16 USC 8213 - Prohibition against implementation of regulatory authority by Federal agencies through partnerships

Collapse to view only § 8213. Prohibition against implementation of regulatory authority by Federal agencies through partnerships

§ 8201. Purpose
§ 8202. Definitions
§ 8203. National Fish Habitat Board
§ 8204. Fish Habitat Partnerships
§ 8205. Fish habitat conservation projects
§ 8206. Technical and scientific assistance
§ 8207. Coordination with States and Indian Tribes
§ 8208. Interagency operational plan
§ 8209. Accountability and reporting
§ 8210. Effect of this chapter
§ 8211. Nonapplicability of Federal Advisory Committee Act
§ 8212. Funding
§ 8213. Prohibition against implementation of regulatory authority by Federal agencies through partnerships

§ 8201. PurposeThe purpose of this chapter is to encourage partnerships among public agencies and other interested persons to promote fish conservation—

(1) to achieve measurable habitat conservation results through strategic actions of Fish Habitat Partnerships that lead to better fish habitat conditions and increased fishing opportunities by—

(A) improving ecological conditions;

(B) restoring natural processes; or

(2) to establish a consensus set of national conservation strategies as a framework to guide future actions and investment by Fish Habitat Partnerships;

(3) to broaden the community of support for fish habitat conservation by—

(A) increasing fishing opportunities;

(B) fostering the participation of local communities, especially young people in local communities, in conservation activities; and

(C) raising public awareness of the role healthy fish habitat play in the quality of life and economic well-being of local communities;

(4) to fill gaps in the National Fish Habitat Assessment and the associated database of the National Fish Habitat Assessment—

(A) to empower strategic conservation actions supported by broadly available scientific information; and

(B) to integrate socioeconomic data in the analysis to improve the lives of humans in a manner consistent with fish habitat conservation goals; and

(5) to communicate to the public and conservation partners—

(A) the conservation outcomes produced collectively by Fish Habitat Partnerships; and

(B) new opportunities and voluntary approaches for conserving fish habitat.

(Pub. L. 116–188, title II, § 201, Oct. 30, 2020, 134 Stat. 924.)

§ 8202. Definitions

In this chapter:

(1) Appropriate congressional committees

The term “appropriate congressional committees” means—

(A) the Committee on Commerce, Science, and Transportation and the Committee on Environment and Public Works of the Senate; and

(B) the Committee on Natural Resources of the House of Representatives.

(2) Board

(3) Director

(4) Environmental Protection Agency Assistant Administrator

(5) Indian Tribe

(6) National Oceanic and Atmospheric Administration Assistant Administrator

(7) Partnership

(8) Real property interest

The term “real property interest” means an ownership interest in—

(A) land; or

(B) water (including water rights).

(9) Marine Fisheries Commissions

The term “Marine Fisheries Commissions” means—

(A) the Atlantic States Marine Fisheries Commission;

(B) the Gulf States Marine Fisheries Commission; and

(10) Secretary

(11) State

(12) State agency

The term “State agency” means—

(A) the fish and wildlife agency of a State; and

(B) any department or division of a department or agency of a State that manages in the public trust the inland or marine fishery resources of the State or sustains the habitat for those fishery resources pursuant to State law or the constitution of the State.

(Pub. L. 116–188, title II, § 202, Oct. 30, 2020, 134 Stat. 925.)

§ 8203. National Fish Habitat Board

(a) Establishment

(1) Fish Habitat BoardThere is established a board, to be known as the “National Fish Habitat Board”, whose duties are—

(A) to promote, oversee, and coordinate the implementation of this chapter;

(B) to establish national goals and priorities for fish habitat conservation;

(D) to review and make recommendations regarding fish habitat conservation projects.

