The Fish and Wildlife Coordination Act is a 1934 federal law that requires any federal agency planning or permitting a project that would dam, divert, deepen, or otherwise modify a stream, river, lake, or other water body to consult the U.S. Fish and Wildlife Service and the relevant state wildlife agency before construction begins. Amendments in 1946 and 1958 strengthened the statute by directing that wildlife conservation receive “equal consideration” with engineering and economic objectives in federal water-resource development.1Office of the Law Revision Counsel. 16 U.S. Code 661 – Short Title; Authorization The Act does not hand wildlife agencies a veto. What it does is force the conversation and put the results into the public record.
Which Projects the Act Covers
The law applies whenever a federal agency proposes to impound, divert, deepen, or control the waters of any stream or water body, for any purpose, including navigation and drainage. It also applies when a private developer needs a federal permit or license to do that same work.2Office of the Law Revision Counsel. 16 USC 662 – Impounding, Diverting, or Controlling of Waters That second category gives the Act its broad reach. A private company dredging a harbor channel typically needs a Section 404 permit from the Army Corps of Engineers under the Clean Water Act, and that federal permit triggers the Coordination Act’s consultation requirement.3U.S. Environmental Protection Agency. Permit Program under CWA Section 404
The trigger is federal involvement of some kind, either because a federal agency is doing the work directly or because federal authorization is needed for it to proceed.
Projects the Act Does Not Cover
Not every water project is caught. Subsection (h) carves out two exemptions. Impoundments where the resulting pool has a maximum surface area of less than ten acres are excluded entirely. Activities carried out primarily for land management on federal lands, by the agencies that administer those lands, are also exempt.4Office of the Law Revision Counsel. 16 USC 662 – Impounding, Diverting, or Controlling of Waters A small farm pond built with federal assistance, for example, wouldn’t require a formal wildlife consultation as long as it stays under the ten-acre threshold.
The Act also does not reach back to projects that were already substantially complete when it took effect. A project counts as substantially completed once 60 percent or more of its estimated construction cost has been obligated. Projects authorized before the Act but not yet substantially complete remain subject to its requirements.5Office of the Law Revision Counsel. 16 USC 662 – Impounding, Diverting, or Controlling of Waters
How the Consultation Works
Before a covered project moves forward, the responsible federal agency must consult two parties: the U.S. Fish and Wildlife Service in the Department of the Interior, and the head of the state agency that manages wildlife where the project will be built.2Office of the Law Revision Counsel. 16 USC 662 – Impounding, Diverting, or Controlling of Waters For projects that affect marine or anadromous species such as salmon, the National Marine Fisheries Service in NOAA typically joins as well.
The point of the consultation is to identify likely damage to wildlife resources and to develop measures that prevent, offset, or ideally improve habitat conditions. On most large water projects the Army Corps of Engineers is the lead federal agency, though the Bureau of Reclamation, the Federal Highway Administration, and others regularly initiate consultations of their own. The Corps has stressed that starting coordination early in feasibility studies produces better outcomes than waiting until the design is nearly final.6U.S. Army Corps of Engineers. The Importance of Early Coordination Under the Fish and Wildlife Coordination Act
The lead agency shares project descriptions, maps, and available biological data. The wildlife agencies then conduct their own field surveys, which become the factual basis for the report that follows.
The 2(b) Report
The central product of the consultation is the Coordination Act Report, usually called a “2(b) report” after the subsection of the statute that requires it. The Fish and Wildlife Service prepares this report, often jointly with the state wildlife agency, rather than leaving it to the project applicant. It describes existing fish and wildlife resources in the project area, predicts how the project will change habitat, identifies ecological impacts, and recommends specific conservation measures.2Office of the Law Revision Counsel. 16 USC 662 – Impounding, Diverting, or Controlling of Waters
The statute requires the recommendations to be as specific as practicable. They must identify the conservation features being proposed, any lands that should be acquired or set aside for wildlife purposes, the expected results, and a description of both the damage the project would cause and the measures intended to mitigate or compensate for it.7Office of the Law Revision Counsel. 16 U.S. Code 662 – Impounding, Diverting, or Controlling of Waters A report on a dam project might call for fish passage structures to keep migratory routes open, shoreline habitat restoration, or acquisition of nearby land to replace flooded habitat.
Once complete, the 2(b) report becomes an integral part of whatever project report the construction agency submits to Congress or to any other body responsible for authorizing the project. Wildlife findings travel with the engineering plans so that decision-makers see both together.
