1. U.S. Code
  2. title 16
  3. chapter 64
  4. § 4404

Collapse to view only § 4404. Approval of wetlands conservation projects

§ 4401. Findings and statement of purpose
(a) Findings
The Congress finds and declares that—
(1) the maintenance of healthy populations of migratory birds in North America is dependent on the protection, restoration, and management of wetland ecosystems and associated habitats in Canada, as well as in the United States and Mexico;
(2) wetland ecosystems provide essential and significant habitat for fish, shellfish, and other wildlife of commercial, recreational, scientific, and aesthetic values;
(3) almost 35 per centum of all rare, threatened, and endangered species of animals are dependent on wetland ecosystems;
(4) wetland ecosystems provide substantial flood and storm control values and can obviate the need for expensive manmade control measures;
(5) wetland ecosystems make a significant contribution to water availability and quality, recharging ground water, filtering surface runoff, and providing waste treatment;
(6) wetland ecosystems provide aquatic areas important for recreational and aesthetic purposes;
(7) more than 50 per centum of the original wetlands in the United States alone have been lost;
(8) wetlands destruction, loss of nesting cover, and degradation of migration and wintering habitat have contributed to long-term downward trends in populations of migratory bird species such as pintails, American bitterns, and black ducks;
(9) the migratory bird treaty obligations of the United States with Canada, Mexico, and other countries require protection of wetlands that are used by migratory birds for breeding, wintering, or migration and are needed to achieve and to maintain optimum population levels, distributions, and patterns of migration;
(10) the 1988 amendments to the Fish and Wildlife Conservation Act of 1980 require the Secretary of the Interior to identify conservation measures to assure that nongame migratory bird species do not reach the point at which measures of the Endangered Species Act of 1973 [16 U.S.C. 1531 et seq.] are necessary;
(11) protection of migratory birds and their habitats requires long-term planning and the close cooperation and coordination of management activities by Canada, Mexico, and the United States within the framework of the 1916 and 1936 Migratory Bird Conventions and the Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere;
(12) the North American Waterfowl Management Plan, signed in 1986 by the Minister of Environment for Canada and the Secretary of the Interior for the United States and in 1994 by the Secretary of Sedesol for Mexico, provides a framework for maintaining and restoring an adequate habitat base to ensure perpetuation of populations of North American waterfowl and other migratory bird species;
(13) a tripartite agreement signed in March 1988, by the Director General for Ecological Conservation of Natural Resources of Mexico, the Director of the Canadian Wildlife Service, and the Director of the United States Fish and Wildlife Service, provides for expanded cooperative efforts in Mexico to conserve wetlands for migratory birds that spend the winter there;
(14) the long-term conservation of migratory birds and habitat for these species will require the coordinated action of governments, private organizations, landowners, and other citizens; and
(15) the treaty obligations of the United States under the Convention on Wetlands of International Importance especially as waterfowl habitat requires promotion of conservation and wise use of wetlands.
(b) Purpose
The purposes of this chapter are to encourage partnership among public agencies and other interests—
(1) to protect, enhance, restore, and manage an appropriate distribution and diversity of wetland ecosystems and habitats associated with wetland ecosystems and other fish and wildlife in North America;
(2) to maintain current or improved distributions of wetland associated migratory bird populations; and
(3) to sustain an abundance of waterfowl and other wetland associated migratory birds consistent with the goals of the North American Waterfowl Management Plan, the United States Shorebird Conservation Plan, the North American Waterbird Conservation Plan, the Partners In Flight Conservation Plans, and the international obligations contained in the migratory bird treaties and conventions and other agreements with Canada, Mexico, and other countries.
(Pub. L. 101–233, § 2, Dec. 13, 1989, 103 Stat. 1968; Pub. L. 107–308, §§ 3, 8(a)(1), (2), Dec. 2, 2002, 116 Stat. 2446, 2447.)

