in each of the three states will be afforded if their depletive impacts to the Target Flows are offset. The water mitigation for subsequent increments of the proposed Program will be adjusted through the process of adaptive management based upon an evaluation of the effects to the species and their associated habitat from the additional water and land provided in the first increment.