Fish and Wildlife Coordination Act (16 U.S.C. 661-666c)

1 FISH AND WILDLIFE COORDINATION ACT Q:\COMP\WILDLIFE\FWCA March 2, 2004 Q:\COMP\WILDLIFE\FWCA March 2, 2004 3 1 The first section of Public Law 85–624 (16 U.S.C. 661 note; 72 Stat. 563) provided as follows: ‘‘That the Act of March 10, 1934, as amended, and as further amended by this Act may be cited as the ‘Fish and Wildlife Coordination Act’.’’. FISH AND WILDLIFE COORDINATION ACT 1 [Chapter 55, Approved March 10, 1934, 48 Stat. 491] [As Amended Through P.L. 108–204, March 2, 2004] * * * * * * * AN ACT To promote the conservation of wildlife, fish, and game, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, ø16 U.S.C. 661¿ For the purpose of recognizing the vital contribution of our wildlife resources to the Nation, the increasing public interest and signifi cance thereof due to expansion of our national economy and other factors, and to provide that wildlife conservation shall receive equal consideration and be coordinated with other features of water-re source development programs through the effectual and harmo nious planning, development, maintenance, and coordination of wildlife conservation and rehabilitation for the purposes of this Act in the United States, its Territories and possessions, the Secretary of the Interior is authorized (1) to provide assistance to, and co operate with, Federal, State, and public or private agencies and or ganizations in the development, protection, rearing, and stocking of all species of wildlife, resources thereof, and their habitat, in con trolling losses of the same from disease or other causes, in mini mizing damages from overabundant species, in providing public shooting and fishing areas, including easements across public lands for access thereto, and in carrying out other measures necessary to effectuate the purposes of this Act; (2) to make surveys and inves tigations of the wildlife of the public domain, including lands and waters or interests therein acquired or controlled by any agency of the United States; and (3) to accept donations of land and contribu tions of funds in furtherance of the purposes of this Act. SEC. 2. ø16 U.S.C. 662¿ (a) Except as hereafter stated in sub section (h) of this section, whenever the waters of any stream or other body of water are proposed or authorized to be impounded, diverted, the channel deepened, or the stream or other body of water otherwise controlled or modified for any purpose whatever, including navigation and drainage, by any department or agency of the United States, or by any public or private agency under Fed eral permit or license, such department or agency first shall con sult with the United States Fish and Wildlife Service, Department of the Interior, and with the head of the agency exercising adminis Q:\COMP\WILDLIFE\FWCA March 2, 2004 4Sec. 2 FISH AND WILDLIFE COORDINATION ACT tration over the wildlife resources of the particular State wherein the impoundment, diversion, or other control facility is to be con structed, with a view to the conservation of wildlife resources by preventing loss of and damage to such resources as well as pro viding for the development and improvement thereof in connection with such water-resource development. (b) In furtherance of such purposes, the reports and rec ommendations of the Secretary of the Interior on the wildlife as pects of such projects, and any report of the head of the State agen cy exercising administration over the wildlife resources of the State, based on surveys and investigations conducted by the United States Fish and Wildlife Service and such State agency for the pur pose of determining the possible damage to wildlife resources and for the purpose of determining means and measures that should be adopted to prevent the loss of or damage to such wildlife resources, as well as to provide concurrently for the development and im provement of such resources, shall be made an integral part of any report prepared or submitted by any agency of the Federal Govern ment responsible for engineering surveys and construction of such projects when such reports are presented to the Congress or to any agency or person having the authority or the power, by administra tive action or otherwise, (1) to authorize the construction of water resource development projects or (2) to approve a report on the modification or supplementation of plans for previously authorized projects, to which this Act applies. Recommendations of the Sec retary of the Interior shall be as specific as is practicable with re spect to features recommended for wildlife conservation and devel opment, lands to be utilized or acquired for such purposes, the re sults expected, and shall describe the damage to wildlife attrib utable to the project and the measures proposed for mitigating or compensating for these damages. The reporting officers in project reports of the Federal agencies shall give full consideration to the report and recommendations of the Secretary of the Interior and to any report of the State agency on the wildlife aspects of such projects, and the project plan shall include such justifiable means and measures for wildlife purposes as the reporting agency finds should be adopted to obtain maximum overall project benefits. (c) Federal agencies authorized to construct or operate water control projects are hereby authorized to modify or add to the structures and operations of such projects, the construction of which has not been substantially completed on the date of enact ment of the Fish and Wildlife Coordination Act, and to acquire lands in accordance with section 3 of this Act, in order to accommo date the means and measures for such conservation of wildlife re sources as an integral part of such projects: Provided, That for projects authorized by a specific Act of Congress before the date of enactment of the Fish and Wildlife Coordination Act (1) such modi fication or land acquisition shall be compatible with the purposes for which the project was authorized; (2) the cost of such modifica tions or land acquisition, as means and measures to prevent loss of and damage to wildlife resources to the extent justifiable, shall be an integral