- TXT
-
PDF
(PDF provides a complete and accurate display of this text.)
Tip
?
109th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 109-237
======================================================================
THREATENED AND ENDANGERED SPECIES RECOVERY ACT OF 2005
_______
September 27, 2005.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Pombo, from the Committee on Resources, submitted the following
R E P O R T
together with
ADDITIONAL AND DISSENTING VIEWS
[To accompany H.R. 3824]
[Including cost estimate of the Congressional Budget Office]
The Committee on Resources, to whom was referred the bill
(H.R. 3824) to amend and reauthorize the Endangered Species Act
of 1973 to provide greater results conserving and recovering
listed species, and for other purposes, having considered the
same, report favorably thereon with an amendment and recommend
that the bill as amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Threatened and
Endangered Species Recovery Act of 2005''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Amendment references.
Sec. 3. Definitions.
Sec. 4. Determinations of endangered species and threatened species.
Sec. 5. Repeal of critical habitat requirements.
Sec. 6. Petitions and procedures for determinations and revisions.
Sec. 7. Reviews of listings and determinations.
Sec. 8. Secretarial guidelines; State comments.
Sec. 9. Recovery plans and land acquisitions.
Sec. 10. Cooperation with States and Indian tribes.
Sec. 11. Interagency cooperation and consultation.
Sec. 12. Exceptions to prohibitions.
Sec. 13. Private property conservation.
Sec. 14. Public accessibility and accountability.
Sec. 15. Annual cost analyses.
Sec. 16. Reimbursement for depredation of livestock by reintroduced
species.
Sec. 17. Authorization of appropriations.
Sec. 18. Miscellaneous technical corrections.
Sec. 19. Clerical amendment to table of contents.
Sec. 20. Certain actions deemed in compliance.
SEC. 2. AMENDMENT REFERENCES.
Except as otherwise expressly provided, whenever in this Act an
amendment or repeal is expressed in terms of an amendment to, or repeal
of, a section or other provision, the reference shall be considered to
be made to such section or other provision of the Endangered Species
Act of 1973 (16 U.S.C. 1531 et seq.).
SEC. 3. DEFINITIONS.
(a) Best Available Scientific Data.--Section 3 (16 U.S.C. 1532) is
amended by redesignating paragraphs (2) through (21) in order as
paragraphs (3), (4), (5), (6), (7), (8), (9), (10), (11), (13), (14),
(15), (16), (17), (18), (19), (20), (21), and (22), respectively, and
by inserting before paragraph (3), as so redesignated, the following:
``(2)(A) The term `best available scientific data' means scientific
data, regardless of source, that are available to the Secretary at the
time of a decision or action for which such data are required by this
Act and that the Secretary determines are the most accurate, reliable,
and relevant for use in that decision or action.
``(B) Not later than one year after the date of the enactment of the
Threatened and Endangered Species Recovery Act of 2005, the Secretary
shall issue regulations that establish criteria that must be met to
determine which data constitute the best available scientific data for
purposes of subparagraph (A).
``(C) If the Secretary determines that data for a decision or action
do not comply with the criteria established by the regulations issued
under subparagraph (B), do not comply with guidance issued under
section 515 of the Treasury and General Government Appropriations Act,
2001 (Public Law 106-554; 114 Stat. 2763A-171) by the Director of the
Office of Management and Budget and the Secretary, do not consist of
any empirical data, or are found in sources that have not been subject
to peer review in a generally acceptable manner--
``(i) the Secretary shall undertake the necessary measures to
assure compliance with such criteria or guidance; and
``(ii) the Secretary may--
``(I) secure such empirical data;
``(II) seek appropriate peer review; and
``(III) reconsider the decision or action based on
any supplemental or different data provided or any peer
review conducted pursuant to this subparagraph.''.
(b) Permit or License Applicant.--Section 3 (16 U.S.C. 1532) is
further amended by amending paragraph (13), as so redesignated, to read
as follows:
``(13) The term `permit or license applicant' means, when used with
respect to an action of a Federal agency that is subject to section
7(a) or (b), any person that has applied to such agency for a permit or
license or for formal legal approval to perform an act.''.
(c) Jeopardize the Continued Existence.--Section 3 (16 U.S.C. 1532)
is further amended by inserting after paragraph (11) the following:
``(12) The term `jeopardize the continued existence' means, with
respect to an agency action (as that term is defined in section
7(a)(2)), that the action reasonably would be expected to significantly
impede, directly or indirectly, the conservation in the long-term of
the species in the wild.''.
(d) Conforming Amendment.--Section 7(n) (16 U.S.C. 1536(n)) is
amended by striking ``section 3(13)'' and inserting ``section 3(14)''.
SEC. 4. DETERMINATIONS OF ENDANGERED SPECIES AND THREATENED SPECIES.
(a) Requirement to Make Determinations.--Section 4 (16 U.S.C. 1533)
is amended by striking so much as precedes subsection (a)(3) and
inserting the following:
``determination of endangered species and threatened species
``Sec. 4. (a) In General.--(1) The Secretary shall by regulation
promulgated in accordance with subsection (b) determine whether any
species is an endangered species or a threatened species because of any
of the following factors:
``(A) The present or threatened destruction, modification, or
curtailment of its habitat or range by human activities,
competition from other species, drought, fire, or other
catastrophic natural causes.
``(B) Overutilization for commercial, recreational,
scientific, or educational purposes.
``(C) Disease or predation.
``(D) The inadequacy of existing regulatory mechanisms,
including any efforts identified pursuant to subsection (b)(1).
``(E) Other natural or manmade factors affecting its
continued existence.
``(2) The Secretary shall use the authority provided by paragraph (1)
to determine any distinct population of any species of vertebrate fish
or wildlife to be an endangered species or a threatened species only
sparingly.''.
(b) Basis for Determination.--Section 4(b)(1)(A) (16 U.S.C.
1533(b)(1)(A)) is amended--
(1) by striking ``best scientific and commercial data
available to him'' and inserting ``best available scientific
data''; and
(2) by inserting ``Federal agency, any'' after ``being made
by any''.
(c) Lists.--Section 4(c)(2) (16 U.S.C. 1533(c)(2)) is amended to read
as follows:
``(2)(A) The Secretary shall--
``(i) conduct, at least once every 5 years, based on
the information collected for the biennial reports to
the Congress required by paragraph (3) of subsection
(f), a review of all species included in a list that is
published pursuant to paragraph (1) and that is in
effect at the time of such review; and
``(ii) determine on the basis of such review and any
other information the Secretary considers relevant
whether any such species should--
``(I) be removed from such list;
``(II) be changed in status from an
endangered species to a threatened species; or
``(III) be changed in status from a
threatened species to an endangered species.
``(B) Each determination under subparagraph (A)(ii) shall be
made in accordance with subsections (a) and (b).''.
SEC. 5. REPEAL OF CRITICAL HABITAT REQUIREMENTS.
(a) Repeal of Requirement.--Section 4(a) (16 U.S.C. 1533(a)) is
amended by striking paragraph (3).
(b) Conforming Amendments.--
(1) Section 3 (16 U.S.C. 1532), as amended by section 3 of
this Act, is further amended by striking paragraph (6) and by
redesignating paragraphs (7) through (22) in order as
paragraphs (6) through (21).
(2) Section 4(b) (16 U.S.C. 1533(b)), as otherwise amended by
this Act, is further amended by striking paragraph (2), and by
redesignating paragraphs (3) through (8) in order as paragraphs
(2) through (7), respectively.
(3) Section 4(b) (16 U.S.C. 1533(b)) is further amended in
paragraph (2), as redesignated by paragraph (2) of this
subsection, by striking subparagraph (D).
(4) Section 4(b) (16 U.S.C. 1533(b)) is further amended in
paragraph (4), as redesignated by paragraph (2) of this
subsection, by striking ``determination, designation, or
revision referred to in subsection (a)(1) or (3)'' and
inserting ``determination referred to in subsection (a)(1)''.
(5) Section 4(b) (16 U.S.C. 1533(b)) is further amended in
paragraph (7), as redesignated by paragraph (2) of this
subsection, by striking ``; and if such regulation'' and all
that follows through the end of the sentence and inserting a
period.
(6) Section 4(c)(1) (16 U.S.C. 1533(c)(1)) is amended--
(A) in the second sentence--
(i) by inserting ``and'' after ``if any'';
and
(ii) by striking ``, and specify any'' and
all that follows through the end of the
sentence and inserting a period; and
(B) in the third sentence by striking ``,
designations,''.
(7) Section 5 (16 U.S.C. 1534), as amended by section 9(a)(3)
of this Act, is further amended in subsection (j)(2) by
striking ``section 4(b)(7)'' and inserting ``section 4(b)(6)''.
(8) Section 6(c) (16 U.S.C. 1535(c)), as amended by section
10(1) of this Act, is further amended in paragraph (3) by
striking ``section 4(b)(3)(B)(iii)'' each place it appears and
inserting ``section 4(b)(2)(B)(iii)''.
(9) Section 7 (16 U.S.C. 1536) is amended--
(A) in subsection (a)(2) in the first sentence by
striking ``or result in the destruction or adverse
modification of any habitat of such species'' and all
that follows through the end of the sentence and
inserting a period;
(B) in subsection (a)(4) in the first sentence by
striking ``or result'' and all that follows through the
end of the sentence and inserting a period; and
(C) in subsection (b)(3)(A) by striking ``or its
critical habitat''.
(10) Section 10(j)(2)(C)) (16 U.S.C. 1539(j)(2)(C)), as
amended by section 12(c) of this Act, is further amended--
(A) by striking ``that--'' and all that follows
through ``(i) solely'' and inserting ``that solely'';
and
(B) by striking ``; and'' and all that follows
through the end of the sentence and inserting a period.
SEC. 6. PETITIONS AND PROCEDURES FOR DETERMINATIONS AND REVISIONS.
(a) Treatment of Petitions.--Section 4(b) (16 U.S.C. 1533(b)) is
amended in paragraph (2), as redesignated by section 5(b)(2) of this
Act, by adding at the end of subparagraph (A) the following: ``The
Secretary shall not make a finding that the petition presents
substantial scientific or commercial information indicating that the
petitioned action may be warranted unless the petitioner provides to
the Secretary a copy of all information cited in the petition.''.
(b) Implementing Regulations.--
(1) Proposed regulations.--Section 4(b) (16 U.S.C. 1533(b))
is amended--
(A) in paragraph (4)(A), as redesignated by section
5(b)(2) of this Act--
(i) in clause (i) by striking ``, and'' and
inserting a semicolon;
(ii) in clause (ii) by striking ``to the
State agency in'' and inserting ``to the
Governor of, and the State agency in,'';
(iii) in clause (ii) by striking ``such
agency'' and inserting ``such Governor or
agency'';
(iv) in clause (ii) by inserting ``and''
after the semicolon at the end; and
(v) by adding at the end the following:
``(iii) maintain, and shall make available, a complete record
of all information concerning the determination or revision in
the possession of the Secretary, on a publicly accessible
website on the Internet, including an index to such
information.''; and
(B) by adding at the end the following:
``(8)(A) Information maintained and made available under
paragraph (5)(A)(iii) shall include any status review, all
information cited in such a status review, all information
referred to in the proposed regulation and the preamble to the
proposed regulation, and all information submitted to the
Secretary by third parties.
``(B) The Secretary shall withhold from public review under
paragraph (5)(A)(iii) any information that may be withheld
under 552 of title 5, United States Code.''.
(2) Final regulations.--Paragraph (5) of section 4(b) (16
U.S.C. 1533(b)), as amended by section 5(b)(2) of this Act, is
further amended--
(A) in subparagraph (A) by striking clauses (i) and
(ii) and inserting the following:
``(i) a final regulation to implement such a determination of
whether a species is an endangered species or a threatened
species;
``(ii) notice that such one-year period is being extended
under subparagraph (B)(i); or
``(iii) notice that the proposed regulation is being
withdrawn under subparagraph (B)(ii), together with the finding
on which such withdrawal is based.'';
(B) in subparagraph (B)(i) by striking ``subparagraph
(A)(i)'' and inserting ``subparagraph (A)'';
(C) in subparagraph (B)(ii) by striking
``subparagraph (A)(i)'' and inserting ``subparagraph
(A)''; and
(D) by striking subparagraph (C).
(3) Emergency determinations.--Paragraph (6) of section 4(b)
(16 U.S.C. 1533(b)), as redesignated by section 5(b)(2) of this
Act, is further amended--
(A) in the matter preceding subparagraph (A), by
inserting ``with respect to a determination of a
species to be an endangered species or a threatened
species'' after ``any regulation''; and
(B) in subparagraph (B), by striking ``the State
agency in'' and inserting ``the Governor of, and State
agency in,''.
SEC. 7. REVIEWS OF LISTINGS AND DETERMINATIONS.
Section 4(c) (16 U.S.C. 1533(c)) is amended by inserting at the end
the following:
``(3) Each determination under paragraph (2)(B) shall consider one of
the following:
``(A) Except as provided in subparagraph (B) of this
paragraph, the criteria in the recovery plan for the species
required by section 5(c)(1)(A) or (B).
``(B) If the recovery plan is issued before the criteria
required under section 5(c)(1)(A) and (B) are established or if
no recovery plan exists for the species, the factors for
determination that a species is an endangered species or a
threatened species set forth in subsections (a)(1) and (b)(1).
``(C) A finding of fundamental error in the determination
that the species is an endangered species, a threatened
species, or extinct.
``(D) A determination that the species is no longer an
endangered species or threatened species or in danger of
extinction, based on an analysis of the factors that are the
basis for listing under section 4(a)(1).''.
SEC. 8. SECRETARIAL GUIDELINES; STATE COMMENTS.
Section 4 (16 U.S.C. 1533) is amended--
(1) by striking subsections (f) and (g) and redesignating
subsections (h) and (i) as subsections (f) and (g),
respectively;
(2) in subsection (f), as redesignated by paragraph (1) of
this subsection--
(A) in the heading by striking ``Agency'' and
inserting ``Secretarial'';
(B) in the matter preceding paragraph (1), by
striking ``the purposes of this section are achieved''
and inserting ``this section is implemented'';
(C) by redesignating paragraph (4) as paragraph (5);
(D) in paragraph (3) by striking ``and'' after the
semicolon at the end, and by inserting after paragraph
(3) the following:
``(4) the criteria for determining best available scientific
data pursuant to section 3(2); and''; and
(E) in paragraph (5), as redesignated by subparagraph
(C) of this paragraph, by striking ``subsection (f) of
this section'' and inserting ``section 5'';
(3) in subsection (g), as redesignated by paragraph (1) of
this section--
(A) by inserting ``Comments.--'' before the first
sentence;
(B) by striking ``a State agency'' the first place it
appears and inserting ``a Governor, State agency,
county (or equivalent jurisdiction), or unit of local
government'';
(C) by striking ``a State agency'' the second place
it appears and inserting ``a Governor, State agency,
county (or equivalent jurisdiction), or unit of local
government'';
(D) by striking ``the State agency'' and inserting
``the Governor, State agency, county (or equivalent
jurisdiction), or unit of local government,
respectively''; and
(E) by striking ``agency's''.
SEC. 9. RECOVERY PLANS AND LAND ACQUISITIONS.
(a) In General.--Section 5 (16 U.S.C. 1534) is amended--
(1) by redesignating subsections (a) and (b) as subsections
(k) and (l), respectively;
(2) in subsection (l), as redesignated by paragraph (1) of
this section, by striking ``subsection (a) of this section''
and inserting ``subsection (k)''; and
(3) by striking so much as precedes subsection (k), as
redesignated by paragraph (1) of this section, and inserting
the following:
``recovery plans and land acquisition
``Sec. 5. (a) Recovery Plans.--The Secretary shall, in accordance
with this section, develop and implement a plan (in this subsection
referred to as a `recovery plan') for the species determined under
section 4(a)(1) to be an endangered species or a threatened species,
unless the Secretary finds that such a plan will not promote the
conservation and survival of the species.
``(b) Development of Recovery Plans.--(1) Subject to paragraphs (2)
and (3), the Secretary, in developing recovery plans, shall, to the
maximum extent practicable, give priority to those endangered species
or threatened species, without regard to taxonomic classification, that
are most likely to benefit from such plans, particularly those species
that are, or may be, in conflict with construction or other development
projects or other forms of economic activity.
``(2) In the case of any species determined to be an endangered
species or threatened species after the date of the enactment of the
Threatened and Endangered Species Recovery Act of 2005, the Secretary
shall publish a final recovery plan for a species within 2 years after
the date the species is listed under section 4(c).
``(3)(A) For those species that are listed under section 4(c) on the
date of enactment of the Threatened and Endangered Species Recovery Act
of 2005 and are described in subparagraph (B) of this paragraph, the
Secretary, after providing for public notice and comment, shall--
``(i) not later than 1 year after such date, publish in the
Federal Register a priority ranking system for preparing or
revising such recovery plans that is consistent with paragraph
(1) and takes into consideration the scientifically based needs
of the species; and
``(ii) not later than 18 months after such date, publish in
the Federal Register a list of such species ranked in
accordance with the priority ranking system published under
clause (i) for which such recovery plans will be developed or
revised, and a tentative schedule for such development or
revision.
``(B) A species is described in this subparagraph if--
``(i) a recovery plan for the species is not published under
this Act before the date of enactment of the Threatened and
Endangered Species Recovery Act of 2005 and the Secretary finds
such a plan would promote the conservation and survival of the
species; or
``(ii) a recovery plan for the species is published under
this Act before such date of enactment and the Secretary finds
revision of such plan is warranted.
``(C)(i) The Secretary shall, to the maximum extent practicable,
adhere to the list and tentative schedule published under subparagraph
(A)(ii) in developing or revising recovery plans pursuant to this
paragraph.
``(ii) The Secretary shall provide the reasons for any deviation from
the list and tentative schedule published under subparagraph (A)(ii),
in each report to the Congress under subsection (e).
``(4) The Secretary, using the priority ranking system required under
paragraph (3), shall prepare or revise such plans within 10 years after
the date of the enactment of the Threatened and Endangered Species
Recovery Act of 2005.
``(c) Plan Contents.--(1)(A) Except as provided in subparagraph (E),
a recovery plan shall be based on the best available scientific data
and shall include the following:
``(i) Objective, measurable criteria that, when met, would
result in a determination, in accordance with this section,
that the species to which the recovery plan applies be removed
from the lists published under section 4(c) or be reclassified
from an endangered species to a threatened species.
``(ii) A description of such site-specific or other measures
that would achieve the criteria established under clause (i),
including such intermediate measures as are warranted to effect
progress toward achievement of the criteria.
``(iii) Estimates of the time required and the costs to carry
out those measures described under clause (ii), including, to
the extent practicable, estimated costs for any
recommendations, by the recovery team, or by the Secretary if
no recovery team is selected, that any of the areas identified
under clause (iv) be acquired on a willing seller basis.
``(iv) An identification of those specific areas that are of
special value to the conservation of the species.
``(B) Those members of any recovery team appointed pursuant to
subsection (d) with relevant scientific expertise, or the Secretary if
no recovery team is appointed, shall, based solely on the best
available scientific data, establish the objective, measurable criteria
required under subparagraph (A)(i).
``(C)(i) If the recovery team, or the Secretary if no recovery team
is appointed, determines in the recovery plan that insufficient best
available scientific data exist to determine criteria or measures under
subparagraph (A) that could achieve a determination to remove the
species from the lists published under section 4(c), the recovery plan
shall contain interim criteria and measures that are likely to improve
the status of the species.
``(ii) If a recovery plan does not contain the criteria and measures
provided for by clause (i) of subparagraph (A), the recovery team for
the plan, or by the Secretary if no recovery team is appointed, shall
review the plan at intervals of no greater than 5 years and determine
if the plan can be revised to contain the criteria and measures
required under subparagraph (A).
``(iii) If the recovery team or the Secretary, respectively,
determines under clause (ii) that a recovery plan can be revised to add
the criteria and measures provided for under subparagraph (A), the
recovery team or the Secretary, as applicable, shall revise the
recovery plan to add such criteria and measures within 2 years after
the date of the determination.
``(D) In specifying measures in a recovery plan under subparagraph
(A), a recovery team or the Secretary, as applicable, shall--
``(i) whenever possible include alternative measures; and
``(ii) in developing such alternative measures, the Secretary
shall seek to identify, among such alternative measures of
comparable expected efficacy, the alternative measures that are
least costly.
``(E) Estimates of time and costs pursuant to subparagraph (A)(iii),
and identification of the least costly alternatives pursuant to
subparagraph (D)(ii), are not required to be based on the best
available scientific data.
``(2) Any area that, immediately before the enactment of the
Threatened and Endangered Species Recovery Act of 2005, is designated
as critical habitat of an endangered species or threatened species
shall be treated as an area described in subparagraph (A)(iv) until a
recovery plan for the species is developed or the existing recovery
plan for the species is revised pursuant to subsection (b)(3).
``(d) Recovery Teams.--(1) The Secretary shall promulgate regulations
that provide for the establishment of recovery teams for development of
recovery plans under this section.
``(2) Such regulations shall--
``(A) establish criteria and the process for selecting the
members of recovery teams, and the process for preparing
recovery plans, that ensure that each team--
``(i) is of a size and composition to enable timely
completion of the recovery plan; and
``(ii) includes sufficient representation from
constituencies with a demonstrated direct interest in
the species and its conservation or in the economic and
social impacts of its conservation to ensure that the
views of such constituencies will be considered in the
development of the plan;
``(B) include provisions regarding operating procedures of
and recordkeeping by recovery teams;
``(C) ensure that recovery plans are scientifically rigorous
and that the evaluation of costs required by paragraphs
(1)(A)(iii) and (1)(D) of subsection (c) are economically
rigorous; and
``(D) provide guidelines for circumstances in which the
Secretary may determine that appointment of a recovery team is
not necessary or advisable to develop a recovery plan for a
specific species, including procedures to solicit public
comment on any such determination.
``(3) The Federal Advisory Committee Act (5 App. U.S.C.) shall not
apply to recovery teams appointed in accordance with regulations issued
by the Secretary under this subsection.
``(e) Reports to Congress.--(1) The Secretary shall report every two
years to the Committee on Resources of the House of Representatives and
the Committee on Environment and Public Works of the Senate on the
status of all domestic endangered species and threatened species and
the status of efforts to develop and implement recovery plans for all
domestic endangered species and threatened species.
``(2) In reporting on the status of such species since the time of
its listing, the Secretary shall include--
``(A) an assessment of any significant change in the well-
being of each such species, including--
``(i) changes in population, range, or threats; and
``(ii) the basis for that assessment; and
``(B) for each species, a measurement of the degree of
confidence in the reported status of such species, based upon a
quantifiable parameter developed for such purposes.
``(f) Public Notice and Comment.--The Secretary shall, prior to final
approval of a new or revised recovery plan, provide public notice and
an opportunity for public review and comment on such plan. The
Secretary shall consider all information presented during the public
comment period prior to approval of the plan.
``(g) State Comment.--The Secretary shall, prior to final approval of
a new or revised recovery plan, provide a draft of such plan and an
opportunity to comment on such draft to the Governor of, and State
agency in, any State to which such draft would apply. The Secretary
shall include in the final recovery plan the Secretary's response to
the comments of the Governor and the State agency.
``(h) Consultation to Ensure Consistency With Development Plan.--(1)
The Secretary shall, prior to final approval of a new or revised
recovery plan, consult with any pertinent State, Indian tribe, or
regional or local land use agency or its designee.
``(2) For purposes of this Act, the term `Indian tribe' means--
``(A) with respect to the 48 contiguous States, any federally
recognized Indian tribe, organized band, pueblo, or community; and
``(B) with respect to Alaska, the Metlakatla Indian Community.
``(i) Use of Plans.--(1) Each Federal agency shall consider any
relevant best available scientific data contained in a recovery plan in
any analysis conducted under section 102 of the National Environmental
Policy Act of 1969 (42 U.S.C. 4332).
``(2)(A)(i) The head of any Federal agency may enter into an
agreement with the Secretary specifying the measures the agency will
carry out to implement a recovery plan.
``(ii) Each such agreement shall be published in draft form with
notice and an opportunity for public comment.
``(iii) Each such final agreement shall be published, with responses
by the head of the Federal agency to any public comments submitted on
the draft agreement.
``(B) Nothing in a recovery plan shall be construed to establish
regulatory requirements.
``(j) Monitoring.--(1) The Secretary shall implement a system in
cooperation with the States to monitor effectively for not less than
five years the status of all species that have recovered to the point
at which the measures provided pursuant to this Act are no longer
necessary and that, in accordance with this section, have been removed
from the lists published under section 4(c).
``(2) The Secretary shall make prompt use of the authority under
section 4(b)(7) to prevent a significant risk to the well-being of any
such recovered species.''.
(b) Recovery Plans for Species Occupying More Than One State.--
Section 6 (16 U.S.C. 1535) is amended by adding at the end the
following:
``(j) Recovery Plans for Species Occupying More Than One State.--Any
recovery plan under section 5 for an endangered species or a threatened
species that occupies more than one State shall identify criteria and
actions pursuant to subsection (c)(1) of section 5 for each State that
are necessary so that the State may pursue a determination that the
portion of the species found in that State may be removed from lists
published under section 4(c).''.
(c) Threatened and Endangered Species Incentives Program.--
(1) Agreements authorized.--Section 5 (16 U.S.C. 1534) is
further amended by adding at the end the following:
``(m) Threatened and Endangered Species Incentives Program.--(1) The
Secretary may enter into species recovery agreements pursuant to
paragraph (2) and species conservation contract agreements pursuant to
paragraph (3) with persons, other than agencies or departments of the
Federal Government or State governments, under which the Secretary is
obligated, subject to the availability of appropriations, to make
annual payments or provide other compensation to the persons to
implement the agreements.
``(2)(A) The Secretary and persons who own or control the use of
private land may enter into species recovery agreements with a term of
not less than 5 years that meet the criteria set forth in subparagraph
(B) and are in accordance with the priority established in subparagraph
(C).
``(B) A species recovery agreement entered into under this paragraph
by the Secretary with a person--
``(i) shall require that the person shall carry out, on the
land owned or controlled by the person, activities that--
``(I) protect and restore habitat for covered species
that are species determined to be endangered species or
threatened species pursuant to section 4(a)(1);
``(II) contribute to the conservation of one or more
covered species; and
``(III) specify and implement a management plan for
the covered species;
``(ii) shall specify such a management plan that includes--
``(I) identification of the covered species;
``(II) a description of the land to which the
agreement applies; and
``(III) a description of, and a schedule to carry
out, the activities under clause (i);
``(iii) shall provide sufficient documentation to establish
ownership or control by the person of the land to which the
agreement applies;
``(iv) shall include the amounts of the annual payments or
other compensation to be provided by the Secretary to the
person under the agreement, and the terms under which such
payments or compensation shall be provided; and
``(v) shall include--
``(I) the duties of the person;
``(II) the duties of the Secretary;
``(III) the terms and conditions under which the
person and the Secretary mutually agree the agreement
may be modified or terminated; and
``(IV) acts or omissions by the person or the
Secretary that shall be considered violations of the
agreement, and procedures under which notice of and an
opportunity to remedy any violation by the person or
the Secretary shall be given.
``(C) In entering into species recovery agreements under this
paragraph, the Secretary shall accord priority to agreements that apply
to any areas that are identified in recovery plans pursuant to
subsection (c)(1)(A)(iv).
``(3)(A) The Secretary and persons who own private land may enter
into species conservation contract agreements with terms of 30 years,
20 years, or 10 years that meet the criteria set forth in subparagraph
(B) and standards set forth in subparagraph (D) and are in accordance
with the priorities established in subparagraph (C).
``(B) A species conservation contract agreement entered into under
this paragraph by the Secretary with a person--
``(i) shall provide that the person shall, on the land owned
by the person--
``(I) carry out conservation practices to meet one or
more of the goals set forth in clauses (i) through
(iii) of subparagraph (C) for one or more covered
species, that are species that are determined to be
endangered species or threatened species pursuant to
section 4(a)(1), species determined to be candidate
species pursuant to section 4(b)(3)(B)(iii), or species
subject to comparable designations under State law; and
``(II) specify and implement a management plan for
the covered species;
``(ii) shall specify such a management plan that includes--
``(I) identification of the covered species;
``(II) a description in detail of the conservation
practices for the covered species that the person shall
undertake;
``(III) a description of the land to which the
agreement applies; and
``(IV) a schedule of approximate deadlines, whether
one-time or periodic, for undertaking the conservation
practices described pursuant to subclause (II);
``(V) a description of existing or future economic
activities on the land to which the agreement applies
that are compatible with the conservation practices
described pursuant to subclause (II) and generally with
conservation of the covered species;
``(iii) shall specify the term of the agreement; and
``(iv) shall include--
``(I) the duties of the person;
``(II) the duties of the Secretary;
``(III) the terms and conditions under which the
person and the Secretary mutually agree the agreement
may be modified or terminated;
``(IV) acts or omissions by the person or the
Secretary that shall be considered violations of the
agreement, and procedures under which notice of and an
opportunity to remedy any violation by the person or
the Secretary shall be given; and
``(V) terms and conditions for early termination of
the agreement by the person before the management plan
is fully implemented or termination of the agreement by
the Secretary in the case of a violation by the person
that is not remedied under subclause (IV), including
any requirement for the person to refund all or part of
any payments received under subparagraph (E) and any
interest thereon.
``(C) The Secretary shall establish priorities for the selection of
species conservation contract agreements, or groups of such agreements
for adjacent or proximate lands, to be entered into under this
paragraph that address the following factors:
``(i) The potential of the land to which the agreement or
agreements apply to contribute significantly to the
conservation of an endangered species or threatened species or
a species with a comparable designation under State law.
``(ii) The potential of such land to contribute significantly
to the improvement of the status of a candidate species or a
species with a comparable designation under State law.
``(iii) The amount of acreage of such land.
``(iv) The number of covered species in the agreement or
agreements.
``(v) The degree of urgency for the covered species to
implement the conservation practices in the management plan or
plans under the agreement or agreements.
``(vi) Land in close proximity to military test and training
ranges, installations, and associated airspace that is affected
by a covered species.
``(D) The Secretary shall enter into a species conservation contract
agreement submitted by a person, if the Secretary finds that the person
owns such land or has sufficient control over the use of such land to
ensure implementation of the management plan under the agreement.
``(E)(i) Upon entering into a species conservation contract agreement
with the Secretary pursuant to this paragraph, a person shall receive
the financial assistance provided for in this subparagraph.
``(ii) If the person is implementing fully the agreement, the person
shall receive from the Secretary--
``(I) in the case of a 30-year agreement, an annual contract
payment in an amount equal to 100 percent of the person's
actual costs to implement the conservation practices described
in the management plan under the terms of the agreement;
``(II) in the case of a 20-year agreement, an annual contract
payment in an amount equal to 80 percent of the person's actual
costs to implement the conservation practices described in the
management plan under the terms of the agreement; and
``(III) in the case of a 10-year agreement, an annual
contract payment in an amount equal to 60 percent of the
person's actual costs to implement the conservation practices
described in the management plan under the terms of the
agreement.
``(iii)(I) If the person receiving contract payments pursuant to
clause (ii) receives any other State or Federal funds to defray the
cost of any conservation practice, the cost of such practice shall not
be eligible for such contract payments.
``(II) Contributions of agencies or organizations to any conservation
practice other than the funds described in subclause (I) shall not be
considered as costs of the person for purposes of the contract payments
pursuant to clause (iii).
``(4)(A) Upon request of a person seeking to enter into an agreement
pursuant to this subsection, the Secretary may provide to such person
technical assistance in the preparation, and management training for
the implementation, of the management plan for the agreement.
``(B) Any State agency, local government, nonprofit organization, or
federally recognized Indian tribe may provide assistance to a person in
the preparation of a management plan, or participate in the
implementation of a management plan, including identifying and making
available certified fisheries or wildlife biologists with expertise in
the conservation of species for purposes of the preparation or review
and approval of management plans for species conservation contract
agreements under paragraph (3)(D)(iii).
``(5) Upon any conveyance or other transfer of interest in land that
is subject to an agreement under this subsection--
``(A) the agreement shall terminate if the agreement does not
continue in effect under subparagraph (B);
``(B) the agreement shall continue in effect with respect to
such land, with the same terms and conditions, if the person to
whom the land or interest is conveyed or otherwise transferred
notifies the Secretary of the person's election to continue the
agreement by no later than 30 days after the date of the
conveyance or other transfer and the person is determined by
the Secretary to qualify to enter into an agreement under this
subsection; or
``(C) the person to whom the land or interest is conveyed or
otherwise transferred may seek a new agreement under this
subsection.
``(6) An agreement under this subsection may be renewed with the
mutual consent of the Secretary and the person who entered into the
agreement or to whom the agreement has been transferred under paragraph
(5).
``(7) The Secretary shall make annual payments under this subsection
as soon as possible after December 31 of each calendar year.
``(8) An agreement under this subsection that applies to an
endangered species or threatened species shall, for the purpose of
section 10(a)(4), be deemed to be a permit to enhance the propagation
or survival of such species under section 10(a)(1), and a person in
full compliance with the agreement shall be afforded the protection of
section 10(a)(4).
``(9) The Secretary, or any other Federal official, may not require a
person to enter into an agreement under this subsection as a term or
condition of any right, privilege, or benefit, or of any action or
refraining from any action, under this Act.''.
(2) Subsection (e)(2) of section 7 (16 U.S.C. 1536) (as
redesignated by section 11(d)(2) of this Act) is amended by
inserting ``or in an agreement under section 5(m)'' after
``section''.
(d) Conforming Amendments.--
(1) Section 6(d)(1) (16 U.S.C. 1535(d)(1)) is amended by
striking ``section 4(g)'' and inserting ``section 5(j)''.
(2) The Marine Mammal Protection Act of 1972 is amended--
(A) in section 104(c)(4)(A)(ii) (16 U.S.C.
1374(c)(4)(A)(ii)) by striking ``section 4(f)'' and
inserting ``section 5''; and
(B) in section 115(b)(2) (16 U.S.C. 1383b(b)(2)) by
striking ``section 4(f) of the Endangered Species Act
of 1973 (16 U.S.C. 1533(f))'' and inserting ``section 5
of the Endangered Species Act of 1973''.
SEC. 10. COOPERATION WITH STATES AND INDIAN TRIBES.
Section 6 (16 U.S.C. 1535) is further amended--
(1) in subsection (c), by adding at the end the following:
``(3)(A) Any cooperative agreement entered into by the Secretary
under this subsection may also provide for development of a program for
conservation of species determined to be candidate species pursuant to
section 4(b)(3)(B)(iii) or any other species that the State and the
Secretary agree is at risk of being determined to be an endangered
species or threatened species under section 4(a)(1) in that State. Upon
completion of consultation on the agreement pursuant to subsection
(e)(2), any incidental take statement issued on the agreement shall
apply to any such species, and to the State and any landowners enrolled
in any program under the agreement, without further consultation
(except any additional consultation pursuant to subsection (e)(2)) if
the species is subsequently determined to be an endangered species or a
threatened species and the agreement remains an adequate and active
program for the conservation of endangered species and threatened
species.
``(B) Any cooperative agreement entered into by the Secretary under
this subsection may also provide for monitoring or assistance in
monitoring the status of candidate species pursuant to section
4(b)(3)(C)(iii) or recovered species pursuant to section 5(j).
``(C) The Secretary shall periodically review each cooperative
agreement under this subsection and seek to make changes the Secretary
considers necessary for the conservation of endangered species and
threatened species to which the agreement applies.
``(4) Any cooperative agreement entered into by the Secretary under
this subsection that provides for the enrollment of private lands or
water rights in any program established by the agreement shall ensure
that the decision to enroll is voluntary for each owner of such lands
or water rights.
``(5)(A) The Secretary may enter into a cooperative agreement under
this subsection with an Indian tribe in substantially the same manner
in which the Secretary may enter into a cooperative agreement with a
State.
``(B) For the purposes of this paragraph, the term `Indian tribe'
means--
``(i) with respect to the 48 contiguous States, any federally
recognized Indian tribe, organized band, pueblo, or community;
and
``(ii) with respect to Alaska, the Metlakatla Indian
Community.'';
(2) in subsection (d)(1)--
(A) by striking ``pursuant to subsection (c) of this
section'';
(B) by striking ``or to assist'' and all that follows
through ``section 5(j)'' and inserting ``pursuant to
subsection (c)(1) and (2) or to address candidate
species or other species at risk and recovered species
pursuant to subsection (c)(3)''; and
(C) in subparagraph (F), by striking ``monitoring the
status of candidate species'' and inserting
``developing a conservation program for, or monitoring
the status of, candidate species or other species
determined to be at risk pursuant to subsection
(c)(3)''; and
(3) in subsection (e)--
(A) by inserting ``(1)'' before the first sentence;
(B) in paragraph (1), as designated by subparagraph
(A) of this paragraph, by striking ``at no greater than
annual intervals'' and inserting ``every 3 years''; and
(C) by adding at the end the following:
``(2) Any cooperative agreement entered into by the Secretary under
subsection (c) shall be subject to section 7(a)(2) through (d) and
regulations implementing such provisions only before--
``(A) the Secretary enters into the agreement; and
``(B) the Secretary approves any renewal of, or amendment to,
the agreement that--
``(i) addresses species that are determined to be
endangered species or threatened species, are not
addressed in the agreement, and may be affected by the
agreement; or
``(ii) new information about any species addressed in
the agreement that the Secretary determines--
``(I) constitutes the best available
scientific data; and
``(II) indicates that the agreement may have
adverse effects on the species that had not
been considered previously when the agreement
was entered into or during any revision thereof
or amendment thereto.
