S. 3552 (110th): National Fish Habitat Conservation Act

110th Congress, 2007–2009. Text as of Sep 24, 2008 (Introduced).

Status & Summary | PDF | Source: GPO

II

110th CONGRESS

2d Session

S. 3552

IN THE SENATE OF THE UNITED STATES

September 24 (legislative day, September 17), 2008

(for himself, Mr. Bond, Mr. Voinovich, and Mrs. Clinton) introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works

A BILL

To conserve the United States fish and aquatic communities through partnerships that foster fish habitat conservation and improve the quality of life for the people of the United States, and for other purposes.

1.

Short title; table of contents

(a)

Short title

This Act may be cited as the National Fish Habitat Conservation Act.

(b)

Table of contents

The table of contents for this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Findings; purposes.

Sec. 3. Definitions.

Sec. 4. National Fish Habitat Board.

Sec. 5. Fish Habitat Conservation Partnerships.

Sec. 6. Fish habitat conservation projects.

Sec. 7. National Fish Habitat Conservation Partnership Office.

Sec. 8. Conservation of aquatic habitat for fish and other aquatic organisms on Federal land.

Sec. 9. Coordination with States.

Sec. 10. Accountability and reporting.

Sec. 11. Regulations.

Sec. 12. Construction.

Sec. 13. Applicability of Federal Advisory Committee Act.

Sec. 14. Funding.

2.

Findings; purposes

(a)

Findings

Congress makes the following findings:

(1)

Healthy populations of fish and other aquatic organisms depend on the conservation, protection, restoration, and enhancement of aquatic habitats in the United States.

(2)

Aquatic habitats, including wetlands, streams, rivers, lakes, estuaries, coastal and marine ecosystems, and associated riparian upland habitats that buffer those areas from external factors, perform numerous valuable environmental functions which sustain environmental, social, and cultural values, including recycling nutrients, purifying water, attenuating floods, augmenting and maintaining stream flows, recharging ground water, acting as primary producers in the food chain, and providing essential and significant habitat for plants, fish and wildlife, and other dependent species.

(3)

The extensive and diverse aquatic habitat resources of the United States are of enormous significance to the economy of the United States, providing recreation for 44,000,000 anglers, more than 1,000,000 jobs and approximately $125,000,000,000 in economic impact each year related to recreational fishing, and approximately 500,000 jobs and an additional $35,000,000,000 in economic impact from commercial fishing each year.

(4)

At least 40 percent of all threatened and endangered species in the United States are directly dependent upon aquatic habitats.

(5)

Certain fish species are considered to be ecological indicators of aquatic habitat quality, such that the presence of such species in an aquatic ecosystem reflects high-quality habitat for other fish.

(6)

Loss and degradation of aquatic habitat, riparian habitat, water quality, and water volume caused by activities such as alteration of watercourses, stream blockages, water withdrawals and diversions, erosion, pollution, sedimentation, and destruction or modification of wetlands have caused significant declines in fish populations throughout the United States, especially declines in native fish populations, and result in economic losses to the United States.

(7)

Providing for the conservation and sustainability of fish and other aquatic organisms has not been fully realized despite federally funded fish and wildlife restoration programs and other activities intended to conserve aquatic resources. Such conservation and sustainability may be significantly advanced through a renewed commitment and sustained, cooperative efforts that are complementary to existing fish and wildlife restoration programs and clean water programs.

(8)

The National Fish Habitat Action Plan provides a framework for maintaining and restoring aquatic habitats to ensure perpetuation of populations of fish and other aquatic organisms.

(9)

The United States can achieve significant progress toward providing aquatic habitats for the conservation and restoration of fish and other aquatic organisms through a voluntary, nonregulatory, incentive program that is based on technical and financial assistance provided by the Federal Government.

(10)

Creation of partnerships between local citizens, Indian tribes, Alaska Native organizations, corporations, nongovernmental organizations, and Federal, State, and Indian tribal agencies is critical to the success of activities to restore aquatic habitats and ecosystems.

(11)

The Federal Government has numerous regulatory and land and water management agencies, including the United States Fish and Wildlife Service, the Bureau of Land Management, the National Park Service, the Bureau of Reclamation, the Bureau of Indian Affairs, the National Marine Fisheries Service, the Forest Service, the Fishery Management Councils, the Environmental Protection Agency, and the several interjurisdictional fishery commissions that are critical to the implementation of the National Fish Habitat Action Plan.

