§ 2283. — Fish and wildlife mitigation.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 33USC2283]
TITLE 33--NAVIGATION AND NAVIGABLE WATERS
CHAPTER 36--WATER RESOURCES DEVELOPMENT
SUBCHAPTER V--GENERAL PROVISIONS
Sec. 2283. Fish and wildlife mitigation
(a) Steps to be taken prior to or concurrently with construction
(1) In the case of any water resources project which is authorized
to be constructed by the Secretary before, on, or after November 17,
1986, construction of which has not commenced as of November 17, 1986,
and which necessitates the mitigation of fish and wildlife losses,
including the acquisition of lands or interests in lands to mitigate
losses to fish and wildlife, as a result of such project, such
mitigation, including acquisition of the lands or interests--
(A) shall be undertaken or acquired before any construction of
the project (other than such acquisition) commences, or
(B) shall be undertaken or acquired concurrently with lands and
interests in lands for project purposes (other than mitigation of
fish and wildlife losses),
whichever the Secretary determines is appropriate, except that any
physical construction required for the purposes of mitigation may be
undertaken concurrently with the physical construction of such project.
(2) For the purposes of this subsection, any project authorized
before November 17, 1986, on which more than 50 percent of the land
needed for the project, exclusive of mitigation lands, has been acquired
shall be deemed to have commenced construction under this subsection.
(b) Acquisition of lands or interests in lands for mitigation
(1) After consultation with appropriate Federal and non-Federal
agencies, the Secretary is authorized to mitigate damages to fish and
wildlife resulting from any water resources project under his
jurisdiction, whether completed, under construction, or to be
constructed. Such mitigation may include the acquisition of lands, or
interests therein, except that--
(A) acquisition under this paragraph shall not be by
condemnation in the case of projects completed as of November 17,
1986, or on which at least 10 percent of the physical construction
on the project has been completed as of November 17, 1986; and
(B) acquisition of water, or interests therein, under this
paragraph, shall not be by condemnation.
The Secretary, shall, under the terms of this paragraph, obligate no
more than $30,000,000 in any fiscal year. With respect to any water
resources project, the authority under this subsection shall not apply
to measures that cost more than $7,500,000 or 10 percent of the cost of
the project, whichever is greater.
(2) Whenever, after his review, the Secretary determines that such
mitigation features under this subsection are likely to require
condemnation under subparagraph (A) or (B) of paragraph (1) of this
subsection, the Secretary shall transmit to Congress a report on such
proposed modification, together with his recommendations.
(c) Allocation of mitigation costs
Costs incurred after November 17, 1986, including lands, easements,
rights-of-way, and relocations, for implementation and operation,
maintenance, and rehabilitation to mitigate damages to fish and wildlife
shall be allocated among authorized project purposes in accordance with
applicable cost allocation procedures, and shall be subject to cost
sharing or reimbursement to the same extent as such other project costs
are shared or reimbursed, except that when such costs are covered by
contracts entered into prior to November 17, 1986, such costs shall not
be recovered without the consent of the non-Federal interests or until
such contracts are complied with or renegotiated.
(d) Mitigation plans as part of project proposals
(1) In general
After November 17, 1986, the Secretary shall not submit any
proposal for the authorization of any water resources project to the
Congress unless such report contains (A) a recommendation with a
specific plan to mitigate fish and wildlife losses created by such
project, or (B) a determination by the Secretary that such project
will have negligible adverse impact on fish and wildlife. Specific
mitigation plans shall ensure that impacts to bottomland hardwood
forests are mitigated in-kind, to the extent possible. In carrying
out this subsection, the Secretary shall consult with appropriate
Federal and non-Federal agencies.
(2) Design of mitigation projects
The Secretary shall design mitigation projects to reflect
contemporary understanding of the science of mitigating the adverse
environmental impacts of water resources projects.
(e) First enhancement costs as Federal costs
In those cases when the Secretary, as part of any report to
Congress, recommends activities to enhance fish and wildlife resources,
the first costs of such enhancement shall be a Federal cost when--
(1) such enhancement provides benefits that are determined to be
national, including benefits to species that are identified by the
National Marine Fisheries Service as of national economic
importance, species that are subject to treaties or international
convention to which the United States is a party, and anadromous
fish;
(2) such enhancement is designed to benefit species that have
been listed as threatened or endangered by the Secretary of the
Interior under the terms of the Endangered Species Act, as amended
(16 U.S.C. 1531, et seq.), or
(3) such activities are located on lands managed as a national
wildlife refuge.
When benefits of enhancement do not qualify under the preceding
sentence, 25 percent of such first costs of enhancement shall be
provided by non-Federal interests under a schedule of reimbursement
determined by the Secretary. Not more than 80 percent of the non-Federal
share of such first costs may be satisfied through in-kind
contributions, including facilities, supplies, and services that are
necessary to carry out the enhancement project. The non-Federal share of
operation, maintenance, and rehabilitation of activities to enhance fish
and wildlife resources shall be 25 percent.
