89–006

106TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 106–1013

COMMON SENSE PROTECTIONS FOR ENDANGERED

SPECIES ACT

OCTOBER 26, 2000.—Committed to the Committee of the Whole House on the State

of the Union and ordered to be printed

Mr. YOUNG of Alaska, from the Committee on Resources,

submitted the following

R E P O R T

together with

DISSENTING VIEWS

[To accompany H.R. 3160]

The Committee on Resources, to whom was referred the bill

(H.R. 3160) to reauthorize and amend the Endangered Species Act

of 1973, having considered the same, report favorably thereon without amendment and recommend that the bill do pass.

PURPOSE OF THE BILL

The purpose of H.R. 3160 is to reauthorize and amend the Endangered Species Act of 1973.

BACKGROUND AND NEED FOR LEGISLATION

H.R. 3160 amends the Endangered Species Act of 1973 (Public

Law 93–295, codified at 16 U.S.C. 1531–1543) which was enacted

to provide a means of preventing various forms of plants and animals from reaching the point of extinction. This law now imposes

rigid and comprehensive regulations on federal agencies, state and

local governments, and private citizens alike in order to protect

species in the United States and to some extent foreign countries

as well.

The Endangered Species Act (ESA) is administered by two separate federal agencies: the Fish and Wildlife Service within the Department of Interior and the National Marine Fisheries Service

within the Department of Commerce (‘‘Services’’). The basic framework of the ESA includes the listing of a species as either endangered or threatened, after which it is prohibited to ‘‘take’’ the speVerDate 11-MAY-2000 07:19 Oct 31, 2000 Jkt 089006 PO 00000 Frm 00001 Fmt 6659 Sfmt 6602 E:\PICKUP\HR1013.106 pfrm07 PsN: HR1013
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cies unless one obtains either a incidental take permit under Section 10(a) of the ESA for private actions or an incidental take statement for federal actions after what is commonly referred to as a

Section 7 consultation.

Section 9 of the ESA sets forth those actions which are prohibited or unlawful. It prohibits the ‘‘taking’’ of a species. ‘‘Take’’ is defined to mean to harass, harm, pursue, hunt, shoot, wound, kill,

trap, capture, or collect a species or attempt to engage in any of

these activities. Regulations issued by the Services also define

‘‘take’’ to include significant adverse modification or destruction of

a species’ habitat. Section 9 take prohibitions only directly apply to

fish and wildlife which are listed as endangered. The ESA authorizes the Secretaries to extend by regulations the ‘‘take’’ prohibition

to wildlife listed as ‘‘threatened.’’

There are significant differences in the prohibitions that apply to

endangered plants. There is no prohibition on the ‘‘take’’ of a listed

plant on one’s own private property. However, regulatory authority

to protect plants may be gained by the government if a private

landowner needs a government permit to conduct certain activities,

as when a Federal Water Pollution Control Act 404 permit is needed or an ESA Section 10 permit is needed because of the presence

of endangered wildlife.

Section 7 identifies how all federal agencies will further the purposes of protecting endangered species through consultations with

the Services. Every federal agency must insure that any action authorized, funded, or carried out is not likely to jeopardize the continued existence of a threatened or endangered species or result in

destruction of or adverse modification of designated critical habitat.

Consultation is the process which the federal agency engages in

after a determination is made by that federal agency that its

planned action may affect a listed species or critical habitat. After

its initiation, consultation is concluded by the issuance of a biological opinion. The biological opinion must include the relevant Service’s judgment as to whether the planned action will jeopardize the

species (a ‘‘jeopardy opinion’’), or whether it will not (a ‘‘no jeopardy

opinion’’). If a ‘‘jeopardy’’ opinion is reached, then the Service must

suggest reasonable and prudent alternatives to the action.

The biological opinion is also the document which provides the

‘‘incidental take statement.’’ If, in the opinion of the Service, a

‘‘take’’ will occur, the Service prescribes ‘‘reasonable and prudent

measures’’ and sets forth the terms and conditions that the federal

agency must meet or comply with to proceed with the project.

There are, generally, two exceptions—hardship exemptions (which

are very rare) and permits.

Under Section 10 of the ESA, the Service can issue a permit to

allow the incidental taking of species so that an action or project

can proceed. The permits issued under Section 10 are usually associated with private landowners or state and local governments and

are issued only after an applicant submits an approved conservation plan (known as a habitat conservation plan or HCP). There are

criteria the applicant must meet, including what the probable impact to the species will be, what mitigation measures the applicant

is taking to minimize the impacts to the species, what alternatives

to the action the applicant has developed and considered. Finally,

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the applicant must follow other terms and conditions the Service

may require.

An added complication overlaying some ESA decisions is the permit required by Section 404 of the Federal Water Pollution Control

Act (Public Law 92–500) commonly known as the Clean Water Act.

Section 404, through the Army Corps of Engineers, generally regulates the discharge of dredged or fill material into navigable waters

of the United States, would includes wetlands. Current interpretation of ‘‘navigable’’ waters can mean just about any wet land or in

many cases dry land near water bodies. The Corps must consult

under Section 7 of the ESA with the Services when processing a

404 permit if the Corps determines that a particular activity may

affect a threatened or endangered species or modify critical habitat.

Mitigation for impacts caused by activities on various environments is now regularly required by the Services to obtain a permit

from a federal agency. Mitigation can be accomplished in many

ways, but usually takes the form of setting aside nonfederal land

or restricting activities on such lands, along with requiring various

types of monetary payments. Mitigation measures can also be in

the form of replanting trees or other vegetation that provides reciprocal habitat for the species or ecosystem impacted. Land involved

in mitigation is often transferred to either a public or private entity

for long- term maintenance. The entity may be a state or local

agency or a private conservation group.

Over the most recent three Congresses, the Committee on Resources has held many hearings specifically on the Endangered

Species Act and its implementation. Testimony has been received

from hundreds of citizens, including many elected state and local

officials, federal officials, private property owners, public land

users, and many others. Their total input resulted in many of the

recommendations for changes to the Endangered Species Act embodied in H.R. 3160. These changes are designed to approach saving endangered species in a common sense manner that includes

consideration of impacts on both humans and the natural world.

As follows are hearings conducted by the Committee on Resources, through the ESA Task Force during the 104th Congress:

1. March 13, 1995: Joint oversight hearing on ESA and wetlands

issues in Belle Chase, Louisiana (Hearing Print 104–6).

2. March 20, 1995: Hearing on ESA in Boerne, Texas (Hearing

Print 104–6)

3. April 1, 1995: Hearing on ESA in New Bern, North Carolina

(Hearing Print 104–7).

4. April 17, 1995: Hearing on ESA in Bakersfield, California

(Hearing Print 104–13).

5. April 24, 1995: Hearing on ESA in Vancouver, Washington

(Hearing Print 104–15).