(2) MembershipThe Board shall be composed of 26 members, of whom—

(A) 1 shall be a representative of the Department of the Interior;

(B) 1 shall be a representative of the United States Geological Survey;

(D) 1 shall be a representative of the Department of Agriculture;

(E) 1 shall be a representative of the Association of Fish and Wildlife Agencies;

(F) 4 shall be representatives of State agencies, 1 of whom shall be nominated by a regional association of fish and wildlife agencies from each of the Northeast, Southeast, Midwest, and Western regions of the United States;

(G) 2 shall be representatives of either—

(i) Indian Tribes in the State of Alaska; or

(ii) Indian Tribes in States other than the State of Alaska;

(H) 1 shall be a representative of either—

(i) the Regional Fishery Management Councils established under section 1852 of this title; or

(ii) a representative of the Marine Fisheries Commissions;

(I) 1 shall be a representative of the Sport Fishing and Boating Partnership Council;

(J) 7 shall be representatives selected from at least one from each of the following:

(i) the recreational sportfishing industry;

(ii) the commercial fishing industry;

(iii) marine recreational anglers;

(iv) freshwater recreational anglers;

(v) habitat conservation organizations; and

(vi) science-based fishery organizations;

(K) 1 shall be a representative of a national private landowner organization;

(L) 1 shall be a representative of an agricultural production organization;

(M) 1 shall be a representative of local government interests involved in fish habitat restoration;

(N) 2 shall be representatives from different sectors of corporate industries, which may include—

(i) natural resource commodity interests, such as petroleum or mineral extraction;

(ii) natural resource user industries; and

(iii) industries with an interest in fish and fish habitat conservation; and

(O) 1 shall be an individual in a leadership position in the private sector or landowner representative of an active partnership.

(3) Compensation

(4) Travel expenses

(b) Appointment and terms

(1) In general

(2) Initial Board membership

(A) In general

(B) Remaining members

(3) Staggered termsOf the members described in subsection (a)(2)(J) initially appointed to the Board—

(A) two shall be appointed for a term of 1 year;

(B) two shall be appointed for a term of 2 years; and

(4) Vacancies

(A) In general

(B) Tribal representatives

(5) Continuation of service

(6) RemovalIf a member of the Board described in any of subparagraphs (H) through (O) of subparagraph (a)(2) misses three consecutive regularly scheduled Board meetings, the members of the Board may—

(A) vote to remove that member; and

(B) appoint another individual in accordance with paragraph (4).

(1) In general

(2) Term

(d) Meetings

(1) In generalThe Board shall meet—

(A) at the call of the Chairperson; but

(B) not less frequently than twice each calendar year.

(2) Public access

(e) Procedures

(1) In generalThe Board shall establish procedures to carry out the business of the Board, including—

(A) a requirement that a quorum of the members of the Board be present to transact business;

(B) a requirement that no recommendations may be adopted by the Board, except by the vote of two-thirds of all members;

(C) procedures for establishing national goals and priorities for fish habitat conservation for the purposes of this chapter;

(D) procedures for designating Partnerships under section 8204 of this title; and

(E) procedures for reviewing, evaluating, and making recommendations regarding fish habitat conservation projects.

(2) Quorum

(Pub. L. 116–188, title II, § 203, Oct. 30, 2020, 134 Stat. 926.)

§ 8204. Fish Habitat Partnerships

(a) Authority to recommend

(b) PurposesThe purposes of a Partnership shall be—

(1) to work with other regional habitat conservation programs to promote cooperation and coordination to enhance fish populations and fish habitats;

(2) to engage local and regional communities to build support for fish habitat conservation;

(3) to involve diverse groups of public and private partners;

(4) to develop collaboratively a strategic vision and achievable implementation plan that is scientifically sound;

(5) to leverage funding from sources that support local and regional partnerships;

(6) to use adaptive management principles, including evaluation of project success and functionality;

(7) to develop appropriate local or regional habitat evaluation and assessment measures and criteria that are compatible with national habitat condition measures; and

(8) to implement local and regional priority projects that improve conditions for fish and fish habitat.

