Sec. 502. Essential fish habitat consultation
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/bill/117/hr/4690/rh/section-502A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
Section 305(b) of the Magnuson-Stevens Fishery Conservation and Management Act ( 16 U.S.C. 1855(b) ) is amended— in paragraph (1)(D), by inserting and such agencies shall take action after agencies ; by striking paragraphs (2), (3), and (4); and by adding at the end the following: With respect to any Federal agency action that may have an adverse effect on— essential fish habitat, each Federal agency shall, in consultation with the Secretary, ensure that any action 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; and a habitat area of particular concern, each Federal agency shall, in consultation with the Secretary— for the entire period during which such adverse effect is likely to occur, monitor or require monitoring for such adverse effect; for the entire period during which such adverse effect is likely to occur, take action to minimize and mitigate such adverse effect of the action on— the habitat area of particular concern; and the species for with respect to which the habitat area of particular concern is designated; evaluate the effectiveness of measures described in subclause
(II)and report the results of such evaluation to the Secretary annually. In consulting with a Federal agency 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, the Secretary shall account for the consequences of not pursuing such restoration and habitat resilience projects and the long-term positive impacts on fish populations of such activities. The Secretary shall establish regulations for the consultation process required by subparagraph (A), including to ensure that recommendations made by the Secretary pursuant to such subparagraph would result in the avoidance, of adverse effects on essential fish habitat and, to the extent adverse effects cannot be avoided, the minimization and mitigation of any such adverse effects. The Secretary shall inform each Council that has authority over an affected fishery of any consultation carried out under paragraph (2), including information on the proposed action and any potential adverse effects, and each such Council— may comment on and make recommendations to the Secretary and any Federal or State agency concerning the underlying 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 shall comment on and make recommendations to the Secretary and any Federal or State agency concerning the underlying 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 any source and determines that an action taken, funded, or authorized or proposed to be taken, funded, or authorized by a State or Federal agency may have an adverse effect on an essential fish habitat identified under this Act, the Secretary shall recommend to such agency measures that avoid such adverse effects and to the extent the adverse effects cannot be avoided, minimize and mitigate such adverse effects. Not later than 30 days after receiving a recommendation under subparagraph (A), a Federal, State, or local agency shall provide a detailed response in writing to any Council comment 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, mitigating the adverse effects of the action on such essential fish habitat. In the case of a response that is inconsistent with the recommendations of the Secretary, the Federal, State, or local 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, minimize and mitigate the adverse effects. The Secretary shall make available to the public— any recommendation made under subparagraph
(A)on the date on which such recommendation is made; and any response made by an agency under subparagraph
(B)on the date on which such response is received. The Secretary shall monitor measures taken by each Federal agency to meet the requirements of this subsection. Not later than 5 years after the date of the enactment of the Sustaining America’s Fisheries for the Future Act of 2022 and not less frequently than every 5 years thereafter, the Secretary shall submit a report— describing the effectiveness of measures taken by the Secretary to ensure the conservation and enhancement of essential fish habitat; and identifying opportunities for partnerships between the National Oceanic and Atmospheric Administration, in consultation with other Federal agencies, State agencies, and non-Federal partners to enhance data collection, research, and monitoring of essential fish habitat. . Section 303(a)(7) ( 16 U.S.C. 1853(a)(7) ) is amended to read as follows: describe and identify— essential fish habitat for the fishery based on the guidelines established by the Secretary under section 305(b)(1)(A), minimize adverse effects on essential fish habitat caused by fishing, and identify other actions to encourage the conservation and enhancement of essential fish habitat; and habitat areas of particular concern based on the guidelines established by the Secretary under section 305(b)(1)(A), avoid adverse effects on such habitat caused by fishing, monitor efficacy of actions to avoid adverse effects, and identify other actions to encourage the conservation and enhancement of such habitat; . Section 2(b)(7) ( 16 U.S.C. 1801(b)(7) ) is amended by striking in the review of projects and inserting from adverse effects caused by fishing and from projects . Section 3 ( 16 U.S.C. 1802 ) is amended— by redesignating paragraph
(1)as paragraph (1A); by inserting before paragraph (1A), as redesignated, the following: The term adverse effect means, with respect to essential fish habitat, any impact that reduces the quality or quantity of essential fish habitat. ; and by inserting after paragraph
(19)the following: The term habitat areas of particular concern means specific types or areas of habitat that are part of or within essential fish habitat that— provide important ecological function, including for maintaining and restoring the biomass, demographic, spatial and 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. .
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