(12)

The United States Fish and Wildlife Service, the Forest Service, and the National Marine Fisheries Service each play a vital role in the protection, restoration, and enhancement of the fish communities and aquatic habitats in the United States and the development, operation, and long-term success of fish habitat partnerships and project implementation.

(13)

The United States Geological Survey plays a vital role in scientific evaluation, data collection, and mapping for fishery resources in the United States.

(14)

Many of the programs for conservation on private farmland, ranchland, and forestland that are carried out by the Secretary of Agriculture, including the Natural Resources Conservation Service and the State and Private Forestry programs of the Forest Service, are able to significantly contribute to the implementation of the National Fish Habitat Action Plan through the engagement of private landowners.

(b)

Purposes

The purposes of this Act are to encourage partnerships among public agencies and other interests consistent with the mission and goals of the National Fish Habitat Action Plan—

(1)

to protect and maintain intact and healthy aquatic habitats;

(2)

to prevent further degradation of aquatic 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 aquatic habitats that support a broad natural diversity of fish and other aquatic species;

(5)

to improve fisheries habitat, thereby improving the annual economic output from recreational, subsistence, and commercial fishing;

(6)

to ensure coordination and facilitation of activities carried out by agencies or departments of the United States under the leadership of the Director of the United States Fish and Wildlife Service, the Under Secretary for Oceans and Atmosphere of the Department of Commerce, and the Director of the United States Geological Survey; and

(7)

to achieve other purposes in accordance with the mission and goals of the National Fish Habitat Action Plan.

3.

Definitions

In this Act:

(1)

Appropriate congressional committees

The term appropriate congressional committees means the Committee on Commerce, Science and Transportation and the Committee on Environment and Public Works of the Senate and the Committee on Natural Resources of the House of Representatives.

(2)

Aquatic habitat

The term aquatic habitat

(A)

means any area upon which aquatic organisms depend, directly or indirectly, to carry out the life processes of such organisms, including an area used by such organisms for spawning, incubation, nursery, rearing, growth to maturity, food supply, or migration; and

(B)

includes an area adjacent to an aquatic environment if such adjacent area—

(i)

contributes elements, such as the input of detrital material or the promotion of planktonic and insect populations providing food, which make fish life possible;

(ii)

protects the quality and quantity of water sources;

(iii)

provides public access for the use of fishery resources; or

(iv)

serves as a buffer protecting the aquatic environment.

(3)

Assistant Administrator

The term Assistant Administrator means the Assistant Administrator for Fisheries of the National Marine Fisheries Service.

(4)

Conservation; conserve; manage; management

The terms conservation, conserve, manage, and management mean to protect, sustain and, where appropriate, restore and enhance, healthy populations of fish, wildlife, and plant life, as well as the habitats that are required to sustain fish, wildlife, and plant life, as well as the habitats that are required to sustain fish, wildlife, and plant life productivity by utilizing methods and procedures associated with modern scientific resource programs, including protection, research, census, law enforcement, habitat management, propagation, live trapping and transplantation, and regulated taking.

(5)

Director

Except as otherwise provided, the term Director means the Director of the United States Fish and Wildlife Service.

(6)

Fish

The term fish means any freshwater, diadromous, estuarine, or marine finfish or shellfish, including the egg, spawn, spat, larval, and other juvenile stages of such an organism.

(7)

Fish Habitat Conservation Partnership; Partnership

The terms Fish Habitat Conservation Partnership and Partnership mean an entity designated by the Board as a Fish Habitat Conservation Partnership pursuant to section 5(c).

(8)

Fish habitat conservation project; project

The terms fish habitat conservation project and project mean a project submitted to the Board by a Fish Habitat Conservation Partnership and approved by the Secretary under section 6 that provides for the conservation or management of aquatic habitat and that may include—

(A)

the provision of technical assistance to a State, Indian tribe, or local community by the National Fish Habitat Partnerships Office or other agency to facilitate the development of strategies and priorities for the conservation of aquatic habitats; or

(B)

the obtaining of a real property interest in land or waters, including water rights, if the obtaining of such interest is subject to terms and conditions that will ensure that the real property will be administered for the long-term conservation of such lands and waters and the fish dependent thereon.