(1) submit to the Board an application at such time, in such manner, and containing such information as the Board may reasonably require; and

(2) demonstrate to the Board that the entity has—

(A) a focus on promoting the health of important fish and fish habitats;

(B) an ability to coordinate the implementation of priority projects that support the goals and national priorities set by the Board that are within the Partnership boundary;

(D) the ability to develop local and regional relationships with a broad range of entities to further strategic priorities for fish and fish habitat;

(E) a strategic plan that details required investments for fish habitat conservation that addresses the strategic fish habitat priorities of the Partnership and supports and meets the strategic priorities of the Board;

(F) the ability to develop and implement fish habitat conservation projects that address strategic priorities of the Partnership and the Board; and

(G) the ability to develop fish habitat conservation priorities based on sound science and data, the ability to measure the effectiveness of fish habitat projects of the Partnership, and a clear plan as to how Partnership science and data components will be integrated with the overall Board science and data effort.

(d) Requirements for recommendation to CongressThe Board may recommend to Congress for designation an application for a Partnership submitted under subsection (c) if the Board determines that the applicant—

(1) meets the criteria described in subsection (c)(2);

(2) identifies representatives to provide support and technical assistance to the Partnership from a diverse group of public and private partners, which may include State or local governments, nonprofit entities, Indian Tribes, and private individuals, that are focused on conservation of fish habitats to achieve results across jurisdictional boundaries on public and private land;

(3) is organized to promote the health of important fish species and important fish habitats, including reservoirs, natural lakes, coastal and marine environments, coral reefs, and estuaries;

(4) identifies strategic fish and fish habitat priorities for the Partnership area in the form of geographical focus areas or key stressors or impairments to facilitate strategic planning and decision making;

(5) is able to address issues and priorities on a nationally significant scale;

(6) includes a governance structure that—

(A) reflects the range of all partners; and

(B) promotes joint strategic planning and decision making by the applicant;

(7) demonstrates completion of, or significant progress toward the development of, a strategic plan to address declines in fish populations, rather than simply treating symptoms, in accordance with the goals and national priorities established by the Board; and

(8) promotes collaboration in developing a strategic vision and implementation program that is scientifically sound and achievable.

(e) Report to Congress

(1) In generalNot later than February 1 of the first fiscal year beginning after October 30, 2020, and each February 1 thereafter, the Board shall develop and submit to the appropriate congressional committees an annual report, to be entitled “Report to Congress on Future Fish Habitat Partnerships and Modifications”, that—

(A) identifies each entity that—

(i) meets the requirements described in subsection (d); and

(ii) the Board recommends to Congress for designation as a Partnership;

(B) describes any proposed modifications to a Partnership previously designated by Congress under subsection (f); 1

1 So in original. Probably should be followed by “and”.

(C) with respect to each entity recommended for designation as a Partnership, describes, to the maximum extent practicable—

(i) the purpose of the recommended Partnership; and

(ii) how the recommended Partnership fulfills the requirements described in subsection (d).

(2) Public availability; notificationThe Board shall—

(A) make the report publicly available, including on the internet; and

(B) provide to the appropriate congressional committees and the State agency of any State included in a recommended Partnership area written notification of the public availability of the report.

(f) Designation or modification of partnership

(g) Existing partnerships

(1) Designation review

(2) Ineligibility for Federal funds

(Pub. L. 116–188, title II, § 204, Oct. 30, 2020, 134 Stat. 928.)

§ 8205. Fish habitat conservation projects

(a) Submission to Board

(b) Recommendations by Board

(c) Criteria for project selectionThe Board shall select each fish habitat conservation project recommended to the Secretary under subsection (b) after taking into consideration, at a minimum, the following information:

(1) A recommendation of the Partnership that is, or will be, participating actively in implementing the fish habitat conservation project.

(2) The capabilities and experience of project proponents to implement successfully the proposed project.

