[Senate Report 112-187]
[From the U.S. Government Publishing Office]


                                                       Calendar No. 455
112th Congress                                                   Report
                                 SENATE
 2d Session                                                     112-187

======================================================================



 
                 NATIONAL FISH HABITAT CONSERVATION ACT

                                _______
                                

                 July 17, 2012.--Ordered to be printed

                                _______
                                

    Mrs. Boxer, from the Committee on Environment and Public Works, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 1201]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Environment and Public Works, to which was 
referred a bill (S. 1201) to conserve fish and aquatic 
communities in the United States through partnerships that 
foster fish habitat conservation, to improve the quality of 
life for the people of the United States, and for other 
purposes, having considered the same, reports favorably thereon 
and recommends that the bill do pass.

                    GENERAL STATEMENT AND BACKGROUND

    S. 1201 seeks to reverse the declines in aquatic habitat 
and species across the nation and would codify the National 
Fish Habitat Action Plan (Action Plan). The Action Plan focuses 
financial and technical resources on the root causes of fish 
habitat declines. The Action Plan focuses on the protection and 
conservation of intact and healthy aquatic habitats to prevent 
their future decline and disruption.
    According to U.S. Fish and Wildlife Service (FWS) testimony 
before the Committee, aquatic species are some of the most at 
risk organisms in the United States. Since 1900, 123 freshwater 
species have become extinct in North America. Hundreds of other 
fish, mollusks, crayfish and amphibians are imperiled. A 2008 
study by USGS scientists concluded that nearly 40 percent of 
the nation's fish populations are in decline. The loss and 
degradation of aquatic habitat are considered one of the 
primary reasons for the vulnerable condition of aquatic 
species.
    S. 1201 would foster science, communication, and 
partnerships to unite diverse stakeholders and focus voluntary 
action on conserving priority habitats and encourage private-
public partnerships that are consistent with the goals and 
mission of the National Fish Habitat Action Plan, which was 
released in 2006.
    The goals of the plan are:
          (1) to protect and maintain intact and healthy 
        aquatic systems;
          (2) to prevent further degradation of fish habitats 
        that have been adversely affected;
          (3) to reverse declines in the quality and quantity 
        of aquatic habitats to improve the overall health of 
        fish and other aquatic organisms;
          (4) to increase the quality and quantity of fish 
        habitats that support a broad natural diversity of fish 
        and other species.
    The legislation would codify the National Fish Habitat 
Board, composed of members from federal, state, and tribal 
agencies, and non-governmental organizations, which approves 
Fish Habitat Partnerships (FHP) and makes recommendations to 
the Secretary of the Interior regarding the funding of 
conservation projects. The bill also ensures coordination of 
ongoing Federal efforts to support the NFHAP by directing the 
Director of the FWS to establish the National Fish Habitat 
Conservation Partnership Office within the FWS, the National 
Oceanic and Atmospheric Administration (NOAA), and the U.S. 
Geological Survey (USGS) to provide technical and scientific 
assistance to the Partnerships, the project participants, and 
the Board. The bill authorizes appropriations for each of 
fiscal years 2012 through 2016.

                     OBJECTIVES OF THE LEGISLATION

    The National Fish Habitat Conservation Act (S. 1201) seeks 
to conserve fish and aquatic communities in the United States 
through partnerships that foster fish habitat conservation and 
to improve the quality of life for the people of the United 
States.

                      SECTION-BY-SECTION ANALYSIS

Section 1. Short title; Table of contents

    Section 1 provides that this Act may be cited as the 
`National Fish Habitat Conservation Act' and includes the table 
of contents of the Act.

Section 2. Findings; Purpose

    Section 2 includes several findings that highlight the 
economic, social, and environmental importance of aquatic 
habitats; acknowledge the harmful impacts to the national 
economy, environment, and wildlife that result from the 
destruction or alteration of aquatic habitats; and, recognize 
the need to protect, conserve, and restore the quality of 
aquatic habitats.
    Section 2 states that the purpose of the Act is to 
encourage partnerships among public agencies and other 
interested parties consistent with the mission and goals of the 
National Fish Habitat Action Plan.

Section 3. Definitions

    Section 3 provides definitions of several terms used in the 
Act.

Section 4. National Fish Habitat Board

    Section 4 establishes the National Fish Habitat Board to 
oversee and promote the implementation of the Act, to establish 
national goals and priorities, to designate partnerships, and 
to review and recommend aquatic habitat projects. This section 
describes the composition of the board and the procedures for 
appointing and replacing members.