(9)

Indian tribe

The term Indian tribe has the meaning given the term in section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450b).

(10)

National Fish Habitat Action Plan; Plan

The terms National Fish Habitat Action Plan and Plan mean the National Fish Habitat Action Plan dated April 24, 2006, and any subsequent revision or amendment to that Plan.

(11)

National Fish Habitat Board; Board

Except as otherwise provided, the terms National Fish Habitat Board and Board mean the National Fish Habitat Board established in section 4(a).

(12)

Real property interest

The term real property interest means an ownership interest in land or waters, including water rights, or a building or object that is permanently affixed to the land.

(13)

Secretary

The term Secretary means the Secretary of the Interior.

(14)

State agency

The term State agency means the fish and wildlife agency of a State, or any department, or division of a department or agency of a State that is empowered by statute or by the constitution of the State to manage in the public trust the inland or marine fishery resources of the State.

4.

National Fish Habitat Board

(a)

Establishment

(1)

In general

There is established a National Fish Habitat Board—

(A)

to promote, oversee, and coordinate the implementation of this Act and the National Fish Habitat Action Plan; and

(B)

to review and recommend fish habitat conservation projects.

(2)

Membership

The members of the Board shall be as follows:

(A)

The Director.

(B)

The Assistant Administrator.

(C)

The Chief of the Natural Resources Conservation Service.

(D)

The Director of the Watershed, Fish, Wildlife, Air & Rare Plants program of the Forest Service.

(E)

The Assistant Administrator for Water of the Environmental Protection Agency.

(F)

The President of the Association of Fish and Wildlife Agencies.

(G)

The Secretary of the Board of Directors of the National Fish and Wildlife Foundation appointed pursuant to section 3(g)(2)(B) of the National Fish and Wildlife Foundation Establishment Act (16 U.S.C. 3702(g)(2)(B)).

(H)

Four representatives of State agencies, each 1 of whom is nominated by 1 of the regions Associations of Fish and Wildlife Agencies (Northeast, Southeast, Midwest, and Western).

(I)

One representative of the American Fisheries Society.

(J)

Two representatives of Indian tribes, 1 of whom shall represent Indian tribes from Alaska and 1 of whom shall represent Indian tribes from the other States.

(K)

One member who represents the Regional Fishery Management Councils established under section 302 of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1852).

(L)

One member who represents the Marine Fisheries Commissions (the Atlantic States Marine Fisheries Commission, the Gulf States Marine Fisheries Commission, and the Pacific States Marine Fisheries Commission).

(M)

One representative from the Sportfishing and Boating Partnership Council.

(N)

Eleven members each of whom represents the interests of 1 of the following:

(i)

The recreational sportfishing industry.

(ii)

The commercial sportfishing industry.

(iii)

Subsistence fishermen.

(iv)

Marine recreational anglers.

(v)

Freshwater recreational anglers.

(vi)

Terrestrial resource conservation organizations.

(vii)

Aquatic resource conservation organizations.

(viii)

The livestock and poultry production industry.

(ix)

The housing development industry.

(x)

The row crop industry.

(xi)

Natural resource commodity interests, such as petroleum or mineral extraction.

(3)

Compensation

Members of the Board shall serve without compensation for that service.

(b)

Appointment and terms

(1)

In general

Except as otherwise provided in this subsection, a member of the Board described in subparagraphs (H) through (N) of subsection (a)(2) shall serve for a term of 3 years.

(2)

Initial board membership

Not later than 6 months after the date of the enactment of this Act, the representatives of the National Fish Habitat Board established by the Plan shall appoint the initial members of the Board described in subparagraphs (H) through (N) of subsection (a)(2).

(3)

Transitional terms

The initial appointments of the members of the Board described in subparagraph (N) of subsection (a)(2) shall be for terms as follows:

(A)

Four shall be appointed for a term of 1 year.

(B)

Four shall be appointed for a term of 2 years.

(C)

Three shall be appointed for a term of 3 years.

(4)

Vacancies

A vacancy of a member of the Board described in subparagraphs (H) through (N) of subsection (a)(2) shall be filled by an appointment made by the remaining members of the Board.

(5)

Continuation of service

An individual whose term of service as a member of the Board expires may continue to serve on the Board until a successor is appointed.