(3) The extent to which the fish habitat conservation project—

(A) fulfills a local or regional priority that is directly linked to the strategic plan of the Partnership and is consistent with the purpose of this chapter;

(B) addresses the national priorities established by the Board;

(C) is supported by the findings of the habitat assessment of the Partnership or the Board, and aligns or is compatible with other conservation plans;

(D) identifies appropriate monitoring and evaluation measures and criteria that are compatible with national measures;

(E) provides a well-defined budget linked to deliverables and outcomes;

(F) leverages other funds to implement the project;

(G) addresses the causes and processes behind the decline of fish or fish habitats; and

(H) includes an outreach or education component that includes the local or regional community.

(4) The availability of sufficient non-Federal funds to match Federal contributions for the fish habitat conservation project, as required by subsection (e).

(5) The extent to which the fish habitat conservation project—

(A) will increase fish populations in a manner that leads to recreational fishing opportunities for the public;

(B) will be carried out through a cooperative agreement among Federal, State, and local governments, Indian Tribes, and private entities;

(D) advances the conservation of fish and wildlife species that have been identified by a State agency as species of greatest conservation need;

(E) where appropriate, advances the conservation of fish and fish habitats under the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.) and other relevant Federal law and State wildlife action plans; and

(F) promotes strong and healthy fish habitats so that desired biological communities are able to persist and adapt.

(6) The substantiality of the character and design of the fish habitat conservation project.

(d) Limitations

(1) Requirements for evaluationNo fish habitat conservation project may be recommended by the Board under subsection (b) or provided financial assistance under this chapter unless the fish habitat conservation project includes an evaluation plan designed using applicable Board guidance—

(A) to appropriately assess the biological, ecological, or other results of the habitat protection, restoration, or enhancement activities carried out using the assistance;

(B) to reflect appropriate changes to the fish habitat conservation project if the assessment substantiates that the fish habitat conservation project objectives are not being met;

(C) to identify improvements to existing fish populations, recreational fishing opportunities, and the overall economic benefits for the local community of the fish habitat conservation project; and

(D) to require the submission to the Board of a report describing the findings of the assessment.

(2) Acquisition authorities

(A) In generalA State, local government, or other non-Federal entity is eligible to receive funds for the acquisition of real property from willing sellers under this chapter if the acquisition ensures—

(i) public access for fish and wildlife-dependent recreation; or

(ii) a scientifically based, direct enhancement to the health of fish and fish populations, as determined by the Board.

(B) State agency approval

(i) In general

(ii) Prohibition

(D) RestrictionsA real property interest may not be acquired pursuant to a fish habitat conservation project by a State, local government, or other non-Federal entity conducted with funds provided under this chapter, unless—

(i) the owner of the real property authorizes the State, local government, or other non-Federal entity to acquire the real property; and

(ii) the Secretary and the Board determine that the State, local government, or other non-Federal entity would benefit from undertaking the management of the real property being acquired because that is in accordance with the goals of a Partnership.

(e) Non-Federal contributions

(1) In general

(2) Non-Federal shareSuch non-Federal share of the cost of a fish habitat conservation project—

(A) may not be derived from another Federal grant program; and

(B) may include in-kind contributions and cash.

(3) Special rule for Indian Tribes

(4) Waiver authority

(f) Approval

(1) In general

(2) Funding

(3) Notification

(Pub. L. 116–188, title II, § 205, Oct. 30, 2020, 134 Stat. 931.)

§ 8206. Technical and scientific assistance

(a) In general

(b) Inclusions

Scientific and technical assistance provided under subsection (a) may include—

(1) providing technical and scientific assistance to States, Indian Tribes, regions, local communities, and nongovernmental organizations in the development and implementation of Partnerships;

(2) providing technical and scientific assistance to Partnerships for habitat assessment, strategic planning, and prioritization;

(3) supporting the development and implementation of fish habitat conservation projects that are identified as high priorities by Partnerships and the Board;

(4) supporting and providing recommendations regarding the development of science-based monitoring and assessment approaches for implementation through Partnerships;

(5) supporting and providing recommendations for a national fish habitat assessment;

(6) ensuring the availability of experts to assist in conducting scientifically based evaluation and reporting of the results of fish habitat conservation projects; and

(7) providing resources to secure State agency scientific and technical assistance to support Partnerships, participants in fish habitat conservation projects, and the Board.

