A Guide to the Fish and Wildlife Coordination Act Requirements, Process, and Compliance

The Fish and Wildlife Coordination Act (FWCA) plays a crucial role in ensuring that wildlife conservation receives equal consideration in water resource development projects. This comprehensive guide delves into the key aspects of the FWCA, enabling readers to understand its regulatory scope, jurisdictional boundaries, and the consultation process required between federal agencies and wildlife authorities. By exploring the FWCA's history, its interaction with other environmental regulations, and the compliance strategies and best practices associated with it, readers will gain a solid foundation in navigating this essential legislation. The guide also highlights the available compliance assistance programs and partnership opportunities that can help stakeholders effectively address potential impacts on fish and wildlife resources while moving forward with their projects. With a focus on practical information and actionable insights, this resource serves as an invaluable tool for understanding and complying with the FWCA.

GENERAL INFORMATION

Key Details of the Fish and Wildlife Coordination Act

Issuing Agencies: U.S. Fish and Wildlife Service and National Marine Fisheries Service Year Established: 1934 Last Amended: 1958 Statutory Authority: Fish and Wildlife Coordination Act Primary Legal Reference: Title 16 of the United States Code, Sections 661-667e

What is the Fish and Wildlife Coordination Act?

The Fish and Wildlife Coordination Act (FWCA) is a federal law that requires federal agencies to consult with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (the Services) before undertaking or authorizing projects that control or modify any body of water.1 The FWCA aims to ensure that wildlife conservation receives equal consideration and is coordinated with other features of water resource development projects.

Enacted in 1934 and significantly amended in 1946 and 1958, the FWCA promotes the conservation of fish and wildlife resources by requiring federal agencies to incorporate conservation measures into water resource development projects. The Act applies to any federal agency that proposes to control or modify any body of water, including impounding, diverting, deepening, or otherwise controlling or modifying streams or other water bodies.2

Under the FWCA, federal agencies must consult with the Services to determine the potential impacts of their proposed actions on fish and wildlife resources and to develop measures to mitigate those impacts. The Services provide recommendations to the federal agency to conserve or improve fish and wildlife resources, which the agency must give full consideration to and include in project plans to the maximum extent practicable.3

What does the Fish and Wildlife Coordination Act protect?

The Fish and Wildlife Coordination Act protects fish and wildlife resources that may be impacted by water resource development projects. The Act requires federal arrive = (((.....gencies to consult with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service to ensure that conservation of these resources is given equal consideration in project planning and implementation. This includes protecting habitats, maintaining water quality, and minimizing adverse impacts on fish and wildlife populations.4


## REGULATORY SCOPE & JURISDICTION

### Regulated Activities, Entities & Prohibited Substances

The Fish and Wildlife Coordination Act (FWCA) is a federal law that requires federal agencies to consult with the U.S. Fish and Wildlife Service (USFWS) and the appropriate state wildlife agency before undertaking or permitting any activities that modify or control waters in the United States.[^100] The purpose of this consultation is to ensure that wildlife conservation receives equal consideration and is coordinated with other features of water resource development programs.[^101]

The FWCA applies to a wide range of activities that involve the modification or control of waters, including:

- Construction of dams, levees, and other water control structures
- Channelization and navigation projects
- Dredging and filling of wetlands
- Hydropower development
- Irrigation and drainage projects

The FWCA does not prohibit any specific activities or substances. Instead, it requires federal agencies to consult with wildlife agencies to minimize the impact of water resource development projects on fish and wildlife resources.[^102]

#### Section 2 - Coordination with Fish and Wildlife Agencies

**Purpose:** Section 2 of the FWCA requires federal agencies to consult with the USFWS and the appropriate state wildlife agency before undertaking or permitting any activities that modify or control waters in the United States.[^103]

**Key Requirements:** Federal agencies must consult with the USFWS and the appropriate state wildlife agency to determine the possible effects of proposed water resource development projects on fish and wildlife resources, and to develop measures to mitigate any adverse impacts.[^104]

**Significance and Implications:** This section ensures that wildlife conservation receives equal consideration in water resource development programs. Developers and stakeholders involved in large-scale greenfield development projects that involve the modification or control of waters must engage in this consultation process to ensure compliance with the FWCA.[^105]

**Compliance Strategies and Best Practices:** Early consultation with the USFWS and state wildlife agencies can help identify potential impacts on fish and wildlife resources and develop appropriate mitigation measures. Incorporate wildlife conservation considerations into project planning and design can help streamline the consultation process and avoid potential delays or challenges.