6. April 26, 1995: Hearing on ESA in Riverside, California (Hearing Print 104–11).

7. April 28, 1995: Hearing on ESA in Stockton, California (Hearing Print 104–16).

8. May 10, 1995: Hearing on ESA in Washington, D.C. (Hearing

Print 104–10).

9. May 18, 1995: Hearing on ESA in Washington, D.C. (Hearing

Print 104–14).

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10. May 25, 1995: Hearing on ESA in Washington, D.C. (Hearing

Print 104–18).

As follows are hearings conducted by the Committee on Resources on the Endangered Species Act during the 104th Congress:

1. September 20, 1995: Hearing on H.R. 2275 in Washington,

D.C. (Hearing Print 104–37).

2. March 20, 1996: Hearing on ‘‘The Implementation of the ESA,

Private Property Rights and Whether Present Policies Have Recovered Threatened or Endangered Wildlife.’’ in Washington, D.C.

(Hearing Print 104–59).

3. April 17, 1996: Hearing on ‘‘Examining the Expenditures of

Agencies That Participate in the Efforts to Save Endangered and

Threatened Species.’’ in Washington, D.C. (Hearing Print 104–65).

4. June 25, 1996: Hearing on the ‘‘Lifting of the Moratorium on

Listing of Threatened or Endangered Species’’ in Washington, D.C.

(Hearing Print 104–89).

5. July 24, 1996: Hearing on ‘‘The ESA with Regard to Section

10(a) Permits (Habitat Conservation Plans) and Other Incentives’’

in Washington, D.C. (Hearing Print 104–97).

6. September 17, 1996: Hearing on ‘‘Equal Access to the Courts

Under the ESA’’, in Washington, D.C. (Hearing Print 104–100).

As follows are hearings conducted by the Committee on Resources on the Endangered Species Act during the 105th Congress:

1. April 10, 1997: Hearing on H.R. 478, to improve the ability of

individuals and local, State, and federal agencies to comply with

the ESA in building, operating, maintaining, or repairing existing

flood control projects, facilities, or structures and to determine

whether federal wildlife policies have impeded proper ongoing

maintenance and repair of flood control structures. in Washington,

D.C. and via teleconference in Sacramento, California (Hearing

Print No. 105–12).

2. March 5, 1998: Hearing on regional differences in the manner

in which the ESA is implemented. in Washington, D.C. (Hearing

Print 105–80).

3. July 15, 1998: Oversight hearing on the implementation of the

ESA in the Southwestern region of the United States in Washington, D.C. (Hearing Print 105–96).

4. September 2 and 3, 1998: Oversight field hearings were held

in Pasco, Washington and Boise, Idaho on the National Marine

Fisheries Service role in implementing the ESA and on H.R. 4335

to transfer to the Secretary of the Interior the functions of the Secretary of Commerce and the National Marine Fisheries Services

under the ESA (Hearing Print 105–111).

5. October 26, 1998: Full Committee conducted a field hearing in

Clovis, New Mexico, on how the ESA has been implemented in

New Mexico (Hearing Print 105–118).

As follows are hearings conducted on the ESA during the 106th

Congress:

1. April 14, 1999: Hearing on H.R. 1142, to ensure that landowners receive treatment equal to that provided to the federal government when property must be used, Washington, D.C. (Hearing

Print 106–23).

2. May 26, 1999: Hearing on Land and Money Mitigation Requirements in Endangered Species Act Enforcement, Washington,

D.C. (Hearing Print 106–34).

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3. July 9, 1999: Hearing on Enforcement of the Endangered Species Act in California in Hemet, California (Hearing Print No. 106–

49).

4. July 24, 1999: Hearing in Greeley, Colorado, on Implementation of the Endangered Species Act.

5. February 2, 2000: Hearing on: H.R. 3160, to reauthorize and

amend the Endangered Species Act of 1973.

6. March 1, 2000: Hearing on: H.R. 3160, to reauthorize and

amend the Endangered Species Act of 1973.

7. April 27, 2000: Hearing on: Hydropower, River Management

and Salmon Recovery Issues on the Columbia/Snake River.

8. September 14, 2000: Hearing on: General Accounting Office

(GAO) review of Endangered Species Act implementation in Southern California.

H.R. 3160 specifically addresses many of the concerns identified

by witnesses in these hearings. The changes address many procedural deficiencies and are designed to insure fair treatment of private citizens impacted by the ESA. The major problems identified

during the many hearings held by the Committee on the ESA are

as follows:

1. The listing process: Many witnesses testified as to the lack of

adequate scientific documentation, lack of scientific peer review,

lack of adequate public notice and input; failure to involve the

states and local governments in the listing process.

2. The consultation and permitting processes: There was considerable testimony regarding the failure to meet current statutory

deadlines for making consultation decisions and the lack of deadlines for making decisions on permits.

3. The failure to comply with agreements: Many permit applicants testified that they cannot rely on representations and promises made by the Services.

4. Arbitrary and capricious use of mitigation: The Committee received a great deal of testimony and documentation regarding the

arbitrary and capricious use of mitigation to extract extremely

large amounts of land and money mitigation for both Section 10

and Section 7 permit and consultation applications.

5. Permit applicants and the Section 7 consultation process: Witnesses agreed that there is a lack of involvement of private permit

applicants in the consultation process under Section 7.

6. Delisting and recovery: One of the major failures of the current law is the failure to recover species and to delist those species

who have either recovered or which no longer exist, according to

many witnesses.

7. No consideration of economic and social impacts: The lack of

any consideration of economic and social impacts of the implementation of the ESA, including a failure to consider the impacts on

public safety and public health of delays in decision making for important public safety related projects, was identified as a major

weakness of the ESA.

In addition, many witnesses testified that the ESA results in the

taking of private property without the payment of just compensation as required by the 5th Amendment of the U.S. Constitution.

This issue was addressed in a separate piece of legislation, H.R.

1142, the Landowners Equal Treatment Act.

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COMMITTEE ACTION

H.R. 3160 was introduced on October 27, 1999, by Resources

Committee Chairman Don Young (R–AK). The bill was referred to

the Committee on Resources. On February 2, 2000, and on March

1, 2000, the Committee on Resources held hearings on H.R. 3160.

On June 21, 2000, the Full Resources Committee met to consider

H.R. 3160. Congressman Jim Saxton (R–NJ) offered and withdrew

an amendment in the nature of a substitute. Congressman George

Miller (D–CA) also offered and withdrew an amendment. No further amendments were offered and the bill was ordered favorably

reported to the House of Representatives by a roll call vote of 25

to 15, as follows:

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SECTION-BY-SECTION ANALYSIS

Section 1. Short title; table of contents

This section provides the short title for the bill, the Common

Sense Protections for Endangered Species Act, and the table of contents for the bill.