``(3) The Secretary may suspend any cooperative agreement established
pursuant to subsection (c), after consultation with the Governor of the
affected State, if the Secretary finds during the periodic review
required by paragraph (1) of this subsection that the agreement no
longer constitutes an adequate and active program for the conservation
of endangered species and threatened species.
``(4) The Secretary may terminate any cooperative agreement entered
into by the Secretary under subsection (c), after consultation with the
Governor of the affected State, if--
``(A) as result of the procedures of section 7(a)(2) through
(d) undertaken pursuant to paragraph (2) of this subsection,
the Secretary determines that continued implementation of the
cooperative agreement is likely to jeopardize the continued
existence of endangered species or threatened species, and the
cooperative agreement is not amended or revised to incorporate
a reasonable and prudent alternative offered by the Secretary
pursuant to section 7(b)(3); or
``(B) the cooperative agreement has been suspended under
paragraph (3) of this subsection and has not been amended or
revised and found by the Secretary to constitute an adequate
and active program for the conservation of endangered species
and threatened species within 180 days after the date of the
suspension.''.
SEC. 11. INTERAGENCY COOPERATION AND CONSULTATION.
(a) Consultation Requirement.--Section 7(a) (16 U.S.C. 1536(a)) is
amended--
(1) in paragraph (1) in the second sentence, by striking
``endangered species'' and all that follows through the end of
the sentence and inserting ``species determined to be
endangered species and threatened species under section 4.'';
(2) in paragraph (2)--
(A) in the first sentence by striking ``action'' the
first place it appears and all that follows through
``is not'' and inserting ``agency action authorized,
funded, or carried out by such agency is not'';
(B) in the first sentence by striking ``, unless''
and all that follows through the end of the sentence
and inserting a period;
(C) in the second sentence, by striking ``best
scientific and commercial data available'' and
inserting ``best available scientific data''; and
(D) by inserting ``(A)'' before the first sentence,
and by adding at the end the following:
``(B) The Secretary may identify specific agency actions or
categories of agency actions that may be determined to meet the
standards of this paragraph by alternative procedures to the procedures
set forth in this subsection and subsections (b) through (d), except
that subsections (b)(4) and (e) may apply only to an action that the
Secretary finds, or concurs, does meet such standards, and the
Secretary shall suggest, or concur in any suggested, reasonable and
prudent alternatives described in subsection (b)(3) for any action
determined not to meet such standards. Any such agency action or
category of agency actions shall be identified, and any such
alternative procedures shall be established, by regulation promulgated
prior or subsequent to the date of the enactment of this Act.'';
(3) in paragraph (4)--
(A) by striking ``listed under section 4'' and
inserting ``an endangered species or a threatened
species''; and
(B) by inserting ``, under section 4'' after ``such
species''; and
(4) by adding at the end the following:
``(5) Any Federal agency or the Secretary, in conducting any analysis
pursuant to paragraph (2), shall consider only the effects of any
agency action that are distinct from a baseline of all effects upon the
relevant species that have occurred or are occurring prior to the
action.''.
(b) Opinion of Secretary.--Section 7(b) (16 U.S.C. 1536(b)) is
amended--
(1) in paragraph (1)(B)(i) by inserting ``permit or license''
before ``applicant'';
(2) in paragraph (2) by inserting ``permit or license''
before ``applicant'';
(3) in paragraph (3)(A)--
(A) in the first sentence--
(i) by striking ``Promptly after'' and
inserting ``Before'';
(ii) by inserting ``permit or license''
before ``applicant''; and
(iii) by inserting ``proposed'' before
``written statement''; and
(B) by striking all after the first sentence and
inserting the following: ``The Secretary shall consider
any comment from the Federal agency and the permit or
license applicant, if any, prior to issuance of the
final written statement of the Secretary's opinion. The
Secretary shall issue the final written statement of
the Secretary's opinion by providing the written
statement to the Federal agency and the permit or
license applicant, if any, and publishing notice of the
written statement in the Federal Register. If jeopardy
is found, the Secretary shall suggest in the final
written statement those reasonable and prudent
alternatives, if any, that the Secretary believes would
not violate subsection (a)(2) and can be taken by the
Federal agency or applicant in implementing the agency
action. The Secretary shall cooperate with the Federal
agency and any permit or license applicant in the
preparation of any suggested reasonable and prudent
alternatives.'';
(4) in paragraph (4)--
(A) by redesignating subparagraphs (A), (B), and (C)
as clauses (i), (ii), and (iii), respectively;
(B) by inserting ``(A)'' after ``(4)'';
(C) by striking ``the Secretary shall provide'' and
all that follows through ``with a written statement
that--'' and inserting the following: ``the Secretary
shall include in the written statement under paragraph
(3), a statement described in subparagraph (B) of this
paragraph.
``(B) A statement described in this subparagraph--''; and
(5) by adding at the end the following:
``(5)(A) Any terms and conditions set forth pursuant to paragraph
(4)(B)(iv) shall be roughly proportional to the impact of the
incidental taking identified pursuant to paragraph (4) in the written
statement prepared under paragraph (3).
``(B) If various terms and conditions are available to comply with
paragraph (4)(B)(iv), the terms and conditions set forth pursuant to
that paragraph--
``(i) must be capable of successful implementation; and
``(ii) must be consistent with the objectives of the Federal
agency and the permit or license applicant, if any, to the
greatest extent possible.''.
(c) Biological Assessments.--Section 7(c) (16 U.S.C. 1536(c)) is
amended--
(1) by striking ``(1)'';
(2) by striking paragraph (2);
(3) in the first sentence, by striking ``which is listed''
and all that follows through the end of the sentence and
inserting ``that is determined to be an endangered species or a
threatened species, or for which such a determination is
proposed pursuant to section 4, may be present in the area of
such proposed action.''; and
(4) in the second sentence, by striking ``best scientific and
commercial data available'' and inserting ``best available
scientific data''.
(d) Elimination of Endangered Species Committee Process.--Section 7
(16 U.S.C. 1536) is amended--
(1) by repealing subsections (e), (f), (g), (h), (i), (j),
(k), (l), (m), and (n);
(2) by redesignating subsections (o) and (p) as subsections
(e) and (f), respectively;
(3) in subsection (e), as redesignated by paragraph (2) of
this subsection--
(A) in the heading, by striking ``Exemption as
Providing''; and
(B) by striking ``such section'' and all that follows
through ``(2)'' and inserting ``such section,''; and
(4) in subsection (f), as redesignated by paragraph (2) of
this subsection--
(A) in the first sentence, by striking ``is
authorized'' and all that follows through ``of this
section'' and inserting ``may exempt an agency action
from compliance with the requirements of subsections
(a) through (d) of this section before the initiation
of such agency action,''; and
(B) by striking the second sentence.
SEC. 12. EXCEPTIONS TO PROHIBITIONS.
(a) Incidental Take Permits.--Section 10(a)(2) (16 U.S.C. 1539(a)(2))
is amended--
(1) in subparagraph (A) by striking ``and'' after the
semicolon at the end of clause (iii), by redesignating clause
(iv) as clause (vii), and by inserting after clause (iii) the
following:
``(iv) objective, measurable biological goals to be achieved
for species covered by the plan and specific measures for
achieving such goals consistent with the requirements of
subparagraph (B);
``(v) measures the applicant will take to monitor impacts of
the plan on covered species and the effectiveness of the plan's
measures in achieving the plan's biological goals;
``(vi) adaptive management provisions necessary to respond to
all reasonably foreseeable changes in circumstances that could
appreciably reduce the likelihood of the survival and recovery
of any species covered by the plan; and'';
(2) in subparagraph (B) by striking ``and'' after the
semicolon at the end of clause (iv), by redesignating clause
(v) as clause (vi), and by inserting after clause (iv) the
following:
``(v) the term of the permit is reasonable, taking into
consideration--
``(I) the period in which the applicant can be
expected to diligently complete the principal actions
covered by the plan;
``(II) the extent to which the plan will enhance the
conservation of covered species;
``(III) the adequacy of information underlying the
plan;
``(IV) the length of time necessary to implement and
achieve the benefits of the plan; and
``(V) the scope of the plan's adaptive management
strategy; and''; and
(3) by striking subparagraph (C) and inserting the following:
``(3) Any terms and conditions offered by the Secretary pursuant to
paragraph (2)(B) to reduce or offset the impacts of incidental taking
shall be roughly proportional to the impact of the incidental taking
specified in the conservation plan pursuant to in paragraph (2)(A)(i).
This paragraph shall not be construed to limit the authority of the
Secretary to require greater than acre-for-acre mitigation where
necessary to address the extent of such impacts. In any case in which
various terms and conditions are available, the terms and conditions
shall be capable of successful implementation and shall be consistent
with the objective of the applicant to the greatest extent possible.
``(4)(A) If the holder of a permit issued under this subsection for
other than scientific purposes is in compliance with the terms and
conditions of the permit, and any conservation plan or agreement
incorporated by reference therein, the Secretary may not require the
holder, without the consent of the holder, to adopt any new
minimization, mitigation, or other measure with respect to any species
adequately covered by the permit during the term of the permit, except
as provided in subparagraphs (B) and (C) to meet circumstances that
have changed subsequent to the issuance of the permit.
``(B) For any circumstance identified in the permit or incorporated
document that has changed, the Secretary may, in the absence of consent
of the permit holder, require only such additional minimization,
mitigation, or other measures as are already provided in the permit or
incorporated document for such changed circumstance.
``(C) For any changed circumstance not identified in the permit or
incorporated document, the Secretary may, in the absence of consent of
the permit holder, require only such additional minimization,
mitigation, or other measures to address such changed circumstance that
do not involve the commitment of any additional land, water, or
financial compensation not otherwise committed, or the imposition of
additional restrictions on the use of any land, water or other natural
resources otherwise available for development or use, under the
original terms and conditions of the permit or incorporated document.
``(D) The Secretary shall have the burden of proof in demonstrating
and documenting, with the best available scientific data, the
occurrence of any changed circumstances for purposes of this paragraph.
``(E) All permits issued under this subsection on or after the date
of the enactment of the Threatened and Endangered Species Recovery Act
of 2005, other than permits for scientific purposes, shall contain the
assurances contained in subparagraphs (B) through (D) of this paragraph
and paragraph (5)(A) and (B). Permits issued under this subsection on
or after March 25, 1998, and before the date of the enactment of the
Threatened and Endangered Species Recovery Act of 2005, other than
permits for scientific purposes, shall be governed by the applicable
sections of parts 17.22(b), (c), and (d), and 17.32(b), (c), and (d) of
title 50, Code of Federal Regulations, as the same exist on the date of
the enactment of the Threatened and Endangered Species Act of 2005.
``(5)(A) The Secretary shall revoke a permit issued under paragraph
(2) if the Secretary finds that the permittee is not complying with the
terms and conditions of the permit.
``(B) Any permit subject to paragraph (4)(A) may be revoked due to
changed circumstances only if--
``(i) the Secretary determines that continuation of the
activities to which the permit applies would be inconsistent
with the criteria in paragraph (2)(B)(iv);
``(ii) the Secretary provides 60 days notice of revocation to
the permittee; and
``(iii) the Secretary is unable to, and the permittee chooses
not to, remedy the condition causing such inconsistency.''.
(b) Extension of Period for Public Review and Comment on
Applications.--Section 10(c) (16 U.S.C. 1539(c)) is amended in the
second sentence by striking ``thirty'' each place it appears and
inserting ``45''.
(c) Experimental Populations.--Section 10(j) (16 U.S.C. 1539(j)) is
amended--
(1) in paragraph (1), by striking ``For purposes'' and all
that follows through the end of the paragraph and inserting the
following: ``For purposes of this subsection, the term
`experimental population' means any population (including any
offspring arising therefrom) authorized by the Secretary for
release under paragraph (2), but only when such population is
in the area designated for it by the Secretary, and such area
is, at the time of release, wholly separate geographically from
areas occupied by nonexperimental populations of the same
species. For purposes of this subsection, the term `areas
occupied by nonexperimental populations' means areas
characterized by the sustained and predictable presence of more
than negligible numbers of successfully reproducing individuals
over a period of many years.'';
(2) in paragraph (2)(B), by striking ``information'' and
inserting ``scientific data''; and
(3) in paragraph (2)(C)(i), by striking ``listed'' and
inserting ``determined to be an endangered species or a
threatened species''.
(d) Written Determination of Compliance.--Section 10 (16 U.S.C. 1539)
is amended by adding at the end the following:
``(k) Written Determination of Compliance.--(1) A property owner (in
this subsection referred to as a `requester') may request the Secretary
to make a written determination that a proposed use of the owner's
property that is lawful under State and local law will comply with
section 9(a), by submitting a written description of the proposed
action to the Secretary by certified mail.
``(2) A written description of a proposed use is deemed to be
sufficient for consideration by the Secretary under paragraph (1) if
the description includes--
``(A) the nature, the specific location, the lawfulness under
State and local law, and the anticipated schedule and duration
of the proposed use, and a demonstration that the property
owner has the means to undertake the proposed use; and
``(B) any anticipated adverse impact to a species that is
included on a list published under 4(c)(1) that the requestor
reasonably expects to occur as a result of the proposed use.
``(3) The Secretary may request and the requestor may supply any
other information that either believes will assist the Secretary to
make a determination under paragraph (1).
``(4) If the Secretary does not make a determination pursuant to a
request under this subsection because of the omission from the request
of any information described in paragraph (2), the requestor may submit
a subsequent request under this subsection for the same proposed use.
``(5)(A) Subject to subparagraph (B), the Secretary shall provide to
the requestor a written determination of whether the proposed use, as
proposed by the requestor, will comply with section 9(a), by not later
than expiration of the 180-day period beginning on the date of the
submission of the request.
``(B) The Secretary may request, and the requestor may grant, a
written extension of the period under subparagraph (A).
``(6) If the Secretary fails to provide a written determination
before the expiration of the period under paragraph (5)(A) (or any
extension thereof under paragraph (5)(B)), the Secretary is deemed to
have determined that the proposed use complies with section 9(a).
``(7) This subsection shall not apply with respect to agency actions
that are subject to consultation under section 7.
``(8) Any use or action taken by the property owner in reasonable
reliance on a written determination of compliance under paragraph (5)
or on the application of paragraph (6) shall not be treated as a
violation of section 9(a).
``(9) Any determination of compliance under this subsection shall
remain effective--
``(A) in the case of a written determination provided under
paragraph (5)(A), for the 10-year period beginning on the date
the written determination is provided; or
``(B) in the case of a determination that under paragraph (6)
the Secretary is deemed to have made, the 5-year period
beginning on the first date the Secretary is deemed to have
made the determination.
``(10) The Secretary may withdraw a determination of compliance under
this section only if the Secretary determines that, because of
unforeseen changed circumstances, the continuation of the use to which
the determination applies would preclude conservation measures
essential to the survival of any endangered species or threatened
species. Such a withdrawal shall take effect 10 days after the date the
Secretary provides notice of the withdrawal to the requester.
``(11) The Secretary may extend the period that applies under
paragraph (5) by up to 180 days if seasonal considerations make a
determination impossible within the period that would otherwise
apply.''.
(e) National Security Exemption.--Section 10 (16 U.S.C. 1539) is
further amended by adding at the end the following:
``(l) National Security.--The President, after consultation with the
appropriate Federal agency, may exempt any act or omission from the
provisions of this Act if such exemption is necessary for national
security.''.
(f) Disaster Declaration and Protection.--Section 10 (16 U.S.C. 1539)
is further amended by adding at the end the following:
``(m) Disaster Declaration and Protection.--(1) The President may
suspend the application of any provision of this Act in any area for
which a major disaster is declared under the Robert T. Stafford
Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq.).
``(2) The Secretary shall, within one year after the date of the
enactment of the Threatened and Endangered Species Recovery Act of
2005, promulgate regulations regarding application of this Act in the
event of an emergency (including circumstances other than a major
disaster referred to in paragraph (1)) involving a threat to human
health or safety or to property, including regulations--
``(A) determining what constitutes an emergency for purposes
of this paragraph; and
``(B) to address immediate threats through expedited
consideration under or waiver of any provision of this Act.''.
SEC. 13. PRIVATE PROPERTY CONSERVATION.
Section 13 (consisting of amendments to other laws, which have
executed) is amended to read as follows:
``private property conservation
``Sec. 13. (a) In General.--The Secretary may provide conservation
grants (in this section referred to as `grants') to promote the
voluntary conservation of endangered species and threatened species by
owners of private property and shall provide financial conservation aid
(in this section referred to as `aid') to alleviate the burden of
conservation measures imposed upon private property owners by this Act.
The Secretary may provide technical assistance when requested to
enhance the conservation effects of grants or aid.
``(b) Awarding of Grants and Aid.--Grants to promote conservation of
endangered species and threatened species on private property--
``(1) may not be used to fund litigation, general education,
general outreach, lobbying, or solicitation;
``(2) may not be used to acquire leases or easements of more
than 50 years duration or fee title to private property;
``(3) must be designed to directly contribute to the
conservation of an endangered species or threatened species by
increasing the species' numbers or distribution; and
``(4) must be supported by any private property owners on
whose property any grant funded activities are carried out.
``(c) Priority.--Priority shall be accorded among grant requests in
the following order:
``(1) Grants that promote conservation of endangered species
or threatened species on private property while making
economically beneficial and productive use of the private
property on which the conservation activities are conducted.
``(2) Grants that develop, promote, or use techniques to
increase the distribution or population of an endangered
species or threatened species on private property.
``(3) Other grants that promote voluntary conservation of
endangered species or threatened species on private property.
``(d) Eligibility for Aid.--(1) The Secretary shall award aid to
private property owners who--
``(A) received a written determination under section 10(k)
finding that the proposed use of private property would not
comply with section 9(a); or
``(B) receive notice under section 10(k)(10) that a written
determination has been withdrawn.
``(2) Aid shall be in an amount no less than the fair market value of
the use that was proposed by the property owner if--
``(A) the owner has foregone the proposed use;
``(B) the owner has requested financial aid--
``(i) within 180 days of the Secretary's issuance of
a written determination that the proposed use would not
comply with section 9(a); or
``(ii) within 180 days after the property owner is
notified of a withdrawal under section 10(k)(10); and
``(C) the foregone use would be lawful under State and local
law and the property owner has demonstrated that the property
owner has the means to undertake the proposed use.
``(e) Distribution of Grants and Aid.--(1) The Secretary shall pay
eligible aid--
``(A) within 180 days after receipt of a request for aid
unless there are unresolved questions regarding the
documentation of the foregone proposed use or unresolved
questions regarding the fair market value; or
``(B) at the resolution of any questions concerning the
documentation of the foregone use established under subsection
(f) or the fair market value established under subsection (g).
``(2) All grants provided under this section shall be paid on the
last day of the fiscal year. Aid shall be paid based on the date of the
initial request.
``(f) Documentation of the Foregone Use.--Within 30 days of the
request for aid, the Secretary shall enter into negotiations with the
property owner regarding the documentation of the foregone proposed use
through such mechanisms such as contract terms, lease terms, deed
restrictions, easement terms, or transfer of title. If the Secretary
and the property owner are unable to reach an agreement, then, within
60 days of the request for aid, the Secretary shall determine how the
property owner's foregone use shall be documented with the least impact
on the ownership interests of the property owner necessary to document
the foregone use.
``(g) Fair Market Value.--For purposes of this section, the fair
market value of the foregone use of the affected portion of the private
property, including business losses, is what a willing buyer would pay
to a willing seller in an open market. Fair market value shall take
into account the likelihood that the foregone use would be approved
under State and local law. The fair market value shall be determined
within 180 days of the documentation of the foregone use. The fair
market value shall be determined jointly by 2 licensed independent
appraisers, one selected by the Secretary and one selected by the
property owner. If the 2 appraisers fail to agree on fair market value,
the Secretary and the property owner shall jointly select a third
licensed appraiser whose appraisal within an additional 90 days shall
be binding on the Secretary and the private property owner. Within one
year after the date of enactment of the Threatened and Endangered
Species Recovery Act of 2005, the Secretary shall promulgate
regulations regarding selection of the jointly selected appraisers
under this subsection.
``(h) Limitation on Aid Availability.--Any person receiving aid under
this section may not receive additional aid under this section for the
same foregone use of the same property and for the same period of time.
``(i) Annual Reporting.--The Secretary shall by January 15 of each
year provide a report of all aid and grants awarded under this section
to the Committee on Resources of the House of Representatives and the
Environment and Public Works Committee of the Senate and make such
report electronically available to the general public on the website
required under section 14.''.
SEC. 14. PUBLIC ACCESSIBILITY AND ACCOUNTABILITY.
Section 14 (relating to repeals of other laws, which have executed)
is amended to read as follows:
``public accessibility and accountability
``Sec. 14. The Secretary shall make available on a publicly
accessible website on the Internet--
``(1) each list published under section 4(c)(1);
``(2) all final and proposed regulations and determinations
under section 4;
``(3) the results of all 5-year reviews conducted under
section 4(c)(2)(A);
``(4) all draft and final recovery plans issued under section
5(a), and all final recovery plans issued and in effect under
section 4(f)(1) of this Act as in effect immediately before the
enactment of the Threatened and Endangered Species Recovery Act
of 2005;
``(5) all reports required under sections 5(e) and 16, and
all reports required under sections 4(f)(3) and 18 of this Act
as in effect immediately before the enactment of the Threatened
and Endangered Species Recovery Act of 2005; and
``(6) data contained in the reports referred to in paragraph
(5) of this section, and that were produced after the date of
enactment of the Threatened and Endangered Species Recovery Act
of 2005, in the form of databases that may be searched by the
variables included in the reports.''.
SEC. 15. ANNUAL COST ANALYSES.
(a) Annual Cost Analyses.--Section 18 (16 U.S.C. 1544) is amended to
read as follows:
``annual cost analysis by united states fish and wildlife service
``Sec. 18. (a) In General.--On or before January 15 of each year, the
Secretary shall submit to the Congress an annual report covering the
preceding fiscal year that contains an accounting of all reasonably
identifiable expenditures made primarily for the conservation of
species included on lists published and in effect under section 4(c).
``(b) Specification of Expenditures.--Each report under this section
shall specify--
``(1) expenditures of Federal funds on a species-by-species
basis, and expenditures of Federal funds that are not
attributable to a specific species;
``(2) expenditures by States for the fiscal year covered by
the report on a species-by-species basis, and expenditures by
States that are not attributable to a specific species; and
``(3) based on data submitted pursuant to subsection (c),
expenditures voluntarily reported by local governmental
entities on a species-by-species basis, and such expenditures
that are not attributable to a specific species.
``(c) Encouragement of Voluntary Submission of Data by Local
Governments.--The Secretary shall provide a means by which local
governmental entities may--
``(1) voluntarily submit electronic data regarding their
expenditures for conservation of species listed under section
4(c); and
``(2) attest to the accuracy of such data.''.
(b) Eligibility of States for Financial Assistance.--Section 6(d) (16
U.S.C. 1535(d)) is amended by adding at the end the following:
``(3) A State shall not be eligible for financial assistance under
this section for a fiscal year unless the State has provided to the
Secretary for the preceding fiscal year information regarding the
expenditures referred to in section 16(b)(2).''.
SEC. 16. REIMBURSEMENT FOR DEPREDATION OF LIVESTOCK BY REINTRODUCED
SPECIES.
The Endangered Species Act of 1973 is further amended--
(1) by striking sections 15 and 16;
(2) by redesignating sections 17 and 18 as sections 15 and
16, respectively; and
(3) by adding after section 16, as so redesignated, the
following:
``reimbursement for depredation of livestock by reintroduced species
``Sec. 17. (a) In General.--The Secretary of the Interior, acting
through the Director of the United States Fish and Wildlife Service,
may reimburse the owner of livestock for any loss of livestock
resulting from depredation by any population of a species if the
population is listed under section 4(c) and includes or derives from
members of the species that were reintroduced into the wild.
``(b) Eligibility for and Amount.--Eligibility for, and the amount
of, reimbursement under this section shall not be conditioned on the
presentation of the body of any animal for which reimbursement is
sought.
``(c) Limitation on Requirement to Present Body.--The Secretary may
not require the owner of livestock to present the body of individual
livestock as a condition of payment of reimbursement under this
section.
``(d) Use of Donations.--The Secretary may accept and use donations
of funds to pay reimbursement under this section.
``(e) Availability of Appropriations.--The requirement to pay
reimbursement under this section is subject to the availability of
funds for such payments.''.
SEC. 17. AUTHORIZATION OF APPROPRIATIONS.
(a) Authorization.--The Endangered Species Act of 1973 is further
amended by adding at the end the following:
``authorization of appropriations
``Sec. 18. (a) In General.--There are authorized to be appropriated
to carry out this Act, other than section 8A(e)--
``(1) to the Secretary of the Interior to carry out functions
and responsibilities of the Department of the Interior under
this Act, such sums as are necessary for fiscal years 2006
through 2010; and
``(2) to the Secretary of Agriculture to carry out functions
and responsibilities of the Department of the Interior with
respect to the enforcement of this Act and the convention which
pertain the importation of plants, such sums as are necessary
for fiscal year 2006 through 2010.
``(b) Convention Implementation.--There is authorized to be
appropriated to the Secretary of the Interior to carry out section
8A(e) such sums as are necessary for fiscal years 2006 through 2010.''.
(b) Conforming Amendment.--Section 8(a) (16 U.S.C. 1537(a)) is
amended by striking ``section 15'' and inserting ``section 18''.
SEC. 18. MISCELLANEOUS TECHNICAL CORRECTIONS.
(a) International Cooperation.--Section 8 (16 U.S.C. 1537) is
amended--
(1) in subsection (a) in the first sentence by striking ``any
endangered species or threatened species listed'' and inserting
``any species determined to be an endangered species or a
threatened species''; and
(2) in subsection (b) in paragraph (1), by striking
``endangered species and threatened species listed'' and
inserting ``species determined to be endangered species and
threatened species''.
(b) Management Authority and Scientific Authority.--Section 8A (16
U.S.C. 1537a)) is amended--
(1) in subsection (a), by striking ``of the Interior
(hereinafter in this section referred to as the `Secretary')'';
(2) in subsection (d), by striking ``Merchant Marine and
Fisheries'' and inserting ``Resources''; and
(3) in subsection (e)--
(A) in paragraph (1), by striking ``of the Interior
(hereinafter in this subsection referred to as the
`Secretary')''; and
(B) by striking paragraph (3) and redesignating
paragraph (4) as paragraph (3).
(c) Prohibited Acts.--Section 9 (16 U.S.C. 1538) is amended--
(1) in subsection (a)--
(A) in paragraph (1), in the matter preceding
subparagraph (A), by striking ``of this Act, with
respect to any endangered species of fish or wildlife
listed pursuant to section 4 of this Act'' and
inserting ``, with respect to any species of fish or
wildlife determined to be an endangered species under
section 4'';
(B) in paragraph (1)(G), by striking ``threatened
species of fish or wildlife listed pursuant to section
4 of this Act'' and inserting ``species of fish or
wildlife determined to be a threatened species under
section 4'';
(C) in paragraph (2), in the matter preceding
subparagraph (A) by striking ``of this Act, with
respect to any endangered species of plants listed
pursuant to section 4 of this Act'' and inserting ``,
with respect to any species of plants determined to be
an endangered species under section 4''; and
(D) in paragraph (2)(E), by striking ``listed
pursuant to section 4 of this Act'' and inserting
``determined to be a threatened species under section
4'';
(2) in subsection (b)--
(A) by striking ``(1)'' before ``Species'' and
inserting ``(1)'' before the first sentence;
(B) in paragraph (1), in the first sentence, by
striking ``adding such'' and all that follows through
``: Provided, That'' and inserting ``determining such
fish or wildlife species to be an endangered species or
a threatened species under section 4, if''; and
(C) in paragraph (1), in the second sentence, by
striking ``adding such'' and all that follows through
``this Act'' and inserting ``determining such fish or
wildlife species to be an endangered species or a
threatened species under section 4'';
(3) in subsection (c)(2)(A), by striking ``an endangered
species listed'' and inserting ``a species determined to be an
endangered species'';
(4) in subsection (d)(1)(A), by striking clause (i) and
inserting the following: ``(i) are not determined to be
endangered species or threatened species under section 4,
and'';
(5) in subsection (e), by striking clause (1) and inserting
the following: ``(1) are not determined to be endangered
species or threatened species under section 4, and''; and
(6) in subsection (f)--
(A) in paragraph (1), in the first sentence, by
striking clause (A) and inserting the following: ``(A)
are not determined to be endangered species or
threatened species under section 4, and''; and
(B) by striking ``Secretary of the Interior'' each
place it appears and inserting ``Secretary''.
(d) Hardship Exemptions.--Section 10(b) (16 U.S.C. 1539(b)) is
amended--
(1) in paragraph (1)--
(A) by striking ``an endangered species'' and all
that follows through ``section 4 of this Act'' and
inserting ``an endangered species or a threatened
species and the subsequent determination that the
species is an endangered species or a threatened
species under section 4'';
(B) by striking ``section 9(a) of this Act'' and
inserting ``section 9(a)''; and
(C) by striking ``fish or wildlife listed by the
Secretary as endangered'' and inserting ``fish or
wildlife determined to be an endangered species or
threatened species by the Secretary''; and
(2) in paragraph (2)--
(A) by inserting ``or a threatened species'' after
``endangered species'' each place it appears; and
(B) in subparagraph (B), by striking ``listed
species'' and inserting ``endangered species or
threatened species''.
(e) Permit and Exemption Policy.--Section 10(d) (16 U.S.C. 1539(d))
is amended--
(1) by inserting ``or threatened species'' after ``endangered
species''; and
(2) by striking ``of this Act''.
(f) Pre-Act Parts and Scrimshaw.--Section 10(f) (16 U.S.C. 1539(f))
is amended--
(1) by inserting after ``(f)'' the following: ``Pre-Act Parts
and Scrimshaw.--''; and
(2) in paragraph (2), by striking ``of this Act'' each place
it appears.
(g) Burden of Proof in Seeking Exemption or Permit.--Section 10(g)
(16 U.S.C. 1539(g)) is amended by inserting after ``(g)'' the
following: ``Burden of Proof in Seeking Exemption or Permit.--''.
(h) Antique Articles.--Section 10(h)(1)(B) (16 U.S.C. 1539(h)(1)(B))
is amended by striking ``endangered species or threatened species
listed'' and inserting ``species determined to be an endangered species
or a threatened species''.
(i) Penalties and Enforcement.--Section 11 (16 U.S.C. 1540) is
amended in subsection (e)(3), in the second sentence, by striking
``Such persons'' and inserting ``Such a person''.
(j) Substitution of Gender-Neutral References.--
(1) ``secretary'' for ``he''.--The following provisions are
amended by striking ``he'' each place it appears and inserting
``the Secretary'':
(A) Paragraph (4)(C) of section 4(b), as redesignated
by section 5(b)(2) of this Act.
(B) Paragraph (5)(B)(ii) of section 4(b), as
redesignated by section 5(b)(2) of this Act.
(C) Section 4(b)(7) (16 U.S.C. 1533(b)(7)), in the
matter following subparagraph (B).
(D) Section 6 (16 U.S.C. 1535).
(E) Section 8(d) (16 U.S.C. 1537(d)).
(F) Section 9(f) (16 U.S.C. 1538(f)).
(G) Section 10(a) (16 U.S.C. 1539(a)).
(H) Section 10(b)(3) (16 U.S.C. 1539(b)(3)).
(I) Section 10(d) (16 U.S.C. 1539(d)).
(J) Section 10(e)(4) (16 U.S.C. 1539(e)(4)).
(K) Section 10(f)(4), (5), and (8)(B) (16 U.S.C.
1599(f)(4), (5), (8)(B)).
(L) Section 11(e)(5) (16 U.S.C. 1540(e)(5)).
(2) ``president'' for ``he''.--Section 8(a) (16 U.S.C.
1537(a)) is amended in the second sentence by striking ``he''
and inserting ``the President''.
(3) ``secretary of the interior'' for ``he''.--Section
8(b)(3) (16 U.S.C. 1537(b)(3)) is amended by striking ``he''
and inserting ``the Secretary of the Interior''.
(4) ``person'' for ``he''.--The following provisions are
amended by striking ``he'' each place it appears and inserting
``the person'':
(A) Section 10(f)(3) (16 U.S.C. 1539(f)(3)).
(B) Section 11(e)(3) (16 U.S.C. 1540(e)(3)).
(5) ``defendant'' for ``he''.--The following provisions are
amended by striking ``he'' each place it appears and inserting
``the defendant''.
(A) Section 11(a)(3) (16 U.S.C. 1540(a)(3)).
(B) Section 11(b)(3) (16 U.S.C. 1540(b)(3)).
(6) References to ``him''.--
(A) Section 4(c)(1) (16 U.S.C. 1533(c)(1)) is amended
by striking ``him or the Secretary of Commerce'' each
place it appears and inserting ``the Secretary''.
(B) Paragraph (6) of section 4(b) (16 U.S.C.
1533(b)), as redesignated by section 5(b)(2) of this
Act, is further amended in the matter following
subparagraph (B) by striking ``him'' and inserting
``the Secretary''.
(C) Section 5(k)(2), as redesignated by section
9(a)(1) of this Act, is amended by striking ``him'' and
inserting ``the Secretary''.
(D) Section 7(a)(1) (16 U.S.C. 1536(a)(1)) is amended
in the first sentence by striking ``him'' and inserting
``the Secretary''.
(E) Section 8A(c)(2) (16 U.S.C. 1537a(c)(2)) is
amended by striking ``him'' and inserting ``the
Secretary''.
(F) Section 9(d)(2)(A) (16 U.S.C. 1538(d)(2)(A)) is
amended by striking ``him'' each place it appears and
inserting ``such person''.
(G) Section 10(b)(1) (16 U.S.C. 1539(b)(1)) is
amended by striking ``him'' and inserting ``the
Secretary''.
(7) References to ``himself or herself''.--Section 11 (16
U.S.C. 1540) is amended in subsections (a)(3) and (b)(3) by
striking ``himself or herself'' each place it appears and
inserting ``the defendant''.
(8) References to ``his''.--
(A) Section 4(g)(1), as redesignated by section 8(1)
of this Act, is amended by striking ``his'' and
inserting ``the''.
(B) Section 6 (16 U.S.C. 1535) is amended--
(i) in subsection (d)(2) in the matter
following clause (ii) by striking ``his'' and
inserting ``the Secretary's''; and
(ii) in subsection (e)(1), as designated by
section 10(3)(A) of this Act, by striking ``his
periodic review'' and inserting ``periodic
review by the Secretary''.
(C) Section 7(a)(3) (16 U.S.C. 1536(a)(3)) is amended
by striking ``his'' and inserting ``the applicant's''.
(D) Section 8(c)(1) (16 U.S.C. 1537(c)(1)) is amended
by striking ``his'' and inserting ``the Secretary's''.
(E) Section 9 (16 U.S.C. 1538) is amended in
subsection (d)(2)(B) and subsection (f) by striking
``his'' each place it appears and inserting ``such
person's''.
(F) Section 10(b)(3) (16 U.S.C. 1539(b)(3)) is
amended by striking ``his'' and inserting ``the
Secretary's''.
(G) Section 10(d) (16 U.S.C. 1539(d)) is amended by
striking ``his'' and inserting ``the''.
(H) Section 11 (16 U.S.C. 1540) is amended--
(i) in subsection (a)(1) by striking ``his''
and inserting ``the Secretary's'';
(ii) in subsections (a)(3) and (b)(3) by
striking ``his or her'' each place it appears
and inserting ``the defendant's'';
(iii) in subsection (d) by striking ``his''
and inserting ``the officer's or employee's'';
(iv) in subsection (e)(3) in the second
sentence by striking ``his'' and inserting
``the person's''; and
(v) in subsection (g)(1) by striking ``his''
and inserting ``the person's''.
SEC. 19. CLERICAL AMENDMENT TO TABLE OF CONTENTS.
