WATER RESOURCES DEVELOPMENT UNDER THE FISH AND WILDLIFE COORDINATION ACT An update and expansion of: Issues in Fish and Wildlife Planning: Water Resources Development Under the Fish and Wildlife Coordination Act by Karl F. Stutzman, 1980 and Policy and Guidance on Fulfillment of the Fish and Wildlife Coordination Act Responsibilities in the Corps of Engineers Water Resources Development Program by Charles K. Baxter, Catherine D. Duncan, and David R. Parsons, 1986 Prepared by: Daniel H. Smalley Under contract for the U.S. Fish and Wildlife Service 4401 North Fairfax Drive Arlington, Virginia 22203 In collaboration with: Allan J. Mueller U.S. Fish and Wildlife Service Field Supervisor, Arkansas Field Office Conway, Arkansas November 2004 CONTENTS Page ACRONYMS USED ix PREFACE xi I. The Fish and Wildlife Coordination Act A. Introduction B. Background Basic Problem addressed by the FWCA General Approach to the Problem C. Legislative History The Act of 1934 The Coordination Act of 1946 Coordination Act Amendments of 1948 The Fish and Wildlife Coordination Act of 1958 Subsequent Amendments and proposal to amend Relationship of the FWCA to Other Legislative Authorities D. Fish and Wildlife Coordination Act Proposed Regulations E. Provisions of the FWCA Overview Definitions and Concepts Institutional Framework Summary of the Provisions of the FWCA Section 1: Declaration of Purpose; Cooperation of Agencies; Surveys and Investigations; Donations Equal Consideration Other Provisions of Section 1 Section 2: Impounding, Diverting or Controlling Waters Subsection 2(a): Consultation Enhancement Evaluations for Determining Mitigation Needs Subsection 2(b): Reports and Recommendations; Consideration Full Consideration by the Action Agency Some Concepts in Federal Project Plan Formulation Enhancement and Public Law 89-72, the Federal Water Project Recreation Act Organization of the Remainder of Section 2 Subsection 2(f): Estimation of Wildlife Benefits and Losses Subsection 2(c): Modification of Projects; Acquisition of Lands Subsection 2(g): Applicability to Projects Subsection 2(d): Project Costs Subsection 3(c): Acquisition of Land, Waters and Interests Therein Subsection 2(e): Transfer of Funds Subsection 2(h): Exempt Projects and Activities Section 3: Impoundment or Diversion of Waters Subsection 3(a): Conservation, Maintenance, and Management of Wildlife Resources; Development and Improvement Subsection 3(b): Use and Availability of Waters, Lands, and Interests Therein Protection of the Authorities of the Secretary of Agriculture Other Aspects of Section 3 Sections 4-9 F. Summary II. Agency Programs with FWCA Implications A. Types of projects covered by the FWCA B. Construction Agencies Corps of Engineers Bureau of Reclamation Natural Resources Conservation Service Others C. Permitting Agencies Corps of Engineers Coast Guard Mineral Management Service Others D. Licensing Agencies Federal Energy Regulatory Commission Nuclear Regulatory Commission III. Water Resources Development Planning and Involvement Under the Fish and Wildlife Coordination Act ii A. Introduction B. How Water Resources Development Projects are Planned and Authorized C. Objective of FWS Involvement under the FWCA D. Interrelationship of the Fish and Wildlife Coordination Act, National Environmental Policy Act and Endangered Species Act in Project Planning E. Economic and Environmental Principles and Guidelines for Water and Related Land Resources Implementation Studies History Purpose Agencies to which Principles and Guidelines apply Six Steps of Planning under Principles and Guidelines FWS Input to the six steps of planning F. Roles and Responsibilities of the Fish and Wildlife Service Biologist Planner Biologist Negotiator Coordinator Conservation Advocate G. Mitigation and the Fish and Wildlife Service Mitigation Policy The Concept of Mitigation The FWS Mitigation Policy Purpose and goal Applicability to other agencies Resource Categories and Mitigation Goals Evaluation Species Impact Assessment Compensation Timing of Mitigation Planning Evaluation Methodologies H. Transfer Funding National Transfer Funding Agreements Corps of Engineers Bureau of Reclamation Fish and Wildlife Service Guidance on Transfer Funding Scopes of work Scheduling of Transfer Funding Coordination Meetings Funding Estimates - The Staff Day Cost Additional Information Other Mechanisms for Transferring Funds I. General Plans for Management of Fish and Wildlife at Federal Water Resources Development Projects iii Purpose of General Plans General Plan Provisions in the Fish and Wildlife Coordination Act Existing Guidance Signatories to General Plans Types of General Plans Development and Content of General Plans Issues with General Plans Reservoir Land Acquisition Policy List of Existing