Section 2. References to the Endangered Species Act of 1973

This section that amendments and repeals made by this bill are

to the Endangered Species Act (ESA, 16 U.S.C. 1531 et seq.).

TITLE I—IMPROVING SCIENTIFIC INTEGRITY OF LISTING

DECISIONS AND PROCEDURES

Section 101. Improving the validity and credibility of decisions

Subsection (a) amends ESA Section 4 expanding the considerations upon which a listing of a species as endangered or threatened is made to allow the Secretary of the Interior and the Secretary of Commerce to consider not only the government regulatory

mechanisms but also other proactive conservation programs and

measures voluntarily undertaken. The designation of critical habitat is made part of the recovery planning process rather than a

mandatory requirement during the listing process.

Currently, the Secretaries make listing determinations solely on

the basis of the best scientific and commercial data available after

conducting a review of the status of the species. H.R. 3160 would

require the Secretaries to solicit and fully consider data from any

affected state or any interested non-federal person. The bill requires the Secretaries to give greater weight, consideration, and

preference to empirical data rather than projections or other extrapolations developed through modeling.

H.R. 3160 would allow the Secretaries, in making a listing decision, to consider the future conservation benefits to the species

under habitat conservation plans prepared as part of the application for an incidental take permit or to any state or other management agreement or under any conservation agreement between the

Secretaries and any other person.

Within 18 months from enactment of H.R. 3160, the Secretaries

would be required to adopt a regulation establishing scientifically

valid standards for rendering taxonomic determinations of species

and subspecies, requiring reproductive isolation from other subspecific population units and constituting an important component in

the evolutionary legacy of the species.

Subsection (b) of the section clarifies that decisions by the Secretaries on petitions to list, delist, or change the status of a species

should be made consistent with the priority ranking system already

established for listing species. It improves the petition process by

requiring that when a petition to list is received by the Secretaries,

the relevant Secretary shall publish a notice in the Federal Register. If the relevant Secretary finds that a petition is warranted,

he shall begin the status review of the species and publish that

warranted finding in the Federal Register.

The bill establishes minimum requirements to be contained in

listing petitions which includes:

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(1) Scientific documentation that the fish or wildlife or plant

is a species;

(2) A description of all data on the range, population, and

distribution of the species, explanation of how the data was obtained, and an identification of the location where the data can

be reviewed;

(3) Scientific evidence that the population has declined beyond normal population fluctuations;

(4) An appraisal of the data on the threats or causes of decline;

(5) An identification of the data that has been peer-reviewed

or field-tested;

(6) The reason that the petitioned action is warranted;

(7) A bibliography of scientific literature supporting the petition;

(8) The qualifications of any person cited in the petition as

an expert; and

(9) At least one independent study or expert opinion in support of the petition.

H.R. 3160 requires that for positive findings on petitions, the relevant Secretary must send a copy of the petition to the Governor

of a State in which the species is found and to affected tribes, and

solicit the advice of the Governor and tribes as to whether the petitioned action is warranted. Thereafter, if the Secretary’s decision is

in direct conflict with the information submitted by the Governor

or tribes, the finding shall not be final until the Secretary submits

the finding to peer review for a period of 30 days. If the peer reviewers agree with the Secretary, he is to then prepare a record of

decision which shall be submitted to the Governor or tribes.

The bill also sets up a procedure for submitting a petition to

change the status of a species or delist a species, if the current listing is no longer appropriate because of a change in the factors used

for listing, where there is new data or a reinterpretation of prior

data, where it is found that the species is extinct, where the recovery goals for the species have been achieved, or the original listing

was not subject to adequate peer review.

Under the current law, if the relevant Secretary finds that the

petition may be warranted, he has one year to determine whether

the listing is not warranted, warranted, or warranted but precluded. If he finds that the petition is warranted, H.R. 3160 would

require that he publish a notice in the Federal Register that he is

commencing a status review that includes the following:

(1) Any missing data that would support the determination.

(2) Any data necessary to make the determination.

(3) Any data that may be necessary to ensure the continued

validity of the determination.

Under the bill, if there is a warranted finding, the Secretary

must hold (if requested) at least one public meeting within 30 days

in each State in which the species occurs and a person making a

request resides. Public meetings must be at a location that is as

centrally located as possible to the areas believed to be habitat of

the species, and in each rural area of the State that the Governor

determines is affected by the decision.

The bills continues to allow judicial review of negative findings

on petitions and findings that petitions are not warranted or warVerDate 11-MAY-2000 07:19 Oct 31, 2000 Jkt 089006 PO 00000 Frm 00009 Fmt 6659 Sfmt 6602 E:\PICKUP\HR1013.106 pfrm07 PsN: HR1013
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ranted but precluded, but that in any such suit, it allows any person to intervene of right if the person can demonstrate that a determination to list will have a direct economic impact on such person and requires the courts to give great weight to the finding of

warranted but precluded.

During the one-year status review, the bill requires greater solicitation of information regarding the status of the species from

states and affected persons that may assist in making the determination whether to list. The relevant Secretary must allow not

less than 180 days to submit data.

Subsection (c) of the section adds additional notices during the

proposed rule stage for Governors and affected tribes. At least 12

months before proposing the rule, the relevant Secretary is to notify the Governor of each State in which the species is believed to

occur (and each affected tribe) and solicit their advice as to whether the determination is warranted. He shall consider the advice received and if a Governor or tribe provides scientific evidence that

the determination is not warranted, the Secretary may not proceed

unless he shows by a preponderance of scientific evidence that the

information submitted is incorrect and that the proposal is warranted. The bills retains all other notice requirements to the states

and requires that the Secretary give the Governors a record of decision including information which did not support the determination.

The Secretary is to publish a summary of the proposed regulation in an area newspaper where the species occurs and upon request, not later than 45 days after publication of the notice, hold

at least one public meeting in each affected State. The Secretary

is not required to hold more than five public meetings.

The Secretary is to identify and include with the proposal a description of data to be considered and which is yet to be collected

or field verified; any necessary data that have not been collected

and considered; deadlines to collect and consider the data; a description of additional scientific and commercial data that would

assist in the preparation of a recovery plan; a list of known threats

to the species and a description of the types of activities that may

be affected by the determination and any restriction on use of property that may result; and other measures that may either at

present or in the future contribute to the conservation of the species. Not later than the deadline published by the Secretary, he

shall collect the data; provide an opportunity for public review and

comment on the data; consider the data after that review and comment; and publish in the Federal Register the results of that consideration and a description of and schedule for any actions warranted by the data.

Subsection (d) requires within 1 year from publication of the proposed rule, the Secretary shall publish in the Federal Register either a final regulation to implement the determination; a notice

that period is being extended; or notice that the proposed regulation is being withdrawn.