Section 5. Fish Habitat Partnerships

    Section 5 establishes procedures for designating Fish 
Habitat Partnerships (Partnerships) and outlines criteria for 
approval of partnerships. Criteria included are that the 
partnership: (1) includes a diverse group of public and private 
partners; (2) is organized to promote the health of important 
aquatic habitats and distinct geographical areas, keystone fish 
species, or system types; (3) identifies strategic fish and 
aquatic habitat priorities for the Partnership area; (4) is 
able to address issues on a nationally-significant scale; (5) 
includes governances structures that reflect the range of all 
partners and promotes joint strategic planning; (6) 
demonstrates completion of or progress toward development of a 
strategic plan to address causes of fish decline; (7) ensures 
collaboration in implementing a scientifically-sound and 
achievable implementation program.

Section 6. Fish habitat conservation projects

    Section 6 establishes procedures for consideration of fish 
habitat projects by the Board and criteria for the board to use 
in evaluating and recommending projects for funding to the 
Secretaries of Interior and Commerce, which the Secretaries 
must approve, reject, or reorder within 180 days. All fish 
habitat projects will be submitted to the Board by the 
Partnerships and must include an evaluation plan designed to--
appropriately assess the biological, ecological, or other 
results of the project and reflect appropriate changes to the 
fish habitat conservation project if the assessment finds that 
the project objectives are not being met. This section also 
establishes cost-sharing requirements and includes requirements 
related to the acquisition of real property through a fish 
habitat project.

Section 7. National Fish Habitat Conservation Partnership Office

    Section 7 establishes the National Fish Habitat 
Conservation Partnership Office and describes its functions, 
which include: providing funding for Partnership projects and 
the detail of State and tribal fish and wildlife staff; 
facilitating development and approval of Partnerships and 
communication and operations of the Partnerships and the Board; 
coordinating scientific reporting on projects; and providing 
support to the Board for national communication and outreach 
efforts that promote public awareness of fish habitat 
conservation.
    This section also requires the Director of the FWS, in 
cooperation with the Assistant Administrator for Fisheries of 
NOAA and heads of other appropriate Federal agencies, to 
establish an interagency operational plan to guide the efforts 
of the Partnership Office and ensure inter-agency coordination. 
This section directs the Director of the FWS and Assistant 
Administrator for Fisheries of NOAA to provide staff to support 
the work of the Partnership Office and authorizes the 
Partnership Office to accept staff or support through 
interagency details or contractors.
    At least once per year, the Director of the FWS must 
provide to the Board a report describing the activities of the 
National Fish Habitat Conservation Partnership Office.

Section 8. Technical and scientific assistance

    Section 8 directs the Director of the FWS, Assistant 
Administrator for Fisheries of NOAA, and Director of the United 
States Geological Survey (USGS), in coordination with other 
appropriate federal agencies, to provide technical and 
scientific assistance to develop and implement Partnerships; 
assess habitat, conduct strategic planning, and prioritize 
efforts; assess projects, support the development and 
implementation of fish habitat conservation projects, and 
provide recommendations for a national fish habitat assessment; 
support science-based monitoring and assessment; and ensure the 
availability of experts to conduct scientifically-based 
evaluation and reporting of fish habitat conservation projects.

Section 9. Conservation of aquatic habitat for fish and other aquatic 
        organisms on Federal land

    Section 9 provides that the head of each Federal department 
and agency responsible for acquiring, managing, or disposing of 
Federal land or water must cooperate with the FWS and NOAA to 
conserve the aquatic habitats and organisms within the land and 
water of the department or agency.

Section 10. Coordination with States and Indian tribes

    Section 10 provides that the Secretary of the Interior 
shall provide a notice to the appropriate State or tribal 
agency within which an activity is planned to be carried out 
pursuant with this Act no later than 30 days before the planned 
activity is implemented.

Section 11. Accountability and reporting

    Section 11 requires the Board to submit reports to 
appropriate congressional committees on the implementation of 
this Act and the National Fish Habitat Action Plan, which shall 
include an estimate of the amounts of aquatic habitats 
protected or restored under the National Fish Habitat Action 
Plan; a description of public access to aquatic habitats 
protected, restored or established; a description of the 
opportunities for public fishing; and an assessment of the 
status of the fish habitat conservation projects funded under 
this Act.
    Section 11 requires the Board to submit to the appropriate 
congressional committees a report describing the status of 
aquatic habitats in the United States by December 31, 2012 and 
each five years thereafter.