part of the cost of such projects; and (3) the cost of such modifications or land acquisition for the development or im provement of wildlife resources may be included to the extent jus Q:\COMP\WILDLIFE\FWCA March 2, 2004 5 Sec. 3FISH AND WILDLIFE COORDINATION ACT tifiable, and an appropriate share of the cost of any project may be allocated for this purpose with a finding as to the part of such allo cated cost, if any, to be reimbursed by non-Federal interests. (d) The cost of planning for and the construction or installation and maintenance of such means and measures adopted to carry out the conservation purposes of this section shall constitute an inte gral part of the cost of such projects: Provided, That such cost at tributable to the development and improvement of wildlife shall not extend beyond that necessary for (1) land acquisition, (2) facilities as specifically recommended in water resource project reports, (3) modification of the project, and (4) modification of project oper ations, but shall not include the operation of wildlife facilities. (e) In the case of construction by a Federal agency, that agency is authorized to transfer to the United States Fish and Wildlife Service, out of appropriations or other funds made available for in vestigations, engineering, or construction, such funds as may be necessary to conduct all or part of the investigations required to carry out the purposes of this section. (f) In addition to other requirements, there shall be included in any report submitted to Congress supporting a recommendation for authorization of any new project for the control or use of water as described herein (including any new division of such project or new supplemental works on such project) an estimation of the wild life benefits or losses to be derived therefrom including benefits to be derived from measures recommended specifically for the devel opment and improvement of wildlife resources, the cost of providing wildlife benefits (including the cost of additional facilities to be in stalled or lands to be acquired specifically for that particular phase of wildlife conservation relating to the development and improve ment of wildlife), the part of the cost of joint-use facilities allocated to wildlife, and the part of such costs, if any, to reimbursed by non Federal interests. (g) The provisions of this section shall be applicable with re spect to any project for the control or use of water as prescribed herein, or any unit of such project authorized before or after the date of enactment of the Fish and Wildlife Coordination Act for planning or construction, but shall not be applicable to any project or unit thereof authorized before the date of enactment of the Fish and Wildlife Coordination Act if the construction of the particular project or unit thereof has been substantially completed. A project or unit thereof shall be considered to be substantially completed when sixty percent or more of the estimated construction cost has been obligated for expenditure. (h) The provisions of this Act shall not be applicable to those projects for the impoundment of water where the maximum surface area of such impoundments is less than ten acres, nor to activities for or in connection with programs primarily for land management and use carried out by Federal agencies with respect to Federal lands under their jurisdiction. SEC. 3. ø16 U.S.C. 663¿ (a) Subject to the exceptions prescribed in section 2(h) of this Act, whenever the waters of any stream or other body of water are impounded, diverted, the channel deep ened, or the stream or other body of water otherwise controlled or modified for any purpose whatever, including navigation and drain Q:\COMP\WILDLIFE\FWCA March 2, 2004 6Sec. 3 FISH AND WILDLIFE COORDINATION ACT age, by any department or agency of the United States, adequate provision, consistent with the primary purposes of such impound ment, diversion, or other control, shall be made for the use thereof, together with any areas of land, water, or interests therein, ac quired or administered by a Federal agency in connection there with, for the conservation, maintenance, and management of wild life resources thereof, and its habitat thereon, including the devel opment and improvement of such wildlife resources pursuant to the provisions of section 2 of this Act. (b) The use of such waters, land, or interests therein for wild life conservation purposes shall be in accordance with general plans approved jointly (1) by the head off the particular depart ment or agency exercising primary administration in each instance, (2) by the Secretary of the Interior, and (3) by the head of the agen cy exercising the administration of the wildlife resources of the par ticular State wherein the waters and areas lie. Such waters and other interests shall be made available, without cost for adminis tration, by such State agency, if the management of the properties relate to the conservation of wildlife other than migratory birds, or by the Secretary of the Interior, for administration in such manner as he may deem advisable, where the particular properties have value in carrying out the national migratory bird management pro gram: Provided, That nothing in this section shall be construed as affecting the authority of the Secretary of Agriculture to cooperate with the States or in making lands available to the States with re spect to the management of wildlife and wildlife habitat on lands administered by him. (c) When consistent with the purposes of this Act and the re ports and findings of the Secretary of the Interior prepared in ac cordance with section 2, land, waters, and interests therein may be acquired by Federal construction agencies for the wildlife conserva tion and development purposes of this Act in connection with a project as reasonably needed to preserve and assure for the public benefit the wildlife potentials of the particular project area: Pro vided, That before properties are acquired for this purpose, the probable extent of such acquisition shall be set forth, along with other data necessary for project authorization, in a report sub mitted to the Congress, or in the case of a project