EP 1165-2-1
30 Jul 99
(a) Land acquisition will be on a willing seller basis if, on
17 November 1986, 10 percent or more of the project is physically
completed.
(b) Acquisition of water or interests therein will be on a
willing seller basis.
(c) Up to ,000,000 may be obligated in any fiscal year to
study and implement fish and wildlife mitigation under this authority,
with a single project limit of ,500,000 or 10 percent of total
project costs (including the mitigation), whichever is greater. The
authority of subsection 906(b), however, does not apply to fish and
wildlife enhancement activities and because of policy and budget
restrictions has been limited to projects under construction or to be
constructed. (See ER 1105-2-100, Chapter 4, Section VIII)
(3) Subsection 906(c) requires that fish and wildlife
mitigation costs be allocated among the purposes which caused the need
for the mitigation activities and that they be cost shared to the same
extent as other costs for such project purposes are shared, except
where contracts were previously signed with non-Federal interests
prior to enactment of WRDA 1986.
(4) Subsection 906(d) requires that all subsequent reports to
Congress will contain either a determination by the Secretary of the
Army that such projects will have negligible adverse impacts on fish
and wildlife resources or they will contain specific mitigation
recommendations to address fish and wildlife losses. Such plans will
mitigate impacts to bottomland hardwood forests in-kind to the fullest
extent possible. The requirement to justify mitigation measures was
not rescinded, as the amount of mitigation recommended is still
dependent upon the development of justifiable and cost effective
mitigation measures. (See paragraph 19-21a below)
(5) Subsection 906(e) provides that when the Secretary of the
Army recommends fish and wildlife enhancement measures in reports to
Congress the first costs shall be Federal when:
(a) The benefits are determined to be national in character -
including benefits for species identified by the National Marine
Fisheries Service (NMFS) as of national economic importance; species
subject to treaties or international convention to which the United
States is a party, and anadromous fish; or
(b) The recommended enhancement is designed to benefit species
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
(c) The recommended enhancement activities are located on
lands managed as a national refuge. If the benefits do not so
qualify, 25 percent of first costs of enhancement shall be provided by
non-Federal interests during implementation. In either event, the
non-Federal share of subsequent operations, maintenance, and
rehabilitation (OMR) costs for fish and wildlife enhancement shall be
25 percent. (See also paragraph 6-14) The authority of subsection
906(e), however, is not being implemented because of policy and budget
restrictions (See ER 1105-2-100, Chapter 4, Section VIII).
b. Section 907 of WRDA 1986 (Public Law 99-662) authorizes the
Secretary of the Army, in the evaluation of the costs and benefits of
a water resources project, to consider the benefits attributable to
19-5
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