The table of contents in the first section is amended--
(1) by striking the item relating to section 5 and inserting
the following:
``Sec. 5. Recovery plans and land acquisition.''
(2) by striking the items relating to sections 13 through 17
and inserting the following:
``Sec. 13. Private property conservation.
``Sec. 14. Public accessibility and accountability.
``Sec. 15. Marine Mammal Protection Act of 1972.
``Sec. 16. Annual cost analysis by United States Fish and Wildlife
Service.
``Sec. 17. Reimbursement for depredation of livestock by reintroduced
species.
``Sec. 18. Authorization of appropriations.''.
SEC. 20. CERTAIN ACTIONS DEEMED IN COMPLIANCE.
(a) Actions Deemed in Compliance.--During the period beginning on the
date of the enactment of this Act and ending on the date described in
subsection (b), any action that is taken by a Federal agency, State
agency, or other person and that complies with the Federal Insecticide,
Fungicide, and Rodenticide Act (7 U.S.C. 136 et seq.) is deemed to
comply with sections 7(a)(2) and 9(a)(1)(B) of the Endangered Species
Act of 1973 (16 U.S.C. 1536(a)(2), 1538(a)(1)(B)) (as amended by this
Act) and regulations issued under section 4(d) of such Act (16 U.S.C.
1533(d)).
(b) Termination Date.--The date referred to in subsection (a) is the
earlier of--
(1) the date that is 5 years after the date of the enactment
of this Act; and
(2) the date of the completion of any procedure required
under subpart D of part 402 of title 50, Code of Federal
Regulations, with respect to the action referred to in
subsection (a).
(c) Limitation on Application.--This section shall not affect any
procedure pursuant to part 402 of title 50, Code of Federal
Regulations, that is required by any court order issued before the date
of the enactment of this Act.
Purpose of the Bill
The purpose of H.R. 3824 is to amend and reauthorize the
Endangered Species Act of 1973 to provide greater results
conserving and recovering listed species, and for other
purposes.
Background and Need for Legislation
Prior to 1966, authority for wildlife protection rested
primarily with the States, except where the wildlife was highly
migratory or where wildlife was taken in violation of State or
federal law or was transported across State boundaries. In
response to a concern that various species had become or were
in danger of becoming extinct, the federal government began to
enact legislation protecting endangered and threatened fish,
wildlife and plants. Congress' efforts culminated in 1973 with
the passage of the Endangered Species Act of 1973 (ESA, Public
Law 93-205, 16 U.S.C. 1531 et seq.) which has become our
Nation's strictest and most stringent environmental law. In
conjunction with the Convention on International Trade in
Endangered Species of Wild Flora and Fauna, the ESA embodies a
rigid and comprehensive approach to species protection in the
United States and throughout the world.
The ESA was passed by Congress with the intent to protect
and preserve species that have been identified as threatened or
endangered. Over the past 32 years more than 1800 species have
been listed for protection. Under the ESA, the Secretary of the
Department of the Interior, though the U.S. Fish and Wildlife
Service, has responsibility for plants, wildlife and inland
fishes. The Secretary of Commerce through the National Marine
Fisheries Service, is responsible for implementing the ESA with
respect to ocean-going fish and marine animals. In addition,
the Department of Agriculture's Animal and Plant Health
Inspection Service (APHIS) oversees the import and export of
endangered species from foreign countries through the Nation's
ports.
Once a species is listed as endangered or threatened, ESA
section 4 requires the relevant Secretary to declare ``critical
habitat'' for an endangered species which limits uses of the
declared lands or waters. Different protection standards can be
issued for threatened species. Section 6 of the ESA authorizes
the Secretary to enter into cooperative or management
agreements with States for conservation of listed species.
Under ESA section 7, federal agencies whose actions (including
actions authorized, funded or directly carried out by the
agency) are ``likely to jeopardize the continued existence'' of
an endangered or threatened species must consult with the
Secretary. After the consultation, the Secretary is to issue a
written ``jeopardy opinion'' detailing how the proposed agency
action affects the species or its critical habitat, and the
Secretary may suggest reasonable alternatives to the proposed
action which will not jeopardize the species or its habitat.
The Secretary may also conclude that the agency action does not
violate the ESA or results only in `` incidental take'' of the
species. Section 9 of the ESA prohibits various actions
regarding the species, including the ``take'' of a species,
which includes harassment, harm, pursuit, capture or killing.
Section 7 also establishes the Endangered Species Committee to
resolve conflicts in the administration of and grant exemptions
from ESA. Under ESA section 10, the Secretary may permit any
act that would otherwise violate ESA section 9 for scientific
purposes or if the ``taking'' of the species is incidental to
and not the purpose of an otherwise lawful activity.
The ESA has been marked by conflict, litigation and
cumbersome processes and failed to produce the goal all
Americans share, recovering and endangered species. According
to the U.S. Fish and Wildlife Service, only 10 (or less than
1%) of the roughly 1300 domestic species listed as endangered
or threatened have been recovered in the ESA's 34-year history.
What is the status of the remaining listed species? According
to the Fish and Wildlife Service data: 39 percent of the ESA's
listed species are classified as being in ``unknown'' status,
which could include extinction; 21 percent are classified as
``declining;'' 3 percent are classified as ``believed to be
extinct,'' though they remain on the list; 30 percent are
classified as ``stable,'' though for many species in this
category, this classification is a result of corrections to
original data error, rather than actual accomplishments of the
ESA; and only 6 percent are classified by the Fish and Wildlife
Service as ``improving.'' Moreover, according to official Fish
and Wildlife Service data, 77 percent of all the listed species
have only achieved somewhere between zero and one quarter of
their recovery goals.\1\ These are not the statistics of a
successful law after more than three decades of implementation.
---------------------------------------------------------------------------
\1\ In fairness, this number includes the species in the
``unknown'' category because of the inability to gauge their status.
---------------------------------------------------------------------------
H.R. 3824, the Threatened and Endangered Species Recovery
Act of 2005 (TESRA), will place a new emphasis on conservation
and recovery, eliminates the dysfunctional critical habitat
provisions that the last two Administrations have recognized as
ineffective for conservation, removes the conservation burden
that has been unfairly imposed on private property owners and
reestablishes a meaningful distinction between endangered and
threatened species. It also provides for more transparency in
the ESA program, accountability, and stronger scientific
safeguards, improves numerous aspects of the consultation
program and provides incentives and larger roles for States,
local governments and Indian tribes.
Among TESRA's provisions are those aimed at fostering
recovery of endangered species, drawing not only on those who
have knowledge and skills essential to guide effective
conservation efforts but also those who have property or
livelihoods affected by species--where any successful program
must be made to work--to foster collaborative rather than
confrontational recovery programs.
TESRA provides new tools like Threatened and Endangered
Species Incentives Program to enlist private property owners as
allies in species conservation. The bill provides landowners
who participate in Habitat Conservation Plans assurances
against surprises. TESRA requires the Secretary of the Interior
to provide a clear answer for landowners whether a proposed
property use would violate the ESA. In those cases where there
is a conflict, TESRA provides for conservation aid that reduces
the burden of regulation on property owners when use of their
private property has been restricted for conservation, thus
ensuring that individual property owners are not forced to
shoulder the financial burden of conserving endangered and
threatened species for all Americans.
Section 4(d) of the ESA authorizes the Secretaries of the
Interior and Commerce ``by regulation'' to apply to ``any
threatened species'' any of the prohibitions (most notably the
``take'' prohibition) that section 9 of the ESA establishes for
endangered species. The fundamental purpose of this provision
is to allow each Secretary to tailor prohibitions for any less
imperiled threatened species that the ESA automatically applies
to all of the more imperiled endangered species. While the
Secretary of Commerce has interpreted this language to mean
that he or she is to issue individual rules tailoring whatever
prohibitions are needed to each specific threatened species,
the Secretary of the Interior has issued a blanket rule that
applies all of the ESA section 9 prohibitions automatically to
virtually all of the threatened species whenever they have been
or will be listed.
Section 8 of TESRA, as introduced, would have directed the
Secretaries to take the approach followed by the Secretary of
Commerce. The provision would have required that the underlying
intent of ESA section 4(d)--to require the tailoring of, and
application to, threatened species on a species-specific basis
any of the general statutory prohibitions for endangered
species--be accomplished by the elimination of the Secretary of
the Interior's blanket applicability approach and the
application of any ESA section 9 prohibitions to any threatened
species by the issuance of individual rules for particular
threatened species (or groups of threatened species whose
specific threats or biological conditions are sufficiently
similar towarrant application of identical prohibitions). An
amendment striking TESRA section 8 was adopted when members of the
Committee pointed out that the problem that section addressed was
created by a single U.S. Fish and Wildlife Service rule which could be
remedied by rulemaking without statutory change. The amendment striking
section 8 was agreed to on that basis. The Committee expects and
directs the Secretary of the Interior to conduct promptly a rulemaking
to reconsider and eliminate or restructure the U.S. Fish and Wildlife
Service rule--50 CFR 17.31(a)--in light of this report and legislative
history.
Committee Action
Committee on Resources Chairman Richard Pombo (R-CA)
introduced H.R. 3824 on September 19, 2005, along with
Congressman Dennis Cardoza (D-CA), Congressman Joe Baca (D-CA),
Congressman Marion Berry (D-AR), Congressman Henry E. Brown,
Jr. (R-SC), Congressman Jim Costa (D-CA), Congresswoman Barbara
Cubin (R-WY), Congressman Jim Gibbons (R-NV), Congressman Sam
Graves (R-MO), Congresswoman Cathy McMorris (R-WA), Congressman
George Radanovich (R-CA), Congressman Mike Ross (D-AR),
Congressman Bennie G. Thompson (D-MS), Congressman Greg Walden
(R-OR), Congressman Chris Cannon (R-UT), Delegate Madeleine
Bordallo (D-GU), Congressman Ken Calvert (R-CA), Congresswoman
Thelma Drake (R-VA), Congressman Rick Renzi (R-AZ), Congressman
Don Young (R-AK), Congressman Louie Gohmert (R-TX), Congressman
Henry Bonilla (R-TX), Congressman Tom G. Tancredo (R-CO),
Congressman Dan Boren (D-OK), Congressman K. Michael Conaway
(R-TX), Congressman Randy Neugebauer (R-TX), Congressman Daniel
E. Lungren (R-CA), Congresswoman Marsha Blackburn (R-TN),
Congressman C.L. ``Butch'' Otter (R-ID), Congressman Mac
Thornberry (R-TX), Congressman John T. Doolittle (R-CA),
Congressman Collin C. Peterson (D-MN), Congressman John B.
Shadegg (R-AZ), Congressman Dennis R. Rehberg (R-MT),
Congressman Geoff Davis (R-KY), Congressman Ron Lewis (R-KY),
Congressman John J. Duncan, Jr. (R-TN), Congressman John
Sullivan (R-OK), Congressman Michael K. Simpson (R-ID),
Congressman Randy ``Duke'' Cunningham (R-CA), Congressman
Duncan Hunter (R-CA), Congressman Devin Nunes (R-CA),
Congressman William M. Thomas (R-CA), Congressman Steve King
(R-IA), Congressman Darrell E. Issa (R-CA), Congressman Bobby
Jindal (R-LA), Congressman John E. Peterson (R-PA), Congressman
Sanford D. Bishop, Jr. (D-GA), Resident Commissioner Luis G.
Fortuno (R-PR), Congressman J.D. Hayworth (R-AZ), Congressman
Stevan Pearce (R-NM), Congresswoman Marilyn N. Musgrave (R-CO),
Congressman Jeff Flake (R-AZ), Congressman Howard P. ``Buck''
McKeon (R-CA), Delegate Eni F. H. Faleomavaega (D-AS),
Congressman Charlie Melancon (D-LA), Congressman Mark E. Souder
(R-IN), Congressman Jack Kingston (R-GA), Congresswoman Jo Ann
Emerson (R-MO), Congressman Dave Weldon (R-FL), Congressman
Kevin Brady (R-TX), Congressman Frank D. Lucas (R-OK),
Congresswoman Virginia Foxx (R-NC), Congressman John Kline (R-
MN), Congressman David Scott (D-GA), Congressman Dana
Rohrabacher (R-CA), Congressman Bill Shuster (R-PA),
Congressman Gary Miller (R-CA), Congressman Michael T. McCaul
(R-TX), Congressman Wally Herger (R-CA), Congressman Mark R.
Kennedy (R-MN), Congressman Charlie Norwood (R-GA), Congressman
William L. Jenkins (R-TN), Congressman Don Sherwood (R-PA),
Congressman Trent Franks (R-AZ), Congressman John Boozman (R-
AZ), Congressman Tom Cole (R-OK), Congressman Charles W.
``Chip'' Pickering (R-MS), Congressman Joe Barton (R-TX),
Congressman Solomon P. Ortiz (D-TX), Congressman Spencer Bachus
(R-AL), Congressman Chet Edwards (D-TX), Congressman Artur
Davis (D-AL), Congressman Jim Ryun (R-KS), Congressman Richard
H. Baker (R-LA), Mike Rogers (R-AL), Terry Everett (R-AL),
Congressman Jo Bonner (R-AL), Congressman Phil Gingrey (R-GA),
Congressman Robert B. Aderholt (R-AL), Congressman Lamar Smith
(R-TX), Congressman Mike McIntyre (D-NC), Congressman Robert E.
``Bud'' Cramer (D-AL), Congressman Ruben Hinojosa (D-TX),
Congressman Tom Osborne (R-NE), Congresswoman Ginny Brown-Waite
(R-FL), Congresswoman Eddie Bernice Johnson (D-TX), and
Congresswoman Sheila Jackson-Lee (D-TX) (as of the preparation
of this report).
The bill was referred to the Committee on Resources. On
September 21, 2005, the Committee held a hearing on the bill.
On September 22, 2005, the Committee met to mark up the bill.
The following amendments were offered:
Resources Committee Chairman Richard Pombo (R-CA) offered
an en bloc set of technical amendments to sections 10 and 13 of
the bill. They were adopted by voice vote.
Congressman Tom Udall (D-NM) offered an amendment to strike
the definition of ``best available scientific data'' from
section 3 of the ESA. The amendment failed by voice vote.
Congressman Greg Walden (R-OR) offered and withdrew an
amendment regarding the application of ``jeopardize the
continued existence.''
Congresswoman Stephanie Herseth (D-SD) offered and withdrew
an amendment regarding peer review.
Congressman Peter DeFazio (D-OR) offered an amendment to
strike the determination of distinct population of vertebrate
fish or wildlife only sparingly. The amendment failed by voice
vote.
Congressman Jay Inslee (D-WA) offered an amendment to deem
a species as endangered or threatened if the Secretary of the
Interior fails to make a determination within 180 days of the
species being proposed. The amendment failed by voice vote.
Congressman John E. Peterson (R-PA) offered and withdrew an
amendment which required the Secretary of the Interior to
prepare an analysis of the economic impact, the impact on
national security and other relevant impact of a determination
that a species is endangered or threatened.
Congressman Jim Saxton (R-NJ) offered an amendment to
strike section 5 of the bill (Repeal of Critical Habitat
Requirements). The amendment failed by voice vote.
Congressman Jim Saxton offered and withdrew an amendment to
strike the repeal of the critical habitat requirements under
section 4 of the ESA and insert instead provisions on
protection of critical habitat and survival habitat.
Congressman Mark Udall (D-CO) offered an amendment to
strike section 8 (Protective Regulations). The amendment was
adopted by voice vote.
Congressman Jim Costa (D-CA) offered an amendment to
section 9 of the bill to include counties along with Governors
and State agencies in commenting on regulations issued by the
Secretary of the Interior under section 4 of the ESA. Chairman
Pombo offered an amendment to the Costa amendment to include
units of local government. The Pombo amendment to the Costa
amendment was adopted by unanimous consent. The Costa
amendment, as amended, was adopted by voice vote.
Congressman Jim Saxton offered an amendment to strike the
recovery plan process in section 10 of the bill and replace it
with a different process. Chairman Richard Pombo offered an
amendment to the Saxton amendment to strike all the text but
the requirement that recovery plans be prepared or revised
within 10 years of the date of enactment of TESRA. The Pombo
amendment to the Saxton amendment was agreed to by unanimous
consent. The Saxton amendment, as amended, by adopted by voice
vote.
Congressman Edward Markey (D-MA) offered an amendment to
strike the language in section 10 of the bill regarding the
regulatory nature of recovery plans. The amendment failed by
voice vote.
Congressman Greg Walden offered and withdrew an amendment
to allow themodification of specific measures in an agreement
between the Secretary of the Interior and a federal agency after
considering the direct, indirect and cumulative costs and benefits
resulting from the implementation of a recovery plan.
Congressman Jim Costa offered an amendment to section 10 of
the bill to require the Secretary of the Interior to consult
with any pertinent State, regional or local land use agency
before approving a new or revised recovery plan. Chairman Pombo
offered an amendment to also include the designee of a local
land use agency. This amendment was adopted by unanimous
consent. Congressman Rick Renzi (R-AZ) offered an amendment to
the Costa amendment to include Indian tribes and to provide a
definition of Indian tribes. This amendment was adopted by
unanimous consent. The Costa amendment, as amended, was adopted
by voice vote.
Congressman Rick Renzi offered an amendment to allow the
Secretary of the Interior to enter into cooperative agreements
with Indian tribes under section 11 of the bill. The amendment
was adopted by voice vote.
Congressman Raul Grijalva (D-AZ) offered an amendment to
strike alternative procedures for the federal agency
consultation requirement under section 7(a)(2) of the ESA. The
amendment failed by a roll call vote of 12 to 21, as follows:
Congressman Ken Calvert (R-CA) offered and withdrew an
amendment which exempted from the ESA section 7(a) requirements
certain agency action that may affect a species for which a
permit has been issued under section 10 of the ESA if the
action implements or is consistent with any conservation plan
or agreement incorporated by reference in the permit.
Congressman Dennis Cardoza (D-CA) offered an amendment to
change from 90 to 180 days the length of time the Secretary of
the Interior has to respond to a request for a written
determination of compliance with section 9(a) of the ESA. The
amendment also provided a sunset for the written determination
and allowed the Secretary to withdraw the determination under
certain circumstances. The amendment was adopted by voice vote.
Chairman Pombo offered an amendment to clarify that the
request for a written determination of compliance must apply to
a proposed use which is lawful under State and local law. The
amendment also required the requestor to send the request by
certified mail, that the request must describe the lawfulness
of the proposed action under State and local law, as well as
demonstrate that the property owner has the means to undertake
the use, and the request must describe the anticipated adverse
impact to a species. The amendment also allows the Secretary of
the Interior to request more information regarding the
determination and allows the requestor to supply such
additional information. The amendment was adopted by voice
vote.
Congressman Jim Gibbons (R-NV) offered an amendment to
allow the President, after consulting with the appropriate
federal agency, to exempt any act or omission from the
provisions of the ESA if the exemption is necessary for
national security. The amendment was adopted by voice vote.
Congressman Jeff Flake (R-AZ) offered and withdrew an
amendment regarding an exemption from liability for take of
listed aquatic species.
Congressman Bobby Jindal (R-LA) offered an amendment to
authorize the President to suspend the application of the ESA
in a declared disaster area and directed the Secretary of the
Interior to issue regulations regarding the application of the
ESA in the event of an emergency involving a threat to human
health or safety or to property. The amendment was adopted by
voice vote.
Congressman Neil Abercrombie (D-HI) offered an amendment
providing a definition of ``experimental population.'' The
amendment was adopted by voice vote.
Chairman Richard Pombo offered an amendment to section 14
of the bill to clarify the provisions regarding the
distribution of aid, including the legality of the foregone use
which would be subject to aid, the timing of the aid, the
documentation and calculation of fair market value of the
foregone use, and the availability of aid. The amendment was
adopted by voice vote.
Congressman Jay Inslee offered an amendment to require that
before any aid can be granted under section 14 of the bill, the
property owner would also have to demonstrate that the
application of ESA section 9(a) to prohibit the foregone use
constitutes a taking of privately owned land for which the
payment of compensation is required by the 5th Amendment of the
U.S. Constitution. The amendment failed on a roll call vote of
10 to 27, as follows:
Congressman Stevan Pearce (R-NM) offered an amendment
regarding the reimbursement for depredation of livestock by
reintroduced species. The amendment was adopted by voice vote.
Congressman Greg Walden offered an amendment which deemed
certain actions in compliance with other laws to also be in
compliance with section 7(a)(2) and section 9(a)(1)(B) of the
ESA for a period of time. The amendment was adopted by a roll
call vote of 26 to 11, as follows:
No additional amendments were offered and H.R. 3824, as
amended, was ordered favorably reported to the House of
Representatives by a roll call vote of 26 to 12, as follows:
Section-by-Section Analysis
Section 1. Short title; Table of contents
Section 1 provides a short title for the bill--``The
Threatened and Endangered Species Recovery Act of 2005''--and a
table of contents.
Section 2. Amendment references
Section 2 clarifies that, unless otherwise noted, all
amendments are to the Endangered Species Act of 1973 (16 U.S.C.
1531 et seq.).
Section 3. Definitions
TESRA section 3 establishes a new definition for the ESA
and directs the Secretaries of the Interior and Commerce to
provide guidance and direction on the development and use of
scientific data. The fundamental goal of adding this definition
is to ensure that sound and defensible science is used in all
relevant decisions including: a proposed listing or delisting
of an endangered or threatened species; a proposal to
reclassify a species from threatened to endangered or vice
versa; the development of a recovery plan for an endangered or
threatened species; and a biological opinion on a federal
agency action.
Each agency follows a regulatory process to list species as
threatened or endangered and to conserve or recover a species.
Currently, the ESA requires ``the best scientific and
commercial data available'' for listings and other actions.
However, this term is not defined, and there are no objective
standards to ensure a uniformly high quality of scientific
data. Further, many question the cost, magnitude and validity
of the ESA's requirements and implementation since the ESA has
produced very limited recovery results. This has led to
concerns about the adequacy of science supporting
implementation of actions under the ESA. To address these
issues, this definition is established and the Secretaries are
to set standards for the ``best available scientific data''
that are used to take actions under the ESA.
TESRA section 3 also provides a new definition of ``permit
or license applicant'' to replace the old definition that was
tied to the now-repealed Endangered Species Committee exemption
process. A permit or license applicant under ESA section 7 is a
person who has applied to a federal agency for a permit or
license or for another type of formal legal approval to perform
an act, such as a bidder on a federal contract.
TESRA section 3 also defines the term ``jeopardize the
continued existence'' of an endangered species or threatened
species. The term is used in ESA section 7, under which federal
agencies must insure their actions are not likely to jeopardize
the continued existence of an endangered or threatened species.
Under this definition, the agency action must reasonably be
expected to significantly impede, directly or indirectly, the
conservation of the species in the long-term. This definition
strengthens the current jeopardy standard by adding to the
jeopardy analysis consideration of ``conservation,'' defined in
the ESA as the use of all methods and procedures to restore a
species to the point where the protections of the ESA are no
longer necessary. A significant impediment to conservation is
one that, by itself, makes the future use of such methods and
procedures unlikely to be successful, thus jeopardizing the
continued existence of the species and risking its extinction.
Before an impediment can be considered ``significant,'' there
must be sufficient scientific basis in existence at the time of
the consultation, such as a recovery plan if one has been
prepared under TESRA, to conclude that the conservation is
possible. As provided by the definitions of ``endangered
species'' and ``threatened species'' in the current ESA, a
significant impediment must be likely to frustrate, directly or
indirectly, conservation throughout all or a significant
portion of the species' range, not just in one region or
locality, although for some species an action occurring only in
one such area could indirectly have significant effects in a
broader area. In addition to being significant, the harmful
effects of the agency action must persist over the long term,
which may vary from species to species. A short-term impediment
to conservation, no matter how significant, that has no lasting
long-term effects would not support a jeopardy finding under
the definition. To find jeopardy, it would be necessary to
demonstrate that the effects would be likely to create a
significant long-term threat to the ability to successfully
conserve the species. Finally, this definition would consider
only the conservation of the species in the wild, not taking
into account, for example, captive-breeding programs or the
maintenance of members of the endangered species or threatened
species in zoos, aquaria, or other refuges.
This term, as it appears in section 7 of the current ESA,
is not defined, and has been implemented by the Secretary
through regulatory provisions. The term is also accompanied by
a second standard in section 7 of the current ESA for
evaluating federal actions destruction or adverse modification
of critical habitat. Although the greatest threat to endangered
and threatened species is habitat loss, and protection of
habitat is a key concern of the ESA, the legal concept of
critical habitat in the ESA has proven to be poorly understood,
controversial and difficult to implement, with both the Clinton
and Bush Administrations speaking out forcefully as to its cost
in time and money and relative ineffectiveness as a
conservation tool. Litigation over the concept's meaning and
application in ESA section 7 has also increased dramatically,
shifting valuable conservation resources away from on-the-
ground restoration to often ineffective process costs.
Reflecting these realities, the concept of critical habitat and
the second standard in ESA section 7 that incorporates it have
been dropped. To assure that ESA section 7 continues to give
broad protection for species and habitats, the new jeopardy
definition has been added so that, when a future agency action
is evaluated for risk of jeopardizing the continued existence
of a species, consideration is given to preserving the
potential for species' conservation and not just the effect on
the species' survival. Habitat will continue to be a central
focus of the analysis under ESA section 7 since ultimate
conservation of so many endangered and threatened species is
habitat-dependent. Moreover, the amendments contained in TESRA
to strengthen the recovery planning process increase the focus
on habitat, since recovery plans will be required to include
the identification of habitat that is of special value to the
conservation of the species. This will able the recovery plan
to serve a role formerly played by critical habitat to inform
the public of the importance of key habitat areas.
Additionally, recovery teams can develop plans that incentivize
conservation on privately owned lands that have been subject to
sound land management practices that have benefitted species
but were never acknowledged under the current regulatory-based
critical habitat system. Recovery plans can be given the force
and effect of law if adopted through other existing
authorities, and federal agencies may enter into implementation
agreements with the Secretary to enforce recovery plan
provisions. In any event the recovery plan should inform all
discretionary decision-making under the ESA even where the
obligations of the affected agencies or parties differ from the
standards of a recovery plan. The Secretary's regulations will
have to be updated to implement the new jeopardy definition in
the wide range of circumstances that exist among endangered and
threatened species.
Section 4. Determinations of endangered species and threatened species
TESRA section 4 provides that the ``Secretary shall use the
authority * * * to determine any distinct population of any
species of vertebrate fish or wildlife to be an endangered
species or a threatened species only sparingly.'' The Senate
Report on the 1979 ESA Amendments recognized the ``great
potential for abuse'' in providing an ability to extend the
ESA's protections to a ``distinct population,'' and directed
that this authority be used only ``sparingly.'' S. Rep. No. 96-
151 at 7 (1979). TESRA elevates that legislative intent to a
statutory directive.
The Committee has done so because, despite the intent in
the U.S. Fish and Wildlife Service's 1996 DPS Policy to
designate distinct populations only ``sparingly'' (61 Fed.
Reg.4722-25 (Feb. 7, 1996)), in practice the ``Services have concluded
that potential populations qualify as a distinct population over 80
percent of the time.'' Geoffroy and Doyle, Listing Distinct Population
Segments of Endangered Species: Has It Gone Too Far?, Natural Resources
& Env't 82, 84 (ABA Fall 2001). The Secretaries need clear direction
and authority to limit the number of ``distinct populations'' that are
found and listed. The historic overuse of that authority is diverting
limited resources from more important ESA goals, is trivializing the
ESA by protecting less-significant units, and is needlessly increasing
the conflicts between the ESA and desired human land uses.
Section 4 of TESRA provides that in evaluating the adequacy
of existing regulatory mechanisms in making a decision whether
to list a species as threatened or endangered, the Secretary
shall consider ongoing conservation efforts described in ESA
subsection 4, and provides that such efforts include those by
federal agencies as well as States, local governments and
foreign nations. The amendment made by this subsection
clarifies that the ESA subsection 4(b)(1) factors should be
considered as part of the ESA subsection 4(a)(1) analysis
rather than separately after consideration of the ESA section
4(a)(1) factors.
Section 5. Repeal of critical habitat requirements
This section repeals the critical habitat provision
contained in the current ESA. TESRA eliminates critical habitat
because, according to successive Democratic and Republican
administrations, the provisions cause nothing but litigation
and waste resources. The official position of the U.S. Fish and
Wildlife Service is:
``In 30 years of implementing the ESA, the Service has
found that the designation of statutory critical habitat
provides little additional protection to most listed species,
while consuming significant amounts of conservation resources.
The Service's present system for designating critical habitat
is driven by litigation rather than biology, limits our ability
to fully evaluate the science involved, consumes enormous
agency resources, and imposes huge social and economic costs.
The consequences of the critical habitat litigation activity is
that limited listing funds are used to defend active lawsuits
and to comply with the growing number of adverse court orders.
As a result, the Service's own proposals to undertake
conservation actions based on biological priorities are
significantly delayed.''
In TESRA, habitat of special value to the conservation of a
species is identified and included in recovery plans and given
priority in recovery contracts. Any proposal that would
initiate a review of an action's effect on habitat will be
reviewed under TESRA's recovery habitat, as required under the
ESA section 7 consultation process. This process is described
in greater detail under section 9 of the bill.
Section 6. Petitions and procedures for determinations and revisions
The Secretary's determination that a petition to list a
species as endangered or threatened may be warranted can only
be made if the petitioner has provided the Secretary with all
information cited in the petition. TESRA section 6 also
modifies the notice provisions to provide that the Governor, as
well as the appropriate State agency, receives notice of a
proposed listing determination or revision.
This section further provides that: (1) a complete record
of all information concerning the proposed listing
determination or revision must be made available on a publicly
available website; (2) the posted information must include any
status review and information, information referred to in the
proposed regulation, and all information submitted by third
parties; and (3) the Secretary must withhold any document
consistent with the requirements of section 552 of the
Administrative Procedure Act.
The section also provides that any withdrawal of a proposed
listing determination or revision must be accompanied by
written findings explaining such withdrawal, and clarifies that
the emergency provisions set forth in ESA section 4 only apply
to listing determinations and requires that the Governor as
well as any affected State agencies be given notice. The posted
information must include any status review and information,
information referred to in the proposed regulation, and all
information submitted by third parties. The Secretary must
withhold any document consistent with the requirements of
section 552 of the Administrative Procedure Act.
Section 7. Reviews of listings and determinations
This section provides that status reviews that propose a
change in the species status must have taken into consideration
either: (1) the objective, measurable criteria identified in
the recovery plan which, if met, would result in a downlisting
or delisting decision; (2) for species with no recovery plan or
established downlisting or delisting criteria, the listing
determination factors under ESA section 4(a); (3) a finding of
a fundamental error in the initial determination; or (4) a
determination that the species is no longer an endangered or
threatened species or in danger of extinction based on an
analysis of the listing factors under ESA section 4(a).
Section 8. Secretarial guidelines; State comments
The ESA has had a more far reaching impact than anticipated
when signed into law in 1973. It has become clear that the
impacts and benefits are not just at a State level, but
actually have trickled down to the local government level. In
response to growing concerns by county, local and other
equivalent governments on the need for greater opportunity to
comment on the actions of the federal government as it manages
threatened and endangered species, the Committee has extended
the authority to these groups. The Committee has done this in
TESRA by adding Governors, counties or units of local
governments to the provisions of section 4 of the ESA.
Section 9. Recovery plans and land acquisitions
Subsections (a) and (b) of section 9 of TESRA expand upon
and strengthen the ESA's provisions concerning recovery plans.
In keeping with the more detailed coverage of the recovery
planning process, section 10 of TESRA moves the recovery plan
provisions from section 4 of the ESA, which focuses on listing
and delisting of endangered species and threatened species, to
a more prominent position at the beginning of ESA section 5. In
effect, existing ESA section 4(f) would become ESA subsections
5(a) through (j).
Among the most significant changes that section 9 of TESRA
would make to the current ESA recovery planning provisions are
the following:
Section 9 would require that, for any species determined to
be endangered species or threatened species after TESRA's
enactment, the recovery plan must be prepared within two years
after the final determination rule.
Section 9 would require that recovery plans be based on
``best available scientific data.'' The current ESA requires
use of such data in listing species and in consultations on
federal agency actions, but omits the requirement for recovery
plans. Given the greater attention paid to recovery plans in
TESRA, such plans should also be governed by the same data
standard as applies to species' listings and agency action
consultations.
Section 9 also specifies in more detail requirements for
the contents of recovery plans. The plans must contain
objective measurable criteria that, when met, would allow
adetermination to delist the covered endangered species or threatened
species or to downlist an endangered species to a threatened species.
Measurable criteria are important because they set the goals for all
other plan elements. Moreover, if and when such criteria are met, they
should automatically trigger a downlisting or delisting rulemaking.
Currently it is difficult to determine in many recovery plans what
constitutes conditions that would warrant delisting or downlisting, or,
when the plans do contain measurable criteria and they are met or
exceeded, the Secretaries fail to take any delisting or downlisting
action.
The plans must also contain a description of site-specific
or other measures that would achieve the criteria, including
intermediate measures. Again, it is difficult to locate any
discussion of practical measures in many existing recovery
plans. Perhaps because they are often prepared by recovery
teams dominated by academics, many of those plans emphasize
research, some to the exclusion of any practical measures.
TESRA would also require that recovery plans contain
estimates of the time and cost of the plans' recommended
measures. Too many current plans do not provide realistic
assessments of the time needed to undertake specific measures;
some fail even to suggest when such measures should be
initiated, thus encouraging either a rush to do everything at
once or delay everything to the later years of the plans'
terms. Many existing recovery plans also provide ample evidence
that those who prepared them gave insufficient thought to the
cost of proposed measures. The new requirements for time and
cost estimates should remedy these problems and make recovery
plans far more useful and realistic documents.
Finally, the recovery plans should identify areas of
special value for conservation. This requirement for plan
contents ensures that attention will continue to be paid to the
covered species' habitat needs, even with the deletion of the
current ESA's critical habitat provisions. These lands are not
to be identified for the regulatory purposes that accompanied
critical habitat. Rather their identification should inform,
but not dictate, other decisions under the ESA. It is also
hoped that these lands are given the highest priority in the
implementation of any landowner incentive programs, including
those authorized under the ESA currently, those authorized in
this bill, and any that may be authorized in the future. The
lands to be identified in any recovery plan should be those
that are required to meet the delisting or downlisting
criteria, and secure the delisting or downlisting
determination, contained in the same plan.
Section 9 also has additional provisions refining these
required plan contents. For example, it allows the
establishment of ``interim criteria'' intended to improve the
status of the covered species where insufficient best
scientific data exist to permit a determination of the criteria
necessary for delisting or downlisting. TESRA requires reviews
at least every five years of plans containing interim criteria
to ascertain whether full delisting or downlisting criteria can
be established. Prompt revision of any plan is required if the
data are found to be available. For species that occupy more
than one State, the recovery plans are to contain criteria
that, when met, would allow delisting or downlisting of the
portion of the species in each of the States. Related to the
cost concerns, the bill requires the recovery plans to include,
whenever possible, alternative measures and the identification
of the least costly measure among alternative measures of
comparable efficacy. The plan is also to contain the estimate
of the cost of acquisition on a willing seller basis of any of
the identified special value lands. As a transition matter, any
critical habitat designated prior to the bill's enactment would
be treated as special value land until the relevant recovery
plans are drafted or revised.
Another significant change would be the detail TESRA
section 9 would add to the recovery team concept. It requires
the promulgation of regulations to contain criteria for
establishing recovery teams to prepare recovery plans that are
diverse (including representatives of constituencies that would
be affected favorably by the plans' goals of, and contents to
effect delisting or downlisting, and constituencies that could
be economically or socially impacted by implementation of those
goals and contents) and can achieve timely completion of the
plans. Broadening the teams' membership will ensure those most
directly affected by the plans have a voice in their
preparation. They may also supply new insights, particularly
concerning land and water management constraints and
opportunities. These additional insights will be particularly
valuable in devising the recommended measures. Although TESRA
provides that only scientific members of the recovery teams are
to establish the delisting or downlisting criteria, any of the
broader constituencies can select scientists as their
representatives who would participate in the criteria-setting
process. The recovery team regulations also are required to
ensure that the plans are scientifically rigorous and, where
costs analyses are required, economically rigorous. Finally,
those regulations are to provide guidelines as to when the
appointment of recovery teams is unnecessary.
TESRA section 9 also adds language that will make the
Secretaries' biennial report to Congress more informative and a
better gauge of performance under the ESA. Moreover, new
provisions attempt to make the planning process be more
transparent and open by providing for review and comment by the
affected States, Indian tribes, regional or local land use
agencies, and the public.