**Associated Processes and Permits:** The FWCA consultation process is often integrated with other environmental review processes, such as the National Environmental Policy Act (NEPA) review or the Clean Water Act Section 404 permitting process.[^107]

### Relationship to Other Regulations & Agencies

The Fish and Wildlife Coordination Act (FWCA) interacts with several other federal regulations and agencies involved in environmental protection and natural resource management:

1. **National Environmental Policy Act (NEPA):** The FWCA consultation process is often integrated with the NEPA review process for federal actions that may significantly affect the environment. The U.S. Fish and Wildlife Service (USFWS) and state wildlife agencies provide input on the potential impacts of proposed projects on fish and wildlife resources as part of the NEPA review.[^108]

2. **Clean Water Act (CWA):** The FWCA consultation process is closely linked to the CWA Section 404 permitting process for the discharge of dredged or fill material into waters of the United States. The U.S. Army Corps of Engineers, which administers the Section 404 permit program, must consult with the USFWS and state wildlife agencies under the FWCA when evaluating permit applications.[^109]

3. **Endangered Species Act (ESA):** The FWCA and the ESA both aim to protect wildlife resources, but the ESA focuses specifically on threatened and endangered species. If a proposed water resource development project may affect a listed species or its critical habitat, the federal agency must also consult with the USFDS or the National Marine Fisheries Service (NMFS) under Section 7 of the ESA.[^110]

4. **Migratory Bird Treaty Act (MBTA):** The MBTA protects migratory birds and their habitats. Federal agencies must consider the potential impacts of water resource development projects on migratory birds and their habitats as part of the FWCA consultation process.[^111]

The primary agencies involved in implementing and enforcing the FWCA are:

1. **U.S. Fish and Wildlife Service (USFWS):** The USFWS is responsible for providing technical assistance and recommendations to federal agencies during the FWCA consultation process. The agency assesses the potential impacts of proposed projects on fish and wildlife resources and suggests measures to mitigate any adverse effects.[^112]

2. **State Wildlife Agencies:** State wildlife agencies work with the USFWS to provide input on the potential impacts of proposed projects on fish and wildlife resources within their respective states. They may also suggest mitigation measures and provide data on local wildlife populations and habitats.[^113]

3. **Federal Action Agencies:** The federal agencies undertaking or permitting water resource development projects, such as the U.S. Army Corps of Engineers, the Bureau of Reclamation, or Federal Energy Regulatory Commission, are responsible for initiating the FWCA consultation process and incorporating the recommendations provided by the USFWS and state wildlife agencies into their project planning and decision-making.[^114]

[^100]: 16 U.S.C. § 661 et seq.
[^101]: 16 U.S.C. § 661
[^102]: 16 U.S.C. § 662(a)
[^103]: 16 U.S.C. § 662(a)
[^104]: 16 U.S.C. § 662(b)
[^105]: 16 U.S.C. § 662(a)
[^107]: 40 C.F.R. § 1502.25
[^108]: 40 C.F.R. § 1502.25
[^109]: 33 C.F.R. § 320.4(c)
[^110]: 16 U.S.C. § 1536(a)(2)
[^111]: 16 U.S.C. § 703-712
[^112]: 16 U.S.C. § 662(b)
[^113]: 16 U.S.C. § 662(b)
[^114]: 16 U.S.C. § 665(b)

## COMPLIANCE REQUIREMENTS & STANDARDS

### Regulatory Standards & Limitations

The Fish and Wildlife Coordination Act (FWCA) establishes standards and limitations to protect fish and wildlife resources during the development of water-related projects[^200]. The Act requires that any federal agency that proposes to modify, control, or impound any body of water must consult with the U.S. Fish and Wildlife Service (USFWS), the National Marine Fisheries Service (NMFS), and the relevant state fish and wildlife agency to assess the potential impacts on fish and wildlife resources[^201].

The FWCA does not set specific emissions limits or performance standards. Instead, it focuses on ensuring that water-related projects are designed and implemented in a manner that minimizes harm to fish and wildlife resources[^202]. The consultation process required under the FWCA involves the following steps:

1. The federal agency proposing the project must notify the USFWS, NMFS, and state fish and wildlife agency of the proposed action.
2. The wildlife agencies assess the potential impacts of the project on fish and wildlife resources and provide recommendations to mitigate or compensate for any adverse effects.
3. The federal agency must give full consideration to these recommendations and incorporate them into the mission possible[^203].

The USFWS and NMFS are responsible for enforcing the consultation requirements of the FWCA. If a federal agency fails to consult with the wildlife agencies or adequately address their recommendations, the wildlife agencies may refer the matter to the Council on Environmental Quality for resolution[^204].

### Monitoring, Reporting & Recordkeeping Obligations

The Fish and Wildlife Coordination Act does not impose specific monitoring, reporting, or recordkeeping requirements on regulated entities. However, the federal agency proposing the water-related project must maintain records of the consultation process, including:

- Correspondence with the USFWS, NMFS, and state fish and wildlife agency
- Reports, studies, or other documents prepared during the consultation process
- Documentation of how the agency considered and incorporated the recommendations of the wildlife agencies into the project plan

These records are important for demonstrating compliance with the consultation requirements of the FWCA and ensuring transparency in the decision-making process.

### Enforcement Actions & Penalties

The U.S. Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS) are responsible for monitoring compliance with the Fish and Wildlife Coordination Act (FWCA). These agencies may conduct inspections of water-related projects to ensure that the consultation requirements have been met and that the recommendations of the wildlife agencies have been adequately addressed.

