I 111th CONGRESS 2d Session H. R. 5863 IN THE HOUSE OF REPRESENTATIVES July 26, 2010 Mr. Polis of Colorado introduced the following bill; which was referred to the Committee on Natural Resources A BILL To amend the Outer Continental Shelf Lands Act with regard to oversight and judicial review in connection with offshore oil production and exploration, and for other purposes.

1.

Short title

This Act may be cited as the Oil Pollution Wildlife Protection Act.

2.

Notice of exploration and development and production plans

(a)

Notice of exploration plans

Section 11 of the Outer Continental Shelf Lands Act (43 U.S.C. 1340) is amended by adding at the end the following: (i)

Public notice

(1)The Secretary shall promptly publish notice in the Federal Register of the receipt of any application or plan submitted to the Secretary pursuant to this section, and make electronically available to the public any such applications or plans, except any information that the Secretary determines to be proprietary. (2)The Secretary shall promptly publish notice in the Federal Register of the Secretary’s decision to approve, deny, or modify any application or plan submitted to the Secretary pursuant to this section. . (b)

Notice of development and production plans

Section 25 of the Outer Continental Shelf Lands Act (43 U.S.C. 1351) is amended by adding at the end the following: (m)

Public notice

(1)The Secretary shall promptly publish notice in the Federal Register of the receipt of any application or plan submitted to the Secretary pursuant to this section, and make electronically available to the public any such applications or plans, except any information that the Secretary determines to be proprietary. (2)The Secretary shall promptly publish notice in the Federal Register of the Secretary’s decision to approve, deny, or modify any plan submitted to the Secretary pursuant to this section. .

3.

Application of development and production plan requirements in the Gulf of Mexico

Section 25 of the Outer Continental Shelf Lands Act (43 U.S.C. 1351) is amended— (1)by striking other than the Gulf of Mexico, each place it appears; and (2)by striking subsection (l).

4.

Ensuring compliance with other laws

(a)

Exploration plans

Section 11 of the Outer Continental Shelf Lands Act (43 U.S.C. 1340) is further amended by adding at the end the following: (j)

Certification of compliance with other statutes

(1)

In general

The Secretary shall not approve any exploration plan or significant revision of an exploration plan, or grant any license or permit under this section, unless the Secretary certifies that— (A)such plan, approval, permit, or license is in compliance with the National Environmental Policy Act (42 U.S.C. 4321 et seq.), Endangered Species Act (16 U.S.C. 1531 et seq.), Marine Mammal Protection Act (16 U.S.C. 1361 et seq.), Magnuson-Stevens Fisheries Conservation and Management Act (16 U.S.C. 1801 et seq.), Clean Water Act (33 U.S.C. 1251 et seq.), Coastal Zone Management Act (16 U.S.C. 1451 et seq.), and any other applicable statutes, regulations, and legal authorities; and (B)all permits and other authorizations required under such statutes, regulations, and legal authorities have been issued for activities to be conducted under such plan, approval, permit, or license. (2)

Prior consultation required

Prior to making such certification, the Secretary shall consult with any Federal agency that has jurisdiction by law with respect to those Acts, regulations, and authorities. . (b)

Development and production plans

Section 25 of the Outer Continental Shelf Lands Act (43 U.S.C. 1351) is further amended by adding at the end the following: (n)

Certification of compliance with other statutes

(1)

In general

The Secretary shall not approve any development and production plan, or a significant revision of a development and production plan, unless the Secretary certifies that— (A)such plan, approval, permit, or license is in compliance with the National Environmental Policy Act (42 U.S.C. 4321 et seq.), Endangered Species Act (16 U.S.C. 1531 et seq.), Marine Mammal Protection Act (16 U.S.C. 1361 et seq.), Magnuson-Stevens Fisheries Conservation and Management Act (16 U.S.C. 1801 et seq.), Clean Water Act (33 U.S.C. 1251 et seq.), Coastal Zone Management Act (16 U.S.C. 1451 et seq.), and any other applicable law and regulations; and (B)all permits and other authorizations required under such statutes, regulations, and legal authorities have been issued for activities to be conducted under such plan, approval, permit, or license. (2)

Prior consultation required

Prior to making such certification, the Secretary shall consult with any Federal agency that has jurisdiction by law with respect to those Acts or other applicable law and regulations. .

5.

Consultation requirements for endangered species and fisheries

Section 19 of the Outer Continental Shelf Lands Act (43 U.S.C. 1346) is amended— (1)by striking so much as precedes subsection (a) and inserting the following:

19.