General Plans J. Reservoir Land Acquisition Policy IV. Corps of Engineers Project Planning and Implementation A. Corps References B. Types of Projects C. Project Planning, Implementation and Operation D. How Corps Projects are Authorized E. Types of Studies Pre-authorization Studies Reconnaissance Study Feasibility Study Post-Authorization Studies Continuing Authorities Studies Other Studies Review of Completed Projects Fish and Wildlife Reports Water Resources Needs of River Basins and Regions Floodplain Management and Riverine Restoration Program Project Deauthorizations Legislative Phase I Studies Congressional Adds F. Corps Planning Procedures Pre-authorization Studies and Reports Reconnaissance Phase Feasibility Phase (Plan Formulation) Post-authorization Studies and Reports Preconstruction Engineering and Design (PED) Reevaluation Studies National Environmental Policy Act Documentation Construction Operations and Maintenance Continuing Authorities Program (CAP) Studies CAP Program Planning iv CAP Project Studies CAP Project Approval CAP Project Cost-Share G. Purpose and Timing of FWS Involvement in Studies Reconnaissance Studies Feasibility Studies Post-Authorization Studies and Reports and Beyond Continuing Authorities Studies H. Implementing Fish and Wildlife Service Procedures for Participating in the Corps Planning Process through the National Transfer Fund Agreement I. When FWCA Responsibilities Cannot Be Fulfilled by the “2(b) Report” V. Fish and Wildlife Evaluation Framework A. Introduction B. The Evaluation Framework Step 1. Specify the resources likely to be evaluated Step 2. Adopt an evaluation method(s) Step 3 Define the baseline condition and the significant resources likely to be impacted Step 4 Determine the most probable future resource conditions without a project Step 5 Define resource problems, opportunities and planning objectives Step 6 Define the Alternatives relative to their potential impacts on fish and wildlife resources Step 7 Determine the most probable future resource conditions with identified alternatives Step 8 Define impacts Step 9 Evaluate and compare alternatives Step 10 Formulate conservation measures Step 11 Develop Recommendations Step 12 Establish the Fish and Wildlife Service position on the project Step 13 Write the Fish and Wildlife Coordination Act Report VI. FWCA Report Content, Organization, Format and Style A. Introduction B. Content and Organization The 2(b) Report Reconnaissance Phase PAR v Plan Formulation PAR(s), Feasibility Study Phase (Plan Formulation) Continuing Authorities Program PAR C. Format D. Style E. Grammar, Style and Tone F. List of Tables and Figures VII. Relationship of the FWCA to Other Legislation A. Introduction B. National Environmental Policy Act and the Endangered Species Act C. Federal Water Projects Recreation Act (P.L. 89-72) D. Watershed Protection and Flood Prevention Act (P.L. 83-566) E. Water Resources Development Acts (Corps of Engineers Omnibus Acts) F. Federal Power Act G. Coastal Barriers Protection Act H. Estuary Protection Act I. Clean Water Act (formerly Federal Water Pollution Control Act) J. Rivers and Harbors Act of 1899 K. Marine Protection, Research and Sanctuaries Act L. Transportation Equity Act for the 21st Century (TEA-21) M. Coastal Zone Management Act N. Outer Continental Shelf Lands Act O. Sikes Act List of Tables Table I-1 Summary of the Provisions of the Fish and Wildlife Coordination Act of 1958 Table III-1 Fish and Wildlife Coordination Act General Plans for Fish and Wildlife Management of Project Lands and Waters Table IV-1 Corps of Engineers Continuing Authorities Projects Table IV-2 Outline of FWS Fish and Wildlife Coordination Act Activities for a Federal Project Table V-1 Summary of Evaluation Framework Steps Table V-2 Laws, Policies, and Plans Relevant to Establishing the Institutional Significance of Fish and Wildlife Resources Table VI-1 Summary of Content and Organization of FWCA 2(b) Report Table VI-2 Example of an Impacts Matrix for a Hypothetical Channelization Project Using Confined Upland Disposal Table VI-3 Content and Organization of a Reconnaissance PAR/PAL vi Table VI-4 Content and Organization of a Plan Formulation PAR/PAL Table VI-5 Content and Organization of a Continuing Authorities Program PAR/PAL Table VI-6 Suggested FWCA Report Format List of Figures Figure III-1 Mitigation and Compensation Figure III-2 Corps Funding Process and FWCA Coordination Figure IV-1 Major Steps in the Corps of Engineers Project Development Process for Projects Specifically Authorized by Congress Figure IV-2 Continuing Authorities Projects Figure IV-3 Major Steps in Corps of Engineers Project Development Process for Continuing Authorities Projects Figure VI-1 Title Page, Fish and Wildlife Coordination Act