Section 12. Regulations

    Section 12 provides that the Secretary of the Interior may 
promulgate such regulations as the Secretary determines 
necessary to carry out this Act.

Section 13. Effect of Act

    Section 13 states that nothing in this Act establishes a 
water right in the United States, affects any water right in 
existence, or affects state water law. This section further 
clarifies that nothing in the Act affects state rights to 
manage wildlife and fish, affects tribal rights, affects 
existing federal authorities for land or water acquisition, or 
enables the use of funds provided by the Act to acquire real 
property without the consent of the property owner. This 
section also states that nothing in this Act allows the use of 
funds for fish and wildlife mitigation under existing Federal 
laws and court settlements.

Section 14. Nonapplicability of Federal Advisory Committee Act

    Section 14 provides that the Federal Advisory Committee Act 
(5 U.S.C. App.) shall not apply to the National Fish Habitat 
Board or any Partnership.

Section 15. Funding

    Section 15 authorizes $7,200,000 for the Secretary of the 
Interior to provide funds for fish habitat conservation 
projects approved under section 6(f), of which 5 percent shall 
be made available for each fiscal year for projects carried out 
by Indian tribes. This section authorizes five percent of the 
funds appropriated for fish habitat conservation projects for 
the National Fish Habitat Conservation Office and requires the 
Secretary to annually transfer appropriate amounts to other 
federal agencies pursuant to the interagency operation plan 
under section 7(c). FWS, NOAA, and USGS are authorized to 
receive $500,000 each to provide technical and scientific 
assistance. This section authorizes three percent of the funds 
appropriated for fish habitat conservation projects for 
administrative expenses. All authorizations are for fiscal 
years 2012 through 2016.

                          LEGISLATIVE HISTORY

    S. 1201 was introduced by Senator Joseph Lieberman and 
Senators Crapo, Tester, Bingaman, Murkowski, Whitehouse, 
Begich, Cardin, and Udall of Colorado on June 15, 2011. The 
bill was received, read twice, and referred to the Committee on 
Environment and Public Works. On June 21, 2012, the full 
Committee on Environment and Public Works met to consider the 
bill. The bill was ordered reported favorably without amendment 
by voice vote.

                                HEARINGS

    In the 111th Congress, on December 3, 2009, the Water and 
Wildlife Subcommittee of the Senate Environment and Public 
Works Committee held a legislative hearing on multiple wildlife 
and invasive species bills, including the National Fish Habitat 
Conservation Act.

                             ROLLCALL VOTES

    The Committee on Environment and Public Works met to 
consider S. 1201 on June 21, 2012. The bill was ordered 
reported favorably by voice with Senators Inhofe and Sessions 
recorded as ``No''.

                      REGULATORY IMPACT STATEMENT

    In compliance with section 11(b) of rule XXVI of the 
Standing Rules of the Senate, the committee finds that S. 1201 
does not create any additional regulatory burdens, nor will it 
cause any adverse impact on the personal privacy of 
individuals.

                          MANDATES ASSESSMENT

    In compliance with the Unfunded Mandates Reform Act of 1995 
(Public Law 104-4), the committee noted that the Congressional 
Budget Office has found, ``S. 1201 contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act (UMRA) and would impose no costs 
on state, local, or tribal governments.''

               CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

                                                      July 2, 2012.
Hon. Barbara Boxer,
Chairman, Committee on Environment and Public Works,
U.S. Senate, Washington, DC.
    Dear Madam Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 1201, the National 
Fish Habitat Conservation Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Jeff LaFave.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

S. 1201--National Fish Habitat Conservation Act

    Summary: S. 1201 would authorize the appropriation of $29 
million over the 2013-2016 period for the Department of the 
Interior (DOI) to fund projects to conserve fish habitats. The 
legislation also would establish a National Fish Habitat Board 
and authorize the appropriation of $6 million over the same 
period to establish a National Fish Habitat Conservation 
Office, cover certain planning and administrative expenses, and 
provide technical and scientific assistance to the board, Fish 
Habitat Partnerships (FHPs), and conservation project 
participants.
    CBO estimates that implementing S. 1201 would cost $32 
million over the 2013-2017 period and $3 million after 2017, 
assuming appropriation of the specified amounts. Because the 
legislation would authorize DOI to accept and use gifts and 
donations, enacting the bill could have a negligible impact on 
offsetting receipts and associated direct spending; therefore, 
pay-as-you-go procedures apply. However, CBO estimates that the 
net effect on direct spending would be minimal in each year. 
Enacting the bill would not affect revenues.
    S. 1201 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA) 
and would impose no costs on state, local, or tribal 
governments.
    Estimated cost to the Federal Government: The estimated 
budgetary impact of S. 1201 is shown in the following table. 
The costs of this legislation fall within budget function 300 
(natural resources and environment).

