Sec. 308. Essential fish habitat consultation
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Section 305(b) of the Magnuson-Stevens Fishery Conservation and Management Act ( 16 U.S.C. 1855(b) ) is amended— in paragraph (1)(A)— by inserting every five years after updating ; and by inserting , changes to habitat, in part due to climate change, after evidence ; in paragraph (1)(D), by inserting and such agencies shall take action after agencies ; by striking paragraphs
(2)through
(4)and inserting after paragraph
(1)the following: Notwithstanding any other provision of law, any Federal agency shall consult with the Secretary to ensure that any action proposed to be authorized, funded, or undertaken by such agency avoids the adverse effect of such action on essential fish habitat or, to the extent that the adverse effect cannot be avoided, the agency shall minimize and mitigate the adverse effect. In the case of habitat areas of particular concern, the agency shall further— conduct or require monitoring for possible adverse effects, and, if adverse effects occur, undertake additional actions to minimize and mitigate any such adverse effects of the action on the habitat area of particular concern and species for which the habitat area of particular concern is identified for the duration of time over which adverse impacts are likely to occur; and evaluate the effectiveness of measures to avoid, minimize, and mitigate adverse impacts to the habitat area of particular concern and species for which the habitat area of particular concern is identified, and report the results of such evaluation to the Secretary on an annual basis. In completing the requirements under subparagraph
(A)for projects seeking to restore and improve the long-term resilience of habitat, particularly in estuarine environments heavily impacted by sea level rise and other climate change factors, each Federal agency shall, in consultation with the Secretary, take into account the consequences of not pursuing such restoration and habitat resilience projects and the long-term positive impacts on fish populations of such activities. Not later than 180 days after the date of the enactment of the Ocean-Based Climate Solutions Act of 2022 , the Secretary shall establish regulations for the consultation process, including procedures to ensure that recommendations made by the Secretary under subparagraph
(A)would result in the avoidance of adverse effects on essential fish habitat and, if avoidance is not possible, the minimization and mitigation of any such adverse effects. With regard to a consultation required under paragraph (2), the Secretary shall provide the relevant Council or Councils with information regarding the proposed action and the potential adverse effects, and the Council or Councils may comment on and make recommendations to the Secretary and any Federal or State agency concerning— the action if, in the view of the Council, such action may affect the habitat of a fishery resource under the authority of such Council; and the action if, in the view of the Council, such action is likely to adversely affect the habitat of an anadromous fishery resource under the authority of such Council. If the Secretary receives information from a Council or Federal or State agency, or determines from another source, or the consultation required in paragraph (2), that an action authorized, funded, or undertaken, or proposed to be authorized, funded, or undertaken by any Federal agency would adversely affect an essential fish habitat identified under this chapter, the Secretary shall recommend to such agency measures that can be taken by such agency to avoid the adverse effects of the action on such habitat or, to the extent that adverse effects cannot be avoided, minimize and mitigate the adverse effects. Any recommendations made by the Secretary shall be made available to the public on the website of the National Marine Fisheries Service at the time the recommendations are made. Within 30 days after receiving a recommendation under subparagraph (A), a Federal agency shall provide a detailed response in writing to any Council commenting under paragraph
(3)and the Secretary regarding the matter. The response shall include a description of measures proposed by the agency for avoiding the adverse effects, or to the extent the adverse effects cannot be avoided, minimizing and mitigating the adverse effects of the action on essential fish habitat. In the case of a response that is inconsistent with the recommendations of the Secretary, the Federal agency shall explain how the alternative measures proposed will avoid the adverse effects of such action on essential fish habitat or, to the extent that adverse effects cannot be avoided, mitigate the adverse effects. Such responses shall be made available to the public on the website of the National Marine Fisheries Service at the time that the recommendations are received. The Secretary shall make available to the public— any recommendation made under subparagraph (A); and any response made by an agency under subparagraph
(B)on the date on which such response is received. Each Federal agency shall monitor the effectiveness of measures that it takes to avoid, minimize, and mitigate adverse impacts to essential fish habitat. In this subsection, the term habitat areas of particular concern means specific types of areas that are part of or within essential fish habitat that— provide an important ecological function, including for maintaining and restoring the biomass, demographic, spatial, or genetic characteristics of fish populations; are sensitive to human-induced environmental degradation; are or will be significantly stressed by human activities; due to prevailing or anticipated future environmental conditions, are or may become important to the health of managed species; or are rare. There are authorized to be appropriated to the Secretary such funds as may be necessary to carry out the requirements of this section. .
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Sec. 308
Essential fish habitat consultation
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