Subsection (e) requires that each proposal to list a species shall

be based primarily and substantially on peer-reviewed scientific information that has been to the maximum extent feasible verified by

field testing.

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Subsection (f) requires that concurrently with a listing rule, the

Secretary shall publish in the Federal Register an analysis of the

economic, social, and other public health, safety, and welfare effects

of the listing.

Subsection (g) makes several definitional changes including the

definition of the term ‘‘species’’ which would not include a distinct

population which is listed as endangered or threatened under state

law and where state law prohibits the unpermitted take of the species.

Section 102. Peer review

This section establishes new requirements for peer review of decisions which must be based on scientific standards, including the

determination to list or delist a species; the designation or revision

of the designation of critical habitat; the determination that a proposed action is likely to jeopardize the continued existence of a listed species; the proposal of any reasonable and prudent alternatives

by the Secretary; and the issuance of any regulation or criteria establishing specific mitigation obligations with respect to a species.

Peer reviewers would have to be ‘‘qualified individuals’’ requiring

expertise in the biological sciences. The bill prevents conflicts of interests by precluding those persons who are employed by or under

contract to the Secretary or to the State where the species is located or who has actively participated in the prelisting or listing

processes or advocated that a listing decision be made; a person

whose employment is related to the action or species under consideration; or a person with or employed by someone with a direct financial interest in the decision.

The relevant Secretary must seek nominations of persons who

agree to peer review an action and maintain a list of qualified peer

reviewers. Before any action shall become final, the Secretary appoints not more than two qualified individuals to review and report

on the scientific information and analyses on which the proposed

action is based. The Governor of each State in which the species

is located may appoint up to two qualified individuals.

The Secretary shall make available to each peer reviewer all scientific information available regarding the species. The peer reviewer shall give his or her opinion with regard to any technical

or scientific deficiencies in the proposal, whether the methodology

and analysis supporting the petition conform to the standards of

the academic and scientific community, and whether the proposal

is supported by sufficient credible evidence.

The Secretary shall publish with any final regulation a summary

of the peer review report which shall be included in the official

record and available for public review.

Section 103. Making data public

Subsection (a) makes all data used to list a species subject to the

Freedom of Information Act (5 U.S.C. 552) unless the Secretary, for

good cause, determines that the information must be kept confidential. The burden is on the Secretary to prove that such information

shall be confidential. The Secretary shall not disclose the location

of private property as habitat for a listed species unless he first notifies and receives the consent of the owner or the information is

otherwise public information.

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Subsection (b) requires the Secretary to provide at least 30 days

notice of any hearing or public meeting at which public comment

is accepted in the Federal Register and in a newspaper in the location of the hearing or public meeting. Each public meeting shall

allow the public to make statements and receive information and

answers from the agency regarding the matter that is the subject

of the public meeting.

Section 104. Judicial review

This section requires that any final listing decision shall be subject to de novo judicial review with the court determining whether

the decision is supported by a preponderance of the evidence.

Section 105. State consultation on final determination

If a Governor who consulted with the Secretary during the listing

process files comments disagreeing with the proposed regulation, a

final regulation in conflict with the Governor shall not be issued

until the Secretary consults with the President. If a final regulation is adopted that is in conflict with comments made by the Governor or a regulation requested by a Governor is not adopted, the

Secretary shall submit to the Governor a written justification for

the failure to adopt regulations consistent with the comments or

petition of the Governor.

Section 106. Determinations by the Secretary to delist

This section requires the Secretary to conduct a review of all listed species every five years and determine whether any should be

delisted, or have a change in listing status based on new data or

a reinterpretation of prior data which is in error; where the species

is extinct; or the recovery goal established for the species has been

achieved. Upon such finding the process must begin within 90

days.

Section 107. Cooperation with the States

The Secretary shall develop, in cooperation with the States, and

publish in the Federal Register, agency guidelines to ensure that

cooperation with the States is achieved efficiently and effectively.

TITLE II—COMPLYING WITH ALL FEDERAL LAWS AND

MISSIONS

Section 201. Balancing ESA with other laws and missions

Section 7 of the ESA requires the relevant Secretary to use his

programs to protect endangered species. This section retains that

requirement but requires other federal agencies to utilize their authorities for the conservation of endangered and threatened species

consistent with their primary missions and in consultation with the

Secretary. It requires all federal agencies to initiate consultation

within 15 days after the date on which a request is received from

a permit or license applicant for consultation. If the Secretary asserts the applicability of ESA Section 7 to any property, the Secretary has the responsibility of demonstrating that a threatened or

endangered species or its critical habitat is located in the area that

is the subject of the consultation, and the proposed action will jeopardize the continued existence of a threatened or endangered speVerDate 11-MAY-2000 07:19 Oct 31, 2000 Jkt 089006 PO 00000 Frm 00012 Fmt 6659 Sfmt 6602 E:\PICKUP\HR1013.106 pfrm07 PsN: HR1013
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cies. This provision insures that the Secretary shall not issue a biological opinion that a proposed action will jeopardize the continued

existence of a species where there is insufficient data on the impact

of a proposed action on such species.

Whenever a listing or a designation of critical habitat requires

reinitiation of consultation on an already approved action, the consultation shall commence promptly, but not later than 90 days

after the date of the listing or critical habitat designation rule, and

shall be completed not later than 1 year after the date on which

the consultation commenced. During that one-year period, any site

specific actions may not be enjoined based on that listing. The federal agency implementing a land use plan or management plan

may continue a site-specific, ongoing or previously scheduled action

within the scope of the plan on the lands prior to completing consultation on the plan, if no consultation on the action is required;

or consultation on the action is required and the Secretary issues

or has issued a biological opinion, and the action satisfies the requirements of law.

H.R. 3160 clarifies that the responsibilities of a federal agency

under the ESA shall not supersede and shall be implemented in a

manner consistent with duties assigned to the federal agency by

any other laws or by any treaties. If a federal agency determines

that its responsibilities and duties are in irreconcilable conflict

with the ESA, the agency shall request the President to resolve the

conflict. In determining a resolution, the President shall consider

and choose the course of action that best meets the public interest

and balances pursuit of the recovery objective or the purposes of

the recovery plan with economic and social needs and the purposes

of other laws or treaties.

This provision insure that if consultation is not concluded and

the written incidental take statement is not provided to the federal

agency by the deadline established in the ESA, the requirements

of the ESA shall be deemed met and the federal agency may proceed with the agency action.

In conducting a consultation, the Secretary must provide any

person who has sought authorization or funding from a federal

agency for an action that is the subject of the consultation the opportunity to: (1) prior to the development of a draft biological opinion, submit and discuss with the Secretary and the federal agency

information relevant to the effect of the proposed action on the species and the availability of reasonable and prudent alternatives

that the federal agency and the person can take to avoid violation;

(2) must be given information, subject to the Privacy Act, on the

status of the species, threats to the species, and conservation measures used by the Secretary to develop the biological opinion, including any incidental taking statements; and (3) receive a copy of the

draft biological opinion and prior to issuance of the final biological

opinion be allowed to submit comments on the draft and discuss

with the federal agencies the basis for the draft biological opinion.