CITE AS: 16 USC 4401

§ 4402. DefinitionsFor the purposes of this chapter:
(1) The term “Agreement” means the Tripartite Agreement signed in March 1988, by the Director General for Ecological Conservation of Natural Resources of Mexico, the Director of the Canadian Wildlife Service, and the Director of the United States Fish and Wildlife Service.
(2) The term “appropriate Committees” means the Committee on Environment and Public Works of the United States Senate and the Committee on Resources of the House of Representatives.
(3) The term “flyway” means the four administrative units used by the United States Fish and Wildlife Service and the States in the management of waterfowl populations.
(4) The term “Migratory Bird Conservation Commission” means that commission established by section 715a of this title.
(5) The term “migratory birds” means all wild birds native to North America that are in an unconfined state and that are protected under the Migratory Bird Treaty Act [16 U.S.C. 703 et seq.], including ducks, geese, and swans of the family Anatidae, species listed as threatened or endangered under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.), and species defined as nongame under the Fish and Wildlife Conservation Act of 1980 (16 U.S.C. 2901–2912).
(6) The term “Plan” means the North American Waterfowl Management Plan signed by the Minister of the Environment for Canada and the Secretary of the Interior for the United States in May 1986, and by the Secretary of Sedesol for Mexico in 1994, and subsequent dates.
(7) The term “Secretary” means the Secretary of the Interior.
(8) The term “State” means the State fish and wildlife agency, which shall be construed to mean any department, or any division of any department of another name, of a State that is empowered under its laws to exercise the functions ordinarily exercised by a State fish and wildlife agency.
(9) The term “wetlands conservation project” means—
(A) the obtaining of a real property interest in lands or waters, including water rights, of a wetland ecosystem and associated habitat if the obtaining of such interest is subject to terms and conditions that will ensure that the real property will be administered for the long-term conservation of such lands and waters and the migratory birds and other fish and wildlife dependent thereon;
(B) the restoration, management, or enhancement of wetland ecosystems and associated habitat for migratory birds and other fish and wildlife species if such restoration, management, or enhancement is conducted on lands and waters that are administered for the long-term conservation of such lands and waters and the migratory birds and other fish and wildlife dependent thereon; and
(C) in the case of projects undertaken in Mexico, includes technical training and development of infrastructure necessary for the conservation and management of wetlands and studies on the sustainable use of wetland resources.
(Pub. L. 101–233, § 3, Dec. 13, 1989, 103 Stat. 1969; Pub. L. 107–308, §§ 4, 8(a)(3)–(5), Dec. 2, 2002, 116 Stat. 2446, 2447.)

CITE AS: 16 USC 4402

§ 4403. Establishment of North American Wetlands Conservation Council
(a) Council membership
(1) There shall be established a North American Wetlands Conservation Council (hereinafter in this chapter referred to as the “Council”) which shall consist of nine members who may not receive compensation as members of the Council. Of the Council members—
(A) one shall be the Director of the United States Fish and Wildlife Service, who shall be the responsible Federal official for ensuring Council compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.);
(B) one shall be the Executive Director of the Board of the National Fish and Wildlife Foundation appointed pursuant to section 3702(g)(2)(B) of this title;
(C) four shall be individuals who shall be appointed by the Secretary, who shall reside in different flyways and who shall each be a Director of the State fish and wildlife agency; and
(D) three shall be individuals who shall be appointed by the Secretary and who shall each represent a different charitable and nonprofit organization which is actively participating in carrying out wetlands conservation projects under this chapter, the Plan, or the Agreement.
The provisions of chapter 10 of title 5 shall not apply to the Council.
(2) The Secretary shall appoint an alternate member of the Council who shall be knowledgeable and experienced in matters relating to fish, wildlife, and wetlands conservation and who shall perform the duties of a Council member appointed under subsection (a)(1)(C) or subsection (a)(1)(D) of this section—
(A) until a vacancy referred to in subsection (b)(4) of this section is filled; or
(B) in the event of the anticipated absence of such a member from any meeting of the Council.
(b) Appointment and terms
(1) Except as provided in paragraphs (2) and (3), the term of office of a member of the Council appointed under subsections (a)(1)(C) and (a)(1)(D) of this section is three years.
(2) Of the Council members first appointed under subsection (a)(1)(C) of this section after December 13, 1989, one shall be appointed for a term of one year, one shall be appointed for a term of two years, and two shall be appointed for a term of three years.
(3) Of the Council members first appointed under subsection (a)(1)(D) of this section after December 13, 1989, one shall be appointed for a term of one year, one shall be appointed for a term of two years, and one shall be appointed for a term of three years.
(4) Whenever a vacancy occurs among members of the Council appointed under subsection (a)(1)(C) or subsection (a)(1)(D) of this section, the Secretary shall appoint an individual in accordance with either such subsection to fill that vacancy for the remainder of the applicable term.
(c) Ex officio Council membersThe Secretary is authorized and encouraged to include as ex officio nonvoting members of the Council representatives of—
(1) the Federal, provincial, territorial, or State government agencies of Canada and Mexico, which are participating actively in carrying out one or more wetlands conservation projects under this chapter, the Plan, or the Agreement;
(2) the Environmental Protection Agency and other appropriate Federal agencies, in addition to the United States Fish and Wildlife Service, which are participating actively in carrying out one or more wetlands conservation projects under this chapter, the Plan, or the Agreement; and
(3) nonprofit charitable organizations and Native American interests, including tribal organizations, which are participating actively in one or more wetlands conservation projects under this chapter, the Plan, or the Agreement.
(d) Chairman
(e) Quorum
(f) Meetings
(g) CoordinatorThe Director of the United States Fish and Wildlife Service shall appoint an individual who shall serve at the pleasure of the Director and—
(1) who shall be educated and experienced in the principles of fish, wildlife, and wetlands conservation;
(2) who shall be responsible, with assistance from the United States Fish and Wildlife Service, for facilitating consideration of wetlands conservation projects by the Council and otherwise assisting the Council in carrying out its responsibilities under this chapter; and
(3) who shall be compensated with the funds available under section 4407(a)(1) of this title for administering this chapter.
(Pub. L. 101–233, § 4, Dec. 13, 1989, 103 Stat. 1970; Pub. L. 101–593, title I, § 112(1)–(3), Nov. 16, 1990, 104 Stat. 2962; Pub. L. 107–308, § 8(a)(6), (7), (b)(1), Dec. 2, 2002, 116 Stat. 2447, 2448; Pub. L. 116–188, title I, § 107(a)(2), Oct. 30, 2020, 134 Stat. 917; Pub. L. 117–286, § 4(a)(122), Dec. 27, 2022, 136 Stat. 4319.)