The new recovery plan provisions in section 9(a) of TESRA
also makes explicit what is implicit in the current ESA section
4(f) recovery plan language--the intended effect of the
recovery plan. The paragraph is also fully consistent with
long-held federal judicial precedent interpreting that intended
effect. Consistent with Fund for Animals v. Rice, 85 F.3d 534,
547 (11th Cir. 1996),2 TESRA states that the
recovery plan does not impose any regulatory requirements on
federal agencies and nonfederal persons. As stated elsewhere in
this report, recovery plans are intended to inform, but not
dictate, relevant decision making under the ESA. That recovery
plans do not have the force and effect of law not only is the
law, given the absence of any direction to the contrary in the
current recovery plan language in current section 4 of the ESA
and the consistent interpretations by all Administrations and
by the courts, but also is a matter of practical necessity. As
a practical matter, the recovery plan cannot have such force
and effect because it is prepared on the basis of statutory
standards (both those in the current ESA section 4 and in the
new section 5 language of TESRA) that are more stringent than
the statutory standards for most other decisions under the ESA,
e.g., consultation on federal agency actions under ESA section
7 and approval of incidental take permits and safe harbor
agreements under ESA section 10.
---------------------------------------------------------------------------
\2\ ``[T]he practical effect of the Plaintiffs' position would be
to elevate the * * * Recovery Plan into a document with the force of
law. We cannot take such an approach. Section [4(f)] makes it plain
that recovery plans are for guidance only.''
---------------------------------------------------------------------------
The Committee did adopt an amendment that eliminated a
phrase which stated recovery plans can have no ``effect other
than as non-binding guidance.'' In point of fact, they can have
binding effect if a federal agency decides to adopt all or part
of any specific plans (and the adoption of those provisions
does not have the effect of exceeding the limits of authority
provided by the ESA to impose the restrictions that may be
contained in those provisions, particularly on non-federal
entities or landowners) or if the nonfederal entities or
landowners voluntarily choose to adopt such provisions in
cooperative agreements, habitat conservation plans, safe harbor
agreements, etc. After such adoption, the conservation plan
provisions would then become binding either under the ESA or
under contract law.
TESRA section 9 also explicitly allows a federal agency to
agree to undertake particular identified measures in any
specific recovery plan through an agreement with the Secretary
of the Interior
and/or the Secretary of Commerce. Each agreement is to be
focused on particular measures in a specific recovery plan.
This provision requires that any recovery plan-
specificagreement be made subject to public review and comment, and
that the Federal agency responds to the public comment. Moreover, the
Committee does not intend that any agreement waive, alter, or encumber
any public participation, administrative appeal, or due process
requirements contained in the laws and implementing regulations that
authorize and govern agency activities covered by the agreement.
Finally, TESRA section 9 provides for the development of
priorities and a schedule for development of recovery plans for
species listed prior to the bill's enactment that do not yet
have such plans.
The two landowner incentives programs included in the
section 9 of TESRA are intended to provide alternative
mechanisms to those contained in current programs for
landowners to secure immunity from liability under the ESA
while providing additional habitat and protection for
endangered and threatened species on nonfederal lands.
Currently there are several incentive programs (e.g. the
habitat conservation planning and incidental take permitting
process under ESA section 10) that are explicitly authorized,
and several more incentive programs (e.g. safe harbor
agreements and candidate conservation agreements) that are not
authorized by the ESA. There are also landowner incentive
programs under other statutes, e.g. the Forest Legacy Program.
The programs established in this bill are not intended to be
additive. They, instead, are expected to provide a wider array
of alternatives for landowners who would otherwise have made
use of the existing programs. The new programs simply provide
standards and procedures that landowners already inclined to
enter a landowner incentive program may find better tailored to
their needs.
Section 10. Cooperation with States and Indian tribes
These provisions strengthening ESA section 6 State
cooperative agreements are responsive to the repeated requests
of the States, particularly the Western Governors' Association,
to be accorded the opportunity to participate more actively and
fully in species conservation efforts. The States'
participation is critical because they know their residents'
needs better (and the residents know the States better) than
the Secretaries of the Interior and Commerce, and,
consequently, the States are likely to be far more effective in
enlisting landowners in the cause of species' conservation.
A number of States, with active encouragement of the
Secretary of the Interior, are seeking to make greater use of
the cooperative agreement provisions of ESA section 6. In the
past many States chose to prepare and submit bare-bones
cooperative agreements applicable to all listed species within
their borders. The principal purpose of such agreements was to
secure Federal funding. Recently several States have prepared
or are in the process of preparing cooperative agreements for
particular species that are far more detailed, containing very
specific land and water management guidance and requirements to
protect those species. Often these species-specific agreements
provide for the voluntary enrollment of landowners, who are
then bound to the agreements' terms by contract. The advantage
to enrollment is that the landowners secure the protection of
the incidental take statement that the Secretaries may issue
after consulting under ESA section 7 on approval of the
relevant agreement. The broader agreements come under the
provision of ESA section 6 concerning agreements ``to conserve
resident species * * * determined by the State agency or the
Secretary to be endangered or threatened.'' The species-
specific agreements come under the provision of ESA section 6
concerning agreements that contain ``plans'' which address
resident endangered or threatened species'' which the Secretary
or the State agency agree are most urgently in need of
conservation programs. These agreements not only secure the
enlistment of States and landowners in the efforts to conserve
listed species, but also reduce the strain on the species
conservation resources available to the Secretaries and Federal
land management agencies.
Section 10 of TESRA strengthens and broadens the ESA's
section 6 conservation agreement authority in several ways.
First, it encourages agreements to address candidate species by
providing that the incidental take statement will cover those
species if and when they are listed. Second, it amends the
Federal funding provision to authorize the Secretary to provide
financial assistance for agreements that establish conservation
programs for the protection of, and are not just limited to
monitoring, candidate species, as well as other species at risk
and species that are determined by the Secretary to be
recovered species and no longer subject to the constraints of
the ESA.
Third, TESRA section 10 eliminates a significant barrier to
the completion and implementation of these agreements. ESA
section 6 currently requires that these agreements be reviewed
annually. As each annual review could be considered a Federal
agency action, the agreements, the States, and the Secretaries
could become mired in an increasingly larger number of annual
consultations, particularly if section 10's intended effect of
stimulating the States to produce multiple cooperative
agreements is effective. TESRA section 10 addresses this
problem by changing the annual reviews to triennial reviews,
and specifying the circumstances in which additional
consultations must occur on agreements after the initial
consultations on the agreements' approvals. Those circumstances
are, in brief, whenever the Secretaries determine, during the
reviews or on obtaining new information, that the agreements
may be having any ``adverse effects'' on the covered species
that had not been considered previously or whenever either
Secretary approves the renewal or amendment of an agreement
that covers or affects newly listed species.
Fourth, TESRA section 10 contains a provision that
clarifies that any cooperative agreements that call for the
enrollment of lands or water rights in the agreements'
conservation programs may not require enrollment and must
ensure that any enrollment is voluntary.
Fifth, TESRA section 10 adds provisions to ESA section 6
that specify procedures for suspension and termination of
cooperative agreements, including procedures for curing
deficiencies. The current ESA section 6 is silent as to how the
Secretaries may address cooperative agreements that no longer
meet the requirements of ESA section 6 or are found in
consultations to likely jeopardize the covered species'
existence.
Finally, the Committee adopted an amendment to accord to
Indian tribes the same authority to enter into cooperative
agreements that ESA section 6 now provides to the States.
Indian tribes with the capacity and desire to prepare species
conservation programs should be encouraged to do so. This
amendment would provide such encouragement.
Section 11. Interagency cooperation and consultation
This section of TESRA adds to the current ESA section 7
language which authorizes the Secretary to adopt by regulations
alternative procedures to those described in other provisions
of ESA section 7 to implement ESA section 7's jeopardy standard
for Federal agency actions. The paragraph has a number of
safeguards to ensure that the regulations cannot alter the
jeopardy standard, and that they will require virtually
equivalent procedures to those in the current ESA provisions
for agency actions which are likely to adversely affect listed
species.
In effect, the Secretaries have already exercised this
authority in the regulations they adopted in 1986 (50 CFR Part
402). Under those regulations, over the last two decades
countless Federal agency actions have been allowed to proceed
without any ``consultations'' by the Federal action agencies
with the Secretaries, and without the preparation of any
biological ``opinion[s]'' by the Secretaries on those actions,
using the procedures in the regulations for ``informal
consultation.'' Yet, since 1979, ESA section 7(a)(2) has
referred to ``consultation'' on ``any [agency] action,'' ESA
section 7(b)(1) has set deadlines for concluding
``consultation'' on``any agency action,'' and ESA section
7(b)(3) has required the preparation by the ``Secretary'' of a written
biological ``opinion'' ``after conclusion of consultation under'' ESA
section 7(a)(2), which is not prepared in an informal consultation.
The 1986 rules have allowed such informal consultation with
the Secretaries for all agency actions that the Federal action
agencies (e.g., Corps of Engineers, Bureau of Land Management,
Bureau of Reclamation, and Department of Transportation)
determine are not likely to adversely affect listed species,
with only a brief written concurrence from the Secretary rather
than a biological opinion. Moreover, those same regulations
have excused any communication by an action agency with the
Secretary for ``no effect'' agency actions. The 1986
regulations also authorize the further adoption of additional
regulations that establish other alternative ``consultation''
procedures for categories of Federal agency actions (50 CFR
402.04), which the Secretary has done twice.
The new language added to section 7 puts into the ESA both
authority to adopt alternative ``consultation'' procedures
which the Secretary exercised in promulgating in the 1986
regulations for informal consultation, and authority to devise
additional alternative ``consultation'' procedures tailored to
particular agencies or agency actions as exercised twice
previously. This new language would constrain these alternative
procedures authorities in several ways. First, it does not
alter the ESA section 7 substantive jeopardy standard for
agency actions. Second, it allows the adoption of alternative
``consultation'' procedures only by notice-and-comment
rulemaking, and only by the Secretaries who have the duty to
protect listed species, not the Federal agencies proposing the
agency actions. Third, it maintains all the key requirements of
the current ESA section 7 statutory procedural steps for agency
actions that may adversely affect listed species.
Under the current statutory procedures, the only way that a
Federal action agency (and any applicant for a Federal permit,
license, funding, etc.) can obtain immunity from adverse
effects to a listed species caused by an agency action is to
obtain an incidental take statement from the Secretary under
ESA section 7(b), after consultation with the Secretary under
ESA section 7(a) and preparation by the Secretary of a
biological opinion under ESA section 7(b). Under the new
paragraph, if any agency action has the likelihood of adversely
affecting a species, the agency (and the applicant) will still
have to seek consultation with the Secretary, and the
Secretary's preparation or concurrence in a biological opinion,
to obtain the protection of the issuance of an incidental take
statement. Also, under current ESA law, if the agency action's
adverse effects are significant enough to fail to meet the ESA
section 7(a) jeopardy standard, the Federal action agency (and
applicant) for all intents and purposes only can proceed, and
only can secure an incidental take statement, if it engages in
consultation with and obtains a biological opinion from the
Secretary, and agrees to undertake a ``reasonable and prudent
alternative'' to the action suggested by the Secretary under
ESA section 7(b). Under this new language, the same steps--
consultation, biological opinion, Secretarial suggestion of or
concurrence in a reasonable and prudent alternative--would have
to occur and could not be avoided by any alternative procedure
established under the new language.
Section 11 of TESRA adds a new provision to ESA section
7(a) providing that any analysis under ESA section 7(a) shall
consider only the effects of the proposed agency action under
review that are distinct from the baseline of effects on the
relevant species that have occurred or are continuing to occur
as a result of past human activities or natural events. The ESA
section 7(a) analysis is to determine the incremental effects
of a proposed Federal agency action. Federal actions such as
the ongoing operation of existing facilities cannot be expected
to compensate for past activities or events in many cases
occurring long before the ESA was originally enacted. Thus,
this section provides that a jeopardy finding under ESA section
7(a) as amended would have to be based only on the incremental
effects of the proposed action and not on pre-existing
conditions.
TESRA would establish a requirement in new ESA section 7(b)
that any terms and conditions in the Secretary's written
statement following consultation must be ``roughly
proportional'' to the extent that the land use activity results
in incidental take of a species. Similarly, under new ESA
section 10(a)(3), terms and conditions in a ESA section 10
incidental take permit and habitat conservation plan must be
``roughly proportional'' to developmental impacts on listed
wildlife. This ``roughly proportional'' language clarifies the
intent of the two provisions to provide for mitigation of
project or development impacts. Indeed, the ``roughly
proportional'' language is modeled after similar language
contained in the rigorous State of California Endangered
Species Act (Cal. Fish & Game Code 2052.1, 1081(b)).
The ``rough proportionality'' language is also intended to
codify the principle from Dolan v. City of Tigard, 512 U.S.
374, 391 (1994), in which the Supreme Court recently recognized
that ``the government may not require a person to give up a
constitutional right--here the right to receive just
compensation when property is taken for a public use--in
exchange for a discretionary benefit conferred by the
government where the benefit has little or no relationship to
the property.'' Lingle v. Chevron, U.S.A., 125 S.Ct. 2074, 2087
(2005) (citing Dolan, 512 U.S. at 385).
Dolan stands for the proposition that government can only
demand conditions on land use activity that are tailored to
address the particular impacts that will accrue from the
project under review. As the Court stated, ``no precise
mathematical calculation is required, but the [government] must
make some sort of individualized determination that the
required dedication is related both in nature and extent to the
impact of the proposed development.'' Id. at 391. Under Dolan,
it is the government's burden to prove ``rough
proportionality'' between species impacts and the proposed
development. Accordingly, for purposes of TESRA, the Secretary
must quantify his or her findings for ESA sections 7 and 10
terms and conditions as much as possible. The Secretary cannot
rely on conclusory statements regarding hypothetical impacts of
a project as justification to impose excessive conditions on
private land use activities to address the incidental take of
species. In short, the government must develop a sufficient
administrative record to justify terms and conditions under the
``rough proportionality'' standard.
Section 12. Exceptions to prohibitions
In adding paragraph (4)(E) to ESA section 10(a), it is the
intent of the Committee to confirm the validity of the ``No
Surprises'' and Permit Revocation regulations that have
governed ESA section 10(a) permits for the last seven years,
and to require the inclusion of ``No Surprises'' and Permit
Revocation assurances in future permits. To this end, new ESA
section 10(a)(4)(A) through (E) enacts ``No Surprises'' and
Permit Revocation assurances and requires that these assurances
be included in all future ESA section 10(a) permits, except
permits issued for scientific purposes. For ESA section 10(a)
permits issued before the date of enactment, new ESA section
10(a)(4)(E) makes clear that the existing ``No Surprises'' and
Permit Revocation regulations, codified in 50 CFR Parts 17.22
and 17.32, constitute the governing law pursuant to which
existing permits will be implemented and enforced.
Under TESRA, the habitat conservation plan content (HCP)
requirements--the biological goals, monitoring, and adaptive
management provisions--are NOT new, but are taken from an
existing policy implemented in 2000. All three elements of HCPs
were established in 65 Fed. Reg. 35242-35257 (June 1, 2000)
(``Notice of Availability of a Final Addendum to the Handbook
for Habitat Conservation Planning and Incidental Take
Permitting''). These new statutory requirements are not
intended to go beyond the existing notice provisions and
therefore are not more stringent.
TESRA also amends the ESA section 10(j) provisions to
advance recovery while respecting property rights and other
local concerns. Such solutions have been worked out underthe
existing law, which allows rules for introduced species to be tailored
to local conditions, and the committee intends to facilitate more such
solutions. The Committee finds that application of section 10(j) of the
ESA can provide clear benefits to endangered species as demonstrated by
the California condor recovery in northern Arizona and southern Utah
where recovery actions have involved and are supported by States,
Tribes, local communities, and private landowners. The Committee
desires to clarify and improve this provision.
Application of section 10(j) of the ESA requires the
Secretary to make two determinations before establishing an
experimental population. Those are: (1) that doing so will
``further the conservation'' of the species; and (2) that there
are no naturally occurring populations of the same species in
the area where the experimental population is to be
established. A point of confusion has been the meaning of
``population'' when considering appropriateness for
establishment an experimental population. The Committee
believes that periodic sightings and even occasional breeding
are insufficient to be considered a natural population, and
that such sightings are no bar to the establishment of an
experimental population.
Consequently, TESRA revises ESA subsection 10(j)(1) to
clarify this point of confusion and potential controversy by
describing the term ``areas occupied by nonexperimental
populations'' as ``areas characterized by the sustained and
predictable presence of more than negligible numbers of
successfully reproducing individuals over a period of many
years.'' Endangered and threatened species conservation will
benefit as this clarification will firmly establish those
circumstances where the section 10(j) provision may be used and
reduce the potential for conflict which has often resulted in
litigation.
TESRA also provides for a written determination of
compliance provision that would become subsection 10(k) in the
ESA. This provision affords a property owner the means of
receiving a final agency determination whether a proposed
property use would be in violation of the ESA section 9(a)
prohibitions. The most important of these prohibitions is that
against the ``take'' of a species. As defined in the ESA,
``take'' includes the elements ``harm, harass, pursue, hunt,
shoot, wound, kill, trap, capture or collect'' with regard to
an endangered species or, by prohibitions promulgated in
regulations, of a threatened species. While most of the actions
that constitute a take require a direct relation between the
person committing the take and the species the elements
``harm'' and ``harass'' may provide for a proximate
relationship. Babbitt v. Sweet Home Chapter of Communities for
a Great Oregon, 515 U.S. 687, 713-714, 115 S.Ct. 2407,2420-2421
(1995). Consequently, a use that a reasonable person might
conclude as not violating this prohibition may do so.
TESRA's provision that provides for a written determination
affords landowners certainty regarding a proposed use of their
property and, in the case the Secretary determines that the use
would not comply with the current ESA's prohibitions against
take of a listed species, it provides for a written
determination that may serve as the basis for a request for
conservation aid to offset the burden of conservation measures
imposed upon the property owner.
The newly created section 10(k) provides that a property
owner who desires a determination by the Secretary whether a
proposed use would violate the ESA's section 9(a) prohibitions
may request, by certified mail, such a determination provided
that the property owner describe: (1) the nature, location,
anticipated schedule and duration of the proposed action; (2)
lawfulness under State and local law; (3) the property owner's
means to carry out the proposed use; and (4) anticipated
adverse impacts to a listed species is expected to occur. Under
section 10(k)(3) the Secretary may request and the property may
provide any other information either believes will aid the
Secretary in making a determination. Section 10(k)(4) provides
that the Secretary may make no determination if the property
owner requesting the determination failed to include
information required under section 10(k)(2) and allows, in such
a circumstance, that the property owner may resubmit the
request.
Provided with the information under section 10(k)(2), the
Secretary must, pursuant to section 10(k)(5), provide a written
determination within 180 days unless a written extension is
granted by the requesting party. The Secretary may extend the
deadline by 180 days if the Secretary determines that he or she
cannot make a determination because of seasonal considerations
which would include such considerations as migration patterns
and dormancy. If the Secretary fails to issue a determination
within the required window, pursuant to section 10(k)(6), the
proposed use is deemed to be in compliance with ESA section
9(a).
Subsection 10(k)(8) provides that uses of the property or
other actions taken in reasonable reliance upon a written
determination which finds the use would not violate ESA section
9(a) prohibitions or that are deemed to comply with section
9(a) based upon the Secretary's failure to respond are not
subject to liability for violations of ESA section 9.
Subsection 10(k)(9) limits the time period a landowner can rely
on the Secretary's determination or failure to respond to ten
and five years respectively. The Committee intends that
reasonable reliance tests allows for variation of the proposed
use when it is undertaken by the property owner so long as the
nature of the use is essentially of the same scope, scale and
area as the proposed use.
Under subsection 10(k)(10) the Secretary may withdraw a
determination of compliance if, as a result of unforeseen
circumstances, the continuation of the use would preclude
conservation measures essential to the survival of an
endangered or threatened species. This provision accounts for
the possibility a species was newly discovered to be in the
area affected by the use or a species that would be affected by
the use is added to the endangered species list. Such
withdrawals become effective ten days after a property owner
has been notified of the withdrawal and make the property owner
eligible for aid equivalent to the fair market value of the
foregone use.
Pursuant to section 10(k)(7), property use that is subject
to consultation under ESA section 7 consultation cannot be the
subject of a request for a written determination of compliance
as the ESA provides an assessment of the effect of an agency
action on listed species under ESA section 7's consultation
provisions.
TESRA provides reasonable requirements to prevent abuse of
this determination authority. For example, a property owner
requesting a determination must include basic information about
the proposed use such as the use's consistency with State and
local law, the property owner's means to undertake the proposed
use and any reasonably anticipated adverse impacts to a species
included on the lists published under the current ESA section
4(c). Given that this section is provided in large part to
reduce conservation burdens imposed on private property owners,
the Committee does not intend for these requirements to impose
yet another burden on private property owners. Accordingly,
TESRA neither imposes any requirement on nor provides any
authority for the Secretary to require a property owner to
obtain and provide completed State and local permits or
approval from any other governmental agency to be eligible for
a written determination. Similarly, TESRA imposes no
requirement on the property owner nor provides the Secretary
with authority to require that detailed or extensive financial,
design or other such information be provided by a property
owner to demonstrate the means to undertake the proposed use.
Likewise, in assessing ``anticipated adverse impacts'' TESRA
does not require nor provides the Secretary with authority to
require the property owner to provide detailed studies,
analyses or surveys. Rather, the intent of these provisions is
to require a good faith effort on behalf of the property owner
to provide the Secretary with relevant information to make a
determination.
Finally, because this provision is intended to assist
property owners who, in many instances, may not even know of
the existence of an endangered or threatened species in the
vicinity or that their particular activity (e.g., farming,
forestry, home building) may impact anendangered or threatened
species, the failure of any property owner to request a written
determination under this subsection should not count against the owner
in any legal proceeding or permit process.
Section 13. Private property conservation
Section 13 of TESRA would replace section 13 of the ESA
which consists of amendments to other laws that have been
executed. Section 13 provides two additional mechanisms to the
ESA, conservation grants and conservation aid. This section
affirms that the Committee places the conservation of
endangered and threatened species among the highest of
priorities and that TESRA evidences the Committee's recognition
that the burden of carrying the costs of a conservation program
that is intended to benefit all should not be borne by the few.
The conservation aid provisions are at the heart of
improvements the Committee considers essential to modernize and
update the ESA. It is designed to compensate private property
owners who have been denied use of their property as evidenced
by a written determination that the owner's proposed use of the
property would violate the ESA prohibitions at section 9(a) (or
a withdrawal of a written determination of compliance).
Providing such a mechanism not only reflects the societal
commitment to conservation of endangered and threatened species
but also reduces the unintended and counterproductive
consequence of devaluing private property through regulations.
Without such a provision, the actual effects of a law designed
to conserve endangered and threatened species can be the
destruction of habitat or the species itself compelled by the
potential threat to the value of private property.
Under new ESA section 13, the Secretary may issue
conservation grants to promote conservation of endangered
species and threatened species on private property. This
authority is intended to complement other tools at the
Secretary's disposal under the ESA and that would be provided
by TESRA. Subsection (b) provides basic restrictions on grants
prohibiting their use to fund litigation, general education,
general outreach, lobbying or solicitation. It also prohibits
use of grants for land acquisition or leases or easements of
more than 50 years and requires that any grant activities
carried out on private property are supported by the property
owner. Subsection (c) establishes a priority ranking to guide
the Secretary's decision to award grants, giving top priority
to grants that promote conservation of endangered species or
threatened species on private property while making
economically beneficial and productive use of the property. The
Committee's intent is for grants provided under this section of
TESRA to be directed to producing tangible and direct
conservation benefits for endangered and threatened species but
to also allow the Secretary room for ingenuity and creativity
in forming partnerships with private landowners and others.
Subsection (d) establishes the eligibility requirements for
conservation aid that the Secretary provides under TESRA. To be
eligible, property owners who received a written determination
indicating the proposed use would violate ESA section 9(a) or
had written determination of compliance withdrawn under section
10(k) must request aid with 180 days. Additionally, the
property owner must have foregone the proposed use or, in the
case of a withdrawn written determination, terminate activities
that would fall under the withdrawn compliance determination
when such withdrawal became effective. Further, the proposed
use, as in the case of request for a written determination,
must be one the property owner has the means to carry out and
the use must be one that would be lawful under State and local
law. These later requirements reiterate requirements that
property owners need to meet to receive a written determination
under section 10(k), and the Committee's intent is identical to
their applicability under that provision.
Subsection (f) establishes the means of documenting the
foregone use, or, alternatively, the mechanism by which the
Secretary shall acquire an interest in the property. The
provision provides that the Secretary shall enter into
negotiations with the property owner regarding the possible
means of documenting the use which may include contracts,
leases, easements or acquisition or transfer of title. If the
agreement is not reached within 60 days of the request for aid,
then the Secretary must select the means by which foregone use
will be documented, selecting the means ``with the least impact
of the ownership interests of the property owner necessary to
document the use.'' The Committee clearly intends and
interprets this provision as forbidding the Secretary, after
failing to reach agreement with the property owner on a means
of documentation from determining that title transfer will be
used as the means of documenting the foregone use. Transfer of
title is excluded as a means of documenting the foregone use as
it would have the greatest impact on the ownership interests of
the property owner. While the Committee is unaware of instances
in which the application of section 9(a) prohibitions has
resulted in removal of all uses of a property, the option of
transfer of title is provided during the initial 30 day
negotiation period. In conjunction with the baseline that the
aid provided by the Secretary be ``not less than the fair
market value'' of the foregone use, this provision allows, with
the property owner's agreement, acquisition of a larger
interest in the property than would otherwise occur with aid
equivalent to the fair market value of the use of the affected
portion of the property which has been foregone.
Subsection (g) establishes that fair market value of the
foregone use means what a willing buyer would pay to a willing
seller in the open market for the affected property interest,
here the foregone use that is documented under paragraph (f).
See e.g. U.S. v. Miller, 317 U.S. 369, 374 (1943) (``market
value is what a willing buyer would pay in cash to a willing
seller.'') Fair market value should take into account
reasonably potential uses of the affected property, taking into
account the likelihood and difficulty of obtaining permits for
any particular use. Thus, section 13 further states that ``Fair
market value shall take into account the likelihood that the
foregone use would be approved under State and local law.''
Fair market value should also not be affected by the influence
of the ESA itself. The Supreme Court has held that under the
``scope of the project rule,'' determinations of fair market
value usually do not take into account impacts on value caused
by the government action that gives rise to the government's
liability in the first place. See e.g. Almota Farmers Elevator
& Warehouse Co. v. U. S., 409 U.S. 470, 478 (1973) (``It
[government] may not take advantage of any depreciation in the
property taken that is attributable to the project itself.'').
Thus, the Committee does not intend that a reduced ability to
use the property because of the direct or indirect influence of
the ESA should affect the determination of fair market value.
To establish fair market value, after the means of
documentation of the foregone use has been determined, the
Secretary and the property owner are to jointly select two
licensed independent appraisers. If these appraisers are unable
to reach resolution as to a fair market value of the foregone
use within 180 days, a third appraiser is jointly selected by
the property owner and the Secretary, who establishes the fair
market value within an additional 90 days. This is binding on
the Secretary and the property owner.
Subsection (e) establishes a schedule by which the
Secretary is to provide aid and grants provided under this
section. The Secretary is to provide aid within 180 days of the
request for aid if there are not unresolved issues regarding
the fair market value or at the resolution of any issues
regarding fair market value which shall be accomplished in no
more than 360 days from the date of the request. Aid is paid in
order of the date of request. Grants are to be paid on the last
day of the fiscal year.
Subsection (h) provides a provision to guard against abuse
of the section by prohibiting a person from receiving aid for
the same forgone use, on the same property for the same period
of time, more than once.
Under subsection (i) annual reports are to be submitted on
January 15 to the Committee on Resources of the House of
Representatives and the Environment and Public Works Committee
of the Senate for all aid and grants paid by the Secretary
during the previous year.
Section 14. Public accessibility and accountability
TESRA's section 14 add a new requirement to the ESA that
the Secretary maintain a publicly accessible website that
includes: (1) endangered and threatened species lists; (2) all
final and proposed endangered and threatened species
regulations issued under ESA section 4; (3) draft and final
recovery plans; (4) the results of five year status reviews;
and (5) all reports and supporting data to Congress required
under what would be ESA section 5 and the annual cost analyses
under ESA section 18. Much of this information is provided now
by the U.S. Fish and Wildlife Service on its Threatened and
Endangered Species Database System. This provision codifies
this as a requirement for the Secretary and specifies the
information to be contained. Given the increased emphasis
within TESRA on recovery plans and the important role of the
five-year review provision requiring these materials to be
easily accessible to the public, this provision is viewed as
essential by the Committee. In providing these requirements
within TESRA the Committee's intent is not merely that these
documents be eventually made available on the website, but that
preparation of these documents should be done with the intent
that they become immediately available in electronic format as
soon as they are complete and finalized. Further, the Committee
expects that the requirements of this section and TESRA's
amendments to ESA section 4(b) requiring the Secretary to make
``available a complete record of all information concerning the
determination or revision'' would be addressed in an integrated
manner with this section's requirements.
TESRA section 14 provides a new requirement to include on
the publicly accessible website a database that may be searched
by the variables contained within the reports to Congress on
the status of domestic endangered and threatened species and
efforts to develop and implement recovery plans for these
species which are required by TESRA's amendment to section 5 of
the ESA and the annual cost analyses prepared under TESRA's
section 16. Both of these reports are, with similar parameters,
required under current law and that information would be
required to be included in the database as well. This provision
would merge the largest available data sources on the
conservation effects of and costs of implementing the ESA into
one location, providing the public with a greater understanding
of this conservation program.
Section 15. Annual cost analyses
TESRA section 15 modifies the reporting under the current
ESA section 18 in several ways to provide consistent and more
comprehensive reporting of costs associated with implementing
the ESA. The existing law requires the reporting of
expenditures that are primarily for the conservation of an
endangered or threatened species on a species by species basis.
In practice, many costs related to endangered and threatened
species cannot be easily segregated on a species by species
basis as conservation measures may benefit more than one
species. Under this section, federal and State costs that are
not attributable to a specific species are to be reported.
Although not currently required by law, such reporting has been
implemented in recent years as ``other ESA'' expenditures.
Codifying this practice as a requirement will ensure that more
comprehensive cost data is provided and that reporting is
systematic from year to year.
The Committee intends for this report to provide as
comprehensive a picture of ESA expenditures as possible so that
the societal commitment to endangered and threatened species
conservation can be more accurately tracked. Consistent with
this, the Committee expects the reporting by federal agencies,
such as the Forest Service and the Bureau of Land Management,
to include foregone revenue as the Bonneville Power
Administration has been consistently reporting.
TESRA also provides for a requirement to establish a
prerequisite for eligibility for financial assistance under ESA
section 6. Under this provision a State must report its
expenditures on endangered and threatened species, including
those expenditures that are not attributable to a specific
species for the previous year, to be eligible for section 6
funding in the following year. The intent of this provision is,
again, to provide as comprehensive a picture of ESA
expenditures as possible. The Committee interprets this
provision as requiring not only the reporting of costs borne by
State fish and wildlife agencies or departments of natural
resources but also those costs borne by other State agencies
such as transportation departments.
TESRA also requires the Secretary to provide a means where
units of local government may, voluntarily, report and certify
the accuracy of costs attributable to the conservation of
endangered and threatened species. This provision as well
reflects the Committee's intent to provide as comprehensive a
picture of ESA costs as possible and the Committee's
recognition that many of the costs associated with the ESA are
borne by local government. The Committee expects that in
providing the means to electronically report and certify the
accuracy of these expenditures, the Secretary is to make the
system user friendly so that local governments are not
discouraged by an additional burden.
Section 16. Reimbursement for depredation of livestock by reintroduced
species
This section authorizes the Secretary, through the Director
of the U.S. Fish and Wildlife Service, to reimburse the owner
of livestock for any loss of such livestock resulting from
depredation by any population of a species listed under the ESA
and includes or derives from members of the species that were
reintroduced into the wild. Eligibility under this section is
not conditioned on the presentation of the body of any animal
for which reimbursement is sought. The Secretary is authorized
to accept and use donations of funds to pay reimbursement under
this section.
Section 17. Authorization of appropriations
This section authorizes such sums as are necessary for
Fiscal Year 2006 to 2010 for the Secretary of the Interior. It
also authorizes sums as necessary for Fiscal Year 2006 and 2010
for the Secretary of Agriculture to carry out functions and
responsibility of the Department of the Interior with respect
to the enforcement of the ESA and the convention which pertains
to the importation of plants.
Section 18. Miscellaneous technical corrections
This section makes miscellaneous corrections to other
portions of the ESA to correct cross references and to conform
the text with the amendments made by earlier portions of the
bill, as well as to provide gender neutral references within
the text of the ESA.
Section 19. Clerical amendment to table of contents
This section makes a technical change to conform the table
of contents of the ESA to changes made in earlier portions of
this bill.
Section 20. Certain actions deemed in compliance
Section 20 of TESRA addresses a significant action taken by
the Secretaries and the Environmental Protection Agency to
remedy the alleged failure of the government (and, as
aconsequence, manufacturers, and farmers, utilities, mosquito control
districts, and other applicators of pesticides) for over three decades
to comply with ESA section 7(a)(2) in the registration and use of
pesticides under the Federal Insecticide, Fungicide and Rodenticide Act
(FIFRA, 7 U.S.C. 136-136y). ESA section 7(a)(2) requires federal
agencies to consider, and consult with the Secretaries on the effects
of federal agency actions on endangered or threatened species. On
August 5, 2004 (69 Fed. Reg. 47732-47762), following coordination with
the Environmental Protection Agency and the U.S. Department of
Agriculture, the Secretaries published a joint rule (50 CFR Part 402,
Subpart D) establishing procedures to ensure ESA section 7(a)(2)
compliance for regulatory actions under FIFRA.
Critics have alleged that the FIFRA pesticide registration
program has never complied with the requirements of the ESA,
and that no Administration since the ESA's enactment in 1973
has developed a program to ensure compliance. Congress
addressed this problem as early as 1988 when it enacted section
1010 in the 1988 ESA Amendments Act, which directed all
involved federal agencies to design a FIFRA/ESA compliance
program to ``minimize the impacts to persons engaged in
agricultural food and fiber commodity production.'' Public Law
100-478, section 1010(b), 102 Stat. 2313-14 (1988), 7 U.S.C.
136a note. The alleged continued absence of a comprehensive ESA
compliance program for FIFRA actions has prompted significant
litigation over the last three years. On January 30, 2004, the
Secretaries proposed a rule that would establish the
comprehensive ESA compliance program for FIFRA actions. In a
bipartisan letter sent to the Secretary of the Interior on June
25, 2004, 92 members of the House of Representatives praised
the decision to establish a compliance program and urged prompt
publication of a final rule, which occurred less than a month
and a half later.
The August 5, 2004, rule which established specific
procedures to ensure that FIFRA actions comply with the ESA
section 7 consultation requirements was promulgated under the
authority of the Secretaries' 1986 general consultation
regulations. The 1986 regulations authorized the development of
alternative rules focused on certain federal agency actions
that may benefit from ESA implementation procedures
specifically tailored to those actions. The new 2004 rule
constitutes such a focused regulation for ESA compliance on
FIFRA actions, consistent with the 1988 ESA Amendments Act.
However, the procedures mandated in the ESA compliance program
established by the new rule will take some time to complete for
all registered pesticide products (675 primary products) and
all listed species.
Section 20 of TESRA was adopted by the Committee to give
the affected agencies breathing room to properly implement the
new rule. It states that, for a specific period of time,
satisfaction of FIFRA's rigorous requirements for collection
and submission of scientific data and scientific review of
ecological risks (including effects on wildlife and ESA listed
species) will constitute, for registration and use of any
particular pesticide, compliance with the ESA's consultation
and ``take'' avoidance requirements. So as to ensure
expeditious proceedings under the new rule's ESA compliance
program, the amendment is effective only for a period of five
years or until the pesticide undergoes those proceedings,
whichever is earlier. Moreover, TESRA's section 20 states that
it may not affect any court order or settlement. The Committee
expects that all of the currently filed litigation should be
settled or concluded before enactment of TESRA; indeed, half of
the cases filed to date have already been settled or concluded
(and orders issued). This section 20 will ensure that use of
pesticides critical for control of pests, disease vectors, and
destructive invasive plants and animals, and for protection of
food and fiber production, will not be terminated or
compromised, and that manufacturers, and farmers, utilities,
mosquito control districts, and other users will not be at risk
of violating one environmental law (ESA) while complying with
another (FIFRA) during implementation of the 2004 rule adopted
to remedy the alleged three-decade-long non-compliance by
federal agencies.
Committee Oversight Findings and Recommendations
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Resources' oversight findings and recommendations
are reflected in the body of this report.
