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                                                       Calendar No. 378
111th Congress                                                   Report
                                 SENATE
 2d Session                                                     111-190

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

 
 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

                                _______
                                

                  May 17, 2010.--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. 1214]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Environment and Public Works, to which was 
referred a bill (S. 1214) 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, as amended, do pass.

                    GENERAL STATEMENT AND BACKGROUND

    S. 1214 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. 1214 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 establish a National Fish Habitat 
Board, composed of members from federal, state, and tribal 
agencies, and non-governmental organizations, which would 
approve Fish Habitat Partnerships (FHP) and make 
recommendations to the Secretary of the Interior regarding the 
funding of conservation projects. The bill also requires the 
Director of the U.S. Fish and Wildlife Service to establish the 
National Fish Habitat Conservation Partnership Office within 
the Service and NOAA and 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 2010 through 2014.

                     OBJECTIVES OF THE LEGISLATION

    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.

                      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 provides the general purpose of the bill, along 
with several findings highlighting 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 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 this 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 and outlines criteria 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 a 
governance structure that reflects 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 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. The report must be 
submitted to the board. 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; 
facilitating 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 the National Oceanic and Atmospheric 
Administration (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.

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 for assessments of projects, support the 
development and implementation of fish habitat conservation 
projects, and provide recommendations for a national fish 
habitat assessment.

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 descriptions of those aquatic habitats protected or 
restored under the National Fish Habitat Action Plan and an 
assessment of the status of the fish habitat conservation 
projects funded under this Act.

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 $75,000,000 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 the greater of 
$3,000,000 or 25 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). 
$10,000,000 is authorized for FWS, NOAA, and USGS to provide 
technical and scientific assistance. This section authorizes 
$300,000 or 4 percent of the funds appropriated for fish 
habitat conservation projects for administrative expenses. All 
authorizations are for fiscal years 2010 through 2014.

                          LEGISLATIVE HISTORY

    S. 1214 was introduced by Sen. Joe Lieberman (IN-CT), Sen. 
Kit Bond (R-MO), and six other co-sponsors on June 9, 2009. The 
bill was referred to the Committee on Environment and Public 
Works. On December 10, 2009, the full Environment and Public 
Works Committee met to consider the bill. The bill was ordered 
favorably reported by voice vote with an amendment in the 
nature of a substitute.

                                HEARINGS

    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 S. 1214.

                             ROLLCALL VOTES

    The Committee on Environment and Public Works met to 
consider S. 1214 on December 10, 2009. The bill was ordered 
favorably reported by voice vote with an amendment in the 
nature of a substitute.

                      REGULATORY IMPACT STATEMENT

    In compliance with section 11(b) of rule XXVI of the 
Standing Rules of the Senate, the committee finds that S. 1214 
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. 1214 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.''

                                                  January 14, 2010.
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. 1214, 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 Daniel 
Hoople.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

S. 1214--National Fish Habitat Conservation Act

    Summary: S. 1214 would authorize the appropriation of $500 
million over the 2010-2014 period for the Department of the 
Interior (DOI) to fund projects to conserve fish habitats and 
establish a National Fish Habitat Conservation Office. The 
legislation also would establish a National Fish Habitat Board 
and authorize the appropriation of $150 million over the same 
period to provide technical and scientific assistance to the 
board, Fish Habitat Partnerships (FHPs), and conservation 
project participants.
    CBO estimates that implementing S. 1214 would cost $591 
million over the 2010-2015 period, 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. Enacting the bill would not affect 
revenues.
    S. 1214 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. 1214 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--
                                                     -----------------------------------------------------------
                                                       2010    2011    2012    2013    2014    2015    2010-2014
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Fish Habitat Conservation Projects:
    Authorization Level.............................      75      75      75      75      75       0         375
    Estimated Outlays...............................       0      57      65      75      75      50         322
Technical and Scientific Assistance:
    Authorization Level.............................      30      30      30      30      30       0         150
    Estimated Outlays...............................       8      32      38      32      30       8         148
National Fish Habitat Conservation Partnership
 Office:
    Authorization Level.............................      22      22      22      22      22       0         110
    Estimated Outlays...............................       2      18      32      26      22       6         106
Planning and Administration:
    Authorization Level.............................       3       3       3       3       3       0          15
    Estimated Outlays...............................       1       3       3       3       3       2          15
    Total Changes:
        Authorization Level.........................     130     130     130     130     130       0         650
        Estimated Outlays...........................      11     110     138     136     130      66         591
----------------------------------------------------------------------------------------------------------------

    Basis of estimate: For this estimate, CBO assumes that the 
legislation will be enacted in fiscal year 2010 and that 
amounts specified in the bill will be appropriated for each 
year.
    S. 1214 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 informed primarily by the FHPs, 
which would conduct scientific assessments and identify 
strategic priorities on behalf of public and private partners.

Fish habitat conservation projects

    S. 1214 would authorize the appropriation of $75 million in 
each of fiscal years 2010 through 2014 for DOI to provide 
funding for fish habitat conservation projects, 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 land or water.
    CBO estimates that no spending for conservation projects 
would occur in 2010 because few projects would likely be 
approved before the conclusion of that fiscal year. Based on 
the historical expenditures for other conservation and land 
acquisition projects, we estimate that implementing this 
provision would cost $322 million over the 2011-2015 period.

Technical and scientific assistance

    S. 1214 would authorize the appropriation of $30 million in 
each of fiscal years 2010 through 2014 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 (NOAA), and 
the United States Geological Survey for those purposes. Based 
on the historical spending patterns for programs carried out by 
each of those agencies, CBO estimates that this provision would 
cost $148 million over the 2010-2015 period.

National Fish Habitat Conservation Partnership Office

    S. 1214 would authorize the appropriation of $3 million, 
plus an amount equal to 25 percent of the funds provided for 
fish habitat conservation projects (which, assuming 
appropriation of the full amount, would total about $19 
million), in each of fiscal years 2010 through 2014 to 
establish a National Fish Habitat Conservation Partnership 
Office within FWS. The office would provide funding for 
operation of FHPs, including planning, outreach, 
implementation, and evaluation. The office also would help 
administer other provisions of the bill, including developing 
an interagency operational plan and reporting to the Congress 
regarding implementation of the bill and the status of aquatic 
habitats in the United States. CBO estimates that spending by 
the new office would total $106 million over the 2010-2015 
period.

Planning and administration

    S. 1214 would authorize the appropriation of $300,000, plus 
an amount equal to 4 percent of the funds provided for fish 
habitat conservation programs (which, assuming appropriation of 
the full amount, would total $3 million), in each of fiscal 
years 2010 through 2014 for planning and administrative 
expenses. Such funds would be used by FWS, NOAA, and the board. 
CBO estimates that those expenses would total $15 million over 
the 2010-2015 period.
    Intergovernmental and private-sector impact: S. 1214 
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: Daniel Hoople; 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.