CITE AS: 16 USC 4403

§ 4404. Approval of wetlands conservation projects
(a) Consideration by Council
The Council shall recommend wetlands conservation projects to the Migratory Bird Conservation Commission based on consideration of—
(1) the extent to which the wetlands conservation project fulfills the purposes of this chapter, the Plan, or the Agreement;
(2) the availability of sufficient non-Federal moneys to carry out any wetlands conservation project and to match Federal contributions in accordance with the requirements of section 4407(b) of this title;
(3) the extent to which any wetlands conservation project represents a partnership among public agencies and private entities;
(4) the consistency of any wetlands conservation project in the United States with the National Wetlands Priority Conservation Plan developed under section 3921 of this title;
(5) the extent to which any wetlands conservation project would aid the conservation of migratory nongame birds, other fish and wildlife and species that are listed, or are candidates to be listed, as threatened and endangered under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.);
(6) the substantiality of the character and design of the wetlands conservation project; and
(7) the recommendations of any partnerships among public agencies and private entities in Canada, Mexico, or the United States which are participating actively in carrying out one or more wetlands conservation projects under this chapter, the Plan, or the Agreement.
(b) Recommendations to Migratory Bird Conservation Commission
(c) Council procedures
The Council shall establish practices and procedures for the carrying out of its functions under subsections (a) and (b) of this section. The procedures shall include requirements that—
(1) a quorum of the Council must be present before any business may be transacted; and
(2) no recommendations referred to in subsection (b) of this section may be adopted by the Council except by the vote of two-thirds of all members present and voting.
(d) Council representation on Migratory Bird Conservation Commission
(e) Approval of Council recommendations by Migratory Bird Conservation Commission
(f) Notification of appropriate Committees
(Pub. L. 101–233, § 5, Dec. 13, 1989, 103 Stat. 1972; Pub. L. 101–593, title I, § 112(4), Nov. 16, 1990, 104 Stat. 2962; Pub. L. 107–308, § 8(a)(8)–(11), Dec. 2, 2002, 116 Stat. 2448.)