If reasonable and prudent alternatives are proposed by a person

and the Secretary does not include the alternatives in the final biological opinion, the Secretary shall explain, in writing, why those

alternatives were not included.

In the development of a biological opinion with respect to public

lands, the Secretary shall solicit and utilize information and advice

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regarding those lands from the Governor of each State in which the

lands are located. With respect to nonpublic lands, the Secretary

shall solicit such advice only upon the request of the affected landowner.

H.R. 3160 would prevent the Secretary from requiring another

federal agency to impose in any biological opinion or take statement any restriction or obligation on the activity of any person that

is not authorized, funded, carried out, or otherwise subject to regulation by the federal agency.

Subsection (d) provides definitions, including a definition of ‘‘reasonable and prudent alternative’’ to mean an alternative to an

agency action that can be implemented in a manner consistent

with the purpose of the agency action or the activity of a non-federal person; that can be implemented consistent with the scope of

the legal authority and jurisdiction of the agency; that is economically and technologically feasible; that the Secretary believes would

avoid being likely to jeopardize the continued existence of the species; that does not exceed in nature, scope, and extent the effect of

the proposed activity that is the subject of the consultation; and

that prevents the agency action concerned from jeopardizing the

continued existence of the species and imposes the least social and

economic cost possible. It also defines ‘‘likely to jeopardize the continued existence of’’ to mean an action or activity that significantly

diminishes the likelihood of the survival of the species by significantly reducing the numbers or distribution of the entire species.

Subsection (e) requires the Secretary to provide to each applicant

for a permit or license that is subject to consultation a written

statement that shall guarantee that, so long as the project at issue

is carried out consistent with the take statement, the applicant

shall not be subject to new or additional requirements for the specific protection of any species beyond those in the take statement.

All federal entities shall be bound by the Secretary’s guarantee.

The Secretary shall not refuse to provide an incidental take statement, unless the Secretary has provided to the agency and the permit applicant all conditions for issuance of the statement in writing, and an opportunity for the agency and the permit applicant to

provide a written response to the conditions. Any refusal to provide

an incidental take statement without first providing the written

conditions and providing an opportunity to respond is deemed to be

arbitrary and capricious. This section would prevent the Secretary

from requiring measures to be taken that exceed in nature, scope,

or effect the impact of the taking for which the statement is issued.

Section 202. Actions not requiring consultation and conferencing

This section would clarify that further consultation and conferencing shall not be required for any agency action that is consistent

with a final recovery plan, a cooperative management agreement,

or an incidental taking permit; or consists of routine operation,

maintenance, rehabilitation, repair, or replacement to a project or

facility, including operation of a project or facility in accordance

with a previously-issued federal license, permit, or other authorization.

In addition, in order to respond to or to prevent or minimize

damage from a natural event or other emergency, consultation

could be waived for the repair or maintenance of a natural gas

15

pipeline, hazardous liquid pipeline, flood control facility, or electrical distribution transmission, or substation facility, if the repair

or maintenance is necessary to address a probable imminent threat

to human lives or a probable and significant threat to the environment. If a consultation is required by the relevant Secretary for

such repair or maintenance, it shall be completed within 10 days

of any request by the applicant for consultation. Any measure required to be taken to avoid take for an activity that is the subject

of such a waiver may not exceed in nature, scope, and extent the

effect of the activity and shall not be required prior to the completion of the repair or maintenance action.

An agency action shall not constitute a taking of a species if the

action is consistent with the actions provided for in a final recovery

plan; a cooperative management agreement or an incidental take

permit; or the terms and conditions specified in an incidental take

statement.

Section 203. Eliminating the exemption committee

This section eliminates the exemption committee and provides

for Presidential exemptions which include: (1) an exemption for any

activity if the Secretary of Defense determines that the exemption

of the activity is necessary for reasons of national security; and (2)

in areas President has declared to be a major disaster area, for any

project for the repair or replacement of a public facility substantially as the facility existed prior to the disaster if the President

determines that the project is necessary to prevent the recurrence

of such a natural disaster or to reduce the potential loss of human

life, and involves an emergency situation that makes the application of the procedures of the ESA impractical.

TITLE III—PERMITTING AND ENFORCEMENT

Section 301. Protecting public health and safety

This section insures that an action is not a taking of a listed species for which a private person or local government can be punished if the activity of that person: (1) addresses a critical threat

to public health or safety or a catastrophic natural event, or is

mandated by any government agency for public health or safety

purposes; or (2) is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity that consists of ongoing

maintenance, routine operation or use, and emergency repair of existing pipelines, flood control facilities or projects, fire breaks,

transmission and distribution lines, groundwater recharge facilities

and areas, water storage and recycling facilities, water drainage or

water conveyance structures and channels, and appurtenant facilities; or road and right-of-away maintenance, use, and repair; or

emergency repair or restoration of any property or non-federal facility to the condition in which it existed or operated immediately

before an emergency or disaster, meeting current standards.

Section 302. Intervention in citizen suits

This section amends the law with regard to citizens suits to require that the person filing the suit must meet the Constitutional

requirements for standing and insure standing for those who have

suffered economic or other injury resulting from a violation of the

16

law or to enjoin the federal government or any of its officials alleged to be in violation of the ESA, if the violation poses immediate

and irreparable harm to a threatened or endangered species.

This section would allow any person to intervene as a matter of

right in any citizen suit brought if the suit represents a reasonable

threat of economic injury to that person. The intervener would

have the same right to present argument and to accept or reject potential settlements as the parties to the suit.

Section 303. Incidental take permits

The Secretaries are authorized under current law to issue incidental take permits which allow the taking of a species or its habitat. To obtain a permit, the applicant must submit a plan that

specifies (1) the impact on the species from the taking; (2) the steps

the applicant can reasonably and economically take to minimize

and mitigate the impacts, and the funding to implement those

steps; and (3) the alternatives to the taking and why other alternatives would not be used.

The relevant Secretary is to issue the permit if he finds that the

taking will be incidental, the applicant will reasonably and economically minimize the impacts of the taking; the applicant will

ensure that funding will be provided, the taking will not appreciably reduce the likelihood of the survival and recovery of the species, and these measures will be met. This section requires the Secretary to include terms and conditions in the permit that accomplish the goals of the law at the least cost to the permit applicant.

