16 U.S.C. § 662 — Impounding, diverting, or controlling of

Page 1154 TITLE 16—CONSERVATION § 662 ference on North American Wildlife Policy (Conference) to facilitate the exchange of information and advice re- lating to the means for achieving the goals of this order. SEC. 4. Recreational Hunting and Wildlife Resource Con- servation Plan. The Chairman shall prepare, consistent with applicable law and subject to the availability of appropriations, in coordination with the appropriate Federal agencies and in consultation with the Sporting Conservation Council, and in cooperation with State and tribal fish and wildlife agencies, not later than 1 year following the conclusion of the Conference, a com- prehensive Recreational Hunting and Wildlife Con- servation Plan that incorporates existing and ongoing activities and sets forth a 10-year agenda for fulfilling the actions identified in section 2 of this order. SEC. 5. Judicial Review. This order is not intended to, and does not, create any right, benefit, trust responsi- bility, or privilege, substantive or procedural, enforce- able at law or in equity by any party against the United States, its departments, agencies, instrumental- ities, or entities, its officers or employees, or any other person. GEORGE W. BUSH. § 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 author- ized 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 agen- cy first shall consult with the United States Fish and Wildlife Service, Department of the In- terior, and with the head of the agency exer- cising administration over the wildlife resources of the particular State wherein the impound- ment, diversion, or other control facility is to be constructed, with a view to the conservation of wildlife resources by preventing loss of and dam- age to such resources as well as providing for the development and improvement thereof in connection with such water-resource develop- ment. (b) Reports and recommendations; consideration In furtherance of such purposes, the reports and recommendations of the Secretary of the In- terior on the wildlife aspects of such projects, and any report of the head of the State agency exercising administration over the wildlife re- sources of the State, based on surveys and inves- tigations 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 de- termining means and measures that should be adopted to prevent the loss of or damage to such wildlife resources, as well as to provide concur- rently 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 engi- neering 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 ac- tion or otherwise, (1) to authorize the construc- tion of water-resource development projects or (2) to approve a report on the modification or supplementation of plans for previously author- ized projects, to which this Act applies. Rec- ommendations of the Secretary of the Interior shall be as specific as is practicable with respect to features recommended for wildlife conserva- tion and development, lands to be utilized or ac- quired for such purposes, the results expected, and shall describe the damage to wildlife attrib- utable to the project and the measures proposed for mitigating or compensating for these dam- ages. The reporting officers in project reports of the Federal agencies shall give full consider- ation 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 pur- poses as the reporting agency finds should be adopted to obtain maximum overall project ben- efits. (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 accommo- date the means and measures for such conserva- tion of wildlife resources as an integral part of such projects: Provided, That for projects au- thorized by a specific Act of Congress before the date of enactment of the Fish and Wildlife Co- ordination Act (1) such modification or land ac- quisition 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 dam- age to wildlife resources to the extent justifi- able, 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 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 conserva- tion purposes of this section shall constitute an integral part of the cost of such projects: Pro- vided, That such cost attributable to the devel- opment and improvement of wildlife shall not extend beyond that necessary for (1) land acqui- sition, (2) facilities as specifically recommended in water resource project reports, (3) modifica- tion of the project, and (4) modification of project operations, but shall not include the op- eration of wildlife facilities. (e) Transfer of funds In the case of construction by a Federal agen- cy, that agency is authorized to transfer to the 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.