Constitutional Authority Statement
Article I, section 8 of the Constitution of the United
States grants Congress the authority to enact this bill.
Compliance With House Rule XIII
1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the
Rules of the House of Representatives requires an estimate and
a comparison by the Committee of the costs which would be
incurred in carrying out this bill. However, clause 3(d)(3)(B)
of that Rule provides that this requirement does not apply when
the Committee has included in its report a timely submitted
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974.
2. Congressional Budget Act. As required by clause 3(c)(2)
of rule XIII of the Rules of the House of Representatives and
section 308(a) of the Congressional Budget Act of 1974, this
bill does not contain any new budget authority, credit
authority, or an increase or decrease in revenues or tax
expenditures. According to the Congressional Budget Office,
enactment of this bill could total less than $10 million over
the 2006-2010 time period in direct spending.
3. General Performance Goals and Objectives. As required by
clause 3(c)(4) of rule XIII, the general performance goal or
objective of this bill is to amend and reauthorize the
Endangered Species Act of 1973 to provide greater results
conserving and recovering listed species, and for other
purposes.
4. Congressional Budget Office Cost Estimate. Under clause
3(c)(3) of rule XIII of the Rules of the House of
Representatives and section 403 of the Congressional Budget Act
of 1974, the Committee has received the following cost estimate
for this bill from the Director of the Congressional Budget
Office:
H.R. 3824--Threatened and Endangered Species Recovery Act of 2005
Summary: H.R. 3824 would amend the Endangered Species Act
(ESA) and authorize appropriations to the Department of the
Interior (DOI) and the Department of Agriculture of whatever
amounts are necessary to carry out the act through 2010. The
bill also would create new financial assistance programs and
provide statutory authority for certain other grants and
cooperative agreements administered by DOI. The legislation
also would increase direct spending by requiring the Secretary
of the Interior to pay aid to private landowners who are
prohibited from using their property under certain
circumstances.
CBO estimates that the U.S. Fish and Wildlife Service
(USFWS) and the Animal and Plant Health Inspection Service
(APHIS) would spend a total of about $2.7 billion over the
2006-2010 period to carry out and enforce the ESA as amended by
this legislation, assuming appropriation of the necessary
amounts. (That total includes spending from funds already
appropriated for 2006 and prior years.)
The cost of providing payment of aid to certain land owners
is uncertain and would depend on how the legislation would be
interpreted by the Administration, private property owners, and
the courts. While CBO cannot predict the impact of the aid
requirement on the total costs of carrying out the ESA over
time, we estimate that federal payments over the 2006-2010
period would likely total less than $10 million because of
likely delays in resolving conflicting interpretations of the
law, implementing the necessary administrative mechanisms, and
processing requests. The costs of those payments the program
has been fully implemented could be much more significant-
despite the likely small size of individual payments--because
the volume of requests could be very large at first. After
2010, we expect that such payments would probably average less
than $20 million a year--though annual amounts would likely
vary significantly from year to year.
H.R. 3824 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA),
and would impose no significant additional costs on state,
local, or tribal governments. Some provisions in this bill
would give state or local governments a greater role in
carrying out the Endangered Species Act. Any costs they might
incur in response would be incurred voluntarily.
Estimated Cost to the Federal Government: The estimated
discretionary budgetary effects of implementing H.R. 3824 are
summarized 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--
-----------------------------------------
2005 2006 2007 2008 2009 2010
------------------------------------------------------------------------
SPENDING SUBJECT TO APPROPRIATION
ESA Spending Under Current
Law:
Budget Authority 1, 2..... 358 379 0 0 0 0
Estimated Outlays......... 340 350 200 100 0 0
Proposed Changes:
Estimated Authorization 0 118 614 630 649 668
Level....................
Estimated Outlays......... 0 91 354 453 528 600
ESA Spending Under H.R. 3765:
Specified Authorization 358 497 614 630 649 668
Level \1\................
Estimated Authorization 340 441 554 553 528 600
Level....................
CHANGES IN DIRECT SPENDING
Estimated Budget Authority.... 0 0 0 0 1 5
Estimated Outlays............. 0 0 0 0 1 5
------------------------------------------------------------------------
\1\ The 2005 and 2006 levels are the amounts appropriated for USFWS and
APHIS activities authorized by this bill.
\2\ Excludes grants to states from the Cooperative Endangered Species
Fund because the authority to provide such assistance does not expire
under existing law.
Amounts in the table include only the costs of ESA
activities carried out by the USFWS and APHIS. H.R. 3824 would
not authorize appropriations for ESA programs carried out by
the National Oceanic and Atmospheric Administration, which is
responsible for protecting threatened or endangered marine
species. Also, the activities of other DOI agencies such asthe
Bureau of Land Management and the Bureau of Reclamation (both of which
incur significant costs to protect endangered and threatened species on
lands under their jurisdiction) and the costs of other federal agencies
who must comply with the ESA are not included in this estimate.
Basis of estimate: For purposes of this estimate, CBO has
assumed that H.R. 3824 will be enacted during fiscal year 2006
and that the entire amounts estimated to be necessary to carry
out the bill will be appropriated for each of fiscal years 2006
through 2010. This estimate is based on information provided by
the Office of Management and Budget, the Department of the
Interior, nonprofit organizations, and various state agencies.
Outlays for administrative activities have been estimated on
the basis of historical spending patterns for ongoing ESA
programs. Spending rates for new assistance programs under the
bill reflect expected delays because of the time that would be
required to promulgate new regulations and develop
administrative procedures.
Spending subject to appropriation
The Congress appropriated $358 million for 2005 and $379
million for 2006 to carry out ESA activities. CBO estimates
that, under H.R. 3824, discretionary funding could rise to more
than $600 million a year.
Administrative Costs. Although authorizations for funding
under the ESA expired in 1992, Congress has continued to
provide funds each year for programs carried out under the act.
For fiscal year 2005, the Congress provided $234 million for
traditional ESA activities and programs carried out by the
USFWS.
CBO estimates that the USFWS would need additional funding
of $118 million in fiscal year 2006 and a total of $2.6 billion
over the 2006-2010 period to carry out its responsibilities as
the primary agency charged with implementing the ESA (as
amended by H.R. 3824). In total, this estimated funding level
is more than double the agency's ESA operating budget in recent
years. The higher estimated authorization levels reflect the
costs of developing and administering new financial assistance
programs, modifying USFWS regulatory procedures to incorporate
amendments made by the bill, and meeting new planning
deadlines. We estimate that funding for APHIS, which helps to
enforce the act, would continue at its existing level of
roughly $7 million a year.
The estimated authorization levels for the USFWS include:
About $240 million a year to carry out
traditional FWS regulatory programs to identify,
evaluate, and protect threatened or endangered species,
develop and implement habitat conservation plans and
species recovery plans, and consult with other federal
agencies that carry out, authorize, or fund projects
that may affect protected species;
$6 million annually for the implementation
of the Convention on International Trade in Endangered
Species (CITES);
About $115 million a year to implement
changes to existing ESA programs required by the bill,
including costs to incorporate new definitions to be
used in USFWS regulatory procedures, expedite the
development of recovery plans to reflect new deadlines,
and establish new financial assistance programs
mandated by sections 9 and 13 of the bill;
$2 million in each of fiscal years 2006 and
2007 to create and maintain an online database of ESA
information as required by section 14;
Between $5 million and $10 million annually
to process requests made by property owners under
sections 12 and 13 of the bill. Under section 12,
persons whose land may be home to a protected species
could request the Secretary of the Interior to provide
a written determination that a proposed use of that
property would comply with the ESA. The Secretary would
have 180 days to make a determination unless an
extension is negotiated; failure to do so would be
deemed to be an approval of the proposed use. Section
13 would allow property owners to apply for aid to
compensate them for the loss of property value if they
receive a written determination from the Secretary that
a proposed land use would not comply with the ESA; and
$1 million a year to compensate landowners
for livestock killed by protected species that have
been reintroduced to the wild as part of a recovery
plan.
Discretionary Grants, Cooperative Agreements, and Other
Assistance. H.R. 3824 would authorize the USFWS to provide
nonfederal entities with several forms of financial assistance,
subject to the availability of appropriated funds. The
assistance programs authorized by the bill would provide annual
payments to states, local governments, nonprofit organizations,
and private landowners who assume conservation and planning
responsibilities under the ESA. The bill also would expand the
purposes for which state grants from the Cooperative Endangered
Species Fund (CESF) may be used.
CBO estimates that the USFWS would need $240 million
annually to fully fund and administer the grant programs and
cooperative agreements envisioned by the bill, or about $140
million more than the amounts appropriated for similar programs
for fiscal year 2006.
Direct spending
Section 13 of the bill would provide an administrative
procedure for providing payment of aid to landowners whose use
of their property has been restricted by ESA regulatory
decisions. CBO expects that enacting this provision would
result in new direct spending, but the level of such spending
is uncertain. This provision would direct the Secretary of the
Interior to make a one-time payment to any landowner who
requests aid within 180 days of receiving a written
determination under section 12 of the bill that a proposed use
of the landowner's property would not comply with the ESA (or
that a prior, favorable determination has been withdrawn). The
amount of any payment would be equal to the fair market value
of the forgone use of the affected portion of the property, as
determined by an independent appraisal and taking into account
whether or not the proposed use would have been allowed under
state and local law. The Secretary would be required to pay the
landowner within 180 days of receiving the request or within
180 days of resolving any valuation disputes or other
conflicts. Such mandatory payments would increase direct
spending costs.
CBO estimates that such costs would likely be small over
the next five years--probably less than $10 million.
This provision would make it much easier (and cheaper) for
private landowners to seek and obtain compensation from the
federal government by allowing them to request such aid
directly from the Secretary rather than filing a lawsuit
against the United States (as they must under current law).
In addition to providing an alternative to litigation, the
bill would change current law in two important ways that could
affect how property owners seek, and how the government pays,
compensation. First, the bill would delineate specific
standards, definitions, and valuation procedures to be used in
determining when and what the government is obligated to pay
when its actions under the ESA prohibit the use of private
property. Second, the procedure created by section 12 of the
bill (to allow property owners to obtain written determinations
permitting or rejecting a proposed use of their property) would
provide these owners with a definitive agency action that would
constitute the basis of a claim for compensation if they still
choose to sue.
Compensation Under Current Law. Under existing law, persons
who wish to seek compensation for property that they believe
has been adversely affected by a government action (including
administration of the ESA) usually must do so through
litigation--generally in the United States Court of Claims.
The process is time-consuming and expensive. In order for a
property owner to sue for compensation, he or she must first
overcome the costly administrative hurdle of seeking and being
denied an incidental take statement or obtaining some other
regulatory determination from the government. Property owners
who pursue such claims can wait years before their cases are
heard. Decisions unfavorable to the government have been rare
in the past because of the high loss thresholds and other
valuation hurdles that the landowner must overcome before the
courts will award compensation, and the government often
appeals such awards. Because the costs of obtaining the
necessary permit denial and associated legal costs are greater
than most property owners can afford, relatively few
compensation claims are brought against the United States
(although there has been a steady increase in the past decade).
Those cases that are brought typically involve relatively large
claims ($100,000 to more than $100 million) and are usually
brought by corporations or other large property owners. Such
claims can require more than a decade to resolve. Smaller
claims are rarely pursued because small landowners are unable
to obtain the necessary permit denials or other agency
decisions, cannot afford to sue the government, or would not
expect to receive enough compensation to justify the
substantial expense of attorneys and scientific experts.
Compensation Under H.R. 3824. The creation of an
administrative forum would make it much easier for private
property owners to seek reimbursement when they are prohibited
from using their property as a result of ESA regulations.
Although the number of administrative claims could be quite
large at first, CBO expects that relatively few or no payments
would be made over the next several years because of the time
required to implement the necessary procedures and make other
case-by-case determinations. For example, no request could be
processed under section 13 until the landowner receives a
written determination against his or her proposed use under
section 12, and CBO expects that it would take the USFWS one or
two years to establish the administrative mechanisms needed to
implement section 12 and begin processing the first requests
for written determinations. Only then would landowners who
receive notice that their proposed use is prohibited be able to
request aid under section 13. Such landowners would likely face
similar delays at this stage of the process, especially in the
early years of the program, while the agency determines the
property interest affected by its earlier decision and the fair
market value of that interest.
Once the aid program has been fully implemented, total
payments to landowners would almost certainly be greater than
the costs of compensating individuals who bring suit under
existing law (particularly since there are so few such claims
at present). CBO expects thatmost aid payments eventually made
by the government would be relatively small (often as little as a few
thousand dollars) because the vast majority of aid requests would
likely involve small parcels of land or some minor fraction (``affected
portion'') of larger tracts. However, the agency may face a large
volume of requests, at least initially, because the availability of an
administrative process would make it economically feasible for small
landowners who often cannot afford to sue the government under existing
legal avenues to seek compensation.
We expect that it would be difficult for landowners to
receive aid for larger claims above $1 million under the
section 13 process because most larger land-use projects would
be ineligible to receive written determinations under section
12.
After 2010, CBO estimates that payments would average less
than $20 million a year. Such payments could vary significantly
from year to year.
CBO expects that civil litigation would increase as a
result of H.R. 3824, at least in the short run, because many
requests for aid would likely involve conflicting
interpretations of the statute that could require the courts to
resolve. Moreover, we expect that smaller landowners who choose
to sue the government rather than apply for aid under section
13 would find it easier to do so because they would be able to
use the written determination prohibiting their proposed use as
a basis for their claims. CBO cannot predict the outcomes of
any lawsuits that might be brought as a result. Even if the
government would ultimately lose more lawsuits as a result of
the legislation, additional compensation costs would probably
be minimal in the 2006-2010 period because claims would take
several years to resolve. We expect that the effect on the
number of larger claims would be less significant for the same
reasons that we expect larger requests for aid to be
unsuccessful.
Intergovernmental and private-sector impact: H.R. 3824
contains no intergovernmental or private-sector mandates as
defined in UMRA, and would impose no significant additional
costs on State, local, or tribal governments. Some provisions
in this bill would give state and local governments a greater
role in carrying out the ESA. Any costs they might incur in
response would be incurred voluntarily.
Estimate prepared by: Federal Costs: Deborah Reis. Impact
on State, Local, and Tribal Governments: Marjorie Miller.
Impact on the Private Sector: Selena Caldera.
Estimate approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.
Compliance With Public Law 104-4
This bill contains no unfunded mandates.
Preemption of State, Local or Tribal Law
This bill is not intended to preempt any State, local or
tribal law.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
ENDANGERED SPECIES ACT OF 1973
Be it enacted by the Senate and House of Representatives
of the United States of America in Congress assembled, That
this Act may be cited as the ``Endangered Species Act of
1973''.
TABLE OF CONTENTS
Sec. 2. Findings, purposes, and policy.
* * * * * * *
[Sec. 5. Land acquisition.]
Sec. 5. Recovery plans and land acquisition.
* * * * * * *
[Sec. 13. Conforming amendments.
[Sec. 14. Repealer.
[Sec. 15. Authorization of appropriations.
[Sec. 16. Effective date.
[Sec. 17. Marine Mammal Protection Act of 1972.]
Sec. 13. Private property conservation.
Sec. 14. Public accessibility and accountability.
Sec. 15. Marine Mammal Protection Act of 1972.
Sec. 16. Annual cost analysis by United States Fish and Wildlife
Service.
Sec. 17. Reimbursement for depredation of livestock by reintroduced
species.
Sec. 18. Authorization of appropriations.
* * * * * * *
DEFINITIONS
Sec. 3. For the purposes of this Act--
(1) * * *
(2)(A) The term ``best available scientific data'' means
scientific data, regardless of source, that are available to
the Secretary at the time of a decision or action for which
such data are required by this Act and that the Secretary
determines are the most accurate, reliable, and relevant for
use in that decision or action.
(B) Not later than one year after the date of the enactment
of the Threatened and Endangered Species Recovery Act of 2005,
the Secretary shall issue regulations that establish criteria
that must be met to determine which data constitute the best
available scientific data for purposes of subparagraph (A).
(C) If the Secretary determines that data for a decision or
action do not comply with the criteria established by the
regulations issued under subparagraph (B), do not comply with
guidance issued under section 515 of the Treasury and General
Government Appropriations Act, 2001 (Public Law 106-554; 114
Stat. 2763A-171) by the Director of the Office of Management
and Budget and the Secretary, do not consist of any empirical
data, or are found in sources that have not been subject to
peer review in a generally acceptable manner--
(i) the Secretary shall undertake the necessary
measures to assure compliance with such criteria or
guidance; and
(ii) the Secretary may--
(I) secure such empirical data;
(II) seek appropriate peer review; and
(III) reconsider the decision or action based
on any supplemental or different data provided
or any peer review conducted pursuant to this
subparagraph.
[(2)] (3) The term ``commercial activity'' means all
activities of industry and trade, including, but not limited
to, the buying or selling of commodities and activities
conducted for the purpose of facilitating such buying and
selling: Provided, however, That it does not include
exhibitions of commodities by museums or similar cultural or
historical organizations.
[(3)] (4) The terms ``conserve,'' ``conserving,'' and
``conservation'' mean to use and the use of all methods and
procedures which are necessary to bring any endangered species
or threatened species to the point at which the measures
provided pursuant to this Act are no longer necessary. Such
methods and procedures include, but are not limited to, all
activities associated with scientific resources management such
as research, census, law enforcement, habitat acquisition and
maintenance, propagation, live trapping, and transplantation,
and, in the extraordinary case where population pressures
within a given ecosystem cannot be otherwise relieved, may
include regulated taking.
[(4)] (5) The term ``Convention'' means the Convention on
International Trade in Endangered Species of Wild Fauna and
Flora, signed on March 3, 1973, and the appendices thereto.
[(5)(A) The term ``critical habitat'' for a threatened or
endangered species means--
[(i) the specific areas within the geographical area
occupied by the species, at the time it is listed in
accordance with the provisions of section 4 of this
Act, on which are found those physical or biological
features (I) essential to the conservation of the
species and (II) which may require special management
considerations or protection; and
[(ii) specific areas outside the geographical area
occupied by the species at the time it is listed in
accordance with the provisions of section 4 of this
Act, upon a determination by the Secretary that such
areas are essential for the conservation of the
species.
[(B) Critical habitat may be established for those species
now listed as threatened or endangered species for which no
critical habitat has heretofore been established as set forth
in subparagraph (A) of this paragraph.
[(C) Except in those circumstances determined by the
Secretary, critical habitat shall not include the entire
geographical area which can be occupied by the threatened or
endangered species.]
* * * * * * *
(11) The term ``jeopardize the continued existence'' means,
with respect to an agency action (as that term is defined in
section 7(a)(2)), that the action reasonably would be expected
to significantly impede, directly or indirectly, the
conservation in the long-term of the species in the wild.
[(12) The term ``permit or license applicant'' means, when
used with respect to an action of a Federal agency for which
exemption is sought under section 7, any person whose
application to such agency for a permit or license has been
denied primarily because of the application of section 7(a) to
such agency action.]
(12) The term ``permit or license applicant'' means, when
used with respect to an action of a Federal agency that is
subject to section 7(a) or (b), any person that has applied to
such agency for a permit or license or for formal legal
approval to perform an act.
* * * * * * *
[DETERMINATION OF ENDANGERED SPECIES AND THREATENED SPECIES
[Sec. 4. (a) General.--(1) The Secretary shall by regulation
promulgated in accordance with subsection (b) determine whether
any species is an endangered species or a threatened species
because of any of the following factors:
[(A) the present or threatened destruction,
modification, or curtailment of its habitat or range;
[(B) overutilization for commercial, recreational,
scientific, or educational purposes;
[(C) disease or predation;
[(D) the inadequacy of existing regulatory
mechanisms; or
[(E) other natural or manmade factors affecting its
continued existence.
[(2) With respect to any species over which program
responsibilities have been vested in the Secretary of Commerce
pursuant to Reorganization Plan Numbered 4 of 1970--
[(A) in any case in which the Secretary of Commerce
determines that such species should--
[(i) be listed as an endangered species or a
threatened species, or
[(ii) be changed in status from a threatened
species to an endangered species, he shall so
inform the Secretary of the Interior, who shall
list such species in accordance with this
section;
[(B) in any case in which the Secretary of Commerce
determines that such species should--
[(i) be removed from any list published
pursuant to subsection (c) of this section, or
[(ii) be changed in status from an endangered
species to a threatened species, he shall
recommend such action to the Secretary of the
Interior, and the Secretary of the Interior, if
he concurs in the recommendation, shall
implement such action; and
[(C) the Secretary of the Interior may not list or
remove from any list any such species, and may not
change the status of any such species which are listed,
without a prior favorable determination made pursuant
to this section by the Secretary of Commerce.
[(3)(A) The Secretary, by regulation promulgated in
accordance with subsection (b) and to the maximum extent
prudent and determinable--
[(i) shall, concurrently with making a determination
under paragraph (1) that a species is an endangered
species or a threatened species, designate any habitat
of such species which is then considered to be critical
habitat; and
[(ii) may, from time-to-time thereafter as
appropriate, revise such designation.
[(B)(i) The Secretary shall not designate as critical habitat
any lands or other geographical areas owned or controlled by
the Department of Defense, or designated for its use, that are
subject to an integrated natural resources management plan
prepared under section 101 of the Sikes Act (16 U.S.C. 670a),
if the Secretary determines in writing that such plan provides
a benefit to the species for which critical habitat is proposed
for designation.
[(ii) Nothing in this paragraph affects the requirement to
consult under section 7(a)(2) with respect to an agency action
(as that term is defined in that section).
[(iii) Nothing in this paragraph affects the obligation of
the Department of Defense to comply with section 9, including
the prohibition preventing extinction and taking of endangered
species and threatened species.]
DETERMINATION OF ENDANGERED SPECIES AND THREATENED SPECIES
Sec. 4. (a) In General.--(1) The Secretary shall by
regulation promulgated in accordance with subsection (b)
determine whether any species is an endangered species or a
threatened species because of any of the following factors:
(A) The present or threatened destruction,
modification, or curtailment of its habitat or range by
human activities, competition from other species,
drought, fire, or other catastrophic natural causes.
(B) Overutilization for commercial, recreational,
scientific, or educational purposes.
(C) Disease or predation.
(D) The inadequacy of existing regulatory mechanisms,
including any efforts identified pursuant to subsection
(b)(1).
(E) Other natural or manmade factors affecting its
continued existence.
(2) The Secretary shall use the authority provided by
paragraph (1) to determine any distinct population of any
species of vertebrate fish or wildlife to be an endangered
species or a threatened species only sparingly.
(b) Basis for Determinations.--(1)(A) The Secretary shall
make determinations required by subsection (a)(1) solely on the
basis of the [best scientific and commercial data available to
him] best available scientific data after conducting a review
of the status of the species and after taking into account
those efforts, if any, being made by any Federal agency, any
State or foreign nation, or any political subdivision of a
State or foreign nation, to protect such species, whether by
predator control, protection of habitat and food supply, or
other conservation practices, within any area under its
jurisdiction, or on the high seas.
[(2) The Secretary shall designate critical habitat, and make
revisions thereto, under subsection (a)(3) on the basis of the
best scientific data available and after taking into
consideration the economic impact, the impact on national
security, and any other relevant impact, of specifying any
particular area as critical habitat. The Secretary may exclude
any area from critical habitat if he determines that the
benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless he
determines, based on the best scientific and commercial data
available, that the failure to designate such area as critical
habitat will result in the extinction of the species
concerned.]
[(3)] (2)(A) To the maximum extent practicable, within 90
days after receiving the petition of an interested person under
section 553(e) of title 5, United States Code, to add a species
to, or to remove a species from, either of the lists published
under subsection (c), the Secretary shall make a finding as to
whether the petition presents substantial scientific or
commercial information indicating that the petitioned action
may be warranted. If such a petition is found to present such
information, the Secretary shall promptly commence a review of
the status of the species concerned. The Secretary shall
promptly publish each finding made under this subparagraph in
the Federal Register. The Secretary shall not make a finding
that the petition presents substantial scientific or commercial
information indicating that the petitioned action may be
warranted unless the petitioner provides to the Secretary a
copy of all information cited in the petition.
* * * * * * *
[(D)(i) To the maximum extent practicable, within 90 days
after receiving the petition of an interested person under
section 553(e) of title 5, United States Code, to revise a
critical habitat designation, the Secretary shall make a
finding as to whether the petition presents substantial
scientific information indicating that the revision may be
warranted. The Secretary shall promptly publish such finding in
the Federal Register.
[(ii) Within 12 months after receiving a petition that is
found under clause (i) to present substantial information
indicating that the requested revision may be warranted, the
Secretary shall determine how he intends to proceed with the
requested revision, and shall promptly publish notice of such
intention in the Federal Register.]
[(4)] (3) Except as provided in paragraphs (5) and (6) of
this subsection, the provisions of section 553 of title 5,
United States Code (relating to rulemaking procedures), shall
apply to any regulation promulgated to carry out the purposes
of this Act.
[(5)] (4) With respect to any regulation proposed by the
Secretary to implement a [determination, designation, or
revision referred to in subsection (a)(1) or (3)] determination
referred to in subsection (a)(1), the Secretary shall--
(A) not less than 90 days before the effective date
of the regulation--
(i) publish a general notice and the complete
text of the proposed regulation in the Federal
Register[, and];
(ii) give actual notice of the proposed
regulation (including the complete text of the
regulation) [to the State agency in] to the
Governor of, and the State agency in, each
State in which the species is believed to
occur, and to each county or equivalent
jurisdiction in which the species is believed
to occur, and invite the comment of [such
agency] such Governor or agency, and each such
jurisdiction, thereon; and
(iii) maintain, and shall make available, a
complete record of all information concerning
the determination or revision in the possession
of the Secretary, on a publicly accessible
website on the Internet, including an index to
such information.
(B) insofar as practical, and in cooperation with the
Secretary of State, give notice of the proposed
regulation to each foreign nation in which the species
is believed to occur or whose citizens harvest the
species on the high seas, and invite the comment of
such nation thereon;
(C) give notice of the proposed regulation to such
professional scientific organizations as [he] the
Secretary deems appropriate;
* * * * * * *
[(6)] (5)(A) Within the one-year period beginning on the date
on which general notice is published in accordance with
paragraph (5)(A)(i) regarding a proposed regulation, the
Secretary shall publish in the Federal Register--
[(i) if a determination as to whether a species is an
endangered species or a threatened species, or a
revision of critical habitat, is involved, either--
[(I) a final regulation to implement such
determination,
[(II) a final regulation to implement such
revision or a finding that such revision should
not be made,
[(III) notice that such one-year period is
being extended under subparagraph (B)(i), or
[(IV) notice that the proposed regulation is
being withdrawn under subparagraph (B)(ii),
together with the finding on which such
withdrawal is based; or
[(ii) subject to subparagraph (C), if a designation
of critical habitat is involved, either--
[(I) a final regulation to implement such
designation, or
[(II) notice that such one-year period is
being extended under such subparagraph.]
(i) a final regulation to implement such a
determination of whether a species is an endangered
species or a threatened species;
(ii) notice that such one-year period is being
extended under subparagraph (B)(i); or
(iii) notice that the proposed regulation is being
withdrawn under subparagraph (B)(ii), together with the
finding on which such withdrawal is based.
(B)(i) If the Secretary finds with respect to a proposed
regulation referred to in [subparagraph (A)(i)] subparagraph
(A) that there is substantial disagreement regarding the
sufficiency or accuracy of the available data relevant to the
determination or revision concerned, the Secretary may extend
the one-year period specified in subparagraph (A) for not more
than six months for purposes of soliciting additional data.
(ii) If a proposed regulation referred to in [subparagraph
(A)(i)] subparagraph (A) is not promulgated as a final
regulation within such one-year period (or longer period if
extension under clause (i) applies) because the Secretary finds
that there is not sufficient evidence to justify the action
proposed by the regulation, the Secretary shall immediately
withdraw the regulation. The finding on which a withdrawal is
based shall be subject to judicial review. The Secretary may
not propose a regulation that has previously been withdrawn
under this clause unless [he] the Secretary determines that
sufficient new information is available to warrant such
proposal.
* * * * * * *
[(C) A final regulation designating critical habitat of an
endangered species or a threatened species shall be published
concurrently with the final regulation implementing the
determination that such species is endangered or threatened,
unless the Secretary deems that--
[(i) it is essential to the conservation of such
species that the regulation implementing such
determination be promptly published; or
[(ii) critical habitat of such species is not then
determinable, in which case the Secretary, with respect
to the proposed regulation to designate such habitat,
may extend the one-year period specified in
subparagraph (A) by not more than one additional year,
but not later than the close of such additional year
the Secretary must publish a final regulation, based on
such data as may be available at that time,
designating, to the maximum extent prudent, such
habitat.]
[(7)] (6) Neither paragraph (4), (5), or (6) of this
subsection nor section 553 of title 5, United States Code,
shall apply to any regulation with respect to a determination
of a species to be an endangered species or a threatened
species issued by the Secretary in regard to any emergency
posing a significant risk to the well-being of any species of
fish and wildlife or plants, but only if--
(A) at the time of publication of the regulation in
the Federal Register the Secretary publishes therein
detailed reasons why such regulation is necessary; and
(B) in the case such regulation applies to resident
species of fish or wildlife, or plants, the Secretary
gives actual notice of such regulation to [the State
agency in] the Governor of, and State agency in, each
State in which such species is believed to occur.
Such regulation shall, at the discretion of the Secretary, take
effect immediately upon the publication of the regulation in
the Federal Register. Any regulation promulgated under the
authority of this paragraph shall cease to have force and
effect at the close of the 240-day period following the date of
publication unless, during such 240-day period, the rulemaking
procedures which would apply to such regulation without regard
to this paragraph are complied with. If at any time after
issuing an emergency regulation the Secretary determines, on
the basis of the best appropriate data available to [him] the
Secretary, that substantial evidence does not exist to warrant
such regulation, [he] the Secretary shall withdraw it.
[(8)] (7) The publication in the Federal Register of any
proposed or final regulation which is necessary or appropriate
to carry out the purposes of this Act shall include a summary
by the Secretary of the data on which such regulation is based
and shall show the relationship of such data to such
regulation[; and if such regulation designates or revises
critical habitat, such summary shall, to the maximum extent
practicable, also include a brief description and evaluation of
those activities (whether public or private) which, in the
opinion of the Secretary, if undertaken may adversely modify
such habitat, or may be affected by such designation.].
(8)(A) Information maintained and made available under
paragraph (5)(A)(iii) shall include any status review, all
information cited in such a status review, all information
referred to in the proposed regulation and the preamble to the
proposed regulation, and all information submitted to the
Secretary by third parties.
(B) The Secretary shall withhold from public review
under paragraph (5)(A)(iii) any information that may be
withheld under 552 of title 5, United States Code.
(c) Lists.--(1) The Secretary of the Interior shall publish
in the Federal Register a list of all species determined by
[him or the Secretary of Commerce] the Secretary to be
endangered species and a list of all species determined by [him
or the Secretary of Commerce] the Secretary to be threatened
species. Each list shall refer to the species contained therein
by scientific and common name or names, if any and, specify
with respect to such species over what portion of its range it
is endangered or threatened[, and specify any critical habitat
within such range.]. The Secretary shall from time to time
revise each list published under the authority of this
subsection to reflect recent determinations[, designations,]
and revisions made in accordance with subsections (a) and (b).
[(2) The Secretary shall--
[(A) conduct, at least once every five years, a
review of all species included in a list which is
published pursuant to paragraph (1) and which is in
effect at the time of such review; and
[(B) determine on the basis of such review whether
any such species should--
[(i) be removed from such list;
[(ii) be changed in status from an endangered
species to a threatened species; or
[(iii) be changed in status from a threatened
species to an endangered species.
Each determination under subparagraph (B) shall be made in
accordance with the provisions of subsection (a) and (b).]
(2)(A) The Secretary shall--
(i) conduct, at least once every 5 years,
based on the information collected for the
biennial reports to the Congress required by
paragraph (3) of subsection (f), a review of
all species included in a list that is
published pursuant to paragraph (1) and that is
in effect at the time of such review; and
(ii) determine on the basis of such review
and any other information the Secretary
considers relevant whether any such species
should--
(I) be removed from such list;
(II) be changed in status from an
endangered species to a threatened
species; or
(III) be changed in status from a
threatened species to an endangered
species.
(B) Each determination under subparagraph (A)(ii)
shall be made in accordance with subsections (a) and
(b).
(3) Each determination under paragraph (2)(B) shall consider
one of the following:
(A) Except as provided in subparagraph (B) of this
paragraph, the criteria in the recovery plan for the
species required by section 5(c)(1)(A) or (B).
(B) If the recovery plan is issued before the
criteria required under section 5(c)(1)(A) and (B) are
established or if no recovery plan exists for the
species, the factors for determination that a species
is an endangered species or a threatened species set
forth in subsections (a)(1) and (b)(1).
(C) A finding of fundamental error in the
determination that the species is an endangered
species, a threatened species, or extinct.
(D) A determination that the species is no longer an
endangered species or threatened species or in danger
of extinction, based on an analysis of the factors that
are the basis for listing under section 4(a)(1).
(d) Protective Regulations.--Whenever any species is listed
as a threatened species pursuant to subsection (c) of this
section, the Secretary shall issue such regulations as he deems
necessary and advisable to provide for the conservation of such
species. The Secretary may by regulation prohibit with respect
to any threatened species any act prohibited under section
9(a)(1), in the case of fish or wildlife, or section 9(a)(2) in
the case of plants, with respect to endangered species; except
that with respect to the taking of resident species of fish or
wildlife, such, regulations shall apply in any State which has
entered into a cooperative agreement pursuant to section 6(c)
of this Act only to the extent that such regulations have also
been adopted by such State.
[(f)(1) Recovery Plans.--The Secretary shall develop and
implement plans (hereinafter in this subsection referred to as
``recovery plans'') for the conservation and survival of
endangered species and threatened species listed pursuant to
this section, unless he finds that such a plan will not promote
the conservation of the species. The Secretary, in developing
and implementing recovery plans, shall, to the maximum extent
practicable--
[(A) give priority to those endangered species or
threatened species, without regard to taxonomic
classification, that are most likely to benefit from
such plans, particularly those species that are, or may
be, in conflict with construction or other development
projects or other forms of economic activity;
[(B) incorporate in each plan--
[(i) a description of such site-specific
management actions as may be necessary to
achieve the plan's goal for the conservation
and survival of the species;
[(ii) objective, measurable criteria which,
when met, would result in a determination, in
accordance with the provisions of this section,
that the species be removed from the list; and
[(iii) estimates of the time required and the
cost to carry out those measures needed to
achieve the plan's goal and to achieve
intermediate steps toward that goal.
[(2) The Secretary, in developing and implementing recovery
plans, may procure the services of appropriate public and
private agencies and institutions and other qualified persons.
Recovery teams appointed pursuant to this subsection shall not
be subject to the Federal Advisory Committee Act.
[(3) The Secretary shall report every two years to the
Committee on Environment and Public Works of the Senate and the
Committee on Merchant Marine and Fisheries of the House of
Representatives on the status of efforts to develop and
implement recovery plans for all species listed pursuant to
this section and on the status of all species for which such
plans have been developed.
[(4) The Secretary shall, prior to final approval of a new or
revised recovery plan, provide public notice and an opportunity
for public review and comment on such plan. The Secretary shall
consider all information presented during the public comment
period prior to approval of the plan.
[(5) Each Federal agency shall, prior to implementation of a
new or revised recovery plan, consider all information
presented during the public comment period under paragraph (4).
[(g) Monitoring.--(1) The Secretary shall implement a system
in cooperation with the States to monitor effectively for not
less than five years the status of all species which have
recovered to the point at which the measures provided pursuant
to this Act are no longer necessary and which, in accordance
with the provisions of this section, have been removed from
either of the lists published under subsection (c).
[(2) The Secretary shall make prompt use of the authority
under paragraph 7 of subsection (b) of this section to prevent
a significant risk to the well being of any such recovered
species.]
[(h) Agency] (f) Secretarial Guidelines.--The Secretary shall
establish, and publish in the Federal Register, agency
guidelines to insure that [the purposes of this section are
achieved] this section is implemented efficiently and
effectively. Such guidelines shall include, but are not limited
to--
(1) procedures for recording the receipt and the
disposition of petitions submitted under subsection
(b)(3) of this section;
(2) criteria for making the findings required under
such subsection with respect to petitions;
(3) a ranking system to assist in the identification
of species that should receive priority review under
subsection (a)(1) of the section; [and]
(4) the criteria for determining best available
scientific data pursuant to section 3(2); and
[(4)] (5) a system for developing and implementing,
on a priority basis, recovery plans under [subsection
(f) of this section] section 5.
The Secretary shall provide to the public notice of, and
opportunity to submit written comments on, any guideline
(including any amendment thereto) proposed to be established
under this subsection.