This section limits the Secretary’s authority to require applicants, as a condition of processing a permit: (1) to expand the application to include land, an interest in land, a right to use or receive

water, or a proprietary water right not owned by the applicant or

to address a species other than the species for which the application is made; (2) to carry out mitigation that exceeds in nature,

scope, or effect the impacts of the taking for which the permit is

issued; (3) to minimize and mitigate for loss of habitat resulting

from activities under the permit in an area of land greater than the

area of land that is subject to impacts for which the mitigation is

required; or (4) to expend an aggregate amount greater than the

cost of fencing and preserving current conditions of the land on

which activities are conducted under the permit.

This section places time limits on the Secretary for completing

the processing of, and approving or denying, any application for a

take permit within 90 days of the date of submission or within

such period of time as mutually agreed to. It also clarifies that section 102(2) of the National Environmental Policy Act does not

apply to preparation and issuance of an incidental take permit.

This section requires that if the Secretary considers a conservation plan to be insufficient or incomplete, he must inform the applicant in writing within 30 days, stating why the application is incomplete or insufficient and stating any conditions that must be

met to issuance of the permit. Otherwise the denial is deemed to

be arbitrary and capricious.

If the application is resubmitted, the Secretary shall have 60

days to either: (1) issue the permit; (2) provide written reasons for

denial; or (3) formally deny the permit, in writing, stating the reasons for the denial.

17

This section clarifies that no consultation is required for any action by a permittee that is authorized by a permit; any action by

the Secretary in implementing, enforcing, or monitoring compliance

with a permit; or the issuance, amendment, or renewal of any permit, if the Secretary determines that his action will not appreciably

reduce the likelihood of the survival and recovery of any species

covered by the permit.

This section would limit the authority of the Secretary to later

require additional minimization or mitigation measures from a permittee who is in compliance with the permit or to make additional

payments, or accept additional restrictions on land available for development or land management or any water or water-related

rights under the permit, without the consent of the permittee.

This section retains the authority of the Secretary to revoke permits for failure to comply with the permit, but only after providing

a permittee notice and an opportunity to make appropriate corrections. It also limits lawsuits to challenge permits unless suit is filed

within 45 days after publication in the Federal Register of notice

of issuance of the permit.

This section limits the ability of the Secretary to require as a

condition of a permit that a permittee for a public project take any

measures to minimize or mitigate impacts of a taking under the

permit if the costs of implementing such measures will exceed 10

percent of the total project costs of the public project; or for any activity that occurred prior to the date of the issuance of the permit.

Public projects in this section means any construction project that

is carried out or funded (in whole or in part) by a federal, State,

or local agency; and the term ‘‘total project costs’’ means the aggregate costs of acquiring land and carrying out construction.

Section 304. Safe Harbor Agreements

This is a new provision that authorizes Safe Harbor Agreements,

which are agreements with non-federal persons to benefit the conservation of listed species by creating, restoring, or improving habitat or by maintaining currently unoccupied habitat for endangered

species or threatened species. These agreements would allow the

take of listed species included on lands or waters that are subject

to the agreement if the taking is incidental to, and not the purpose

of, carrying out of an otherwise lawful activity, and does not violate

certain baseline requirements established in the agreement.

The Secretary is required to establish a baseline that is mutually

agreed upon by the applicant and the Secretary at the time of the

agreement that will, at a minimum, maintain existing conditions

for the species covered by agreement.

The Secretary is required to issue standards and guidelines for

the development and approval of safe harbor agreements.

The section authorizes the Secretary to provide grants of up to

$10,000 to any individual private landowner to assist the landowner in carrying out a safe harbor agreement.

TITLE IV—RECOVERY PLANNING

Section 401. Recovery planning

This section sets forth a new program to emphasize recovery of

species. The Secretary, in cooperation with the States, is to develop

18

and implement recovery plans for domestic endangered and threatened species unless he finds that a plan will not promote the conservation of the species or because an existing plan already serves

as the functional equivalent to a recovery plan.

To the maximum extent practicable, the Secretary is to give priority to recovery plans that: (1) address significant and immediate

threats to the survival of an endangered or a threatened species,

have the greatest likelihood of achieving recovery of the endangered or the threatened species, and will benefit species that are

more taxonomically distinct; (2) will address multiple species; (3)

reduce economic and development conflicts; and (4) reduce conflicts

with military training and operations.

Subsection (c) sets forth schedules for publishing recovery plans.

The draft recovery plan must be published not later than 18

months after the listing rule, and the final recovery plan must be

published not later than 30 months after the listing rule.

Not later than 60 days after listing a species, the Secretary is to

appoint a recovery team to develop a plan or provide a notice that

a recovery team will not be appointed along with the reasons therefore; and if requested by a Governor where the species occurs, the

Secretary shall appoint a recovery team to develop a plan or delegate to the Governor the authority to develop a recovery plan for

that State.

This section sets forth the qualifications for the recovery team including scientific, economics, property law and regulation experts,

and others from the private sector; a representative of affected

States, representatives of affected local governments, and representatives of those directly economically impacted.

Each recovery team shall submit to the Secretary the draft recovery plan, which shall include recovery strategies recommended by

the team and alternatives to meet the recovery goal. The recovery

team shall also advise the Secretary concerning the designation of

critical habitat, if any. The recovery team shall assess the direct,

indirect, and cumulative economic and social impacts on the public

and private sectors that may result from the listing or from recovery strategies. The recovery team shall recommend measures to

balance the achievement of the recovery goal for a species with protecting the economic well-being of the area affected by implementation of the recovery plan.

This section provides that the Federal Advisory Committee Act

shall not apply to the selection or activities of a recovery team except that meetings of the recovery team shall be open to the public.

Within 180 days after their appointment, the recovery team is to

establish and submit a recommended biological recovery goal which

is to be expressed as objective and measurable population criteria,

that when met, would result in the species removed from the endangered or threatened list. Each draft plan shall contain recommendations for federal agency compliance with Section 7 of the

ESA; recommendations for avoiding a prohibited take and a list of

activities that constitute a take; alternative strategies to achieve

the recovery goal; and a description of economic and social impacts.

The alternative strategies must achieve an appropriate balance between the effectiveness of the measures in meeting the recovery

goal, the length of time in which the recovery goal is likely to be

achieved; and minimizing the economic and social impacts on the

19

public and private sectors. Each recovery plan under this section

shall provide equitable treatment of each affected State and all

other non-federal persons affected by the plan, and seek to minimize and fairly distribute the social and economic costs that may

result from implementation of the plan.

If the Secretary finds that the draft plan meets these requirements, he shall publish in the Federal Register and a newspaper

a description of and a request for public comment on the draft recovery plan. Upon request, the Secretary shall hold at least one

public meeting on each draft recovery plan in each State to which

the plan would apply, except no more than five total meetings are

mandated.