(6)

Removal

If a member of the Board described in subparagraphs (H) through (N) of subsection (a)(2) misses 3 consecutive regularly scheduled Board meetings, the members of the Board may vote to remove that member and appoint another individual in accordance with paragraph (4).

(c)

Chair

(1)

Election

A Chair of the Board shall be elected by the Board from among its members.

(2)

Term

The Chair of the Board shall serve for a term of 3 years.

(d)

Meetings

(1)

In general

The Board shall meet at the call of the Chair but in no case less often than twice a year.

(2)

Public access

All meetings of the Board shall be open to the public.

(e)

Board procedures

(1)

In general

The Board shall establish procedures to carry out the business of the Board that include the following:

(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 2/3 of all members present and voting.

(C)

Procedures for setting national goals and priorities for aquatic habitat conservation for the purposes of this Act.

(D)

Procedures for designating Fish Habitat Conservation Partnerships under section 5.

(E)

Procedures for reviewing, evaluating, and recommending fish habitat conservation projects.

(2)

Quorum

A majority of the members of the Board shall constitute a quorum.

5.

Fish Habitat Conservation Partnerships

(a)

Authority To designate

The Board is authorized to designate Fish Habitat Conservation Partnerships.

(b)

Application

An entity seeking to be designated as a Fish Habitat Conservation Partnership shall submit an application to the Board at such time and in such manner as the Board may reasonably require.

(c)

Purposes

The purposes of a Partnership shall be—

(1)

to coordinate implementation of the Plan at a regional level; and

(2)

to develop and carry out fish habitat conservation projects.

(d)

Approval

The Board may approve an application for a Partnership submitted under subsection (b) if the Board determines that the applicant—

(1)

includes representatives of a diverse group of public and private partners, including Federal, State, or local governments, nonprofit entities, Indian tribes, or private individuals, that are focused on conservation of aquatic habitats to achieve results across jurisdictional boundaries and public and private lands;

(2)

is organized to promote the health of important aquatic habitats and distinct geographic areas, keystone fish species, or system types, including reservoirs, natural lakes, or estuaries;

(3)

identifies strategic fish and aquatic habitat priorities for the Partnership area in the form of geographic focus areas or key stressors or impairments to facilitate strategic planning and decisionmaking;

(4)

is able to address issues and priorities at a nationally significant scale;

(5)

includes governance structures that reflect the range of all partners and promotes joint strategic planning and decisionmaking by the applicant;

(6)

demonstrates completion of, or significant progress toward the development of, a strategic plan to address the causes of system decline in fish populations rather than simply treating symptoms in accordance with the Plan; and

(7)

ensures collaboration in developing a strategic vision and implementation program that is scientifically sound and achievable.

6.

Fish habitat conservation projects

(a)

Submission to the Board

A Partnership seeking funding for a fish habitat conservation project shall submit an application to the Board for such funding at such time and in such manner as the Board may reasonably require.

(b)

Recommendations by the Board

Not later than July 1 of each year, the Board shall submit to the Secretary a description, including estimated costs, of each fish habitat conservation project that the Board recommends that the Secretary approve and fund under this Act, in order of priority of the Board's recommendations, for the following fiscal year.

(c)

Considerations

The Board shall select each project to be recommended to the Secretary under subsection (b)—

(1)

based on a recommendation of the Partnership that is, or that will be, participating actively in carrying out the project; and

(2)

after consideration of—

(A)

the extent to which the project fulfills a purpose of this Act or a goal of the Plan;

(B)

the extent to which the project addresses the national priorities set by the Board;

(C)

the availability of sufficient non-Federal funds to match Federal contributions for the project, as required by subsection (e);

(D)

the extent to which the project—

(i)

increases fishing opportunities for the public;

(ii)

will be carried out through a cooperative agreement among Federal, State, and local governments, Indian tribes, and private entities;

(iii)

increases public access to land and waters; and

(iv)

advances the conservation of fish and wildlife species that are listed, or are candidates to be listed, as threatened species and endangered species under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.); and

(E)

the substantiality of the character and design of the project.

