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U.S. Code as of:
01/19/04
Section 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.
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