(f) National benefits from enhancement measures for Atchafalaya Floodway
System and Mississippi Delta Region projects
Fish and wildlife enhancement measures carried out as part of the
project for Atchafalaya Floodway System, Louisiana, authorized by Public
Law 99-88, and the project for Mississippi Delta Region, Louisiana,
authorized by the Flood Control Act of 1965, shall be considered to
provide benefits that are national for purposes of this section.
(g) Fish and Wildlife Coordination Act supplementation
The provisions of subsections (a), (b), and (d) of this section
shall be deemed to supplement the responsibility and authority of the
Secretary pursuant to the Fish and Wildlife Coordination Act [16 U.S.C.
661 et seq.], and nothing in this section is intended to affect that
Act.
(Pub. L. 99-662, title IX, Sec. 906, Nov. 17, 1986, 100 Stat. 4186; Pub.
L. 102-580, title III, Sec. 333(a), Oct. 31, 1992, 106 Stat. 4852; Pub.
L. 106-53, title II, Sec. 221, Aug. 17, 1999, 113 Stat. 295; Pub. L.
106-541, title II, Sec. 224(a), Dec. 11, 2000, 114 Stat. 2597.)
References in Text
The Endangered Species Act, as amended, referred to in subsec.
(e)(2), probably means the Endangered Species Act of 1973, Pub. L. 93-
205, Dec. 28, 1973, 87 Stat. 884, as amended, which is classified
generally to chapter 35 (Sec. 1531 et seq.) of Title 16, Conservation.
For complete classification of this Act to the Code, see Short Title
note set out under section 1531 of Title 16 and Tables.
Public Law 99-88, referred to in subsec. (f), is Pub. L. 99-88, Aug.
15, 1985, 99 Stat. 293, known as the Supplemental Appropriations Act,
1985. Provisions of Pub. L. 99-88 authorizing the project for the
Atchafalaya Floodway System, Louisiana, are not classified to the Code.
For complete classification of this Act to the Code, see Tables.
The Flood Control Act of 1965, referred to in subsec. (f), is title
II of Pub. L. 89-298, Oct. 27, 1965, 79 Stat. 1073. Provisions of that
Act authorizing the project for Mississippi Delta Region, Louisiana, are
not classified to the Code. For complete classification of this Act to
the Code, see Tables.
The Fish and Wildlife Coordination Act referred to in subsec. (g),
is act Mar. 10, 1934, ch. 55, 48 Stat. 401, as amended, which is
classified generally to sections 661 to 666c of Title 16, Conservation.
For complete classification of this Act to the Code, see Short Title
note set out under section 661 of Title 16 and Tables.
Amendments
2000--Subsec. (d). Pub. L. 106-541 inserted subsec. heading,
designated existing provisions as par. (1), inserted par. heading,
realigned margins, substituted ``November 17, 1986'' for ``the date of
enactment of this Act'', redesignated former cls. (1) and (2) as (A) and
(B), respectively, and added par. (2).
1999--Subsec. (e). Pub. L. 106-53 inserted after second sentence
``Not more than 80 percent of the non-Federal share of such first costs
may be satisfied through in-kind contributions, including facilities,
supplies, and services that are necessary to carry out the enhancement
project.''
1992--Subsec. (c). Pub. L. 102-580 inserted ``, including lands,
easements, rights-of-way, and relocations,'' before ``for implementation
and operation''.
Concurrent Mitigation
Pub. L. 106-541, title II, Sec. 224(b), Dec. 11, 2000, 114 Stat.
2598, provided that:
``(1) Investigation.--
``(A) In general.--The Comptroller General shall conduct an
investigation of the effectiveness of the concurrent mitigation
requirements of section 906 of the Water Resources Development Act
of 1986 (33 U.S.C. 2283). In carrying out the investigation, the
Comptroller General shall determine--
``(i) whether or not there are instances in which less than
50 percent of required mitigation is completed before initiation
of project construction and the number of such instances; and
``(ii) the extent to which mitigation projects restore
natural hydrologic conditions, restore native vegetation, and
otherwise support native fish and wildlife species.
``(B) Special rule.--In carrying out subparagraph (A)(ii), the
Comptroller General shall--
``(i) establish a panel of independent scientists, comprised
of individuals with expertise and experience in applicable
scientific disciplines, to assist the Comptroller General; and
``(ii) assess methods used by the Corps of Engineers to
monitor and evaluate mitigation projects, and compare Corps of
Engineers mitigation project design, construction, monitoring,
and evaluation practices with those used in other publicly and
privately financed mitigation projects.
``(2) Report.--Not later than 1 year after the date of enactment of
this Act [Dec. 11, 2000], the Comptroller General shall transmit to
Congress a report on the results of the investigation.''
Section Referred to in Other Sections
This section is referred to in sections 652, 2211, 2213 of this
title.