(Pub. L. 116–188, title II, § 206, Oct. 30, 2020, 134 Stat. 934.)

§ 8207. Coordination with States and Indian Tribes

The Secretary shall provide a notice to, and cooperate with, the appropriate State agency or Tribal agency, as applicable, of each State and Indian Tribe within the boundaries of which an activity is planned to be carried out pursuant to this chapter, including notification, by not later than 30 days before the date on which the activity is implemented.

(Pub. L. 116–188, title II, § 207, Oct. 30, 2020, 134 Stat. 934.)

§ 8208. Interagency operational plan

Not later than 1 year after October 30, 2020, and every 5 years thereafter, the Director, in cooperation with the National Oceanic and Atmospheric Administration Assistant Administrator, the Environmental Protection Agency Assistant Administrator, the Director of the United States Geological Survey, and the heads of other appropriate Federal departments and agencies (including, at a minimum, those agencies represented on the Board) shall develop an interagency operational plan that describes—

(1) the functional, operational, technical, scientific, and general staff, administrative, and material needs for the implementation of this chapter; and

(2) any interagency agreements between or among Federal departments and agencies to address those needs.

(Pub. L. 116–188, title II, § 208, Oct. 30, 2020, 134 Stat. 935.)

§ 8209. Accountability and reporting

(a) Reporting

(1) In general

(2) ContentsEach report submitted under paragraph (1) shall include—

(A) an estimate of the number of acres, stream miles, or acre-feet, or other suitable measures of fish habitat, that was maintained or improved by Partnerships under this chapter during the 5-year period ending on the date of submission of the report;

(B) a description of the public access to fish habitats established or improved under this chapter during that 5-year period;

(D) an assessment of the status of fish habitat conservation projects carried out with funds provided under this chapter during that period, disaggregated by year, including—

(i) a description of the fish habitat conservation projects recommended by the Board under section 8205(b) of this title;

(ii) a description of each fish habitat conservation project approved by the Secretary under section 8205(f) of this title, in order of priority for funding;

(iii) a justification for—(I) the approval of each fish habitat conservation project; and(II) the order of priority for funding of each fish habitat conservation project;

(iv) a justification for any rejection of a fish habitat conservation project recommended by the Board under section 8205(b) of this title that was based on a factor other than the criteria described in section 8205(c) of this title; and

(v) an accounting of expenditures by Federal, State, or local governments, Indian Tribes, or other entities to carry out fish habitat conservation projects under this chapter.

(b) Status and trends reportNot later than December 31, 2021, and every 5 years thereafter, the Board shall submit to the appropriate congressional committees a report that includes—

(1) a status of all Partnerships designated under this chapter;

(2) a description of the status of fish habitats in the United States as identified by designated Partnerships; and

(3) enhancements or reductions in public access as a result of—

(A) the activities of the Partnerships; or

(B) any other activities carried out pursuant to this chapter.

(Pub. L. 116–188, title II, § 209, Oct. 30, 2020, 134 Stat. 935.)

§ 8210. Effect of this chapter

(a) Water rights

Nothing in this chapter—

(1) establishes any express or implied reserved water right in the United States for any purpose;

(2) affects any water right in existence on October 30, 2020;

(3) preempts or affects any State water law or interstate compact governing water; or

(4) affects any Federal or State law in existence on October 30, 2020, regarding water quality or water quantity.

(b) Authority to acquire water rights or rights to property

Nothing in this chapter—

(1) affects the authority, jurisdiction, or responsibility of a State to manage, control, or regulate fish and wildlife under the laws and regulations of the State; or

(2) authorizes the Secretary to control or regulate within a State the fishing or hunting of fish and wildlife.

(d) Effect on Indian Tribes

Nothing in this chapter abrogates, abridges, affects, modifies, supersedes, or alters any right of an Indian Tribe recognized by treaty or any other means, including—

(1) an agreement between the Indian Tribe and the United States;

(2) Federal law (including regulations);

(3) an Executive order; or

(4) a judicial decree.