[(i)] (g) Comments.--If, in the case of any regulation
proposed by the Secretary under the authority of this section,
[a State agency] a Governor, State agency, county (or
equivalent jurisdiction), or unit of local government to which
notice thereof was given in accordance with subsection
(b)(5)(A)(ii) files comments disagreeing with all or part of
the proposed regulation, and the Secretary issues a final
regulation which is in conflict with such comments, or if the
Secretary fails to adopt a regulation pursuant to an action
petitioned by [a State agency] a Governor, State agency, county
(or equivalent jurisdiction), or unit of local government under
subsection (b)(3), the Secretary shall submit to [the State
agency] the Governor, State agency, county (or equivalent
jurisdiction), or unit of local government, respectively a
written justification for [his] the failure to adopt
regulations consistent with the [agency's] comments or
petition.
[LAND ACQUISITION
[Sec. 5.]
RECOVERY PLANS AND LAND ACQUISITION
Sec. 5. (a) Recovery Plans.--The Secretary shall, in
accordance with this section, develop and implement a plan (in
this subsection referred to as a ``recovery plan'') for the
species determined under section 4(a)(1) to be an endangered
species or a threatened species, unless the Secretary finds
that such a plan will not promote the conservation and survival
of the species.
(b) Development of Recovery Plans.--(1) Subject to paragraphs
(2) and (3), the Secretary, in developing recovery plans,
shall, to the maximum extent practicable, give priority to
those endangered species or threatened species, without regard
to taxonomic classification, that are most likely to benefit
from such plans, particularly those species that are, or may
be, in conflict with construction or other development projects
or other forms of economic activity.
(2) In the case of any species determined to be an endangered
species or threatened species after the date of the enactment
of the Threatened and Endangered Species Recovery Act of 2005,
the Secretary shall publish a final recovery plan for a species
within 2 years after the date the species is listed under
section 4(c).
(3)(A) For those species that are listed under section 4(c)
on the date of enactment of the Threatened and Endangered
Species Recovery Act of 2005 and are described in subparagraph
(B) of this paragraph, the Secretary, after providing for
public notice and comment, shall--
(i) not later than 1 year after such date, publish in
the Federal Register a priority ranking system for
preparing or revising such recovery plans that is
consistent with paragraph (1) and takes into
consideration the scientifically based needs of the
species; and
(ii) not later than 18 months after such date,
publish in the Federal Register a list of such species
ranked in accordance with the priority ranking system
published under clause (i) for which such recovery
plans will be developed or revised, and a tentative
schedule for such development or revision.
(B) A species is described in this subparagraph if--
(i) a recovery plan for the species is not published
under this Act before the date of enactment of the
Threatened and Endangered Species Recovery Act of 2005
and the Secretary finds such a plan would promote the
conservation and survival of the species; or
(ii) a recovery plan for the species is published
under this Act before such date of enactment and the
Secretary finds revision of such plan is warranted.
(C)(i) The Secretary shall, to the maximum extent
practicable, adhere to the list and tentative schedule
published under subparagraph (A)(ii) in developing or revising
recovery plans pursuant to this paragraph.
(ii) The Secretary shall provide the reasons for any
deviation from the list and tentative schedule published under
subparagraph (A)(ii), in each report to the Congress under
subsection (e).
(4) The Secretary, using the priority ranking system required
under paragraph (3), shall prepare or revise such plans within
10 years after the date of the enactment of the Threatened and
Endangered Species Recovery Act of 2005.
(c) Plan Contents.--(1)(A) Except as provided in subparagraph
(E), a recovery plan shall be based on the best available
scientific data and shall include the following:
(i) Objective, measurable criteria that, when met,
would result in a determination, in accordance with
this section, that the species to which the recovery
plan applies be removed from the lists published under
section 4(c) or be reclassified from an endangered
species to a threatened species.
(ii) A description of such site-specific or other
measures that would achieve the criteria established
under clause (i), including such intermediate measures
as are warranted to effect progress toward achievement
of the criteria.
(iii) Estimates of the time required and the costs to
carry out those measures described under clause (ii),
including, to the extent practicable, estimated costs
for any recommendations, by the recovery team, or by
the Secretary if no recovery team is selected, that any
of the areas identified under clause (iv) be acquired
on a willing seller basis.
(iv) An identification of those specific areas that
are of special value to the conservation of the
species.
(B) Those members of any recovery team appointed pursuant to
subsection (d) with relevant scientific expertise, or the
Secretary if no recovery team is appointed, shall, based solely
on the best available scientific data, establish the objective,
measurable criteria required under subparagraph (A)(i).
(C)(i) If the recovery team, or the Secretary if no recovery
team is appointed, determines in the recovery plan that
insufficient best available scientific data exist to determine
criteria or measures under subparagraph (A) that could achieve
a determination to remove the species from the lists published
under section 4(c), the recovery plan shall contain interim
criteria and measures that are likely to improve the status of
the species.
(ii) If a recovery plan does not contain the criteria and
measures provided for by clause (i) of subparagraph (A), the
recovery team for the plan, or by the Secretary if no recovery
team is appointed, shall review the plan at intervals of no
greater than 5 years and determine if the plan can be revised
to contain the criteria and measures required under
subparagraph (A).
(iii) If the recovery team or the Secretary, respectively,
determines under clause (ii) that a recovery plan can be
revised to add the criteria and measures provided for under
subparagraph (A), the recovery team or the Secretary, as
applicable, shall revise the recovery plan to add such criteria
and measures within 2 years after the date of the
determination.
(D) In specifying measures in a recovery plan under
subparagraph (A), a recovery team or the Secretary, as
applicable, shall--
(i) whenever possible include alternative measures;
and
(ii) in developing such alternative measures, the
Secretary shall seek to identify, among such
alternative measures of comparable expected efficacy,
the alternative measures that are least costly.
(E) Estimates of time and costs pursuant to subparagraph
(A)(iii), and identification of the least costly alternatives
pursuant to subparagraph (D)(ii), are not required to be based
on the best available scientific data.
(2) Any area that, immediately before the enactment of the
Threatened and Endangered Species Recovery Act of 2005, is
designated as critical habitat of an endangered species or
threatened species shall be treated as an area described in
subparagraph (A)(iv) until a recovery plan for the species is
developed or the existing recovery plan for the species is
revised pursuant to subsection (b)(3).
(d) Recovery Teams.--(1) The Secretary shall promulgate
regulations that provide for the establishment of recovery
teams for development of recovery plans under this section.
(2) Such regulations shall--
(A) establish criteria and the process for selecting
the members of recovery teams, and the process for
preparing recovery plans, that ensure that each team--
(i) is of a size and composition to enable
timely completion of the recovery plan; and
(ii) includes sufficient representation from
constituencies with a demonstrated direct
interest in the species and its conservation or
in the economic and social impacts of its
conservation to ensure that the views of such
constituencies will be considered in the
development of the plan;
(B) include provisions regarding operating procedures
of and recordkeeping by recovery teams;
(C) ensure that recovery plans are scientifically
rigorous and that the evaluation of costs required by
paragraphs (1)(A)(iii) and (1)(D) of subsection (c) are
economically rigorous; and
(D) provide guidelines for circumstances in which the
Secretary may determine that appointment of a recovery
team is not necessary or advisable to develop a
recovery plan for a specific species, including
procedures to solicit public comment on any such
determination.
(3) The Federal Advisory Committee Act (5 App. U.S.C.) shall
not apply to recovery teams appointed in accordance with
regulations issued by the Secretary under this subsection.
(e) Reports to Congress.--(1) The Secretary shall report
every two years to the Committee on Resources of the House of
Representatives and the Committee on Environment and Public
Works of the Senate on the status of all domestic endangered
species and threatened species and the status of efforts to
develop and implement recovery plans for all domestic
endangered species and threatened species.
(2) In reporting on the status of such species since the time
of its listing, the Secretary shall include--
(A) an assessment of any significant change in the
well-being of each such species, including--
(i) changes in population, range, or threats;
and
(ii) the basis for that assessment; and
(B) for each species, a measurement of the degree of
confidence in the reported status of such species,
based upon a quantifiable parameter developed for such
purposes.
(f) Public Notice and Comment.--The Secretary shall, prior to
final approval of a new or revised recovery plan, provide
public notice and an opportunity for public review and comment
on such plan. The Secretary shall consider all information
presented during the public comment period prior to approval of
the plan.
(g) State Comment.--The Secretary shall, prior to final
approval of a new or revised recovery plan, provide a draft of
such plan and an opportunity to comment on such draft to the
Governor of, and State agency in, any State to which such draft
would apply. The Secretary shall include in the final recovery
plan the Secretary's response to the comments of the Governor
and the State agency.
(h) Consultation to Ensure Consistency With Development
Plan.--(1) The Secretary shall, prior to final approval of a
new or revised recovery plan, consult with any pertinent State,
Indian tribe, or regional or local land use agency or its
designee.
(2) For purposes of this Act, the term ``Indian tribe''
means--
(A) with respect to the 48 contiguous States, any federally
recognized Indian tribe, organized band, pueblo, or community;
and
(B) with respect to Alaska, the Metlakatla Indian Community.
(i) Use of Plans.--(1) Each Federal agency shall consider any
relevant best available scientific data contained in a recovery
plan in any analysis conducted under section 102 of the
National Environmental Policy Act of 1969 (42 U.S.C. 4332).
(2)(A)(i) The head of any Federal agency may enter into an
agreement with the Secretary specifying the measures the agency
will carry out to implement a recovery plan.
(ii) Each such agreement shall be published in draft form
with notice and an opportunity for public comment.
(iii) Each such final agreement shall be published, with
responses by the head of the Federal agency to any public
comments submitted on the draft agreement.
(B) Nothing in a recovery plan shall be construed to
establish regulatory requirements.
(j) Monitoring.--(1) The Secretary shall implement a system
in cooperation with the States to monitor effectively for not
less than five years the status of all species that have
recovered to the point at which the measures provided pursuant
to this Act are no longer necessary and that, in accordance
with this section, have been removed from the lists published
under section 4(c).
(2) The Secretary shall make prompt use of the authority
under section 4(b)(6) to prevent a significant risk to the
well-being of any such recovered species.
[(a)] (k) Program.--The Secretary, and the Secretary of
Agriculture with respect to the National Forest System, shall
establish and implement a program to conserve fish, wildlife,
and plants, including those which are listed as endangered
species or threatened species pursuant to section 4 of this
Act. To carry out such a program, the appropriate Secretary--
(1) shall utilize the land acquisition and other
authority under the Fish and Wildlife Act of 1956, as
amended, the Fish and Wildlife Coordination Act, as
amended, and the Migratory Bird Conservation Act, as
appropriate; and
(2) is authorized to acquire by purchase, donation,
or otherwise, lands, waters, or interest therein, and
such authority shall be in addition to any other land
acquisition vested in [him] the Secretary.
[(b)] (l) Acquisitions.--Funds made available pursuant to the
Land and Water Conservation Fund Act of 1965, as amended, may
be used for the purpose of acquiring lands, waters, or
interests therein under [subsection (a) of this section]
subsection (k).
(m) Threatened and Endangered Species Incentives Program.--
(1) The Secretary may enter into species recovery agreements
pursuant to paragraph (2) and species conservation contract
agreements pursuant to paragraph (3) with persons, other than
agencies or departments of the Federal Government or State
governments, under which the Secretary is obligated, subject to
the availability of appropriations, to make annual payments or
provide other compensation to the persons to implement the
agreements.
(2)(A) The Secretary and persons who own or control the use
of private land may enter into species recovery agreements with
a term of not less than 5 years that meet the criteria set
forth in subparagraph (B) and are in accordance with the
priority established in subparagraph (C).
(B) A species recovery agreement entered into under this
paragraph by the Secretary with a person--
(i) shall require that the person shall carry out, on
the land owned or controlled by the person, activities
that--
(I) protect and restore habitat for covered
species that are species determined to be
endangered species or threatened species
pursuant to section 4(a)(1);
(II) contribute to the conservation of one or
more covered species; and
(III) specify and implement a management plan
for the covered species;
(ii) shall specify such a management plan that
includes--
(I) identification of the covered species;
(II) a description of the land to which the
agreement applies; and
(III) a description of, and a schedule to
carry out, the activities under clause (i);
(iii) shall provide sufficient documentation to
establish ownership or control by the person of the
land to which the agreement applies;
(iv) shall include the amounts of the annual payments
or other compensation to be provided by the Secretary
to the person under the agreement, and the terms under
which such payments or compensation shall be provided;
and
(v) shall include--
(I) the duties of the person;
(II) the duties of the Secretary;
(III) the terms and conditions under which
the person and the Secretary mutually agree the
agreement may be modified or terminated; and
(IV) acts or omissions by the person or the
Secretary that shall be considered violations
of the agreement, and procedures under which
notice of and an opportunity to remedy any
violation by the person or the Secretary shall
be given.
(C) In entering into species recovery agreements under this
paragraph, the Secretary shall accord priority to agreements
that apply to any areas that are identified in recovery plans
pursuant to subsection (c)(1)(A)(iv).
(3)(A) The Secretary and persons who own private land may
enter into species conservation contract agreements with terms
of 30 years, 20 years, or 10 years that meet the criteria set
forth in subparagraph (B) and standards set forth in
subparagraph (D) and are in accordance with the priorities
established in subparagraph (C).
(B) A species conservation contract agreement entered into
under this paragraph by the Secretary with a person--
(i) shall provide that the person shall, on the land
owned by the person--
(I) carry out conservation practices to meet
one or more of the goals set forth in clauses
(i) through (iii) of subparagraph (C) for one
or more covered species, that are species that
are determined to be endangered species or
threatened species pursuant to section 4(a)(1),
species determined to be candidate species
pursuant to section 4(b)(3)(B)(iii), or species
subject to comparable designations under State
law; and
(II) specify and implement a management plan
for the covered species;
(ii) shall specify such a management plan that
includes--
(I) identification of the covered species;
(II) a description in detail of the
conservation practices for the covered species
that the person shall undertake;
(III) a description of the land to which the
agreement applies; and
(IV) a schedule of approximate deadlines,
whether one-time or periodic, for undertaking
the conservation practices described pursuant
to subclause (II);
(V) a description of existing or future
economic activities on the land to which the
agreement applies that are compatible with the
conservation practices described pursuant to
subclause (II) and generally with conservation
of the covered species;
(iii) shall specify the term of the agreement; and
(iv) shall include--
(I) the duties of the person;
(II) the duties of the Secretary;
(III) the terms and conditions under which
the person and the Secretary mutually agree the
agreement may be modified or terminated;
(IV) acts or omissions by the person or the
Secretary that shall be considered violations
of the agreement, and procedures under which
notice of and an opportunity to remedy any
violation by the person or the Secretary shall
be given; and
(V) terms and conditions for early
termination of the agreement by the person
before the management plan is fully implemented
or termination of the agreement by the
Secretary in the case of a violation by the
person that is not remedied under subclause
(IV), including any requirement for the person
to refund all or part of any payments received
under subparagraph (E) and any interest
thereon.
(C) The Secretary shall establish priorities for the
selection of species conservation contract agreements, or
groups of such agreements for adjacent or proximate lands, to
be entered into under this paragraph that address the following
factors:
(i) The potential of the land to which the agreement
or agreements apply to contribute significantly to the
conservation of an endangered species or threatened
species or a species with a comparable designation
under State law.
(ii) The potential of such land to contribute
significantly to the improvement of the status of a
candidate species or a species with a comparable
designation under State law.
(iii) The amount of acreage of such land.
(iv) The number of covered species in the agreement
or agreements.
(v) The degree of urgency for the covered species to
implement the conservation practices in the management
plan or plans under the agreement or agreements.
(vi) Land in close proximity to military test and
training ranges, installations, and associated airspace
that is affected by a covered species.
(D) The Secretary shall enter into a species conservation
contract agreement submitted by a person, if the Secretary
finds that the person owns such land or has sufficient control
over the use of such land to ensure implementation of the
management plan under the agreement.
(E)(i) Upon entering into a species conservation contract
agreement with the Secretary pursuant to this paragraph, a
person shall receive the financial assistance provided for in
this subparagraph.
(ii) If the person is implementing fully the agreement, the
person shall receive from the Secretary--
(I) in the case of a 30-year agreement, an annual
contract payment in an amount equal to 100 percent of
the person's actual costs to implement the conservation
practices described in the management plan under the
terms of the agreement;
(II) in the case of a 20-year agreement, an annual
contract payment in an amount equal to 80 percent of
the person's actual costs to implement the conservation
practices described in the management plan under the
terms of the agreement; and
(III) in the case of a 10-year agreement, an annual
contract payment in an amount equal to 60 percent of
the person's actual costs to implement the conservation
practices described in the management plan under the
terms of the agreement.
(iii)(I) If the person receiving contract payments pursuant
to clause (ii) receives any other State or Federal funds to
defray the cost of any conservation practice, the cost of such
practice shall not be eligible for such contract payments.
(II) Contributions of agencies or organizations to any
conservation practice other than the funds described in
subclause (I) shall not be considered as costs of the person
for purposes of the contract payments pursuant to clause (iii).
(4)(A) Upon request of a person seeking to enter into an
agreement pursuant to this subsection, the Secretary may
provide to such person technical assistance in the preparation,
and management training for the implementation, of the
management plan for the agreement.
(B) Any State agency, local government, nonprofit
organization, or federally recognized Indian tribe may provide
assistance to a person in the preparation of a management plan,
or participate in the implementation of a management plan,
including identifying and making available certified fisheries
or wildlife biologists with expertise in the conservation of
species for purposes of the preparation or review and approval
of management plans for species conservation contract
agreements under paragraph (3)(D)(iii).
(5) Upon any conveyance or other transfer of interest in land
that is subject to an agreement under this subsection--
(A) the agreement shall terminate if the agreement
does not continue in effect under subparagraph (B);
(B) the agreement shall continue in effect with
respect to such land, with the same terms and
conditions, if the person to whom the land or interest
is conveyed or otherwise transferred notifies the
Secretary of the person's election to continue the
agreement by no later than 30 days after the date of
the conveyance or other transfer and the person is
determined by the Secretary to qualify to enter into an
agreement under this subsection; or
(C) the person to whom the land or interest is
conveyed or otherwise transferred may seek a new
agreement under this subsection.
(6) An agreement under this subsection may be renewed with
the mutual consent of the Secretary and the person who entered
into the agreement or to whom the agreement has been
transferred under paragraph (5).
(7) The Secretary shall make annual payments under this
subsection as soon as possible after December 31 of each
calendar year.
(8) An agreement under this subsection that applies to an
endangered species or threatened species shall, for the purpose
of section 10(a)(4), be deemed to be a permit to enhance the
propagation or survival of such species under section 10(a)(1),
and a person in full compliance with the agreement shall be
afforded the protection of section 10(a)(4).
(9) The Secretary, or any other Federal official, may not
require a person to enter into an agreement under this
subsection as a term or condition of any right, privilege, or
benefit, or of any action or refraining from any action, under
this Act.
COOPERATION WITH THE STATES
Sec. 6. (a) * * *
* * * * * * *
(c)(1) Cooperative Agreements.--In furtherance of the
purposes of this Act, the Secretary is authorized to enter into
a cooperative agreement in accordance with this section with
any State which establishes and maintains an adequate and
active program for the conservation of endangered species and
threatened species. Within one hundred and twenty days after
the Secretary receives a certified copy of such a proposed
State program, [he] the Secretary shall make a determination
whether such program is in accordance with this Act. Unless
[he] the Secretary determines, pursuant to this paragraph, that
the State program is not in accordance with this Act, [he] the
Secretary shall enter into a cooperative agreement with the
State for the purpose of assisting in implementation of the
State program. In order for a State program to be deemed an
adequate and active program for the conservation of endangered
species and threatened species, the Secretary must find, and
annually thereafter reconfirm such finding, that under the
State program--
(A) * * *
* * * * * * *
(2) In furtherance of the purposes of this Act, the Secretary
is authorized to enter into a cooperative agreement in
accordance with this section with any State which establishes
and maintains an adequate and active program for the
conservation of endangered species and threatened species of
plants. Within one hundred and twenty days after the Secretary
receives a certified copy of such a proposed State program,
[he] the Secretary shall make a determination whether such
program is in accordance with this Act. Unless [he] the
Secretary determines, pursuant to this paragraph, that the
State program is not in accordance with this Act, [he] the
Secretary shall enter into a cooperative agreement with the
State for the purpose of assisting in implementation of the
State program. In order for a State program to be deemed an
adequate and active program for the conservation of endangered
species of plants and threatened species of plants, the
Secretary must find, and annually thereafter reconfirm such
findings, that under the State program--
(A) * * *
* * * * * * *
(3)(A) Any cooperative agreement entered into by the
Secretary under this subsection may also provide for
development of a program for conservation of species determined
to be candidate species pursuant to section 4(b)(2)(B)(iii) or
any other species that the State and the Secretary agree is at
risk of being determined to be an endangered species or
threatened species under section 4(a)(1) in that State. Upon
completion of consultation on the agreement pursuant to
subsection (e)(2), any incidental take statement issued on the
agreement shall apply to any such species, and to the State and
any landowners enrolled in any program under the agreement,
without further consultation (except any additional
consultation pursuant to subsection (e)(2)) if the species is
subsequently determined to be an endangered species or a
threatened species and the agreement remains an adequate and
active program for the conservation of endangered species and
threatened species.
(B) Any cooperative agreement entered into by the Secretary
under this subsection may also provide for monitoring or
assistance in monitoring the status of candidate species
pursuant to section 4(b)(3)(C)(iii) or recovered species
pursuant to section 5(j).
(C) The Secretary shall periodically review each cooperative
agreement under this subsection and seek to make changes the
Secretary considers necessary for the conservation of
endangered species and threatened species to which the
agreement applies.
(4) Any cooperative agreement entered into by the Secretary
under this subsection that provides for the enrollment of
private lands or water rights in any program established by the
agreement shall ensure that the decision to enroll is voluntary
for each owner of such lands or water rights.
(5)(A) The Secretary may enter into a cooperative agreement
under this subsection with an Indian tribe in substantially the
same manner in which the Secretary may enter into a cooperative
agreement with a State.
(B) For the purposes of this paragraph, the term ``Indian
tribe'' means--
(i) with respect to the 48 contiguous States, any
federally recognized Indian tribe, organized band,
pueblo, or community; and
(ii) with respect to Alaska, the Metlakatla Indian
Community.
(d) Allocation of Funds.--(1) The Secretary is authorized to
provide financial assistance to any State, through its
respective State agency, which has entered into a cooperative
agreement [pursuant to subsection (c) of this section] to
assist in development of programs for the conservation of
endangered and threatened species or to assist in monitoring
the status of candidate species pursuant to subparagraph (C) of
section 4(b)(3) and recovered species pursuant to [section
4(g)] section 5(j). The Secretary shall allocate each annual
appropriation made in accordance with the provisions of
subsection (i) of this section to such States based on
consideration of--
(A) * * *
* * * * * * *
(F) the importance of [monitoring the status of
candidate species] developing a conservation program
for, or monitoring the status of, candidate species or
other species determined to be at risk pursuant to
subsection (c)(3) within a State to prevent a
significant risk to the well being of any such species;
and
* * * * * * *
(2) Such cooperative agreements shall provide for (A) the
actions to be taken by the Secretary and the States; (B) the
benefits that are expected to be derived in connection with the
conservation of endangered or threatened species; (C) the
estimated cost of these actions; and (D) the share of such
costs to be bore by the Federal Government and by the States;
except that--
(i) * * *
The Secretary may, in [his] the Secretary's discretion, and
under such rules and regulations as [he] the Secretary may
prescribe, advance funds to the State for financing the United
States pro rata share agreed upon in the cooperative agreement.
For the purposes of this section, the non-Federal share may, in
the discretion of the Secretary, be in the form of money or
real property, the value of which will be determined by the
Secretary whose decision shall be final.
(3) A State shall not be eligible for financial assistance
under this section for a fiscal year unless the State has
provided to the Secretary for the preceding fiscal year
information regarding the expenditures referred to in section
16(b)(2).
(e) Review of State Programs.--(1) Any action taken by the
Secretary under this section shall be subject to [his periodic
review at no greater than annual intervals] periodic review by
the Secretary every 3 years.
(2) Any cooperative agreement entered into by the Secretary
under subsection (c) shall be subject to section 7(a)(2)
through (d) and regulations implementing such provisions only
before--
(A) the Secretary enters into the agreement; and
(B) the Secretary approves any renewal of, or
amendment to, the agreement that--
(i) addresses species that are determined to
be endangered species or threatened species,
are not addressed in the agreement, and may be
affected by the agreement; or
(ii) new information about any species
addressed in the agreement that the Secretary
determines--
(I) constitutes the best available
scientific data; and
(II) indicates that the agreement may
have adverse effects on the species
that had not been considered previously
when the agreement was entered into or
during any revision thereof or
amendment thereto.
(3) The Secretary may suspend any cooperative agreement
established pursuant to subsection (c), after consultation with
the Governor of the affected State, if the Secretary finds
during the periodic review required by paragraph (1) of this
subsection that the agreement no longer constitutes an adequate
and active program for the conservation of endangered species
and threatened species.
(4) The Secretary may terminate any cooperative agreement
entered into by the Secretary under subsection (c), after
consultation with the Governor of the affected State, if--
(A) as result of the procedures of section 7(a)(2)
through (d) undertaken pursuant to paragraph (2) of
this subsection, the Secretary determines that
continued implementation of the cooperative agreement
is likely to jeopardize the continued existence of
endangered species or threatened species, and the
cooperative agreement is not amended or revised to
incorporate a reasonable and prudent alternative
offered by the Secretary pursuant to section 7(b)(3);
or
(B) the cooperative agreement has been suspended
under paragraph (3) of this subsection and has not been
amended or revised and found by the Secretary to
constitute an adequate and active program for the
conservation of endangered species and threatened
species within 180 days after the date of the
suspension.
* * * * * * *
(g) Transition.--(1) * * *
(2) The prohibitions set forth in or authorized pursuant to
sections 4(d) and 9(a)(1)(B) of this Act shall not apply with
respect to the taking of any resident endangered species or
threatened species (other than species listed in Appendix I to
the Convention or otherwise specifically covered by any other
treaty or Federal law) within any State--
(A) * * *
(B) except for any time within the establishment
period when--
(i) * * *
(ii) the Secretary applies such prohibition
after [he] the Secretary finds, and publishes
his finding, that an emergency exists posing a
significant risk to the well-being of such
species and that the prohibition must be
applied to protect such species. The
Secretary's finding and publication may be made
without regard to the public hearing or comment
provisions of section 553 of title 5, United
States Code, or any other provision of this
Act; but such prohibition shall expire 90 days
after the date of its imposition unless the
Secretary further extends such prohibition by
publishing notice and a statement of
justification of such extension.
* * * * * * *
(j) Recovery Plans for Species Occupying More Than One
State.--Any recovery plan under section 5 for an endangered
species or a threatened species that occupies more than one
State shall identify criteria and actions pursuant to
subsection (c)(1) of section 5 for each State that are
necessary so that the State may pursue a determination that the
portion of the species found in that State may be removed from
lists published under section 4(c).
* * * * * * *
INTERAGENCY COOPERATION
Sec. 7. (a) Federal Agency Actions and Consultations.--(1)
The Secretary shall review other programs administered by [him]
the Secretary and utilize such programs in furtherance of the
purposes of this Act. All other Federal agencies shall, in
consultation with and with the assistance of the Secretary,
utilize their authorities in furtherance of the purposes of
this Act by carrying out programs for the conservation of
[endangered species and threatened species listed pursuant to
section 4 of this Act.] species determined to be endangered
species and threatened species under section 4.
(2)(A) Each Federal agency shall, in consultation with and
with the assistance of the Secretary, insure that any [action
authorized, funded, or carried out by such agency (hereinafter
in this section referred to as an ``agency action'') is not]
agency action authorized, funded, or carried out by such agency
is not likely to jeopardize the continued existence of any
endangered species or threatened species [or result in the
destruction or adverse modification of habitat of such species
which is determined by the Secretary, after consultation as
appropriate with affected States, to be critical, unless such
agency has been granted an exemption for such action by the
Committee pursuant to subsection (h) of this section]. In
fulfilling the requirements of this paragraph each agency shall
use the [best scientific and commercial data available] best
available scientific data.
(B) The Secretary may identify specific agency actions or
categories of agency actions that may be determined to meet the
standards of this paragraph by alternative procedures to the
procedures set forth in this subsection and subsections (b)
through (d), except that subsections (b)(4) and (e) may apply
only to an action that the Secretary finds, or concurs, does
meet such standards, and the Secretary shall suggest, or concur
in any suggested, reasonable and prudent alternatives described
in subsection (b)(3) for any action determined not to meet such
standards. Any such agency action or category of agency actions
shall be identified, and any such alternative procedures shall
be established, by regulation promulgated prior or subsequent
to the date of the enactment of this Act.
(3) Subject to such guidelines as the Secretary may
establish, a Federal agency shall consult with the Secretary on
any prospective agency action at the request of, and in
cooperation with, the prospective permit or license applicant
if the applicant has reason to believe that an endangered
species or a threatened species may be present in the area
affected by [his] the applicant's project and that
implementation of such action will likely affect such species.
(4) Each Federal agency shall confer with the Secretary on
any agency action which is likely to jeopardize the continued
existence of any species proposed to be [listed under section 4
or result in the destruction or adverse modification of
critical habitat proposed to be designated for such species],
under section 4 an endangered species or a threatened species.
This paragraph does not require a limitation on the commitment
of resources as described in subsection (d).
(5) Any Federal agency or the Secretary, in conducting any
analysis pursuant to paragraph (2), shall consider only the
effects of any agency action that are distinct from a baseline
of all effects upon the relevant species that have occurred or
are occurring prior to the action.
(b) Opinion of Secretary.--(1)(A) * * *
(B) In the case of an agency action involving a permit or
license applicant, the Secretary and the Federal agency may not
mutually agree to conclude consultation within a period
exceeding 90 days unless the Secretary, before the close of the
90th day referred to in subparagraph (A)--
(i) if the consultation period proposed to be agreed
to will end before the 150th day after the date on
which consultation was initiated, submits to the permit
or license applicant a written statement setting
forth--
(I) * * *
* * * * * * *
(2) Consultation under subsection (a)(3) shall be concluded
within such period as is agreeable to the Secretary, the
Federal agency, and the permit or license applicant concerned.
(3)(A) [Promptly after] Before conclusion of consultation
under paragraph (2) or (3) of subsection (a), the Secretary
shall provide to the Federal agency and the permit or license
applicant, if any, a proposed written statement setting forth
the Secretary's opinion, and a summary of the information on
which the opinion is based, detailing how the agency action
affects the species [or its critical habitat]. [If jeopardy or
adverse modification is found, the Secretary shall suggest
those reasonable and prudent alternatives which he believes
would not violate subsection (a)(2) and can be taken by the
Federal agency or applicant in implementing the agency action.]
The Secretary shall consider any comment from the Federal
agency and the permit or license applicant, if any, prior to
issuance of the final written statement of the Secretary's
opinion. The Secretary shall issue the final written statement
of the Secretary's opinion by providing the written statement
to the Federal agency and the permit or license applicant, if
any, and publishing notice of the written statement in the
Federal Register. If jeopardy is found, the Secretary shall
suggest in the final written statement those reasonable and
prudent alternatives, if any, that the Secretary believes would
not violate subsection (a)(2) and can be taken by the Federal
agency or applicant in implementing the agency action. The
Secretary shall cooperate with the Federal agency and any
permit or license applicant in the preparation of any suggested
reasonable and prudent alternatives.
* * * * * * *
(4)(A) If after consultation under subsection (a)(2) of this
section, the Secretary concludes that--
[(A)] (i) the agency action will not violate such
subsection, or offers reasonable and prudent
alternatives which the Secretary believes would not
violate such subsection;
[(B)] (ii) the taking of an endangered species or a
threatened species incidental to the agency action will
not violate such subsection; and
[(C)] (iii) if an endangered species or threatened
species of a marine mammal is involved, the taking is
authorized pursuant to section 101(a)(5) of the Marine
Mammal Protection Act of 1972;
[the Secretary shall provide the Federal agency and the
applicant concerned, if any, with a written statement that--]
the Secretary shall include in the written statement under
paragraph (3), a statement described in subparagraph (B) of
this paragraph.
(B) A statement described in this subparagraph--
(i) * * *
* * * * * * *
(5)(A) Any terms and conditions set forth pursuant to
paragraph (4)(B)(iv) shall be roughly proportional to the
impact of the incidental taking identified pursuant to
paragraph (4) in the written statement prepared under paragraph
(3).
(B) If various terms and conditions are available to comply
with paragraph (4)(B)(iv), the terms and conditions set forth
pursuant to that paragraph--
(i) must be capable of successful implementation; and
(ii) must be consistent with the objectives of the
Federal agency and the permit or license applicant, if
any, to the greatest extent possible.
(c) Biological Assessment.--[(1)] To facilitate compliance
with the requirements of subsection (a)(2) each Federal agency
shall, with respect to any agency action of such agency for
which no contract for construction has been entered into and
for which no construction has begun on the date of enactment of
the Endangered Species Act Amendments of 1978, request of the
Secretary information whether any species [which is listed or
proposed to be listed may be present in the area of such
proposed action.] that is determined to be an endangered
species or a threatened species, or for which such a
determination is proposed pursuant to section 4, may be present
in the area of such proposed action. If the Secretary advises,
based on the [best scientific and commercial data available]
best available scientific data, that such species may be
present, such agency shall conduct a biological assessment for
the purpose of identifying any endangered species or threatened
species which is likely to be affected by such action. Such
assessment shall be completed within 180 days after the date on
which initiated (or within such other period as in mutually
agreed to by the Secretary and such agency, except that if a
permit or license applicant is involved, the 180-day period may
not be extended unless such agency provides the applicant,
before the close of such period, with a written statement
setting forth the estimated length of the proposed extension
and the reasons therefor) and, before any contract for
construction is entered into and before construction is begun
with respect to such action. Such assessment may be undertaken
as part of a Federal agency's compliance with the requirements
of section 102 of the National Environmental Policy Act of 1969
(42 U.S.C. 4332).
[(2) Any person who may wish to apply for an exemption under
subsection (g) of this section for that action may conduct a
biological assessment to identify any endangered species or
threatened species which is likely to be affected by such
action. Any such biological assessment must, however, be
conducted in cooperation with the Secretary and under the
supervision of the appropriate Federal agency.]
* * * * * * *
[(e)(1) Establishment of Committee.--There is established a
committee to be known as the Endangered Species Committee
(hereinafter in this section referred to as the ``Committee'').
[(2) The Committee shall review any application submitted to
it pursuant to this section and determine in accordance with
subsection (h) of this section whether or not to grant an
exemption from the requirements of subsection (a)(2) of this
action for the action set forth in such application.
[(3) The Committee shall be composed of seven members as
follows:
[(A) The Secretary of Agriculture.
[(B) The Secretary of the Army.
[(C) The Chairman of the Council of Economic
Advisors.
[(D) The Administrator of the Environmental
Protection Agency. Agency.
[(E) The Secretary of the Interior.
[(F) The Administrator of the National Oceanic and
Atmospheric Administration.
[(G) The President, after consideration of any
recommendations received pursuant to subsection
(g)(2)(B) shall appoint one individual from each
affected State, as determined by the Secretary, to be a
member of the Committee for the consideration of the
application for exemption for an agency action with
respect to which such recommendations are made, not
later than 30 days after an application is submitted
pursuant to this section.
[(4)(A) Members of the Committee shall receive no additional
pay on account of their service on the Committee.
[(B) While away from their homes or regular places of
business in the performance of services for the Committee,
members of the Committee shall be allowed travel expenses,
including per diem in lieu of subsistence, in the same manner
as persons employed intermittently in the Government service
are allowed expenses under section 5703 of title 5 of the
United States Code
[(5)(A) Five members of the Committee or their
representatives shall constitute a quorum for the transaction
of any function of the Committee, except that, in no case shall
any representative be considered in determining the existence
of a quorum for the transaction of any function of the
Committee if that function involves a vote by the Committee on
any matter before the Committee.
[(B) The Secretary of the Interior shall be the Chairman of
the Committee.
[(C) The Committee shall meet at the call of the Chairman or
five of its members.
[(D) All meetings and records of the Committee shall be open
to the public.
[(6) Upon request of the Committee, the head of any Federal
agency is authorized to detail, on a nonreimbursable basis, any
of the personnel of such agency to the Committee to assist it
in carrying out its duties under this section.
[(7)(A) The Committee may for the purpose of carrying out its
duties under this section hold such hearings, sit and act at
such times and places, take such testimony, and receive such
evidence, as the Committee deems advisable.
[(B) When so authorized by the Committee, any member or agent
of the Committee may take any action which the Committee is
authorized to take by this paragraph.