previously au thorized, no such properties shall be acquired unless specifically authorized by Congress, if specific authority for such acquisition is recommended by the construction agency. (d) Properties acquired for the purposes of this section shall continue to be used for such purposes, and shall not become the subject of exchange or other transactions if such exchange or other transaction would defeat the initial purpose of their acquisition. (e) Federal lands acquired or withdrawn for Federal water-re source purposes and made available to the States or to the Sec retary of the Interior for wildlife management purposes, shall be made available for such purposes in accordance with this Act, not withstanding other provisions of law. (f) Any lands acquired pursuant to this section by any Federal agency within the exterior boundaries of a national forest shall, upon acquisition, be added to and become national forest lands, and shall be administered as a part of the forest within which they Q:\COMP\WILDLIFE\FWCA March 2, 2004 7 Sec. 5AFISH AND WILDLIFE COORDINATION ACT 1 Section 10(b) of Public Law 102–285 (106 Stat. 172) provides as follows: ‘‘(b) UNITED STATES BUREAU OF MINES.—The Bureau of Mines established by the Act of May 16, 1910 (30 U.S.C. 1), is designated as and shall hereafter be known as the United States Bureau of Mines.’’. are situated, subject to all laws applicable to lands acquired under the provisions of the Act of March 1, 1911 (36 Stat. 961), unless such lands are acquired to carry out the National Migratory Bird Management Program. SEC. 4. ø16 U.S.C. 664¿ Such areas as are made available to the Secretary of the Interior for the purposes of this Act, pursuant to sections 1 and 3 or pursuant to any other authorization, shall be administered by him directly or in accordance with cooperative agreements entered into pursuant to the provisions of the first sec tion of this Act and in accordance with such rules and regulations for the conservation, maintenance, and management of wildlife, re sources thereof, and its habitat thereon, as may be adopted by the Secretary in accordance with general plans approved jointly by the Secretary of the Interior and the head of the department or agency exercising primary administration of such areas: Provided, That such rules and regulations shall not be inconsistent with the laws for the protection of fish and game of the States in which such area is situated (16 U.S.C., sec. 664): Provided further, That lands hav ing value to the National Migratory Bird Management Program may, pursuant to general plans, be made available without cost di rectly to the State agency having control over wildlife resources, if it is jointly determined by the Secretary of the Interior and such State agency that this would be in the public interest: And pro vided further, That the Secretary of the Interior shall have the right to assume the management and administration of such lands in behalf of the National Migratory Bird Management Program if the Secretary finds that the State agency has withdrawn from or otherwise relinquished such management and administration. SEC. 5. ø16 U.S.C. 665¿ The Secretary of the Interior, through the Fish an Wildlife Service and the Bureau of Mines, 1 is author ized to make such investigations as he deems necessary to deter mine the effect of domestic sewage, mine, petroleum, and industrial wastes, erosion, silt, and other polluting substances on wildlife, and to make report to the Congress concerning such investigations and of recommendations for alleviating dangerous and undesirable ef fects of such pollution. These investigations shall include (1) the de termination of standards of water quality for the maintenance of wildlife; (2) the study of methods of abating and preventing pollu tion, including methods for the recovery of useful or marketable products and byproducts of wastes; and (3) the collation and dis tribution of data on the progress and results of such investigations for the use on Federal, State, municipal, and private agencies, indi viduals, organizations, or enterprises. SEC. 5A. ø16 U.S.C. 665A¿ In the management of existing fa cilities (including locks, dams, and pools) in the Mississippi River between Rock Island, Illinois, and Minneapolis, Minnesota, admin istered by the United States Corps of Engineers of the Department of the Army, that Department is hereby directed to give full consid eration and recognition to the needs of fish and other wildlife re sources and their habitat dependent on such waters, without in Q:\COMP\WILDLIFE\FWCA March 2, 2004 8Sec. 6 FISH AND WILDLIFE COORDINATION ACT creasing additional liability to the Government, and, to the max imum extent possible without causing damage to levee and drain age districts, adjacent railroads and highways, farm lands, and dam structures, shall generally operate and maintain pool levels as though navigation was carried on throughout the year. SEC. 6. ø16 U.S.C. 666¿ There is authorized to be appropriated from time to time, out of any money in the Treasury not otherwise appropriated, such amounts as may be necessary to carry out the provisions of this Act and regulations made pursuant thereto, in cluding the construction of such facilities, buildings, and other im provements necessary for economical administration of areas made available to the Secretary of the Interior under this Act, and the employment in the city of Washington and elsewhere of such per sons and means as the Secretary of the Interior may deem nec essary for such purposes. SEC. 7. ø16 U.S.C. 666a¿ Any person who shall violate any rule or regulation promulgated in accordance with this Act shall be guilty of a misdemeanor and upon conviction thereof shall be fined not more than $500 or imprisoned for not more than one year, or both. SEC. 8. ø16 U.S.C. 666b¿ The terms ‘‘wildlife’’ and ‘‘wildlife re sources’’ as used herein include birds, fishes, mammals, and all other classes of wild animals and all types of aquatic and land vegetation upon which wildlife is dependent. SEC. 9. ø16 U.S.C. 666c¿ The provisions of this Act shall not apply to the Tennessee Valley Authority. Q:\COMP\WILDLIFE\FWCA March 2, 2004