Inspections may be conducted on a routine basis, targeted based on specific concerns or complaints, or in response to a referral from another agency. During an inspection, the USFWS or NMFS may review project documents, interview personnel, and conduct site visits to assess compliance with the FWCA.

If a violation of the FWCA is identified, the wildlife agencies may take enforcement action against the federal agency responsible for the project. The potential penalties for violations of the FWCA are summarized in the table below:

| Violation                                              | Penalty                                                 |
|--------------------------------------------------------|----------------------------------------------------------|
| Failure to consult with wildlife agencies              | Referral to Council on Environmental Quality for resolution |
| Failure to adequately consider wildlife recommendations | Injunctive relief to halt project until compliance is achieved |
| Failure to incorporate wildlife recommendations         | Civil penalties of up to $25,000 per violation           |

The severity of the penalty will depend on factors such as the nature and extent of the violation, the potential harm to fish and wildlife resources, and the cooperativeness of the federal agency in resolving the issue.

### Compliance Assistance & Regulatory Incentives

The U.S. Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS) offer various programs and resources to help federal agencies understand and comply with the Fish and Wildlife Coordination Act (FWCA).

**Technical Assistance and Guidance**

The USFWS and NMFS provide technical assistance and guidance to federal agencies throughout the consultation process. This may include:

- Pre-consultation meetings to discuss the proposed project and identify potential impacts on fish and wildlife resources
- Assistance in developing study plans or survey protocols to assess impacts
- Guidance on designing mitigation or compensation measures to offset adverse effects

The wildlife agencies also publish guidance documents, such as the "Digest of Federal Resource Laws of Interest to the U.S. Fish and Wildlife Service," which provide an overview of the FWCA and other relevant laws.

**Training and Workshops**

The USFWS and NMFS offer training and workshops to educate federal agency personnel on the requirements of the FWCA and best practices for compliance. These events may cover topics such as:

- The consultation process and the roles and responsibilities of each agency
- Techniques for assessing impacts on fish and wildlife resources
- Strategies for designing effective mitigation or compensation measures

Information on upcoming training events can be found on the websites of the USFWS and NMFS or by contacting the regional offices of these agencies.

**Partnership Programs**

The USFWS and NMFS also offer partnership programs that provide benefits to federal agencies that demonstrate a commitment to protecting fish and wildlife resources. For example, the USFWS Partners for Fish and Wildlife Program provides technical and financial assistance to private landowners, tribes, and other partners who voluntarily restore or enhance fish and wildlife habitat on their lands.

While this program is not specifically designed for compliance with the FWCA, federal agencies that participate in the program may benefit from the expertise and resources of the USFSDSidentifying and addresspotential impacts on fish and wildlife resources.

[^200]: Fish and Wildlife Coordination Act, 16 U.S.C. § 661 et seq.
[^201]: 16 U.S.C. § 662(a)
[^202]: 16 U.S.C. § 662(b)
[^203]: 16 U.S.C. § 662(b)
[^204]: 50 C.F.R. § 402.15

## ADDITIONAL RESOURCES

### Regulatory History & Upcoming Changes

The Fish and Wildlife Coordination Act (FWCA) was initially enacted in 1934 to protect fish and wildlife resources from the impacts of federal water projects. The original legislation required federal agencies involved in water resource development projects to consult with the U.S. Fish and Wildlife Service (USFWS) and state wildlife agencies to minimize and mitigate impacts on fish and wildlife resources.

In 1946, Congress amended the FWCA to expand its scope and require federal agencies to give equal consideration to wildlife conservation in project planning, in addition to other project purposes. The amendment also mandated that the costs of mitigation measures be included as an integral part of project costs.

The FWCA was further strengthened in 1958 through amendments that required federal agencies to incorporate USFWS recommendations into project plans and to obtain the approval of the Secretary of the Interior for proposed modifications. These amendments aimed to ensure that fish and wildlife conservation received equal consideration in project planning and implementation.

As of 2023, there are no significant proposed rules, regulatory changes, or pending legislation related to the FWCA. However, it is essential for regulated entities to stay informed about potential future developments by regularly checking the Federal Register, the USFWS website, and industry publications for updates on the regulation and its implementation.

### Additional Resources

1. [Council on Environmental Quality - A Citizen's Guide to the Federal Environmental Review Process](https://ceq.doe.gov/get-involved/citizens_guide_to_nepa.html): \[^308\] - while not specific to the FWCA, this guide provides valuable information on the federal environmental review process, which is closely related to the FWCA's consultation requirements.

REFERENCES

  1. 16 U.S.C. § 662(a)

  2. 16 U.S.C. § 662(a)

  3. 16 U.S.C. § 662(b)

  4. 16 U.S.C. § 662(a)

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A Note to Our Readers: We hope this guide is a valuable resource in helping you better understand the Fish and Wildlife Coordination Act. However, it's not a substitute for professional advice and doesn't cover every scenario. Always consult with regulatory bodies and professionals for the most current advice and project-specific guidance.