[(C) Subject to the Privacy Act, the Committee may secure
directly from any Federal agency information necessary to
enable it to carry out its duties under this section. Upon
request of the Chairman of the Committee, the head of such
Federal agency shall furnish such information to the Committee.
[(D) The Committee may use the United States mails in the
same manner and upon the same conditions as a Federal agency.
[(E) The Administrator of General Services shall provide to
the Committee on a reimbursable basis such administrative
support services as the Committee may request.
[(8) In carrying out its duties under this section, the
Committee may promulgate and amend such rules, regulations, and
procedures, and issue and amend such orders as it deems
necessary.
[(9) For the purpose of obtaining information necessary for
the consideration of an application for an exemption under this
section the Committee may issue subpoenas for the attendance
and testimony of witnesses and the production of relevant
papers, books, and documents.
[(10) In no case shall any representative, including a
representative of a member designated pursuant to paragraph
(3)(G) of this subsection, be eligible to cast a vote on behalf
of any member.
[(f) Regulations.--Not later than 90 days after the date of
enactment of the Endangered Species Act Amendments of 1978, the
Secretary shall promulgate regulations which set forth the form
and manner in which applications for exemption shall be
submitted to the Secretary and the information to be contained
in such applications. Such regulations shall require that
information submitted in an application by the head of any
Federal agency with respect to any agency action include but
not be limited to--
[(1) a description of the consultation process
carried out pursuant to subsection (a)(2) of this
section between the head of the Federal agency and the
Secretary; and
[(2) a statement describing why such action cannot be
altered or modified to conform with the requirements of
subsection (a)(2) of this section.
[(g) Application for Exemption and Report to the Committee.--
(1) A Federal agency, the Governor of the State in which an
agency action will occur, if any, or a permit or license
applicant may apply to the Secretary for an exemption for an
agency action of such agency if, after consultation under
subsection (a)(2), the Secretary's opinion under subsection (b)
indicates that the agency action would violate subsection
(a)(2). An application for an exemption shall be considered
initially by the Secretary in the manner provided for in this
subsection, and shall be considered by the Committee for a
final determination under subsection (h) after a report is made
pursuant to paragraph (5). The applicant for an exemption shall
be referred to as the ``exemption applicant'' in this section.
[(2)(A) An exemption applicant shall submit a written
application to the Secretary, in a form prescribed under
subsection (f), not later than 90 days after the completion of
the consultation process; except that, in the case of any
agency action involving a permit or license applicant, such
application shall be submitted not later than 90 days after the
date on which the Federal agency concerned takes final agency
action with respect to the issuance of the permit or license.
For purposes of the preceding sentence, the term ``final agency
action'' means (i) a disposition by an agency with respect to
the issuance of a permit or license that is subject to
administrative review, whether or not such disposition is
subject to judicial review; or (ii) if administrative review is
sought with respect to such disposition, the decision resulting
after such review. Such application shall set forth the reasons
why the exemption applicant considers that the agency action
meets the requirements for an exemption under this subsection.
[(B) Upon receipt of an application for exemption for an
agency action under paragraph (1), the Secretary shall promptly
(i) notify the Governor of each affected State, if any, as
determined by the Secretary, and request the Governors so
notified to recommend individuals to be appointed to the
Endangered Species Committee for consideration of such
application; and (ii) publish notice of receipt of the
application in the Federal Register, including a summary of the
information contained in the application and a description of
the agency action with respect to which the application for
exemption has been filed.
[(3) The Secretary shall within 20 days after the receipt of
an application for exemption, or within such other period of
time as is mutually agreeable to the exemption applicant and
the Secretary--
[(A) determine that the Federal agency concerned and
the exemption applicant have--
[(i) carried out the consultation
responsibilities described in subsection (a) in
good faith and made a reasonable and
responsible effort to develop and fairly
consider modifications or reasonable and
prudent alternatives to the proposed agency
action which would not violate subsection
(a)(2);
[(ii) conducted any biological assessment
required by subsection (c); and
[(iii) to the extent determinable within the
time provided herein, refrained from making any
irreversible or irretrievable commitment of
resources prohibited by subsection (d); or
[(B) deny the application for exemption because the
Federal agency concerned or the exemption applicant
have not met the requirements set forth in subparagraph
(A)(i), (ii), and (iii).
The denial of an application under subparagraph (B) shall be
considered final agency action for purposes of chapter 7 of
title 5, United States Code.
[(4) If the Secretary determines that the Federal agency
concerned and the exemption applicant have met the requirements
set forth in paragraph (3)(A) (i), (ii) and (iii) he shall, in
consultation with the Members of the Committee, hold a hearing
on the application for exemption in accordance with sections
554, 555, and 556 (other than subsection (b) (1) and (2)
thereof) of title 5, United States Code, and prepare the report
to be submitted pursuant to paragraph (5).
[(5) Within 140 days after making the determinations under
paragraph (3) or within such other period of time as is
mutually agreeable to the exemption applicant and the
Secretary, the Secretary shall submit to the Committee a report
discussing--
[(A) the availability and reasonable and prudent
alternatives to the agency action, and the nature and
extent of the benefits of the agency action and of
alternative courses of action consistent with
conserving the species or the critical habitat;
[(B) a summary of the evidence concerning whether or
not the agency action is in the public interest and is
of national or regional significance;
[(C) appropriate reasonable mitigation and
enhancement measures which should be considered by the
Committee; and
[(D) whether the Federal agency concerned and the
exemption applicant refrained from making any
irreversible or irretrievable commitment of resources
prohibited by subsection (d).
[(6) To the extent practicable within the time required for
action under subsection (g) of this section, and except to the
extent inconsistent with the requirements of this section, the
consideration of any application for an exemption under this
section and the conduct of any hearing under this subsection
shall be in accordance with sections 554, 555, and 556 (other
than subsection (b)(3) of section 556) of title 5, United
States Code.
[(7) Upon request of the Secretary, the head of any Federal
agency is authorized to detail, on a nonreimbursable basis, any
of the personnel of such agency to the Secretary to assist him
in carrying out his duties under this section.
[(8) All meetings and records resulting from activities
pursuant to this subsection shall be open to the public.
[(h) Exemption.--(1) The Committee shall make a final
determination whether or not to grant an exemption within 30
days after receiving the report of the Secretary pursuant to
subsection (g)(5). The Committee shall grant an exemption from
the requirements of subsection (a)(2) for an agency action if,
by a vote of not less than five of its members voting in
person--
[(A) it determines on the record, based on the report
of the Secretary, the record of the hearing held under
subsection (g)(4), and on such other testimony or
evidence as it may receive, that--
[(i) there are no reasonable and prudent
alternatives to the agency action;
[(ii) the benefits of such action clearly
outweigh the benefits of alternative courses of
action consistent with conserving the species
or its critical habitat, and such action is in
the public interest;
[(iii) the action is of regional or national
significance; and
[(iv) neither the Federal agency concerned
nor the exemption applicant made any
irreversible or irretrievable commitment of
resources prohibited by subsection (d); and
[(B) it establishes such reasonable mitigation and
enhancement measures, including, but not limited to,
live propagation, transplantation, and habitat
acquisition and improvement, as are necessary and
appropriate to minimize the adverse effects of the
agency action upon the endangered species, threatened
species, or critical habitat concerned.
Any final determination by Committee under this subsection
shall be considered final agency action for purposes of chapter
7 of title 5 of the United States Code.
[(2)(A) Except as provided in subparagraph (B), an exemption
for an agency action granted under paragraph (1) shall
constitute a permanent exemption with respect to all endangered
or threatened species for the purposes of completing such
agency action--
[(i) regardless whether the species was identified in
the biological assessment; and
[(ii) only if a biological assessment has been
conducted under subsection (c) with respect to such
agency action.
[(B) An exemption shall be permanent under subparagraph (A)
unless--
[(i) the Secretary finds, based on the best
scientific and commercial data available, that such
exemption would result in the extinction of a species
that was not the subject of consultation under
subsection (a)(2) or was not identified in any
biological assessment conducted under subsection (c),
and
[(ii) the Committee determines within 60 days after
the date of the Secretary's finding that the exemption
should not be permanent.
If the Secretary makes a finding described in clause (i), the
Committee shall meet with respect to the matter within 30 days
after the date of the finding.
[(i) Review by Secretary of State.--Notwithstanding any other
provision of this Act, the Committee shall be prohibited from
considering for exemption any application made to it, if the
Secretary of State, after a review of the proposed agency
action and its potential implications, and after hearing,
certifies, in writing, to the Committee within 60 days of any
application made under this section that the granting of any
such exemption and the carrying out of such action would be in
violation of an international treaty obligation or other
international obligation of the United States. The Secretary of
State shall, at the time of such certification, publish a copy
thereof in the Federal Register.
[(j) Notwithstanding any other provision of this Act, the
Committee shall grant an exemption for any agency action if the
Secretary of Defense finds that such exemption is necessary for
reasons of national security.
[(k) Special Provisions.--An exemption decision by the
Committee under this section shall not be a major Federal
action for purposes of the National Environmental Policy Act of
1969 (42 U.S.C. 4321 et seq.): Provided, That an environmental
impact statement which discusses the impacts upon endangered
species or threatened species or their critical habitats shall
have been previously prepared with respect to any agency action
exempted by such order.
[(l) Committee Orders.--(1) If the Committee determines under
subsection (h) that an exemption should be granted with respect
to any agency action, the Committee shall issue an order
granting the exemption and specifying the mitigation and
enhancement measures established pursuant to subsection (h)
which shall be carried out and paid for by the exemption
applicant in implementing the agency action. All necessary
mitigation and enhancement measures shall be authorized prior
to the implementing of the agency action and funded
concurrently with all other project features.
[(2) The applicant receiving such exemption shall include the
costs of such mitigation and enhancement measures within the
overall costs of continuing the proposed action.
Notwithstanding the preceding sentence the costs of such
measures shall not be treated as project costs for the purpose
of computing benefit-cost or other ratios for the proposed
action. Any applicant may request the Secretary to carry out
such mitigation and enhancement measures. The costs incurred by
the Secretary in carrying out any such measures shall be paid
by the applicant receiving the exemption. No later than one
year after the granting of an exemption, the exemption
applicant shall submit to the Council on Environmental Quality
a report describing its compliance with the mitigation and
enhancement measures prescribed by this section. Such report
shall be submitted annually until all such mitigation and
enhancement measures have been completed. Notice of the public
availability of such reports shall be published in the Federal
Register by the Council on Environmental Quality.
[(m) Notice.--The 60-day notice requirement of section 11(g)
of this Act shall not apply with respect to review of any final
determination of the Committee under subsection (h) of this
section granting an exemption from the requirements of
subsection (a)(2) of this section.
[(n) Judicial Review.--Any person, as defined by section
3(13) of this Act, may obtain judicial review, under chapter 7
of title 5 of the United States Code, of any decision of the
Endangered Species Committee under subsection (h) in the United
States Court of Appeals for (1) any circuit wherein the agency
action concerned will be, or is being, carried out, or (2) in
any case in which the agency action will be, or is being,
carried out outside of any circuit, the District of Columbia,
by filing in such court within 90 days after the date of
issuance of the decision, a written petition for review. A copy
of such petition shall be transmitted by the clerk of the court
to the Committee and the Committee shall file in the court the
record in the proceeding, as provided in section 2112, of title
28, United States Code. Attorneys designated by the Endangered
Species Committee may appear for, and represent the Committee
in any action for review under this subsection.]
[(o)] (e) [Exemption as Providing] Exception on Taking of
Endangered Species.--Notwithstanding sections 4(d) and
9(a)(1)(B) and (C) of this Act, sections 101 and 102 of the
Marine Mammal Protection Act of 1972, or any regulation
promulgated to implement any [such section--
[(1) any action for which an exemption is granted
under subsection (h) of this section shall not be
considered to be a taking of any endangered species or
threatened species with respect to any activity which
is necessary to carry out such action; and
[(2)] such section or in an agreement under section
5(m), any taking that is in compliance with the terms
and conditions specified in a written statement
provided under subsection (b)(4)(iv) of this section
shall not be considered to be a prohibited taking of
the species concerned.
[(p)] (f) Exemptions in Presidentially Declared Disaster
Areas.--In any area which has been declared by the President to
be a major disaster area under the Disaster Relief and
Emergency Assistance Act, the President [is authorized to make
the determinations required by subsections (g) and (h) of this
section] may exempt an agency action from compliance with the
requirements of subsections (a) through (d) of this section
before the initiation of such agency action, for any project
for the repair or replacement of a public facility
substantially as it existed prior to the disaster under section
405 or 406 of the Disaster Relief and Emergency Assistance Act,
and which the President determines (1) is necessary to prevent
the recurrence of such a natural disaster and to reduce the
potential loss of human life, and (2) to involve an emergency
situation which does not allow the ordinary procedures of this
section to be followed. [Notwithstanding any other provision of
this section, the Committee shall accept the determinations of
the President under this subsection.]
INTERNATIONAL COOPERATION
Sec. 8. (a) Financial Assistance.--As a demonstration of the
commitment of the United States to the worldwide protection of
endangered species and threatened species, the President may,
subject to the provisions of section 1415 of the Supplemental
Appropriation Act, 1953 (31 U.S.C. 724), use foreign currencies
accruing to the United States Government under the Agricultural
Trade Development and Assistance Act of 1954 or any other law
to provide to any foreign county (with its consent) assistance
in the development and management of programs in that country
which the Secretary determines to be necessary or useful for
the conservation of [any endangered species or threatened
species listed] any species determined to be an endangered
species or a threatened species by the Secretary pursuant to
section 4 of this Act. The President shall provide assistance
(which includes, but is not limited to, the acquisition, by
lease or otherwise, of lands, waters, or interests therein) to
foreign countries under this section under such terms and
conditions as [he] the President deems appropriate. Whenever
foreign currencies are available for the provision of
assistance under this section, such currencies shall be used in
preference to funds appropriated under the authority of
[section 15] section 18 of this Act.
(b) Encouragement of Foreign Programs.--In order to carry out
further the provisions of this Act, the Secretary, through the
Secretary of State shall encourage--
(1) foreign countries to provide for the conservation
of fish or wildlife and plants including [endangered
species and threatened species listed] species
determined to be endangered species and threatened
species pursuant to section 4 of this Act;
* * * * * * *
(3) foreign persons who directly or indirectly take
fish or wildlife or plants in foreign countries or on
the high seas for importation into the United States
for commercial or other purposes to develop and carry
out with such assistance as [he] the Secretary of the
Interior may provide, conservation practices designed
to enhance such fish or wildlife or plants and their
habitat.
(c) Personnel.--After consultation with the Secretary of
State, the Secretary may--
(1) assign or otherwise make available any officer or
employee of [his] the Secretary's department for the
purpose of cooperating with foreign countries and
international organizations in developing personnel
resources and programs which promote the conservation
of fish or wildlife or plants, and
* * * * * * *
(d) Investigations.--After consultation with the Secretary of
State and the Secretary of the Treasury, as appropriate, the
Secretary may conduct or cause to be conducted such law
enforcement investigations and research abroad as [he] the
Secretary deems necessary to carry out the purposes of this
Act.
CONVENTION IMPLEMENTATION
Sec. 8A. (a) Management Authority and Scientific Authority.--
The Secretary [of the Interior (hereinafter in this section
referred to as the ``Secretary'')] is designated as the
Management Authority and the Scientific Authority for purposes
of the Convention and the respective functions of each such
Authority shall be carried out through the United States Fish
and Wildlife Service.
* * * * * * *
(c) Scientific Authority Functions.--(1) * * *
(2) The Secretary shall base the determinations and advice
given by [him] the Secretary under Article IV of
the Convention with respect to wildlife upon the best available
biological information derived from professionally accepted
wildlife management practices; but is not required to make, or
require any State to make, estimates of population size in
making such determinations or giving such advice.
(d) Reservations by the United States Under Convention.--If
the United States votes against including any species in
Appendix I or II of the Convention and does not enter a
reservation pursuant to paragraph (3) of Article XV of the
Convention with respect to that species, the Secretary of
State, before the 90th day after the last day on which such a
reservation could be entered, shall submit to the Committee on
[Merchant Marine and Fisheries] Resources of the House of
Representatives, and to the Committee on the Environment and
Public Works of the Senate, a written report setting forth the
reasons why such a reservation was not entered.
(e) Wildlife Preservation in Western Hemisphere.--(1) The
Secretary [of the Interior (hereinafter in this subsection
referred to as the ``Secretary'')], in cooperation with the
Secretary of State, shall act on behalf of, and represent, the
United States in all regards as required by the Convention on
Nature Protection and Wildlife Preservation in the Western
Hemisphere (56 Stat. 1354, T.S. 982, hereinafter in this
subsection referred to as the ``Western Convention''). In the
discharge of these responsibilities, the Secretary and the
Secretary of State shall consult with the Secretary of
Agriculture, the Secretary of Commerce, and the heads of other
agencies with respect to matters relating to or affecting their
areas of responsibility.
* * * * * * *
[(3) No later than September 30, 1985, the Secretary and the
Secretary of State shall submit a report to Congress describing
those steps taken in accordance with the requirements of this
subsection and identifying the principal remaining actions yet
necessary for comprehensive and effective implementation of the
Western Convention.]
[(4)] (3) The provisions of this subsection shall not be
construed as affecting the authority, jurisdiction, or
responsibility of the several States to manage, control, or
regulate resident fish or wildlife under State law or
regulations.
PROHIBITED ACTS
Sec. 9. (a) General.--(1) Except as provided in sections
6(g)(2) and 10 [of this Act, with respect to any endangered
species of fish or wildlife listed pursuant to section 4 of
this Act], with respect to any species of fish or wildlife
determined to be an endangered species under section 4 it is
unlawful for any person subject to the jurisdiction of the
United States to--
(A) * * *
* * * * * * *
(G) violate any regulation pertaining to such species
or to any [threatened species of fish or wildlife
listed pursuant to section 4 of this Act] species of
fish or wildlife determined to be a threatened species
under section 4 and promulgated by the Secretary
pursuant to authority provided by this Act.
(2) Except as provided in sections 6(g)(2) and 10 [of this
Act, with respect to any endangered species of plants listed
pursuant to section 4 of this Act], with respect to any species
of plants determined to be an endangered species under section
4, it is unlawful for any person subject to the jurisdiction of
the United States to--
(A) * * *
* * * * * * *
(E) violate any regulation pertaining to such species
or to any threatened species of plants [listed pursuant
to section 4 of this Act] determined to be a threatened
species under section 4 and promulgated by the
Secretary pursuant to authority provided by this Act.
(b)[(1)] Species Held in Captivity or Controlled
Environment.--(1) The provisions of subsections (a)(1)(A) and
(a)(1)(G) of this section shall not apply to any fish or
wildlife which was held in captivity or in a controlled
environment on (A) December 28, 1973, or (B) the date of the
publication in the Federal Register of a final regulation
[adding such fish or wildlife species to any list published
pursuant to subsection (c) of section 4 of this Act: Provided,
That] determining such fish or wildlife species to be an
endangered species or a threatened species under section 4, if
such holding and any subsequent holding or use of the fish or
wildlife was not in the course of a commercial activity. With
respect to any act prohibited by subsections (a)(1)(A) and
(a)(1)(G) of this section which occurs after a period of 180
days from (i) December 28, 1973, or (ii) the date of
publication in the Federal Register of a final regulation
[adding such fish or wildlife species to any list published
pursuant to subsection (c) of section 4 of this Act]
determining such fish or wildlife species to be an endangered
species or a threatened species under section 4, there shall be
a rebuttable presumption that the fish or wildlife involved in
such act is not entitled to the exemption contained in this
subsection.
* * * * * * *
(c) Violation of Convention.--(1) * * *
(2) Any importation into the United States of fish or
wildlife shall, if--
(A) such fish or wildlife is not [an endangered
species listed] a species determined to be an
endangered species pursuant to section 4 of this Act
but is listed in Appendix II of the Convention;
* * * * * * *
(d) Imports and Exports.--
(1) In general.--It is unlawful for any person,
without first having obtained permission from the
Secretary, to engage in business--
(A) as an importer or exporter of fish or
wildlife (other than shellfish and fishery
products which [(i) are not listed pursuant to
section 4 of this Act as endangered species or
threatened species, and] (i) are not determined
to be endangered species or threatened species
under section 4, and (ii) are imported for
purposes of human or animal consumption or
taken in waters under the jurisdiction of the
United States or on the high seas for
recreational purposes) or plants; or
* * * * * * *
(2) Requirements.--Any person required to obtain
permission under paragraph (1) of this subsection
shall--
(A) keep such records as will fully and
correctly disclose each importation or
exportation of fish, wildlife, plants, or
African elephant ivory made by [him] such
person and the subsequent disposition, made by
[him] such person with respect to such fish,
wildlife, plants, or ivory;
(B) at all reasonable times upon notice by a
duly authorized representative of the
Secretary, afford such representative access to
[his] such person's place of business, an
opportunity to examine [his] such person's
inventory of imported fish, wildlife, plants,
or African elephant ivory and the records
required to be kept under subparagraph (A) of
this paragraph, and to copy such records; and
* * * * * * *
(e) Reports.--It is unlawful for any person importing or
exporting fish or wildlife (other than shellfish and fishery
products which [(1) are not listed pursuant to section 4 of
this Act as endangered or threatened species, and] (1) are not
determined to be endangered species or threatened species under
section 4, and (2) are imported for purposes of human or animal
consumption or taken in waters under the jurisdiction of the
United States or on the high seas for recreational purposes) or
plants to fail to file any declaration or report as the
Secretary deems necessary to facilitate enforcement of this Act
or to meet the obligations of the Convention.
(f) Designation of Ports.--(1) It is unlawful for any person
subject to the jurisdiction of the United States to import into
or export from the United States any fish or wildlife (other
than shellfish and fishery products which [(A) are not listed
pursuant to section 4 of this Act as endangered species or
threatened species, and] (A) are not determined to be
endangered species or threatened species under section 4, and
(B) are imported for purposes of human or animal consumption or
taken in waters under the jurisdiction of the United States or
on the high seas for recreational purposes) or plants, except
at a port or ports designated by the Secretary [of the
Interior]. For the purposes of facilitating enforcement of this
Act and reducing the costs thereof, the Secretary [of the
Interior], with approval of the Secretary of the Treasury and
after notice and opportunity for public hearing, may, by
regulation, designate ports and change such designations. The
Secretary [of the Interior], under such terms and conditions as
[he] the Secretary may prescribe, may permit the importation or
exportation at nondesignated ports in the interest of the
health or safety of the fish or wildlife or plants, or for
other reasons if, in [his] such person's discretion, [he] the
Secretary deems it appropriate and consistent with the purpose
of this subsection.
* * * * * * *
EXCEPTIONS
Sec. 10. (a) Permits.--(1) The Secretary may permit, under
such terms and conditions as [he] the Secretary shall
prescribe--
(A) * * *
* * * * * * *
(2)(A) No permit may be issued by the Secretary authorizing
any taking referred to in paragraph (1)(B) unless the applicant
therefor submits to the Secretary a conservation plan that
specifies--
(i) * * *
* * * * * * *
(iii) what alternative actions to such taking the
applicant considered and the reasons why such
alternatives are not being utilized; [and]
(iv) objective, measurable biological goals to be
achieved for species covered by the plan and specific
measures for achieving such goals consistent with the
requirements of subparagraph (B);
(v) measures the applicant will take to monitor
impacts of the plan on covered species and the
effectiveness of the plan's measures in achieving the
plan's biological goals;
(vi) adaptive management provisions necessary to
respond to all reasonably foreseeable changes in
circumstances that could appreciably reduce the
likelihood of the survival and recovery of any species
covered by the plan; and
[(iv)] (vii) such other measures that the Secretary
may require as being necessary or appropriate for
purposes of the plan.
(B) If the Secretary finds, after opportunity for public
comment, with respect to a permit application and the related
conservation plan that--
(i) * * *
* * * * * * *
(iv) the taking will not appreciably reduce the
likelihood of the survival and recovery of the species
in the wild; [and]
(v) the term of the permit is reasonable, taking into
consideration--
(I) the period in which the applicant can be
expected to diligently complete the principal
actions covered by the plan;
(II) the extent to which the plan will
enhance the conservation of covered species;
(III) the adequacy of information underlying
the plan;
(IV) the length of time necessary to
implement and achieve the benefits of the plan;
and
(V) the scope of the plan's adaptive
management strategy; and
[(v)] (vi) the measures, if any, required under
subparagraph (A)(iv) will be met;
and [he] the Secretary has received such other assurances as
[he] the Secretary may require that the plan will be
implemented, the Secretary shall issue the permit. The permit
shall contain such terms and conditions as the Secretary deems
necessary or appropriate to carry out the purposes of this
paragraph, including, but not limited to, such reporting
requirements as the Secretary deems necessary for determining
whether such terms and conditions are being complied with.
[(C) The Secretary shall revoke a permit issued under this
paragraph if he finds that the permittee is not complying with
the terms and conditions of the permit.]
(3) Any terms and conditions offered by the Secretary
pursuant to paragraph (2)(B) to reduce or offset the impacts of
incidental taking shall be roughly proportional to the impact
of the incidental taking specified in the conservation plan
pursuant to in paragraph (2)(A)(i). This paragraph shall not be
construed to limit the authority of the Secretary to require
greater than acre-for-acre mitigation where necessary to
address the extent of such impacts. In any case in which
various terms and conditions are available, the terms and
conditions shall be capable of successful implementation and
shall be consistent with the objective of the applicant to the
greatest extent possible.
(4)(A) If the holder of a permit issued under this subsection
for other than scientific purposes is in compliance with the
terms and conditions of the permit, and any conservation plan
or agreement incorporated by reference therein, the Secretary
may not require the holder, without the consent of the holder,
to adopt any new minimization, mitigation, or other measure
with respect to any species adequately covered by the permit
during the term of the permit, except as provided in
subparagraphs (B) and (C) to meet circumstances that have
changed subsequent to the issuance of the permit.
(B) For any circumstance identified in the permit or
incorporated document that has changed, the Secretary may, in
the absence of consent of the permit holder, require only such
additional minimization, mitigation, or other measures as are
already provided in the permit or incorporated document for
such changed circumstance.
(C) For any changed circumstance not identified in the permit
or incorporated document, the Secretary may, in the absence of
consent of the permit holder, require only such additional
minimization, mitigation, or other measures to address such
changed circumstance that do not involve the commitment of any
additional land, water, or financial compensation not otherwise
committed, or the imposition of additional restrictions on the
use of any land, water or other natural resources otherwise
available for development or use, under the original terms and
conditions of the permit or incorporated document.
(D) The Secretary shall have the burden of proof in
demonstrating and documenting, with the best available
scientific data, the occurrence of any changed circumstances
for purposes of this paragraph.
(E) All permits issued under this subsection on or after the
date of the enactment of the Threatened and Endangered Species
Recovery Act of 2005, other than permits for scientific
purposes, shall contain the assurances contained in
subparagraphs (B) through (D) of this paragraph and paragraph
(5)(A) and (B). Permits issued under this subsection on or
after March 25, 1998, and before the date of the enactment of
the Threatened and Endangered Species Recovery Act of 2005,
other than permits for scientific purposes, shall be governed
by the applicable sections of parts 17.22(b), (c), and (d), and
17.32(b), (c), and (d) of title 50, Code of Federal
Regulations, as the same exist on the date of the enactment of
the Threatened and Endangered Species Act of 2005.
(5)(A) The Secretary shall revoke a permit issued under
paragraph (2) if the Secretary finds that the permittee is not
complying with the terms and conditions of the permit.
(B) Any permit subject to paragraph (4)(A) may be revoked due
to changed circumstances only if--
(i) the Secretary determines that continuation of the
activities to which the permit applies would be
inconsistent with the criteria in paragraph (2)(B)(iv);
(ii) the Secretary provides 60 days notice of
revocation to the permittee; and
(iii) the Secretary is unable to, and the permittee
chooses not to, remedy the condition causing such
inconsistency.
(b) Hardship Exemptions.--(1) If any person enters into a
contract with respect to a species of fish or wildlife or plant
before the date of the publication in the Federal Register of
notice of consideration of that species as [an endangered
species and the subsequent listing of that species as an
endangered species pursuant to section 4 of this Act] an
endangered species or a threatened species and the subsequent
determination that the species is an endangered species or a
threatened species under section 4 will cause undue hardship to
such person under the contract, the Secretary, in order to
minimize such hardship, may exempt such person from the
application of [section 9(a) of this Act] section 9(a) to the
extent the Secretary deems appropriate if such person applies
to [him] the Secretary for such exemption and includes with
such application such information as the Secretary may require
to prove such hardship; except that (A) no such exemption shall
be for a duration of more than one year from the date of
publication in the Federal Register of notice of consideration
of the species concerned, or shall apply to a quantity of fish
or wildlife or plants in excess of that specified by the
Secretary; (B) the one-year period for those species of [fish
or wildlife listed by the Secretary as endangered] fish or
wildlife determined to be an endangered species or threatened
species by the Secretary prior to the effective date of this
Act shall expire in accordance with the terms of section 3 of
the Act of December 5, 1969 (83 Stat. 275); and (C) no such
exemption may be granted for the importation or exportation of
a specimen listed in Appendix I of the Convention which is to
be used in a commercial activity.
(2) As used in this subsection, the term ``undue economic
hardship'' shall include, but not be limited to:
(A) substantial economic loss resulting from
inability caused by this Act to perform contracts with
respect to species of fish and wildlife entered into
prior to the date of publication in the Federal
Register of a notice of consideration of such species
as an endangered species or a threatened species;
(B) substantial economic loss to persons who, for the
year prior to the notice of consideration of such
species as an endangered species or a threatened
species, derived a substantial portion of their income
from the lawful taking of any [listed species]
endangered species or threatened species, which taking
would be made unlawful under this Act; or
* * * * * * *
(3) The Secretary may make further requirements for a showing
of undue economic hardship as [he] the Secretary deems fit.
Exceptions granted under this section may be limited by the
Secretary in [his] the Secretary's discretion as to time, area,
or other factor of applicability.
(c) Notice and Review.--The Secretary shall publish notice in
the Federal Register of each application for an exemption or
permit which is made under this section. Each notice shall
invite the submission from interested parties, within [thirty]
45 days after the date of the notice, of written data, views,
or arguments with respect to the application; except that such
[thirty] 45-day period may be waived by the Secretary in an
emergency situation where the health or life of an endangered
animal is threatened and no reasonable alternative is available
to the applicant, but notice of any such waiver shall be
published by the Secretary in the Federal Register within ten
days following the issuance of the exemption or permit.
Information received by the Secretary as part of any
application shall be available to the public as a matter of
public record at every stage of the proceeding.
(d) Permit and Exemption Policy.--The Secretary may grant
exceptions under subsections (a)(1)(A) and (b) of this section
only if [he] the Secretary finds and publishes [his] the
finding in the Federal Register that (1) such exceptions were
applied for in good faith, (2) if granted and exercised will
not operate to the disadvantage of such endangered species or
threatened species, and (3) will be consistent with the
purposes and policy set forth in section 2 [of this Act].
(e) Alaska Natives.--(1) * * *
* * * * * * *
(4) Notwithstanding the provisions of paragraph (l) of this
subsection, whenever the Secretary determines that any species
of fish or wildlife which is subject to taking under the
provisions of this subsection is an endangered species or
threatened species, and that such taking materially and
negatively affects the threatened or endangered species, [he]
the Secretary may prescribe regulations upon the taking of such
species by any such Indian, Aleut, Eskimo, or non-native
Alaskan resident of an Alaskan native village. Such regulations
may be established with reference to species, geographical
description of the area included, the season for taking, or any
other factors related to the reason for establishing such
regulations and consistent with the policy of this Act. Such
regulations shall be prescribed after a notice and hearings in
the affected judicial districts of Alaska and as otherwise
required by section 103 of the Marine Mammal Protection Act of
1972, and shall be removed as soon as the Secretary determines
that the need for their impositions has disappeared.
(f) Pre-Act Parts and Scrimshaw._(1) As used in this
subsection--
(A) * * *
* * * * * * *
(2) The Secretary, pursuant to the provisions of this
subsection, may exempt, if such exemption is not in violation
of the Convention, any pre-Act endangered species part from one
or more of the following prohibitions.
(A) The prohibition on exportation from the United
States set forth in section 9(a)(1)(A) [of this Act].
(B) Any prohibition set forth in section 9(a)(1) (E)
or (F) [of this Act].
(3) Any person seeking an exemption described in paragraph
(2) of this subsection shall make application therefor to the
Secretary in such form and manner as [he] the person shall
prescribe, but no such application may be considered by the
Secretary unless the application--
(A) * * *
* * * * * * *
(4) If the Secretary approves any application for exemption
made under this subsection, [he] the Secretary shall issue to
the applicant a certificate of exemption which shall specify--
(A) * * *
* * * * * * *
(g) Burden of Proof in Seeking Exemption or Permit._In
connection with any action alleging a violation of section 9,
any person claiming the benefit of any exemption or permit
under this Act shall have the burden of proving that the
exemption or permit is applicable, has been granted, and was
valid and in force at the time of the alleged violation.
(h) Certain Antique Articles.--(1) Sections 4(d), 9(a), and
9(c) do not apply to any article which--
(A) * * *
(B) is composed in whole or in part of any
[endangered species or threatened species listed]
species determined to be an endangered species or a
threatened species under section 4;
* * * * * * *
(j) Experimental Populations.--(1) [For purposes of this
subsection, the term ``experimental population'' means any
population (including any offspring arising solely therefrom)
authorized by the Secretary for release under paragraph (2),
but only when, and at such times as, the population is wholly
separate geographically from nonexperimental populations of the
same species.] For purposes of this subsection, the term
``experimental population'' means any population (including any
offspring arising therefrom) authorized by the Secretary for
release under paragraph (2), but only when such population is
in the area designated for it by the Secretary, and such area
is, at the time of release, wholly separate geographically from
areas occupied by nonexperimental populations of the same
species. For purposes of this subsection, the term ``areas
occupied by nonexperimental populations'' means areas
characterized by the sustained and predictable presence of more
than negligible numbers of successfully reproducing individuals
over a period of many years.
(2)(A) * * *
(B) Before authorizing the release of any population under
subparagraph (A), the Secretary shall by regulation identify
the population and determine, on the basis of the best
available [information] scientific data, whether or not such
population is essential to the continued existence of an
endangered species or a threatened species.
(C) For the purposes of this Act, each member of an
experimental population shall be treated as a threatened
species; except [that--
[(i) solely] that solely for purposes of section 7
(other than subsection (a)(1) thereof), an experimental
population determined under subparagraph (B) to be not
essential to the continued existence of a species shall
be treated, except when it occurs in an area within the
National Wildlife Refuge System or the National Park
System, as a species proposed to be [listed] determined
to be an endangered species or a threatened species
under section 4[; and
[(ii) critical habitat shall not be designated under
this Act for any experimental population determined
under subparagraph (B) to be not essential to the
continued existence of a species.].
* * * * * * *
(k) Written Determination of Compliance.--(1) A property
owner (in this subsection referred to as a ``requester'') may
request the Secretary to make a written determination that a
proposed use of the owner's property that is lawful under State
and local law will comply with section 9(a), by submitting a
written description of the proposed action to the Secretary by
certified mail.
(2) A written description of a proposed use is deemed to be
sufficient for consideration by the Secretary under paragraph
(1) if the description includes--
(A) the nature, the specific location, the lawfulness
under State and local law, and the anticipated schedule
and duration of the proposed use, and a demonstration
that the property owner has the means to undertake the
proposed use; and
(B) any anticipated adverse impact to a species that
is included on a list published under 4(c)(1) that the
requestor reasonably expects to occur as a result of
the proposed use.
(3) The Secretary may request and the requestor may supply
any other information that either believes will assist the
Secretary to make a determination under paragraph (1).
(4) If the Secretary does not make a determination pursuant
to a request under this subsection because of the omission from
the request of any information described in paragraph (2), the
requestor may submit a subsequent request under this subsection
for the same proposed use.
(5)(A) Subject to subparagraph (B), the Secretary shall
provide to the requestor a written determination of whether the
proposed use, as proposed by the requestor, will comply with
section 9(a), by not later than expiration of the 180-day
period beginning on the date of the submission of the request.
(B) The Secretary may request, and the requestor may grant, a
written extension of the period under subparagraph (A).
(6) If the Secretary fails to provide a written determination
before the expiration of the period under paragraph (5)(A) (or
any extension thereof under paragraph (5)(B)), the Secretary is
deemed to have determined that the proposed use complies with
section 9(a).
(7) This subsection shall not apply with respect to agency
actions that are subject to consultation under section 7.
(8) Any use or action taken by the property owner in
reasonable reliance on a written determination of compliance
under paragraph (5) or on the application of paragraph (6)
shall not be treated as a violation of section 9(a).