CITE AS: 16 USC 4404

§ 4405. Conditions relating to wetlands conservation projects
(a) Projects in United States
(1) Subject to the allocation requirements of section 4407(a)(2) of this title and the limitations on Federal contributions under section 4407(b) of this title, the Secretary shall assist in carrying out wetlands conservation projects in the United States, which have been approved by the Migratory Bird Conservation Commission, with the Federal funds made available under this chapter and section 669b(b) of this title.
(2) Except as provided in paragraph (3), any lands or waters or interests therein acquired in whole or in part by the Secretary with the Federal funds made available under this chapter and section 669b(b) of this title to carry out wetlands conservation projects shall be included in the National Wildlife Refuge System.
(3) In lieu of including in the National Wildlife Refuge System any lands or waters or interests therein acquired under this chapter, the Secretary may, with the concurrence of the Migratory Bird Conservation Commission, grant or otherwise provide the Federal funds made available under this chapter and section 669b(b) of this title or convey any real property interest acquired in whole or in part with such funds without cost to a State or to another public agency or other entity upon a finding by the Secretary that the real property interests should not be included in the National Wildlife Refuge System: Provided, That any grant recipient shall have been so identified in the project description accompanying the recommendation from the Council and approved by the Migratory Bird Conservation Commission. The Secretary shall not convey any such interest to a State, another public agency or other entity unless the Secretary determines that such State, agency or other entity is committed to undertake the management of the property being transferred in accordance with the objectives of this chapter, and the deed or other instrument of transfer contains provisions for the reversion of title to the property to the United States if such State, agency or other entity fails to manage the property in accordance with the objectives of this chapter. Any real property interest conveyed pursuant to this paragraph shall be subject to such terms and conditions that will ensure that the interest will be administered for the long-term conservation and management of the wetland ecosystem and the fish and wildlife dependent thereon.
(b) Projects in Canada or Mexico
(Pub. L. 101–233, § 6, Dec. 13, 1989, 103 Stat. 1973.)

CITE AS: 16 USC 4405

§ 4406. Amounts available to carry out this chapter
(a) Omitted
(b) Migratory bird fines, penalties, forfeitures
(c) Authorization of appropriations
(d) Availability of funds
(Pub. L. 101–233, § 7, Dec. 13, 1989, 103 Stat. 1974; Pub. L. 103–375, § 4, Oct. 19, 1994, 108 Stat. 3495; Pub. L. 105–312, title III, § 302, Oct. 30, 1998, 112 Stat. 2958; Pub. L. 106–553, § 1(a)(2) [title IX, § 902(i)], Dec. 21, 2000, 114 Stat. 2762, 2762A–124; Pub. L. 107–308, § 5, Dec. 2, 2002, 116 Stat. 2447; Pub. L. 109–322, § 2, Oct. 11, 2006, 120 Stat. 1756; Pub. L. 116–188, title I, § 106, Oct. 30, 2020, 134 Stat. 917.)

CITE AS: 16 USC 4406

§ 4407. Allocation of amounts available to carry out this chapter
(a) Allocations
Of the sums available to the Secretary for any fiscal year under this chapter and section 669b(b) of this title—
(1) such percentage of that sum (but at least 30 percent and not more than 60 percent) as is considered appropriate by the Secretary, which can be matched with non-Federal moneys in accordance with the requirements of subsection (b) of this section, less such amount (but not more than 4 percent of such percentage) considered necessary by the Secretary to defray the costs of administering this chapter during such fiscal year, shall be allocated by the Secretary to carry out approved wetlands conservation projects in Canada and Mexico in accordance with section 4405(b) of this title; and
(2) the remainder of such sum after paragraph (1) is applied (but at least 40 percent and not more than 70 percent), which can be matched with non-Federal moneys in accordance with the requirements of subsection (b) of this section, shall be allocated by the Secretary to carry out approved wetlands conservation projects in the United States in accordance with section 4405(a) of this title.
(b) Cost sharing
(1) Except as provided in paragraph (2), as a condition of providing assistance under this chapter for any approved wetlands conservation project, the Secretary shall require that the portion of the costs of the project paid with amounts provided by non-Federal United States sources is equal to at least the amount allocated under subsection (a) that is used for the project.
(2) Federal moneys allocated under subsection (a) may be used to pay 100 percent of the costs of such projects located on Federal lands and waters, including the acquisition of inholdings within such lands and waters.
(3) The non-Federal share of the United States contribution to the costs of such projects may not be derived from Federal grant programs. In the case of a project carried out in Canada or Mexico, the non-Federal share of the costs of the project may include cash contributions from non-United States sources that are used to pay costs of the project. In the case of a project carried out in Canada, funds from Canadian sources may comprise up to 50 percent of the non-Federal share of the costs of the project.
(c) Partial payments
(1) The Secretary may from time to time make payments to carry out approved wetlands conservation projects as such projects progress, but such payments, including previous payments, if any, shall not be more than the Federal pro rata share of any such project in conformity with subsection (b) of this section.
(2) The Secretary may enter into agreements to make payments on an initial portion of an approved wetlands conservation project and to agree to make payments on the remaining Federal share of the costs of such project from subsequent allocations if and when they become available. The liability of the United States under such an agreement is contingent upon the continued availability of funds for the purposes of this chapter.
(Pub. L. 101–233, § 8, Dec. 13, 1989, 103 Stat. 1975; Pub. L. 103–375, § 2(a), Oct. 19, 1994, 108 Stat. 3494; Pub. L. 107–308, §§ 6, 7, Dec. 2, 2002, 116 Stat. 2447; Pub. L. 111–149, § 1(a), Mar. 25, 2010, 124 Stat. 1025.)