After reviewing each plan, if the Secretary determines that the

plan does not satisfy these requirements, he shall notify the recovery team and give the team an opportunity to address his concerns

and resubmit a satisfactory plan. In each final plan the Secretary

shall select recovery strategies that achieve the recovery goal and

the benchmarks while achieving an appropriate balance, except

that the Secretary shall select the recovery strategy that would impose the least costs and result in the least socioeconomic impacts

in achieving the recovery goal. If the Secretary selects strategies

other than those recommended by the recovery team, the Secretary

shall publish with the final plan an explanation. The Secretary

shall publish a notice of availability and summary of the final recovery plan, and include a response to significant comments received on the draft plan.

No later than five years after date of enactment, the Secretary

shall review recovery plans published prior to that date of enactment of H.R. 3160. The Secretary shall review each recovery plan

first approved or revised under this section after the date of enactment not later than five years after the date of approval or revision

of the plan and every five years thereafter.

The Secretary shall revise a recovery plan if substantial new information indicates that the recovery goal will not achieve the conservation and recovery of the covered species. The Secretary shall

convene a recovery team to develop the revisions, unless the Secretary has published a notice that a recovery team shall not be appointed. Otherwise the Secretary is not required to modify a recovery plan approved before enactment of H.R. 3160, or a recovery

plan on which public notice and comment has been initiated before

enactment of H.R. 3160.

Concurrent with the submission of the draft recovery plan, the

recovery team appointed for the species shall provide the Secretary

with a description of any area recommended for designation as critical habitat and any recommendations for special management considerations or protection. This section allows the Secretary, to the

maximum extent prudent and determinable, to designate or revise

an existing designation of critical habitat. Critical habitat may be

designated at the time a species is listed if the Secretary determines that designation at that time is essential to avoid the imminent extinction of the species. The designation is to be made on the

basis of the best data available and after taking into consideration

the economic impact, impacts to military training and operations,

and any other relevant impact of specifying any particular area as

critical habitat. ‘‘Economic impact’’ as used here, means the cumuVerDate 11-MAY-2000 07:19 Oct 31, 2000 Jkt 089006 PO 00000 Frm 00019 Fmt 6659 Sfmt 6602 E:\PICKUP\HR1013.106 pfrm07 PsN: HR1013
20

lative economic effects (including costs) resulting from the listing of

a species and the designation of critical habitat of the species for

communities and industries that are located in the area designated

as critical habitat or that receive revenue from use of the area.

At the request of one or more Governors, the Secretary may delegate to a State the authority to develop and implement the recovery plans if the Secretary finds that the State has entered into a

cooperative agreement with the Secretary and the State has submitted a statement to the Secretary demonstrating adequate authority and capability to carry out the requirements and schedules.

If the Secretary finds that a State agency lacks any authority or

capability, he shall notify the State and provide the State an opportunity to address his concerns.

The Secretary, in cooperation with the States, shall publish

standards and guidelines for the development of recovery plans by

States. The recovery team shall prepare a draft recovery plan in accordance with this section and shall transmit the draft plan to the

Secretary through the State agency authorized to develop the recovery plan. Prior to publication of a notice of availability of a draft

plan, the Secretary shall review each draft to determine whether

it meets the requirements and shall give the State an opportunity

to address any deficiencies. Thereafter, if the Secretary determines

that the plan does not meet such requirements, he shall notify the

State and, in cooperation with the State, develop a recovery plan

in accordance with this section. On receipt of a draft plan transmitted by the State, the Secretary shall review and adopt the plan.

The Secretary may withdraw the authority from a State if the actions of the State are not in accordance with the substantive and

procedural requirements of this H.R. 3160. The Secretary shall give

the State an opportunity to correct any deficiencies and may withdraw the authority from the State, unless the State within 60 days

has corrected the deficiencies. Following withdrawal of authority,

the Secretary shall within 18 months publish a draft plan for the

State, and within 12 months after publication of the draft recovery

plan, publish a final recovery plan for the State.

The term ‘‘State agency’’ means a State agency entering into a

cooperative request and the Pacific Northwest Electric Power and

Conservation Planning Council.

Within six months of enactment of H.R. 3160, the Secretary shall

establish in the Fish and Wildlife Service a separate office, to be

known as the Office of Species Recovery, and shall delegate to that

Office authority to provide support services to recovery teams to develop, or where a recovery team cannot be appointed to develop,

implement recovery plans; to seek the recovery of all endangered

or threatened species; to make all delisting decisions; and to assist

in the designation of critical habitat.

TITLE V—MISCELLANEOUS

Section 501. Authorizing increased appropriations

Subsection (a) authorizes appropriations to the Department of

the Interior $130 million for fiscal year (FY) 2001; $140 million for

FY 2002; $150 million for FY 2003; and $160 million for FY 2004.

For the Department of Commerce, this subsection authorizes appropriations of $30 million for FY 2001; $35 million for FY 2002;

21

$40 million for FY 2003; and $45 million for FY 2004. Finally, this

subsection authorizes appropriations for the Department of Agriculture of $4 million for each of FYs 2001–2004.

Subsection (b) authorizes appropriations to the Secretary of the

Interior for international programs of $1 million for each of FYs

2001–2004.

Subsection (c) authorizes $10 million for each of FYs 2001–2004

for Safe Harbor Agreements.

COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS

With respect to the requirements of clause 2(1)(3) of rule XI of

the Rules of the House of Representatives, and clause 2(b)(1) of

rule X of the Rules of the House of Representatives, the Committee

on Resources’ oversight findings and recommendations are reflected

in the body of this report.

FEDERAL ADVISORY COMMITTEE STATEMENT

The functions of the proposed advisory committee authorized in

this bill are not currently being nor could they be performed by one

or more agencies, an advisory committee already in existence or by

enlarging the mandate of an existing advisory committee.

CONSTITUTIONAL AUTHORITY STATEMENT

Article I, section 8 of the Constitution of the United States

grants Congress the authority to enact H.R. 3160.

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. The Committee on Resources believes that any

costs incurred in carrying out this bill would not create a significant impact on the federal budget.

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, spending authority, credit authority, or an increase or decrease in revenues or tax expenditures.

3. Government Reform Oversight Findings. Under clause 3(c)(4)

of rule XIII of the Rules of the House of Representatives, the Committee has received no report of oversight findings and recommendations from the Committee on Government Reform on this

bill.

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 requested but not received a cost estimate for this bill

from the Director of the Congressional Budget Office.

COMPLIANCE WITH PUBLIC LAW 104–4

H.R. 3160 contains no unfunded mandates.

22

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

* * * * * * *

DEFINITIONS

SEC. 3. For the purposes of this Act—

(1) * * *

* * * * * * *

ø(20) The term ‘‘threatened species’’ means any species which is

likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.¿

(20) The term ‘‘threatened species’’ means any species that is

likely to become an endangered species within the foreseeable

future throughout all or a significant portion of its range, and

the population of which is declining or has declined from

known historic populations levels and beyond the normal population fluctuations for the species.