----------------------------------------------------------------------------------------------------------------
                                                                 By fiscal year, in millions of dollars--
                                                         -------------------------------------------------------
                                                            2013     2014     2015     2016     2017   2013-2017
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Fish Habitat Conservation Projects:a
    Authorization Level.................................        7        7        7        7        0        29
    Estimated Outlays...................................        3        5        6        7        4        24
Other Costs:
    Authorization Level.................................        2        2        2        2        0         8
    Estimated Outlays...................................        2        2        2        2        *         8
    Total Changes:
        Authorization Level.............................        9        9        9        9        0        37
        Estimated Outlays...............................        4        6        8        9        4        32
----------------------------------------------------------------------------------------------------------------
Note: Components may not sum to totals because of rounding; * = less than $500,000.
aThe United States Fish and Wildlife Service received $7 million in 2012 for fish habitat conservation projects.

    Basis of estimate: For this estimate, CBO assumes that the 
legislation will be enacted near the end of 2012 and that 
amounts specified in the bill will be appropriated for each 
year.
    S. 1201 would establish a National Fish Habitat Board 
composed of 27 members from federal, state, and tribal 
agencies, and nongovernmental organizations. The board would 
approve FHPs formed around specific aquatic habitats and 
geographic areas and make recommendations to the Secretary of 
the Interior regarding the funding of conservation projects. 
Those recommendations would be primarily informed by the FHPs, 
which would conduct scientific assessments and identify 
strategic priorities on behalf of public and private partners.

Fish habitat conservation projects

    S. 1201 would authorize the appropriation of $7.2 million 
in each of fiscal years 2013 through 2016 for DOI to provide 
funding for projects to conserve fish habitat, including the 
acquisition of property. Projects would increase fishing 
opportunities for the public; increase public access to land; 
protect threatened and endangered species, fish, and fish 
habitats; and promote resilience to environmental change. No 
project could derive more than 50 percent of its funding from 
the federal government unless the project was located on 
federal property. Based on the historical spending patterns for 
other conservation and land acquisition projects, we estimate 
that implementing this provision would cost $24 million over 
the 2013-2017 period.

Other costs

    S. 1201 would authorize the appropriation of $1.5 million 
in each of fiscal years 2013 through 2016 for technical and 
scientific assistance to the board, the FHPs, and conservation 
project participants. The legislation would provide equal 
funding in each year to the Fish and Wildlife Service (FWS), 
the National Oceanic and Atmospheric Administration, and the 
United States Geological Survey for those purposes. The bill 
also would provide amounts totaling 8 percent of the funds 
provided for fish habitat conservation projects (which, 
assuming appropriation of the full amount, would total about 
$600,000), in each of fiscal years 2013-2016 to establish a 
National Fish Habitat Conservation Partnership Office within 
FWS and for planning and administrative expenses. Based on the 
historical spending patterns for programs carried out by each 
of the affected agencies, CBO estimates that implementing those 
provisions would cost $8 million over the 2013-2016 period.
    Intergovernmental and private-sector impact: S. 1201 
contains no intergovernmental or private-sector mandates as 
defined in UMRA and would impose no costs on state, local, or 
tribal governments. State, local, and tribal governments would 
benefit from technical and financial assistance authorized in 
the bill. Any costs to those governments would be incurred 
voluntarily as a condition of receiving federal assistance.
    Estimate prepared by: Federal costs: Jeff LaFave; Impact on 
state, local, and tribal governments: Melissa Merrell; Impact 
on the private sector: Amy Petz.
    Estimate approved by: Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

                        CHANGES IN EXISTING LAW

    Section 12 of rule XXVI of the Standing Rules of the Senate 
requires the committee to publish changes in existing law made 
by the bill as reported. Passage of this bill will make no 
changes to existing law.

                                  
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