(d)

Limitations

(1)

Requirements for monitoring

No fish habitat conservation project may be recommended by the Board under subsection (b) or provided financial assistance under this Act unless the project includes a monitoring plan designed to—

(A)

appropriately assess the results of the habitat protection, restoration, or enhancement activities carried out with such assistance;

(B)

recommend appropriate changes to the project if such assessment substantiates that the project objectives are not being met; and

(C)

report findings of such assessment to the Board.

(2)

Acquisition of real property interests

(A)

In general

No fish habitat conservation project that will result in the acquisition by the Secretary, in whole or in part, of any real property interest may be recommended by the Board under subsection (b) or provided financial assistance under this Act unless the project meets the requirements of subparagraph (B).

(B)

Requirements

(i)

In general

Any real property interest described in subparagraph (A) may not be conveyed to a State, another public agency, or other entity unless—

(I)

the Secretary determines that such State, agency, or other entity is obligated to undertake the management of the property being conveyed in accordance with the purposes of this Act; and

(II)

the deed or other instrument of transfer contains provisions for the reversion of title to the property to the United States if such State, agency, or other entity fails to manage the property in accordance with the purposes of this Act.

(ii)

Additional conveyance conditions

Any real property interest described in subparagraph (A) conveyed as described in clause (i) shall be subject to such terms and conditions that will ensure that the interest will be administered for the long-term conservation and management of the aquatic ecosystem and the fish and wildlife dependent thereon.

(e)

Non-Federal contribution for projects

(1)

In general

Except as provided in paragraph (2), no fish habitat conservation project may be recommended by the Board under subsection (b) or provided financial assistance under this Act unless at least 50 percent of the cost of the project will be funded with non-Federal funds.

(2)

Projects on Federal land or waters

Notwithstanding paragraph (1), Federal funds may be used for payment of 100 percent of the costs of a project located on Federal land or waters, including the acquisition of inholdings within such land and waters.

(3)

Non-Federal share

The non-Federal share of the cost of a project may not be derived from a Federal grant program, but may include in-kind contributions and cash.

(4)

Special rule for Alaska Native organizations

Notwithstanding paragraph (1) or any other provision of law, any funds made available to an Indian tribe pursuant to this Act may be considered non-Federal funds for the purpose of paragraph (1).

(f)

Consideration by the Secretary

(1)

In general

Not later than 180 days after receiving the recommendations of the Board for fish habitat conservation projects under subsection (b), the Secretary shall approve, reject, or reorder the priority of each such recommendation based on, to the greatest extent practicable, the criteria described in subsection (c).

(2)

Funding

If the Secretary approves a project, the Secretary shall use amounts made available pursuant to an authorization of appropriations in this Act to provide funds to carry out the project.

(3)

Notification by the Secretary

If the Secretary rejects or reorders the priority of any project recommended by the Board under subsection (b), the Secretary shall provide to the Board and the appropriate Fish Habitat Conservation Partnership a written statement of the reasons that the Secretary rejected or modified the priority of the project.

7.

National Fish Habitat Conservation Partnership Office

(a)

Requirement To establish

Not later than 1 year after the date of the enactment of this Act, the Director shall create the National Fish Habitat Conservation Partnership Office within the United States Fish and Wildlife Service.

(b)

Functions

The National Fish Habitat Conservation Partnership Office shall—

(1)

provide funding for the operational needs of the Fish Habitat Conservation Partnerships, including funding for activities such as planning, project development and implementation, coordination, monitoring, communication, and outreach;

(2)

facilitate the cooperative development and approval of Partnerships;

(3)

support the development and implementation of fish habitat conservation projects that are identified as high priorities by the Board;

(4)

assist the Secretary and the Board in carrying out this Act;

(5)

assist the Secretary in carrying out the requirements of section 9;

(6)

facilitate communication, cohesiveness, and efficient operations for the benefit of the Partnerships and the Board;

(7)

facilitate, with assistance from the Director, the Assistant Administrator, and the President of the Association of Fish and Wildlife Agencies, the consideration of projects by the Board;

(8)

provide support to the Director in the development and implementation of the interagency operational plan required in subsection (c);

(9)

provide technical and scientific assistance pursuant to the technical and scientific assistance program required by subsection (d); and

(10)

coordinate and facilitate the resources and activities of the agencies and departments of the United States to carry out this Act in an efficient manner.