(e) Adjudication of water rights

(f) Department of Commerce authority

(g) Effect on other authorities

(1) Private property protection

(2) Mitigation

Nothing in this chapter authorizes the use of funds made available to carry out this chapter for fish and wildlife mitigation purposes under—

(A) the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.);

(B) the Fish and Wildlife Coordination Act (16 U.S.C. 661 et seq.);

(D) any other Federal law or court settlement.

(3) Clean Water Act

(Pub. L. 116–188, title II, § 210, Oct. 30, 2020, 134 Stat. 936.)

§ 8211. Nonapplicability of Federal Advisory Committee Act

The Federal Advisory Committee Act (5 U.S.C. App.) 1

1 See References in Text note below.

shall not apply to—

(1) the Board; or

(2) any Partnership.

(Pub. L. 116–188, title II, § 211, Oct. 30, 2020, 134 Stat. 937.)

§ 8212. Funding

(a) Authorization of appropriations

(1) Fish habitat conservation projects

(2) Administrative and planning expensesThere is authorized to be appropriated to the Secretary for each of fiscal years 2021 through 2025 an amount equal to 5 percent of the amount appropriated for the applicable fiscal year pursuant to paragraph (1)—

(A) for administrative and planning expenses under this chapter; and

(B) to carry out section 8209 of this title.

(3) Technical and scientific assistanceThere is authorized to be appropriated for each of fiscal years 2021 through 2025 to carry out, and provide technical and scientific assistance under, section 8206 of this title—

(A) $400,000 to the Secretary for use by the United States Fish and Wildlife Service;

(B) $400,000 to the National Oceanic and Atmospheric Administration Assistant Administrator for use by the National Oceanic and Atmospheric Administration;

(C) $400,000 to the Environmental Protection Agency Assistant Administrator for use by the Environmental Protection Agency;

(D) $400,000 to the Secretary for use by the United States Geological Survey; and

(E) $400,000 to the Secretary of Agriculture, acting through the Chief of the Forest Service, for use by the Forest Service.

(b) Agreements and grantsThe Secretary may—

(1) on the recommendation of the Board, and notwithstanding sections 6304 and 6305 of title 31 and the Federal Financial Assistance Management Improvement Act of 1999 (31 U.S.C. 6101 note; Public Law 106–107), enter into a grant agreement, cooperative agreement, or contract with a Partnership or other entity to provide funds authorized by this chapter for a fish habitat conservation project or restoration or enhancement project;

(2) apply for, accept, and, subject to the availability of appropriations, use a grant from any individual or entity to carry out the purposes of this chapter; and

(3) subject to the availability of appropriations, make funds authorized by this Act available to any Federal department or agency for use by that department or agency to provide grants for any fish habitat protection project, restoration project, or enhancement project that the Secretary determines to be consistent with this chapter.

(1) In generalThe Secretary may—

(A) enter into an agreement with any organization described in section 501(c)(3) of title 26 that is exempt from taxation under section 501(a) of title 26 to solicit private donations to carry out the purposes of this chapter; and

(B) accept donations of funds, property, and services to carry out the purposes of this chapter.

(2) TreatmentA donation accepted under this chapter—

(A) shall be considered to be a gift or bequest to, or otherwise for the use of, the United States; and

(B) may be—

(i) used directly by the Secretary; or

(ii) provided to another Federal department or agency through an interagency agreement.

(Pub. L. 116–188, title II, § 212, Oct. 30, 2020, 134 Stat. 937.)

§ 8213. Prohibition against implementation of regulatory authority by Federal agencies through partnerships

Any Partnership designated under this chapter—

(1) shall be for the sole purpose of promoting fish conservation; and

(2) shall not be used to implement any regulatory authority of any Federal agency.

(Pub. L. 116–188, title II, § 213, Oct. 30, 2020, 134 Stat. 938.)