Sec. 502. Essential fish habitat consultation
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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 so 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 area of particular concern means a specific type or area of habitat that is part of or within essential fish habitat that— provides an important ecological function, including maintaining and restoring the biomass, demographic, spatial, or genetic characteristics of fish populations; is sensitive to human-induced environmental degradation; is or will be significantly stressed by human activities; due to prevailing or anticipated future environmental conditions, is or may become important to the health of a managed species; or is rare. . 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 describe and identify 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 305(b) ( 16 U.S.C. 1855(b) ) is amended— in paragraph (1)(D)— by inserting use existing programs administered by the Secretary and after shall ; and by inserting and such agencies shall take action after agencies ; by striking paragraphs
(2)through (4); and by adding at the end the following: Each Federal agency shall— with respect to an action authorized, funded, or undertaken, or proposed to be authorized, funded, or undertaken, by such agency that may adversely affect essential fish habitat identified under this Act, notify and consult with the Secretary; with respect to an action that may adversely affect essential fish habitat, 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, minimize and mitigate the adverse effect; and with respect to an action that may adversely affect a habitat area of particular concern, in consultation with the Secretary— monitor, or require monitoring for, such adverse effect for the period during which such adverse effect is likely to occur; or take action to minimize and mitigate such adverse effect of the action on the habitat area of particular concern and the species with respect to which the habitat area of particular concern is designated. The Secretary shall inform each Council that has authority over an affected fishery of any consultation carried out under this subsection, including information regarding the proposed action and the potential adverse effects, and each such Council— may comment on and make recommendations to the Secretary and any Federal or State agency concerning any activity authorized, funded, or undertaken, or proposed to be authorized, funded, or undertaken, by any Federal or State agency that, in the view of the Council, may affect the habitat, including essential fish 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 any such activity that, in the view of the Council, is likely to substantially affect the habitat, including essential fish habitat, of an anadromous fishery resource under the authority of such Council. If the Secretary determines based on information received from a Council, Federal or State agency, or other source that an action authorized, funded, or undertaken, or proposed to be authorized, funded, or undertaken, by a Federal or State agency will adversely affect essential fish habitat identified under this Act— the Secretary shall recommend to such agency measures for such agency to take to avoid such adverse effects; and to the extent such adverse effects cannot be avoided, such agency shall minimize and mitigate such adverse effects. The head of a Federal agency that receives a recommendation from the Secretary under subparagraph
(A)regarding measures for such agency to take to avoid the adverse effects of an action described in that subparagraph on essential fish habitat identified under this Act shall, not later than 30 days after the date on which such agency head receives such recommendation, submit to the Secretary and each Council that comments under paragraph
(3)a detailed response in writing regarding such recommendation, including— a description of each measure such agency proposes to take to avoid the adverse effects; to the extent the adverse effects cannot be avoided, a description of each measure such agency proposes to take to minimize and mitigate the adverse effects of the action on such essential fish habitat; and if such response is inconsistent with such recommendation an explanation regarding— how each measure described in subclause
(I)will avoid such adverse effects; and to the extent such adverse effects cannot be avoided, a description of each measure such agency proposes to take to minimize and mitigate such adverse effects. The Secretary shall make available to the public— each recommendation made under subparagraph
(A)on the date on which such recommendation is made; and each response made by an agency under subparagraph
(B)on the date on which such response is received by the Secretary. The Secretary shall monitor each measure taken by each Federal agency to meet the requirements of this subsection. The Secretary shall issue regulations regarding the consultation process established under this subsection, including— ensuring that each recommendation made by the Secretary under paragraph
(4)results 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; measures to streamline such consultation process with other environmental review processes; and procedures to develop programmatic recommendations for measures that avoid, minimize, and mitigate adverse impacts of actions on essential fish habitat. A Federal agency may not enter into a lease, easement, right-of-way, or sale of any area designated as essential fish habitat unless such agency attaches appropriate covenants or restrictions on the use of the area to require that parties avoid causing adverse effects to the relevant essential fish habitat. In consulting with a Federal agency under this section for projects that seek to restore and improve the long-term resilience of habitat, particularly in estuarine environments heavily affected 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. .
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