(c)

Interagency operational plan

Not later than 1 year after the date of the enactment of this Act and every 5 years thereafter, the Director, in cooperation with the Assistant Administrator and the heads of other appropriate Federal agencies and departments, shall develop an interagency operational plan for the National Fish Habitat Conservation Partnership Office that describes—

(1)

the functional, operational, technical, scientific and general staff, administrative, and material needs of the Office; and

(2)

any interagency agreements between or among Federal agencies or departments to address such needs.

(d)

Technical and scientific assistance

The Director, in coordination with the Assistance Administrator and the heads of the United States Geological Survey, the Forest Service, and other appropriate Federal agencies and departments, shall develop a technical and scientific assistance program within the National Fish Habitat Conservation Partnership Office—

(1)

to provide scientific and technical assistance to States, Indian tribes, regions, local communities, and nongovernmental organizations in the development and implementation of Fish Habitat Conservation Partnerships; and

(2)

to ensure the availability of expertise to conduct scientifically based evaluation and reporting of results of fish habitat conservation projects to meet the reporting requirements described in section 10.

(e)

Staff and support

(1)

Departments of the Interior and Commerce

The Director and the Assistant Administrator shall each provide appropriate staff to support the National Fish Habitat Conservation Partnership Office.

(2)

States

The States are encouraged to provide staff to support the National Fish Habitat Conservation Partnership Office.

(3)

Detailees and contractors

The National Fish Habitat Conservation Partnership Office may accept staff or other administrative support from other entities through interagency details or as contractors.

(4)

Qualifications

The members of the staff of the National Fish Habitat Conservation Partnership Office shall have education and experience in the principles of fish, wildlife, and aquatic habitat conservation.

(f)

Reporting

Not less frequently than once each year, the Director shall provide to the Board a report on the activities of the National Fish Habitat Conservation Partnership Office.

8.

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

The head of each Federal agency or department responsible for acquiring, managing, or disposing of Federal land and waters shall, to the extent consistent with the mission of such agency or department and existing statutory authorities, cooperate with the Assistant Administrator and the Director to conserve the aquatic habitats for fish and other aquatic organisms within the land and waters of each such agency.

9.

Coordination with States

The Secretary shall notify and coordinate with the State agency of a State not later than 30 days prior to the date that any action is planned or carried out within the State related to the implementation of this Act.

10.

Accountability and reporting

(a)

Implementation reports

(1)

Requirement for reports

Not later than 2 years after the date of the enactment of this Act, and every 2 years thereafter, the Board shall submit to the appropriate congressional committees a report on the implementation of this Act and of the Plan.

(2)

Content

Each report submitted under paragraph (1) shall include—

(A)

an estimate of the number of acres, stream miles, or acre feet of aquatic habitat, or other suitable measures of aquatic habitat, that was protected, restored, or enhanced under the Plan by Federal, State, or local governments, Indian tribes, or other entities in the United States during the previous 2-year period;

(B)

a description of the public access to aquatic habitats protected, restored, or created under the Plan during such period;

(C)

a description of the opportunities for public fishing created under the Plan during such period; and

(D)

an assessment of the status of fish habitat conservation projects carried out with funds provided under this Act, disaggregated by year, including—

(i)

a description of the fish habitat conservation projects that the Board recommended under section 6(b);

(ii)

a description of each such project approved by the Secretary under section 6(f), in order of priority of receiving such funding;

(iii)

a justification for the approval of each such project and for the order of priority for its funding;

(iv)

a justification for any rejection or reordering of the priority of each such project recommended by the Board under section 6(b) that was based on factors other than the criteria set out in section 6(c); and

(v)

an accounting of expenditures by Federal, State, or local governments, Indian tribes, or other entities in the United States to carry out such projects.

(b)

Status and trends report

Not later than December 31, 2010, and every 5 years thereafter, the Board shall submit to the appropriate congressional committees a report on the status of aquatic habitats in the United States.

(c)

Revisions to the plan

Not later than December 31, 2011, and every 5 years thereafter, the Board shall undertake to revise the goals and other elements of the Plan after consideration of each report required by subsection (b).

11.

Regulations

The Secretary may promulgate regulations to carry out this Act.

12.

Construction

(a)

Water rights

(1)

In general

Nothing in this Act may be construed—

(A)

to create a reserved water right, expressed or implied, in the United States for any purpose or to affect any water right in existence on the date of the enactment of this Act; or

(B)

to affect any Federal or State law in existence on the date of the enactment of the Act regarding water quality or water quantity.