(9) Any determination of compliance under this subsection
shall remain effective--
(A) in the case of a written determination provided
under paragraph (5)(A), for the 10-year period
beginning on the date the written determination is
provided; or
(B) in the case of a determination that under
paragraph (6) the Secretary is deemed to have made, the
5-year period beginning on the first date the Secretary
is deemed to have made the determination.
(10) The Secretary may withdraw a determination of compliance
under this section only if the Secretary determines that,
because of unforeseen changed circumstances, the continuation
of the use to which the determination applies would preclude
conservation measures essential to the survival of any
endangered species or threatened species. Such a withdrawal
shall take effect 10 days after the date the Secretary provides
notice of the withdrawal to the requester.
(11) The Secretary may extend the period that applies under
paragraph (5) by up to 180 days if seasonal considerations make
a determination impossible within the period that would
otherwise apply.
(l) National Security.--The President, after consultation
with the appropriate Federal agency, may exempt any act or
omission from the provisions of this Act if such exemption is
necessary for national security.
(m) Disaster Declaration and Protection.--(1) The President
may suspend the application of any provision of this Act in any
area for which a major disaster is declared under the Robert T.
Stafford Disaster Relief and Emergency Assistance Act (42
U.S.C. 5121 et seq.).
(2) The Secretary shall, within one year after the date of
the enactment of the Threatened and Endangered Species Recovery
Act of 2005, promulgate regulations regarding application of
this Act in the event of an emergency (including circumstances
other than a major disaster referred to in paragraph (1))
involving a threat to human health or safety or to property,
including regulations--
(A) determining what constitutes an emergency for
purposes of this paragraph; and
(B) to address immediate threats through expedited
consideration under or waiver of any provision of this
Act.
PENALTIES AND ENFORCEMENT
Sec. 11. (a) Civil Penalties.--(1) Any person who knowingly
violates, and any person engaged in business as an importer or
exporter of fish, wildlife, or plants who violates, any
provision of this Act, or any provision of any permit or
certificate issued hereunder, or of any regulation issued in
order to implement subsection (a)(1)(A), (B), (C), (D), (E), or
(F), (a)(2(A), (B), (C), or (D), (c), (d), (other than
regulation relating to recordkeeping or filing of reports),
(f), or (g) of section 9 of this Act, may be assessed a civil
penalty by the Secretary of not more than $25,000 for each
violation. Any person who knowingly violates, and any person
engaged in business as an importer or exporter of fish,
wildlife, or plants who violates, any provision of any other
regulation issued under this Act may be assessed a civil
penalty by the Secretary of not more than $12,000 for each such
violation. Any person who otherwise violates any provision of
this Act, or any regulation, permit, or certificate issued
hereunder, may be assessed a civil penalty by the Secretary of
not more than $500 for each such violation. No penalty may be
assessed under this subsection unless such person is given
notice and opportunity for a hearing with respect to such
violation. Each violation shall be a separate offense. Any such
civil penalty may be remitted or mitigated by the Secretary.
Upon any failure to pay a penalty assessed under this
subsection, the Secretary may request the Attorney General to
institute a civil action in a district court of the United
States for any district in which such person is found, resides,
or transacts business to collect the penalty and such court
shall have jurisdiction to hear and decide any such action. The
court shall hear such action on the record made before the
Secretary and shall sustain [his] the Secretary's action if it
is supported by substantial evidence on the record considered
as a whole.
* * * * * * *
(3) Notwithstanding any other provision of this Act, no civil
penalty shall be imposed if it can be shown by a preponderance
of the evidence that the defendant committed an act based on a
good faith belief that [he] the defendant was acting to protect
[himself or herself] the defendant, a member of [his or her]
the defendant's family, or any other individual from bodily
harm, from any endangered or threatened species.
(b) Criminal Violations.--(1) * * *
* * * * * * *
(3) Notwithstanding any other provision of this Act, it shall
be a defense to prosecution under this subsection if the
defendant committed the offense based on a good faith belief
that [he] the defendant was acting to protect [himself or
herself] the defendant, a member of [his or her] the
defendant's family, or any other individual, from bodily harm
from any endangered or threatened species.
* * * * * * *
(d) Rewards and Certain Incidental Expenses.--The Secretary
or the Secretary of the Treasury shall pay, from sums received
as penalties, fines, or forfeitures of property for any
violations of this chapter or any regulation issued hereunder
(1) a reward to any person who furnishes information which
leads to an arrest, a criminal conviction, civil penalty
assessment, or forfeiture of property for any violation of this
chapter or any regulation issued hereunder, and (2) the
reasonable and necessary costs incurred by any person in
providing temporary care for any fish, wildlife, or plant
pending the disposition of any civil or criminal proceeding
alleging a violation of this chapter with respect to that fish,
wildlife, or plant. The amount of the reward, if any, is to be
designated by the Secretary or the Secretary of the Treasury,
as appropriate. Any officer or employee of the United States or
any State or local government who furnishes information or
renders service in the performance of [his] the officer's or
employee's official duties is ineligible for payment under this
subsection. Whenever the balance of sums received under this
section and section 6(d) of the Act of November 16, 1981 (16
U.S.C. 3375(d)) as penalties or fines, or from forfeitures of
property, exceed $500,000, the Secretary of the Treasury shall
deposit an amount equal to such excess balance in the
cooperative endangered species conservation fund established
under section 6(i) of this Act.
(e) Enforcement.--(1) * * *
* * * * * * *
(3) Any person authorized by the Secretary, the Secretary of
the Treasury, or the Secretary of the Department in which the
Coast Guard is operating, to enforce this Act may detain for
inspection and inspect any package, crate, or other container,
including its contents, and all accompanying documents, upon
importation or exportation. [Such persons] Such a person may
make arrests without a warrant for any violation of this Act if
[he] the person has reasonable grounds to believe that the
person to be arrested is committing the violation in [his] the
person's presence or view and may execute and serve any arrest
warrant, search warrant, or other warrant or civil or criminal
process issued by any officer or court of competent
jurisdiction for enforcement of this Act. Such person so
authorized may search and seize, with or without a warrant, as
authorized by law. Any fish, wildlife, property, or item so
seized shall be held by any person authorized by the Secretary,
the Secretary of the Treasury, or the Secretary of the
Department in which the Coast Guard is operating pending
disposition of civil or criminal proceedings, or the
institution of an action in rem for forfeiture of such fish,
wildlife, property, or item pursuant to paragraph (4) of the
subsection; except that the Secretary may, in lieu of holding
such fish, wildlife, property, or item, permit the owner or
consignee to post a bond or other surety satisfactory to the
Secretary, but upon forfeiture of any such property to the
United States, or the abandonment or waiver of any claim to any
such property, it shall be disposed of (other than by sale to
the general public) by the Secretary in such a manner,
consistent with the purposes of this Act, as the Secretary
shall by regulation prescribe.
* * * * * * *
(5) All provisions of law relating to the seizure,
forfeiture, and condemnation of a vessel for violation of the
customs laws, the disposition of such vessel or the proceeds
from the sale thereof, and the remission or mitigation of such
forfeiture, shall apply to the seizures and forfeitures
incurred, or alleged to have been incurred, under the
provisions of this Act, insofar as such provisions of law are
applicable and not inconsistent with the provisions of this
Act; except that all powers, rights, and duties conferred or
imposed by the customs laws upon any officer or employee of the
Treasury Department shall, for the purposes of this Act, be
exercised or performed by the Secretary or by such persons as
[he] the Secretary may designate.
* * * * * * *
(g) Citizen Suits.--(1) Except as provided in paragraph (2)
of this subsection any person may commence a civil suit on
[his] the person's own behalf--
(A) * * *
* * * * * * *
[CONFORMING AMENDMENTS
[Sec. 13. (a) Subsection 4(c) of the Act of October 15, 1966
(80 Stat. 928, 16 U.S.C. 668dd(c)), is further amended by
revising the second sentence thereof to read as follows: ``With
the exception of endangered species and threatened species
listed by the Secretary pursuant to section 4 of the Endangered
Species Act of 1973 in States wherein a cooperative agreement
does not exist pursuant to section 6(c) of that Act, nothing in
this Act shall be construed to authorize the Secretary to
control or regulate hunting or fishing of resident fish and
wildlife on lands not within the system.''
[(b) Subsection 10(a) of the Migratory Bird Conservation Act
(45 Stat. 1224, 16 U.S.C. 715i(a)) and subsection 401(a) of the
Act ofJune 15, 1935 (49 Stat. 383, 16 U.S.C. 715s(a)), are each
amended bystriking out ``threatened with extinction,'' and
inserting in lieu thereof the following: ``listed pursuant to
section 4 of the Endangered Species Act of 1973 as endangered
species or threatened species,''.
[(c) Section 7(a)(1) of the Land and Water Conservation Fund
Act of 1965 (16 U.S.C. 4601-9 (a)(1)) is amended by striking
out:
``Thretened Species.--For any national area which may
be authorized for the preservation of species of fish
or wildlife that are threatened with extinction.''
and inserting in lieu thereof the following:
[``Endangered Species and Threatened Species.--For
lands, waters, or interests therein, the acquisition of
which is authorized under section 5(a) of the
Endangered Species Act of 1973, needed for the purpose
of conserving endangered or threatened species of fish
or wildlife or plants.''
[(d) The first sentence of section 2 of the Act of September
28, 1962, as amended (76 Stat. 653, 16 U.S.C. 460k-1), is
amended to read as follows:
[``The Secretary is authorized to acquire areas of land, or
interests therein, which are suitable for--
[``(1) incidental fish and wildlife-oriented
recreational development,
[``(2) the protection of natural resources,
[``(3) the conservation of endangered species or
threatened species listed by the Secretary pursuant to
section 4 of the Endangered Species Act of 1973, or
[``(4) carrying out two or more of the purposes set
forth in paragraphs (1) through (3) of this section,
and are adjacent to, or within, the said conservation
areas, except that the acquisition of any land or
interest therein pursuant to this section shall be
accomplished only with such funds as may be
appropriated therefor by the Congress or donated for
such purposes, but such property shall not be acquired
with funds obtained from the sale of Federal migratory
bird hunting stamps.''
[(e) The Marine Mammal Protection Act of 1972 (16 U.S.C.
1361-1407) is amended-
[(1) by striking out ``Endangered Species
Conservation Act of 1969'' in section 3(1)(B) thereof
and inserting in lieu thereof the following:
``Endangered Species Act of 1973'';
[(2) by striking out ``pursuant to the Endangered
Species Conservation Act of 1969'' in section
101(a)(3)(B) thereof and inserting in lieu thereof the
following: ``or threatened species pursuant to the
Endangered Species Act of 1973'';
[(3) by striking out ``endangered under the
Endangered Species Conservation Act of 1969'' in
section 102(b)(3) thereof and inserting in lieu thereof
the following: ``an endangered species or threatened
species pursuant to the Endangered Species Act of
1973''; and
[(4) by striking out ``of the Interior such revisions
of theEndangered Species List, authorized by the
Endangered Species Conservation Act of 1969,'' in
section 202(a)(6) thereof and inserting in lieu thereof
the following: ``such revisions of the endangered
species list and threatened species list published
pursuant to section 4(c)(1) of the Endangered Species
Act of 1973''.
[(f) Section 2(l) of the Federal Environmental Pesticide
Control Act of 1972 (Public Law 92-516) is amended by striking
out the words ``by the Secretary of the Interior under Public
Law 91-135'' and inserting in lieu thereof the words ``or
threatened by the Secretary pursuant to the Endangered Species
Act of 1973''.
[REPEALER
[Sec. 14. The Endangered Species Conservation Act of 1969
(sections 1 through 3 of the Act of October 16, 1966, and
sections 1 through 6 of the Act of December 5,1969; 16 U.S.C.
668aa-666cc-6), is repealed.
[AUTHORIZATION OF APPROPRIATIONS
[Sec. 15. (a) In General.--Except as provided in subsection
(b), (c), and (d), there are authorized to be appropriated--
[(1) not to exceed $35,000,000 for fiscal year 1988,
$36,500,000 for fiscal year 1989, $38,000,000 for
fiscal year 1990, $39,500,000 for fiscal year 1991, and
$41,500,000 for fiscal year 1992 to enable the
Department of the Interior to carry out such functions
and responsibilities as it may have been given under
this Act;
[(2) not to exceed $5,750,000 for fiscal year 1988,
$6,250,000 for each of fiscal years 1989 and 1990, and
$6,750,000 for each of fiscal years 1991 and 1992 to
enable the Department of Commerce to carry out such
functions and responsibilities as it may have been
given under this Act; and
[(3) not to exceed $2,200,000 for fiscal year 1988,
$2,400,000 for each of fiscal years 1989 and 1990, and
$2,600,000 for each of fiscal years 1991 and 1992, to
enable the Department of Agriculture to carry out its
functions and responsibilities with respect to the
enforcement of this Act and the Convention which
pertain to the importation or exportation of plants.
[(b) Exemptions From Act.--There are authorized to be
appropriated to the Secretary to assist him and the Endangered
Species Committee in carrying out their functions under
sections 7 (e), (g), and (h) not to exceed $600,000 for each of
fiscal years 1988, 1989, 1990, 1991, and 1992.
[(c) Convention Implementation.--There are authorized to be
appropriated to the Department of the Interior for purposes of
carrying out section 8A(e) not to exceed $400,000 for each of
fiscal years 1988, 1989, and 1990, and $500,000 for each of
fiscal years 1991 and 1992, and such sums shall remain
available until expended.
[EFFECTIVE DATE
[Sec. 16. This Act shall take effect on the date of its
enactment.]
PRIVATE PROPERTY CONSERVATION
Sec. 13. (a) In General.--The Secretary may provide
conservation grants (in this section referred to as ``grants'')
to promote the voluntary conservation of endangered species and
threatened species by owners of private property and shall
provide financial conservation aid (in this section referred to
as ``aid'') to alleviate the burden of conservation measures
imposed upon private property owners by this Act. The Secretary
may provide technical assistance when requested to enhance the
conservation effects of grants or aid.
(b) Awarding of Grants and Aid.--Grants to promote
conservation of endangered species and threatened species on
private property--
(1) may not be used to fund litigation, general
education, general outreach, lobbying, or solicitation;
(2) may not be used to acquire leases or easements of
more than 50 years duration or fee title to private
property;
(3) must be designed to directly contribute to the
conservation of an endangered species or threatened
species by increasing the species' numbers or
distribution; and
(4) must be supported by any private property owners
on whose property any grant funded activities are
carried out.
(c) Priority.--Priority shall be accorded among grant
requests in the following order:
(1) Grants that promote conservation of endangered
species or threatened species on private property while
making economically beneficial and productive use of
the private property on which the conservation
activities are conducted.
(2) Grants that develop, promote, or use techniques
to increase the distribution or population of an
endangered species or threatened species on private
property.
(3) Other grants that promote voluntary conservation
of endangered species or threatened species on private
property.
(d) Eligibility for Aid.--(1) The Secretary shall award aid
to private property owners who--
(A) received a written determination under section
10(k) finding that the proposed use of private property
would not comply with section 9(a); or
(B) receive notice under section 10(k)(10) that a
written determination has been withdrawn.
(2) Aid shall be in an amount no less than the fair market
value of the use that was proposed by the property owner if--
(A) the owner has foregone the proposed use;
(B) the owner has requested financial aid--
(i) within 180 days of the Secretary's
issuance of a written determination that the
proposed use would not comply with section
9(a); or
(ii) within 180 days after the property owner
is notified of a withdrawal under section
10(k)(10); and
(C) the foregone use would be lawful under State and
local law and the property owner has demonstrated that
the property owner has the means to undertake the
proposed use.
(e) Distribution of Grants and Aid.--(1) The Secretary shall
pay eligible aid--
(A) within 180 days after receipt of a request for
aid unless there are unresolved questions regarding the
documentation of the foregone proposed use or
unresolved questions regarding the fair market value;
or
(B) at the resolution of any questions concerning the
documentation of the foregone use established under
subsection (f) or the fair market value established
under subsection (g).
(2) All grants provided under this section shall be paid on
the last day of the fiscal year. Aid shall be paid based on the
date of the initial request.
(f) Documentation of the Foregone Use.--Within 30 days of the
request for aid, the Secretary shall enter into negotiations
with the property owner regarding the documentation of the
foregone proposed use through such mechanisms such as contract
terms, lease terms, deed restrictions, easement terms, or
transfer of title. If the Secretary and the property owner are
unable to reach an agreement, then, within 60 days of the
request for aid, the Secretary shall determine how the property
owner's foregone use shall be documented with the least impact
on the ownership interests of the property owner necessary to
document the foregone use.
(g) Fair Market Value.--For purposes of this section, the
fair market value of the foregone use of the affected portion
of the private property, including business losses, is what a
willing buyer would pay to a willing seller in an open market.
Fair market value shall take into account the likelihood that
the foregone use would be approved under State and local law.
The fair market value shall be determined within 180 days of
the documentation of the foregone use. The fair market value
shall be determined jointly by 2 licensed independent
appraisers, one selected by the Secretary and one selected by
the property owner. If the 2 appraisers fail to agree on fair
market value, the Secretary and the property owner shall
jointly select a third licensed appraiser whose appraisal
within an additional 90 days shall be binding on the Secretary
and the private property owner. Within one year after the date
of enactment of the Threatened and Endangered Species Recovery
Act of 2005, the Secretary shall promulgate regulations
regarding selection of the jointly selected appraisers under
this subsection.
(h) Limitation on Aid Availability.--Any person receiving aid
under this section may not receive additional aid under this
section for the same foregone use of the same property and for
the same period of time.
(i) Annual Reporting.--The Secretary shall by January 15 of
each year provide a report of all aid and grants awarded under
this section to the Committee on Resources of the House of
Representatives and the Environment and Public Works Committee
of the Senate and make such report electronically available to
the general public on the website required under section 14.
PUBLIC ACCESSIBILITY AND ACCOUNTABILITY
Sec. 14. The Secretary shall make available on a publicly
accessible website on the Internet--
(1) each list published under section 4(c)(1);
(2) all final and proposed regulations and
determinations under section 4;
(3) the results of all 5-year reviews conducted under
section 4(c)(2)(A);
(4) all draft and final recovery plans issued under
section 5(a), and all final recovery plans issued and
in effect under section 4(f)(1) of this Act as in
effect immediately before the enactment of the
Threatened and Endangered Species Recovery Act of 2005;
(5) all reports required under sections 5(e) and 16,
and all reports required under sections 4(f)(3) and 18
of this Act as in effect immediately before the
enactment of the Threatened and Endangered Species
Recovery Act of 2005; and
(6) data contained in the reports referred to in
paragraph (5) of this section, and that were produced
after the date of enactment of the Threatened and
Endangered Species Recovery Act of 2005, in the form of
databases that may be searched by the variables
included in the reports.
MARINE MAMMAL PROTECTION ACT OF 1972
Sec. [17] 15. Except as otherwise provided in this Act, no
provision of this Act shall take precedence over any more
restrictive conflicting provision of the Marine Mammal
Protection Act of 1972.
[ANNUAL COST ANALYSIS BY THE FISH AND WILDLIFE SERVICE
[Sec. 18. Notwithstanding section 3003 of Public Law 104-66
(31 U.S.C. 1113 note; 109 Stat. 734), on or before January 15,
1990, and each January 15 thereafter, the Secretary of the
Interior, acting through the Fish and Wildlife Service, shall
submit to the Congress an annual report covering the preceding
fiscal year which shall contain--
[(1) an accounting on a species by species basis of
all reasonably unidentifiable Federal expenditures made
primarily for the conservation of endangered or
threatened species pursuant to this Act; and
[(2) an accounting on a species by species basis for
all reasonably identifiable expenditures made primarily
for the conservation of endangered or threatened
species pursuant to this Act by States receiving grants
under section 6.]
ANNUAL COST ANALYSIS BY UNITED STATES FISH AND WILDLIFE SERVICE
Sec. 16. (a) In General.--On or before January 15 of each
year, the Secretary shall submit to the Congress an annual
report covering the preceding fiscal year that contains an
accounting of all reasonably identifiable expenditures made
primarily for the conservation of species included on lists
published and in effect under section 4(c).
(b) Specification of Expenditures.--Each report under this
section shall specify--
(1) expenditures of Federal funds on a species-by-
species basis, and expenditures of Federal funds that
are not attributable to a specific species;
(2) expenditures by States for the fiscal year
covered by the report on a species-by-species basis,
and expenditures by States that are not attributable to
a specific species; and
(3) based on data submitted pursuant to subsection
(c), expenditures voluntarily reported by local
governmental entities on a species-by-species basis,
and such expenditures that are not attributable to a
specific species.
(c) Encouragement of Voluntary Submission of Data by Local
Governments.--The Secretary shall provide a means by which
local governmental entities may--
(1) voluntarily submit electronic data regarding
their expenditures for conservation of species listed
under section 4(c); and
(2) attest to the accuracy of such data.
REIMBURSEMENT FOR DEPREDATION OF LIVESTOCK BY REINTRODUCED SPECIES
Sec. 17. (a) In General.--The Secretary of the Interior,
acting through the Director of the United States Fish and
Wildlife Service, may reimburse the owner of livestock for any
loss of livestock resulting from depredation by any population
of a species if the population is listed under section 4(c) and
includes or derives from members of the species that were
reintroduced into the wild.
(b) Eligibility for and Amount.--Eligibility for, and the
amount of, reimbursement under this section shall not be
conditioned on the presentation of the body of any animal for
which reimbursement is sought.
(c) Limitation on Requirement to Present Body.--The Secretary
may not require the owner of livestock to present the body of
individual livestock as a condition of payment of reimbursement
under this section.
(d) Use of Donations.--The Secretary may accept and use
donations of funds to pay reimbursement under this section.
(e) Availability of Appropriations.--The requirement to pay
reimbursement under this section is subject to the availability
of funds for such payments.
AUTHORIZATION OF APPROPRIATIONS
Sec. 18. (a) In General.--There are authorized to be
appropriated to carry out this Act, other than section 8A(e)--
(1) to the Secretary of the Interior to carry out
functions and responsibilities of the Department of the
Interior under this Act, such sums as are necessary for
fiscal years 2006 through 2010; and
(2) to the Secretary of Agriculture to carry out
functions and responsibilities of the Department of the
Interior with respect to the enforcement of this Act
and the convention which pertain the importation of
plants, such sums as are necessary for fiscal year 2006
through 2010.
(b) Convention Implementation.--There is authorized to be
appropriated to the Secretary of the Interior to carry out
section 8A(e) such sums as are necessary for fiscal years 2006
through 2010.
----------
MARINE MAMMAL PROTECTION ACT OF 1972
* * * * * * *
TITLE I--CONSERVATION AND PROTECTION OF MARINE MAMMALS
* * * * * * *
PERMITS
Sec. 104. (a) * * *
* * * * * * *
(c)(1) * * *
* * * * * * *
(4)(A) A permit may be issued for enhancing the survival or
recovery of a species or stock only with respect to a species
or stock for which the Secretary, after consultation with the
Marine Mammal Commission and after notice and opportunity for
public comment, has first determined that--
(i) * * *
(ii) taking or importation is consistent (I) with any
conservation plan adopted by the Secretary under
section 115(b) of this title or any recovery plan
developed under [section 4(f)] section 5 of the
Endangered Species Act of 1973 for the species or
stock, or (II) if there is no conservation or recovery
plan in place, with the Secretary's evaluation of
actions required to enhance the survival or recovery of
the species or stock in light to the factors that would
be addressed in a conservation plan or a recovery plan.
* * * * * * *
STATUS REVIEW; CONSERVATION PLANS
Sec. 115. (a) * * *
(b)(1) * * *
(2) Each plan shall have the purpose of conserving and
restoring the species or stock to its optimum sustainable
population. The Secretary shall model such plans on recovery
plans required under [section 4(f) of the Endangered Species
Act of 1973 (16 U.S.C. 1533(f))] section 5 of the Endangered
Species Act of 1973.
* * * * * * *
ADDITIONAL VIEWS
----------
ADDITIONAL VIEWS OF CONGRESSMAN DON YOUNG
For too long, the Endangered Species Act has been used not
as a tool for protecting the environment but as a roadblock.
The original intent of species protection has been lost by
those eager to wield the ESA's power for legal and bureaucratic
ensnarement. The problems with the current Act ensure that it
will remain primarily used in this dilatory role instead of its
higher calling.
I particularly applaud the improvement to the scientific
standards included in H.R. 3824: The Threatened and Endangered
Species Recovery Act. My fellow Alaskans, for instance, have
told me of wildlife counts drastically at odds with government
agency findings, but the Act's unclear definition of ``best
available'' allows information gathered during airplane fly-
overs to count more than the on the ground reality as found by
those who live there.
While the Federal Government has failed to recover
endangered species to healthy and sustainable populations, it
has unfortunately not failed to cause massive hardship for
landowners and communities while pursuing this so far widely
unobtained goal. A better approach is needed--for plants,
wildlife, and humans. I applaud Chairman Pombo and his efforts
on this urgent matter.
Don Young.
ADDITIONAL VIEWS OF REPRESENTATIVE MARK UDALL
While I have strongly supported the Endangered Species Act,
I have never rejected the idea of changing it.
On the contrary, I have repeatedly said that I thought it
would be possible to improve the way it was implemented.
So, I regret that I was unable to support H.R. 3824 as
ordered reported by the Resources Committee.
I don't think the bill is all bad. I like the idea of
putting more emphasis on recovery plans and on steps to provide
incentives for landowners and other private parties to help
with recovering species. And there are other provisions that I
think are acceptable or even desirable.
Unfortunately, though, to my mind the bill's defects are
still so numerous and so serious that it does not deserve to be
favorably reported as it stands. It simply isn't ready for
prime time on the floor of the House.
That was why I offered an amendment to retain protections
for species listed as ``threatened'' and why I joined with the
gentleman from New Mexico, Mr. Pearce, in offering an amendment
to authorize the fish and wildlife service to compensate
ranchers for livestock lost to an endangered predator that has
been reintroduced into the wild--something I supported to help
ensure fair treatment for ranchers where those reintroductions
take place or where those predators may relocate themselves. I
am pleased that the Committee adopted those amendments.
In addition, I voted for a number of amendments that would
have made other improvements in the bill. If all those
amendments had been adopted, I would have a much higher opinion
of the bill.
Regrettably, that did not happen, and the legislation's
other flaws meant that I could not vote to approve the bill.
However, I take hope from the fact that the vote on
reporting the bill will not be the last vote on this
legislation. And, as the legislative process goes forward, I
will continue to do what I can to maintain essential
protections for endangered species while working to improve the
way those protections are implemented.
Mark Udall.
DISSENTING VIEWS
Enacted in 1973, the Endangered Species Act (ESA) has
demonstrated that it is possible to protect our country's
heritage and at the same time effectively compete in a global
economy. H.R. 3824 will unravel the progress this Nation has
made in sparing from extinction more than 1,200 species,
including the bald eagle and grizzly bear, on their way to
recovery, and the brown pelican, American Peregrine Falcon and
gray whale, which have recovered.
Those who argue that the law is a failure because it has
not recovered more species do not understand that the
Endangered Species Act was never intended as a quick fix to
protect our favorite species. It is the law of last resort when
other State and Federal laws fail to result in species
conservation. The true value of the Endangered Species Act lies
in the intricacies of life itself.
The Endangered Species Act has been amended several times.
There are administrative remedies available to address most, if
not all, the reasonable issues that have been raised about the
law. But there is no justification for H.R. 3824, except for
the expedience of a short-sighted political agenda. H.R. 3824
would establish precedents we strongly oppose.
Pesticide Waiver
H.R. 3824 would repeal the Endangered Species Act
provisions that protect threatened and endangered species from
the harmful impacts of pesticides. Have we forgotten that it
was the pesticide DDT that was largely responsible for the
demise of our Nation's most enduring symbol, the American bald
eagle? Pesticides have also been blamed for poisoning the
salmon in the Pacific Northwest, and are suspected of playing a
key role in the recent dramatic decline of fish populations in
California's San Francisco Bay/Sacramento-San Joaquin Delta.
Yet, H.R. 3824 would insulate those who use pesticides from
the Endangered Species Act's prohibitions against killing
endangered and threatened species. Additionally, it would waive
the requirements in Section 7 of ESA that Federal agencies
consult with the National Oceanic and Atmospheric
Administration's National Marine Fisheries Service or Fish and
Wildlife Service (Services) to determine the effects that a
proposed action may have on listed species. As long as
corporations and Federal agencies comply with the Federal
Insecticide, Fungicide and Rodenticide Act, they will have no
further obligation to meet the requirements in the Endangered
Species Act.
Notwithstanding the billions of dollars this country has
spent to restore estuaries and waterways, from the Chesapeake
Bay to the Everglades and San Francisco Bay/Sacramento-San
Joaquin Delta, this provision would lift prohibitions in place
to protect drinking water quality, fisheries and wildlife. The
economic and environmental implications of this provision are
staggering.
Payment for ESA Compliance
Under the misleading label ``conservation grants,'' Section
14 creates a new, potentially open-ended entitlement program
for property developers and speculators. Section 14 would
establish the dangerous precedent that private individuals must
be paid in order to comply with an environmental law designed
to protect the public interest in preserving endangered species
Under Section 14, the Services would be put in an untenable
position where enforcement of the Endangered Species Act would
generate countless compensation claims and virtually unlimited
liability against the agencies and Federal taxpayers.
The ``takings'' clause of the Fifth Amendment to the
Constitution states: ``[N]or shall private property be taken
for public use, without just compensation.'' However, under the
provisions of Section 14, property developers would be
compensated for government actions which do not constitute
takings under the Fifth Amendment. The Majority's intent to
disregard the long-standing principles of Fifth-amendment based
compensation was made clear by their rejection of Mr. Inslee's
amendment.
If the ``pay people to comply with the law'' language of
Section 14 were applied to local zoning, no Mayor or city
council could govern a community without facing fear that a
decision might drive the community into financial ruin. Among
its many flaws, Section 14 redefines ``fair market value'' to
include speculative ``business losses'' and allows for
compensation of ``no less than fair market value'' even if only
a portion of the property is affected by the government action.
Ironically, Section 14 provides no assurance that the new
compensation program would lead to greater conservation or
recovery of endangered species. The far greater likelihood is
an unwarranted windfall for land developers, and speculators,
and their lawyers at an enormous cost to the taxpayers and
budget deficit.
Alternative Consultation Procedures
H.R. 3824 cuts the heart out of the Section 7 consultation
process, the lynchpin of the ESA. H.R. 3824 allows the
Secretary of the Interior or Commerce to delegate those
responsibilities to other Federal agencies through undefined
procedures. Section 12 imposes no standards for these
procedures, thus potentially allowing destructive Federal
activities to proceed without the normal review by the
scientists with wildlife expertise. The only justification
given for this provision is that the Services have a heavy
workload. This problem could be addressed if additional
resources for ESA compliance were allocated to the responsible
agencies, a solution repeatedly suggested in testimony before
the Committee.
Those tasked with determining the effects of a proposed
agency action would be forced to wear blinders when considering
whether a species is in jeopardy of extinction. Under existing
law, the Services consider the condition of the species at the
time the proposed action would be carried out. If other
projects are also negatively impacting the species, the
Services address their cumulative effects when evaluating
whether the species is in trouble. Yet H.R. 3824 forbids the
Services from taking these baseline conditions into account.
The Services will be obligated to ignore reality and base their
decision on fiction. There is a real risk that this provision
could allow political expediency to override the concerns of
qualified agency scientists.
Once the Secretary of the Interior or Commerce has entered
into a cooperative agreement with a State, H.R. 3824 limits the
applicability of the Section 7 consultation provisions in the
ESA to the time when the agreement is renewed or amended. If it
is found that the agreement results in the harm or jeopardy of
a listed species, it is questionable whether consultation would
have to be reinitiated. There is no requirement that the
cooperative agreement meet any meaningful conservation
standard.
Jeopardy Definition
While we are highly critical of H.R. 3824, we believe that
including a statutory definition of ``jeopardize the continued
existence'' of listed species is a step in the right direction.
The existing regulatory definition in 50 CFR 402.02 allows
agency actions to proceed unless they impede both the
``survival and recovery'' of a listed species. This definition
allows too many species to totter on the brink of extinction. A
species that is merely surviving is clearly not recovering.
The statutory definition of what constitutes jeopardy in
H.R. 3824 prohibits any agency action that is likely to make
species' conservation significantly less likely in the long-
term. The term ``long-term'' will allow the Secretary to
balance the proven long-term benefits of an action intended to
promote the species' conservation against potential short term
negative impacts in assessing whether jeopardy is likely to
occur. For example, prescriptive-burning or other active
habitat management may be necessary to ensure a species'
conservation in the long-term, even though such management
actions may cause short-term adverse impacts to individual
members of a species. It is expected that a species' recovery
plan, including the identification in such plans of habitat
necessary for the conservation of the species, is to factor
significantly in making a jeopardy determination during the
Section 7 consultation process.
The bill replaces the Secretary's obligation to designate
critical habitat for listed species with a new obligation to
identify in a species' recovery plan that habitat which is of
special value for the conservation of the species. It is
expected that an endangered or threatened species' recovery
plan, including the identification in such plan of areas of
special value to the conservation of the species, will factor
significantly in making a jeopardy determination during the
Section 7 consultation process. In the absence of a meaningful
recovery plan or criteria or where the Secretary has determined
that he or she cannot yet ascertain recovery criteria, the
jeopardy analysis shall be informed by the proposed agency
action's likely impact on achieving interim recovery criteria,
if any, and the extent to which the proposed agency action is
likely to impact the species' current status and potential
prospects for recovery.
Conclusion
Notwithstanding our support for the inclusion of a
statutory definition of jeopardy, we strongly oppose H.R. 3824
which will undermine any progress this country has seen in
species recovery. There is no justification to overhaul the law
in this way, and its enactment will likely result in more
species extinctions and greater costs to the taxpayer.
We cannot know what currently unforeseen miracles of
science and medicine reside in the small, seemingly
insignificant life forms which surround us. But modern medicine
has saved untold numbers of lives by gaining a deeper
understanding of life forms. If we wish for human life to
continue, we must recognize that our lives are inextricably
woven with all other life.
None among us fully understands the complex design of life
on earth. Until we do, we should preserve God's wonders in all
their forms. It is not for us to decide which pieces of God's
plan meet our standards, which should survive, and which should
be extinguished for our convenience and pleasure.
Nick Rahall.
Edward J. Markey.
Frank Pallone, Jr.
Raul M. Grijalva.
Ron Kind.
Dale E. Kildee.
Mark Udall.
Tom Udall.
George Miller.
Grace F. Napolitano.
ADDITIONAL DISSENTING VIEWS OF REPRESENTATIVES MARKEY, PALLONE, INSLEE,
AND GRIJALVA
In addition to the concerns that we have about other
objectionable components of the bill approved by the Resources
Committee, we would also like to address specifically the
provisions in H.R. 3824 that deal with the designation of
habitat. This bill eliminates the mandatory and enforceable
designation of a listed species' critical habitat that is in
current law. Instead, section 10 of this bill directs the
Secretary to create recovery plans for listed species that
include identification of areas of ``special value'' to a
species' conservation. Replacing the current mandatory
designation and protection of critical habitat with a recovery
plan, which continues to lack regulatory force, represents a
dangerous shift in policy that would significantly undermine
the protection and recovery of threatened and endangered
species.
Designating critical habitat for listed species is an
integral part of a species' continued existence and recovery. A
major factor forcing threatened and endangered species towards
extinction is the loss and deterioration of habitat necessary
for survival. We cannot expect a species to recover without
first ensuring that it has the habitat in which to do so.
One example of the necessity and success of critical
habitat designation is the case of the whooping crane. The
whooping crane is a bird that was at the brink of extinction--
at one point there were only 16 in the wild. Enforcement action
under the critical habitat protection led to the protection of
the bird's designated migratory path along the Platte River and
now there are over 200 wild whooping cranes.
The critical habitat designation is the only part of the
current law that protects the entire habitat needed for the
recovery of a species. Under the current law, Federal agencies
and private actors within a Federal nexus must refrain from
``adverse modification'' of critical habitat. There is no
provision in this bill that similarly expressly protects a
species' habitat. To mandate that areas of special value be
identified but then to prevent the enforcement of the
protection of those areas, will simply result in the filing of
plans that have no regulatory effect. It would create a
blizzard of unenforceable bureaucratic paperwork which, in the
words of Shakespeare, would be ``full of sound and fury but
signifying nothing.''
We strongly oppose the elimination of critical habitat
requirements as an enforceable feature of our national law to
protect endangered species and urge that habitat designations
and protections be strengthened as the bill moves forward.
Edward J. Markey.
Jay Inslee.
Frank Pallone, Jr.
Raul M. Grijalva.