CITE AS: 16 USC 4407

§ 4408. Restoration, management, and protection of wetlands and habitat for migratory birds on Federal lands

The head of each Federal agency responsible for acquiring, managing, or disposing of Federal lands and waters shall, to the extent consistent with the mission of such agency and existing statutory authorities, cooperate with the Director of the United States Fish and Wildlife Service to restore, protect, and enhance the wetland ecosystems and other habitats for migratory birds, fish, and wildlife within the lands and waters of each such agency.

(Pub. L. 101–233, § 9, Dec. 13, 1989, 103 Stat. 1976.)

CITE AS: 16 USC 4408

§ 4409. Report to CongressThe Secretary shall report to the appropriate Committees on the implementation of this chapter. The report shall include—
(1) a biennial assessment of—
(A) the estimated number of acres of wetlands and habitat for waterfowl and other migratory birds that were restored, protected, or enhanced during such two-year period by Federal, State, and local agencies and other entities in the United States, Canada, and Mexico;
(B) trends in the population size and distribution of North American migratory birds;
(C) the status of efforts to establish agreements with nations in the Western Hemisphere pursuant to section 4413 of this title; and
(D) wetlands conservation projects funded under this chapter, listed and identified by type, conservation mechanism (such as acquisition, easement, or lease), location, and duration; and
(2) an annual assessment of the status of wetlands conservation projects, including an accounting of expenditures by Federal, State, and other United States entities, and expenditures by Canadian and Mexican sources to carry out these projects.
(Pub. L. 101–233, § 10, Dec. 13, 1989, 103 Stat. 1976; Pub. L. 103–375, § 2(b), Oct. 19, 1994, 108 Stat. 3494; Pub. L. 107–308, § 8(a)(12), (13), Dec. 2, 2002, 116 Stat. 2448.)

CITE AS: 16 USC 4409

§ 4410. Revisions to Plan

The Secretary shall, in 1998 and at five-year intervals thereafter, undertake with the appropriate officials in Canada and Mexico to revise the goals and other elements of the Plan in accordance with the information required under section 4409 of this title and with the other provisions of this chapter.

(Pub. L. 101–233, § 11, Dec. 13, 1989, 103 Stat. 1976; Pub. L. 103–375, § 2(c), Oct. 19, 1994, 108 Stat. 3494.)

CITE AS: 16 USC 4410

§ 4411. Relationship to other authorities
(a) Acquisition of lands and waters
(b) Mitigation
(Pub. L. 101–233, § 12, Dec. 13, 1989, 103 Stat. 1977.)

CITE AS: 16 USC 4411

§ 4412. Limitation on assessments against Migratory Bird Conservation Fund

Notwithstanding any other provision of law, only those personnel and administrative costs directly related to acquisition of real property shall be levied against the Migratory Bird Conservation Account.1

1 So in original. Probably should be “Fund”. See section 718d of this title.

(Pub. L. 101–233, § 14, Dec. 13, 1989, 103 Stat. 1977.)

CITE AS: 16 USC 4412

§ 4413. Other agreements

The Secretary shall undertake with the appropriate officials of nations in the Western Hemisphere to establish agreements, modeled after the Plan or the Agreement, for the protection of migratory birds identified in section 2912(a)(5) of this title. When any such agreements are reached, the Secretary shall make recommendations to the appropriate Committees on legislation necessary to implement the agreements.

(Pub. L. 101–233, § 16(a), Dec. 13, 1989, 103 Stat. 1977; Pub. L. 107–308, § 8(a)(14), Dec. 2, 2002, 116 Stat. 2448.)

CITE AS: 16 USC 4413

§ 4414. Assessment of progress in wetlands conservation
Not later than January 31, 1996, the Secretary, in cooperation with the Council, to further the purposes of the chapter shall—
(1) develop and implement a strategy to assist in the implementation of this Act in conserving the full complement of North American wetlands systems and species dependent on those systems, that incorporates information existing on the date of the issuance of the strategy in final form on types of wetlands habitats and species dependent on the habitats; and
(2) develop and implement procedures to monitor and evaluate the effectiveness of wetlands conservation projects completed under this chapter.
(Pub. L. 101–233, § 19, as added Pub. L. 103–375, § 3, Oct. 19, 1994, 108 Stat. 3494.)

CITE AS: 16 USC 4414