How Binding the Recommendations Actually Are
This is where the Act’s real limits sit. The lead agency must give “full consideration” to the wildlife report and must include in the project plan whatever conservation measures it finds “justifiable” to achieve “maximum overall project benefits.”7Office of the Law Revision Counsel. 16 U.S. Code 662 – Impounding, Diverting, or Controlling of Waters The word “justifiable” leaves the construction agency wide discretion.
The Coordination Act is often described as a permissive law for this reason. Wildlife recommendations are not mandatory. An agency can reject conservation proposals as long as it seriously considers them and explains its reasoning. Courts have generally held that an agency meets its obligations if it genuinely evaluated the Service’s recommendations and gave reasons for declining them. What the agency cannot do is ignore the wildlife report altogether. The final decision on what gets built stays with the construction agency, but its reasoning becomes part of the public record submitted with the project.
Who Pays for Wildlife Measures
Costs of planning, building, and maintaining wildlife conservation measures adopted under the Act count as part of the overall project cost rather than a separate wildlife-agency expense. The statute limits this cost-sharing to four categories: land acquisition, facilities specifically recommended in the project report, modifications to project design, and modifications to project operations. Ongoing operation of wildlife facilities themselves is not the construction agency’s responsibility.5Office of the Law Revision Counsel. 16 USC 662 – Impounding, Diverting, or Controlling of Waters
When a federal agency is building the project, it can also transfer funds from its own construction or investigation appropriations to the Fish and Wildlife Service to cover the wildlife investigations the Act requires.8govinfo.gov. 16 U.S.C. 662 – Impounding, Diverting, or Controlling of Waters That mechanism keeps the fieldwork funded rather than leaving it to the wildlife agencies’ own budgets.
If land is acquired for wildlife purposes as part of a project, its long-term use follows a joint plan approved by the construction agency, the Secretary of the Interior, and the state wildlife agency. Lands valuable primarily for resident wildlife transfer to the state at no cost; lands valuable for migratory birds go to Interior. Neither can be sold or repurposed in a way that defeats the reason it was acquired.9Office of the Law Revision Counsel. 16 USC 663 – Impoundment or Diversion of Waters
How the Act Fits With NEPA and the Endangered Species Act
Federal water projects almost always trigger more than one environmental review at the same time. A Coordination Act consultation typically runs in parallel with an environmental review under the National Environmental Policy Act and, if listed species are present, a Section 7 consultation under the Endangered Species Act.
Federal regulations encourage agencies to consolidate these overlapping processes. The ESA regulations at 50 CFR 402.06 say Section 7 consultation “may be consolidated with interagency cooperation, coordination, and environmental review procedures required by other statutes, such as the Fish and Wildlife Coordination Act, the National Environmental Policy Act, the Clean Water Act, or other environmental review requirements.”10eCFR. Interagency Cooperation – Endangered Species Act of 1973, as Amended The Fish and Wildlife Service often addresses Coordination Act recommendations inside the same biological opinion it prepares for the ESA consultation, and both feed into the NEPA environmental impact statement.
The distinction still matters. An ESA biological opinion finding that a project would jeopardize a listed species can effectively stop the project. The Coordination Act creates a procedural obligation to consult and consider, not authority to block construction. Agencies that neglect the Coordination Act consultation typically face challenges to the adequacy of their NEPA record rather than any standalone Coordination Act enforcement.
Enforcement and Legal Challenges
The Coordination Act contains no citizen suit provision and no explicit private right of action. That is a real gap compared with the Clean Water Act or the Endangered Species Act, both of which let affected parties bring their own enforcement actions. Courts have historically been reluctant to treat the Coordination Act’s duties as independently enforceable.
Challenges to a skipped or inadequate consultation therefore come through NEPA. Because NEPA requires agencies to comply with applicable environmental laws during the review process, a court can look at whether the environmental analysis was adequate, including whether the agency properly consulted with the wildlife agencies. The standard of review is arbitrary and capricious: an agency that considered the recommendations and gave reasons for rejecting them will generally survive review.
Agencies that skip the consultation entirely face a different picture. If there is no evidence the Fish and Wildlife Service was consulted before the project moved forward, a court can find the NEPA analysis procedurally deficient and enjoin construction until the consultation happens. The cases where projects actually get halted tend to involve agencies that bypassed the process, not agencies that went through it and reached a conclusion the wildlife agencies disagreed with.