Consultation requirements

; and (2)by adding at the end the following: (f)

Consultation requirements for endangered species and fisheries

The Secretary shall treat the notice of any lease sale, and the approval of any leasing program, exploration plan or permit, development and production plan, or development operation coordination document, or the significant revision of such a program, plan, permit, or document, as an agency action requiring consultation— (1)with the Secretary of Commerce or of the Interior pursuant to section 7 of the Endangered Species Act of 1973 (16 U.S.C. 1536) for any listed species that occur in the proposed area of activity; and (2)with the Secretary of Commerce pursuant to section 305(b) of the Magnuson-Stevens Fisheries Conservation and Management Act (16 U.S.C. 1855(b)). .

6.

Cumulative impacts on marine mammal species and stocks and subsistence use

Section 20 of the Outer Continental Shelf Lands Act (43 U.S.C. 1346) is amended by adding at the end the following: (g)

Cumulative impacts on marine mammal species and stocks and subsistence use

In determining, pursuant to subparagraphs (A)(i) and (D)(i) of section 101(a)(5) of the Marine Mammal Protection Act of 1972 (16 U.S.C. 1371(a)(5)), whether takings from specified activities administered under this title will have a negligible impact on a marine mammal species or stock, and not have an unmitigable adverse impact on the availability of such species or stock for taking for subsistence uses, the Secretary of Commerce or Interior shall incorporate any takings of such species or stock from any other reasonably foreseeable activities administered under this Act. .

7.

Citizen suits

(a)

Additional authority To bring action under other statutes

Section 23 of the Outer Continental Shelf Lands Act (43 U.S.C. 1349) is amended by adding at the end the following: (d)

Additional authority To bring action under other statutes

(1)

Authority

In addition to remedies available under other laws, any person may commence a civil action on the person’s own behalf, against the United States and any other subject instrumentality or agency that is alleged to have approved a leasing program, lease sale, exploration plan or permit, or development and production plan, under section 18, 8, 10, or 25, respectively— (A)without having prepared an environmental impact statement or environmental assessment pursuant to section 102(2)(C) of the National Environmental Policy Act 1969 (42 U.S.C. 4332), consulted with the Secretary of Commerce or Secretary of the Interior pursuant to section 7 of the Endangered Species Act 1973 (16 U.S.C. 1536), or consulted with the Secretary of Commerce pursuant to section 305 of the Magnuson-Stevens Fisheries Conservation and Management Act (16 U.S.C. 1855); or (B)without having complied with any other provision of such statutes, the provisions of Act this related to such statutes, or any regulation implementing or issued under their authority of such statutes. (2)

Marine Mammal Protection Act of 1972

(A)

In general

In addition to remedies available under other laws, any person may commence a civil action on the person’s own behalf to enjoin any person who is alleged— (i)to have failed to obtain proper authorization, pursuant to subparagraphs (A) and (D) of section 101(a)(5) of the Marine Mammal Protection Act of 1972 (16 U.S.C. 1371(a)(5)), prior to commencing an activity that may take a marine mammal in exploration, development, or production activities administered under this Act; or (ii)to be in violation of any other provision of the Marine Mammal Protection Act of 1972 (16 U.S.C. 1361 et seq.), or any regulation issued under the authority thereof, with respect to exploration, development, or production activities administered under this Act. (B)

Intervention; award of costs

In any action under this paragraph— (i)the Attorney General, at the request of the Secretary or of the Secretary of Commerce, may intervene on behalf of the United States as a matter of right; and (ii)the court, in issuing any final order, may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate. . (b)

Time To bring action

Section 23(a) of the Outer Continental Shelf Lands Act (43 U.S.C. 1349(a)) is amended— (1)in paragraph (2)(A)— (A)by striking sixty days after the plaintiff has given and inserting the plaintiff giving; and (B)by striking under oath; and (2)by striking paragraph (3) and redesignating paragraphs (4) through (6) as paragraphs (3) through (5), respectively. (c)

Review of approval of leasing program and approval, modification, or disapproval of plans

Section 23(c) of the Outer Continental Shelf Lands Act (43 U.S.C. 1349(c))— (1)in paragraph (1), by inserting after District of Columbia the following: or in a United States court of appeals for a circuit in which an affected State is located; (2)in paragraph (3)— (A)by striking paragraphs (1) and (2) and inserting paragraph (1); and (B)by striking sixty and inserting 90; (3)in paragraph (5), by striking involved and inserting specified in paragraph (1); and (4)in paragraph (6), by striking the sentence beginning The findings of the Secretary. (d)

Nonrestriction clause

Nothing in this section shall restrict any right that any person (or class of persons) may have under any other statute or under common law to seek enforcement of such statute or to seek any other relief (including relief against the Secretary or other persons).