16 U.S.C. § 663 — Impoundment or diversion of waters

Page 1155 TITLE 16—CONSERVATION § 663 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 di- vision of such project or new supplemental works on such project) an estimation of the wildlife benefits or losses to be derived there- from including benefits to be derived from meas- ures recommended specifically for the develop- ment 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 par- ticular phase of wildlife conservation relating to the development and improvement of wildlife), the part of the cost of joint-use facilities allo- cated 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 applica- ble 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 Coordina- tion 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 con- struction of the particular project or unit there- of has been substantially completed. A project or unit thereof shall be considered to be sub- stantially completed when sixty percent or more of the estimated construction cost has been obli- gated for expenditure. (h) Exempt projects and activities The provisions of this Act shall not be applica- ble to those projects for the impoundment of water where the maximum surface area of such impoundments is less than ten acres, nor to ac- tivities for or in connection with programs pri- marily for land management and use carried out by Federal agencies with respect to Federal lands under their jurisdiction. (Mar. 10, 1934, ch. 55, § 2, 48 Stat. 401; 1939 Reorg. Plan No. II, § 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, § 2, Aug. 12, 1958, 72 Stat. 564; Pub. L. 89–72, § 6(b), July 9, 1965, 79 Stat. 216.) Editorial Notes REFERENCES IN TEXT This Act, referred to in subsecs. (b) and (h), is act Mar. 10, 1934, ch. 55, 48 Stat. 401, known as the Fish and Wildlife Coordination Act, which is classified generally to sections 661 to 666c–1 of this title. For complete clas- sification of this Act to the Code, see section 661(a) of this title, Short Title note set out under section 661 of this title, and Tables. The date of enactment of the Fish and Wildlife Co- ordination Act, referred to in subsecs. (c) and (g), prob- ably refers to the date of enactment of Pub. L. 85–624, which was approved Aug. 12, 1958, and which amended sections 1 to 4 of the Act generally and enacted the Short Title. See Short Title note set out under section 661 of this title. AMENDMENTS 1965—Subsec. (d). Pub. L. 89–72 added cl. (2) to pro- viso, redesignated cls. (2) and (3) thereof as (3) and (4), struck out ‘‘nor the construction of such facilities be- yond 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 allo- cation of project costs to development and improve- ment of wildlife resources, now covered by sections 460l–12 to 460l–21 of this title. 1958—Pub. L. 85–624 amended section generally to re- quire consultations with a view to the conservation of resources by providing for the development and im- provement 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 sur- veys 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 con- struction of water-resource development projects or to approve a report on the modification or supplemen- tation 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 ex- ercising administration over State wildlife resources prior to the impounding of water in order to prevent loss and damage to wildlife resources. Former provi- sions of this section are covered by section 665 of this title. Executive Documents TRANSFER OF FUNCTIONS See Transfer of Functions note set out under section 661 of this title. § 663. Impoundment or diversion of waters (a) Conservation, maintenance, and management of wildlife resources; development and im- provement Subject to the exceptions prescribed in section 662(h) of this title, whenever the waters of any stream or other body of water are 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, adequate provision, consistent with the primary purposes of such impoundment, 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 therewith, for the conservation, maintenance, and management of wildlife re- sources thereof, and its habitat thereon, includ- ing the development and improvement of such wildlife resources pursuant to the provisions of section 662 of this title. Page 1156 TITLE 16—CONSERVATION § 664 (b) Use and availability of waters, land, or inter- ests therein The use of such waters, land, or interests therein for wildlife conservation purposes shall be in accordance with general plans approved jointly (1) by the head of the particular depart- ment or agency exercising primary administra- tion in each instance, (2) by the Secretary of the Interior, and (3) by the head of the agency exer- cising the administration of the wildlife re- sources of the particular State wherein the wa- ters and areas lie. Such waters and other inter- ests shall be made available, without cost for administration, by such State agency, if the management of the properties relate to the con- servation of wildlife other than migratory birds, or by the Secretary of the Interior, for adminis- tration in such manner as he may deem advis- able, where the particular properties have value in carrying out the national migratory bird management program: Provided, That