§ 662. — Impounding, diverting, or controlling of waters.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 16USC662]
TITLE 16--CONSERVATION
CHAPTER 5A--PROTECTION AND CONSERVATION OF WILDLIFE
SUBCHAPTER I--GAME, FUR-BEARING ANIMALS, AND FISH
Sec. 662. Impounding, diverting, or controlling of waters
(a) Consultations between agencies
Except as hereafter stated in subsection (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
Federal permit or license, such department or agency first shall consult
with the United States Fish and Wildlife Service, Department of the
Interior, and with the head of the agency exercising administration over
the wildlife resources of the particular State wherein the impoundment,
diversion, or other control facility is to be constructed, with a view
to the conservation of wildlife resources by preventing loss of and
damage to such resources as well as providing for the development and
improvement thereof in connection with such water-resource development.
(b) Reports and recommendations; consideration
In furtherance of such purposes, the reports and recommendations of
the Secretary of the Interior on the wildlife aspects of such projects,
and any report of the head of the State agency 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 purpose 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 improvement of such resources, shall be made an integral
part of any report prepared or submitted by any agency of the Federal
Government 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 administrative
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
sections 661 to 666c of this title apply. Recommendations of the
Secretary of the Interior shall be as specific as is practicable with
respect to features recommended for wildlife conservation and
development, lands to be utilized or acquired for such purposes, the
results expected, and shall describe the damage to wildlife attributable
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) Modification of projects; acquisition of lands
Federal agencies authorized to construct or operate water-control
projects are 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 enactment of the Fish and
Wildlife Coordination Act, and to acquire lands in accordance with
section 663 of this title, in order to accommodate the means and
measures for such conservation of wildlife resources 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 modification or land acquisition shall be
compatible with the purposes for which the project was authorized; (2)
the cost of such modifications 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 improvement of wildlife resources may be included to
the extent justifiable, 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 allocated cost, if any, to be reimbursed by non-Federal
interests.
(d) Project costs
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 integral part
of the cost of such projects: Provided, That such cost attributable 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 operations, but shall not
include the operation of wildlife facilities.
(e) Transfer of funds
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 investigations,
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) Estimation of wildlife benefits or losses
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 wildlife
benefits or losses to be derived therefrom including benefits to be
derived from measures recommended specifically for the development and
improvement of wildlife resources, the cost of providing wildlife
benefits (including the cost of additional facilities to be installed or
lands to be acquired specifically for that particular phase of wildlife
conservation relating to the development and improvement of wildlife),
the part of the cost of joint-use facilities allocated to wildlife, and
the part of such costs, if any, to be reimbursed by non-Federal
interests.
(g) Applicability to projects
The provisions of this section shall be applicable with respect 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) Exempt projects and activities
The provisions of section 661 to 666c of this title 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.
(Mar. 10, 1934, ch. 55, Sec. 2, 48 Stat. 401; 1939 Reorg. Plan No. II,
Sec. 4(e), (f), eff. July 1, 1939, 4 F.R. 2731, 53 Stat. 1433; Aug. 14,
1946, ch. 965, 60 Stat. 1080; Pub. L. 85-624, Sec. 2, Aug. 12, 1958, 72
Stat. 564; Pub. L. 89-72, Sec. 6(b), July 9, 1965, 79 Stat. 216.)
References in Text
The date of enactment of the Fish and Wildlife Coordination Act,
referred to in subsecs. (c) and (g), probably refers to the date of
enactment of Pub. L. 85-624, Aug. 12, 1958. See, also, Short Title note
set out under section 661 of this title.
Amendments
1965--Subsec. (d). Pub. L. 89-72 added cl. (2) to proviso,
redesignated cls. (2) and (3) thereof as (3) and (4), struck out ``nor
the construction of such facilities beyond those herein described''
after ``wildlife facilities'' and struck out a second proviso which
applied to projects constructed under Federal reclamation laws and
required the Secretary of the Interior, in addition to allocations made
under section 485h of Title 43, to make findings on part of estimated
cost of the project which can properly be allocated to means and
measures to prevent loss and damage to wildlife resources, which costs
shall not be reimbursable, and provided for allocation of project costs
to development and improvement of wildlife resources, now covered by
sections 460l-12 to 460l-21 of this title.
1958--Pub. L. 85-624 amended section generally to require
consultations with a view to the conservation of resources by providing
for the development and improvement thereof in connection with water-
resource development, to provide for inclusion of reports and
recommendations of the Secretary of the Interior and of the heads of
State agencies in reports prepared or submitted by agencies responsible
for engineering surveys and construction of projects when such reports
are presented to the Congress or to any agency or person having the
authority or the power to authorize the construction of water-resource
development projects or to approve a report on the modification or
supplementation of plans for previously authorized projects, to
authorize modification of projects and acquisition of lands, and to
require an estimation of benefits or losses to wildlife to be
incorporated in the reports submitted to the Congress.
1946--Act Aug. 14, 1946, amended section generally to provide for
consultations between any agencies and the Fish and Wildlife Service and
head of State agency exercising administration over State wildlife
resources prior to the impounding of water in order to prevent loss and
damage to wildlife resources. Former provisions of this section are
covered by section 665 of this title.
Transfer of Functions
See Transfer of Functions note set out under section 661 of this
title.
Section Referred to in Other Sections
This section is referred to in section 663 of this title.