(2)

Authority to acquire water rights

The Secretary may acquire, under State law, water rights that are needed to carry out this Act.

(b)

State authority

Nothing in this Act may be construed—

(1)

to affect 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)

to authorize the Secretary to control or regulate within a State the fishing or hunting of fish and wildlife within the State.

(c)

Construction with respect to rights of Indian tribes

Nothing in this Act may be construed to abrogate, abridge, affect, modify, supersede, or alter any treaty-reserved right or other right of an Indian tribe as recognized by any other means, including agreements with the United States, Federal law, Executive orders, statutes, and judicial decrees.

(d)

Construction with respect to suits for adjudication of water rights

Nothing in this Act diminishes or affects the ability of the Secretary to join an adjudication of rights to the use of water pursuant to subsections (a), (b), and (c) of section 208 of the Department of Justice Appropriation Act (43 U.S.C. 666).

(e)

Construction with respect to other authorities

(1)

Acquisition of lands and waters

Nothing in this Act may be construed to affect, alter, or modify the authorities, responsibilities, obligations, or powers of the Secretary to acquire land or waters or interests therein under any other provision of law.

(2)

Private property protection

Nothing in this Act may be construed to permit funds made available to carry out this Act to be used to acquire any real property or any interest in any real property without the written consent of each owner of that property or interest in property.

(3)

Mitigation

Nothing in this Act may be construed to permit funds made available to carry out this Act to be used for fish and wildlife mitigation purposes under the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.), the Fish and Wildlife Coordination Act (16 U.S.C. 661 et seq.), or the Water Resources Development Act of 1986 (Public Law 99–662; 100 Stat. 4082).

13.

Applicability of Federal Advisory Committee Act

Any action taken to coordinate the carrying out of this Act with the personnel of a State agency shall not be subject to the Federal Advisory Committee Act (5 U.S.C. App).

14.

Funding

(a)

Authorization of appropriations

(1)

Fish habitat conservation projects

There are authorized to be appropriated to the Secretary for each of the fiscal years 2009 through 2013, $75,000,000 to provide funds for fish habitat conservation projects approved under section 6(f), of which 5 percent shall be made available each fiscal year for projects carried out by Indian tribes.

(2)

National Fish Habitat Conservation Partnership Office

There are authorized to be appropriated to the Secretary for each of the fiscal years 2009 through 2013, $3,000,000 or 25 percent of the amount appropriated for each such fiscal year pursuant to paragraph (1), whichever is greater, for the National Fish Habitat Conservation Partnership Office.

(3)

Planning, reporting, and administrative expenses

There are authorized to be appropriated to the Secretary for each of the fiscal years 2009 through 2013, $300,000 or 4 percent of the amount appropriated for each such year under paragraph (1), whichever is greater, for the Board, the Director, and the Assistant Administrator to utilize for planning and administrative expenses, and to carry out section 10.

(4)

Availability of funds

Funds made available pursuant to this subsection shall remain available until expended.

(b)

Agreements and grants

The Secretary may—

(1)

upon the recommendation of the Board, and notwithstanding sections 6304 and 6305 of title 31, United States Code, or the Federal Financial Assistance Management Improvement Act of 1999 (Public Law 106–107; 31 U.S.C. 6101 note) enter into a cooperative agreement or contract with a Fish Habitat Conservation Partnership for fish habitat conservation, restoration, and enhancement projects;

(2)

apply for, accept, and use grants from any person or entity to carry out the purposes of this Act; and

(3)

make funds available to any Federal agency or department to be used by that agency or department to award grants for any fish habitat protection, restoration, and enhancement project that the Secretary determines to be consistent with this Act.

(c)

Donations

(1)

In general

The Secretary may—

(A)

enter into an agreement with any organization described in section 501(c)(3) of the Internal Revenue Code of 1986 to solicit private donations to carry out the purposes and policies of this Act; and

(B)

accept donations of funds, property, and services for use in carrying out the purposes and policies of this Act.

(2)

Treatment of donations

Donations accepted under this section shall be considered as gifts or bequests to, or for the use of, the United States and may be used directly by the Secretary or provided to other Federal agencies or departments through interagency agreements.