nothing in this section shall be construed as affecting the authority of the Secretary of Agriculture to co- operate with the States or in making lands available to the States with respect to the man- agement of wildlife and wildlife habitat on lands administered by him. (c) Acquisition of land, waters, and interests therein; report to Congress When consistent with the purposes of this Act and the reports and findings of the Secretary of the Interior prepared in accordance with section 662 of this title, land, waters, and interests therein may be acquired by Federal construc- tion agencies for the wildlife conservation and development purposes of this Act in connection with a project as reasonably needed to preserve and assure for the public benefit the wildlife po- tentials of the particular project area: Provided, That before properties are acquired for this pur- pose, the probable extent of such acquisition shall be set forth, along with other data nec- essary for project authorization, in a report sub- mitted to the Congress, or in the case of a project previously authorized, no such prop- erties shall be acquired unless specifically au- thorized by Congress, if specific authority for such acquisition is recommended by the con- struction agency. (d) Use of acquired properties Properties acquired for the purposes of this section shall continue to be used for such pur- poses, and shall not become the subject of ex- change or other transactions if such exchange or other transaction would defeat the initial pur- pose of their acquisition. (e) Availability of Federal lands acquired or withdrawn for Federal water-resource pur- poses Federal lands acquired or withdrawn for Fed- eral water-resource purposes and made available to the States or to the Secretary of the Interior for wildlife management purposes, shall be made available for such purposes in accordance with this Act, notwithstanding other provisions of law. (f) National forest lands Any lands acquired pursuant to this section by any Federal agency within the exterior bound- aries 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 are situated, subject to all laws applicable to lands acquired under the pro- visions of the Act of March 1, 1911 (36 Stat. 961), unless such lands are acquired to carry out the National Migratory Bird Management Program. (Mar. 10, 1934, ch. 55, § 3, 48 Stat. 401; 1940 Reorg. Plan No. III, § 3, eff. June 30, 1940, 5 F.R. 2108, 54 Stat. 1232; Aug. 14, 1946, ch. 965, 60 Stat. 1081; Pub. L. 85–624, § 2, Aug. 12, 1958, 72 Stat. 566.) Editorial Notes REFERENCES IN TEXT This Act, referred to in subsecs. (c) and (e), is act Mar. 10, 1934, ch. 55, 48 Stat. 401, known as the Fish and Wildlife Coordination Act, which is classified generally to sections 661 to 666c–1 of this title. For complete clas- sification of this Act to the Code, see section 661(a) of this title, Short Title note set out under section 661 of this title, and Tables. Act of March 1, 1911, referred to in subsec. (f), is act Mar. 1, 1911, ch. 186, 36 Stat. 961, popularly known as the Weeks Law, which enacted former sections 513 and 514 and sections 515 to 519, 521, 552, and 563 of this title and amended sections 480 and 500 of this title. For complete classification of this Act to the Code, see Short Title note set out under section 552 of this title and Tables. AMENDMENTS 1958—Subsec. (a). Pub. L. 85–624 designated first sen- tence of existing provisions as subsec. (a), and, among other changes, inserted ‘‘Subject to the exceptions pre- scribed in section 662(h) of this title’’ before ‘‘whenever the waters’’, substituted ‘‘diverted, the channel deep- ened, or the stream or other body of water otherwise controlled or modified for any purpose whatever, in- cluding navigation and drainage’’ for ‘‘diverted, or oth- erwise controlled for any purpose whatever’’, and in- serted provisions requiring adequate provision to be made for the development and improvement of wildlife resources pursuant to the provisions of section 662 of this title. Subsec. (b). Pub. L. 85–624 designated second sentence of existing provisions as subsec. (b), included the use of land for wildlife conservation purpose, and provided that nothing in this section shall be construed as ef- fecting the authority of the Secretary of Agriculture to cooperate with the States or in making lands available to the States with respect to the management of wild- life and wildlife habitat on lands administered by him. Subsecs. (c) to (f). Pub. L. 85–624 added subsecs. (c) to (f). 1946—Act Aug. 14, 1946, amended section generally to provide for conservation and maintenance of wildlife resources upon impounding of waters, and to provide for free use of waters under certain conditions. Executive Documents TRANSFER OF FUNCTIONS See Transfer of Functions note set out under section 661 of this title. § 664. Administration; rules and regulations; availability of lands to State agencies Such areas as are made available to the Sec- retary of the Interior for the purposes of this Act, pursuant to sections 661 and 663 of this title or pursuant to any other authorization, shall be administered by him directly or in accordance with cooperative agreements entered into pursu- ant to the provisions of section 661 of this title