* * * * * * *

(22) The term ‘‘best scientific and commercial data available’’

means factual information, including but not limited to peer reviewed scientific information and genetic data, obtainable from

any source, including governmental and nongovernmental

sources, which has been to the maximum extent feasible verified

by field testing.

(23) The term ‘‘species’’ includes any subspecies of fish or

wildlife or plants, and any distinct population of any species of

vertebrate fish or wildlife which interbreeds when mature, unless such distinct population is determined to be endangered or

threatened under the law of the State in which it is found and

such law prohibits the unpermitted take of such species.

(24) The term ‘‘reasonable and prudent alternative’’ means an

alternative to an agency action that—

(A) can be implemented in a manner consistent with the

intended purpose of the agency action or the activity of a

non-Federal person under section 10;

(B) can be implemented consistent with the scope of the

legal authority and jurisdiction of the Federal agency;

(C) is economically and technologically feasible for the

applicant or non-Federal person to undertake;

(D) the Secretary believes would avoid being likely to

jeopardize the continued existence of the species;

(E) does not exceed in nature, scope, and extent the effect

of the proposed activity that is the subject of the consultation; and

(F) both prevents the agency action concerned from jeopardizing the continued existence of the species and imposes

the least social and economic cost possible.

23

(25) The term ‘‘likely to jeopardize the continued existence of’’,

with respect to an action or activity affecting an endangered

species or a threatened species, means an action or activity that

significantly diminishes the likelihood of the survival of the species by significantly reducing the numbers or distribution of the

entire species.

* * * * * * *

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) * * *

* * * * * * *

ø(D) the inadequacy of existing regulatory mechanisms; or¿

(D) the inadequacy of existing Federal, State, and local government regulatory mechanisms or other proactive conservation

programs or measures, including programs and measures voluntarily undertaken;

* * * * * * *

ø(3) The Secretary, by regulation promulgated in accordance with

subsection (b) and to the maximum extent prudent and

determinable—

ø(A) 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

ø(B) may, from time-to-time thereafter as appropriate, revise

such designation.¿

* * * * * * *

ø(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

after conducting a review of the status of the species and after taking into account those efforts, if any, being made by 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.

ø(B) In carrying out this section, the Secretary shall give consideration to species which have been—

ø(i) designated as requiring protection from unrestricted

commerce by any foreign nation, or pursuant to any international agreement; or

ø(ii) identified as in danger of extinction, or likely to become

so within the foreseeable future, by any State agency or by any

agency of a foreign nation that is responsible for the conservation of fish or wildlife or plants.

ø(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, and any other relevant impact, of specifying any parVerDate 11-MAY-2000 07:19 Oct 31, 2000 Jkt 089006 PO 00000 Frm 00023 Fmt 6659 Sfmt 6601 E:\PICKUP\HR1013.106 pfrm07 PsN: HR1013
24

ticular area as critical habitat. The Secretary may exclude any area

from critical habitat if he determines that the benefits of such exclusion outweight 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.¿

ø(3)(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.

ø(B) Within 12 months after receiving a petition that is found

under subparagraph (A) to present substantial information indicating that the petitioned action may be warranted, the Secretary

shall make one of the following findings:

ø(i) The petitioned action is not warranted, in which case the

Secretary shall promptly publish such finding in the Federal

Register.

ø(ii) The petitioned action is warranted in which case the

Secretary shall promptly publish in the Federal Register a general notice and the complete text of a proposed regulation to

implement such action in accordance with paragraph (5).

ø(iii) The petitioned action is warranted but that—

ø(I) the immediate proposal and timely promulgation of

a final regulation implementing the petitioned action in accordance with paragraphs (5) and (6) is precluded by pending proposals to determine whether any species is an endangered species or a threatened species, and

ø(II) expeditious progress is being made to add qualified

species to either of the lists published under subsection (c)

and to remove from such lists species for which the protections of the Act are no longer necessary.

in which case the Secretary shall promptly publish such finding in the Federal Register, together with a description and

evaluation of the reasons and data on which the finding is

based.

ø(C)(i) A petition with respect to which a finding is made under

subparagraph (B)(iii) shall be treated as a petition that is resubmitted to the Secretary under subparagraph (A) on the date of such

finding and that presents substantial scientific or commercial information that the petitioned action may be warranted.

ø(ii) Any negative finding described in subparagraph (A) and any

finding described in subparagraph (B)(i) or (iii) shall be subject to

judicial review.

ø(iii) The Secretary shall implement a system to monitor effectively the status of all species with respect to which a finding is

made under subparagraph (B)(iii) and shall make prompt use of

25

the authority under paragraph 7 to prevent a significant risk to the

well being of any such species.

ø(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.

ø(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.¿

(b) SECRETARIAL DETERMINATIONS.— (1) BASIS FOR DETERMINATION.—(A) The Secretary shall make

determinations required by subsection (a)(1) solely on the basis

of the best scientific and commercial data available to the Secretary after conducting a review of the status of the species and

after soliciting and fully considering the best scientific and commercial data available concerning the status of a species from

any affected State or any interested non-Federal person, and

taking into account those efforts being made by any State or

foreign nation, any political subdivision of a State or foreign

nation, or any non-Federal person or conservation organization,

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, and

shall accord greater weight, consideration, and preference to

empirical data rather than projections or other extrapolations

developed through modeling.

(B) In carrying out this section, the Secretary shall give consideration to species which have been—

(i) designated as requiring protection from unrestricted

commerce by any foreign nation, or pursuant to any international agreement; or

(ii) identified as in danger of extinction, or as likely to become so within the foreseeable future, by any State agency

or by any agency of a foreign nation that is responsible for

the conservation of fish or wildlife or plants.

(C) In making a determination whether a species is an endangered species or threatened species under this section, the

Secretary shall consider the future conservation benefits to be

provided to the species under any species conservation plans

prepared pursuant to section 10 or to any management agreement entered into under section 6 or under any other agreement

for the conservation of any species entered into between the Secretary and any other person.

(2) STANDARDS FOR DETERMINING SPECIES.—Within 18

months after the date of the enactment of the Common Sense

Protections for Endangered Species Act, the Secretary shall promulgate a rule establishing scientifically valid standards for

rendering taxonomic determinations of species and subspecies.

The standards shall provide that to be eligible for determinaVerDate 11-MAY-2000 07:19 Oct 31, 2000 Jkt 089006 PO 00000 Frm 00025 Fmt 6659 Sfmt 6603 E:\PICKUP\HR1013.106 pfrm07 PsN: HR1013
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tion as a subspecies under this Act, a subspecies must be reproductively isolated from other subspecific population units and

constitute an important component in the evolutionary legacy of

the species.

(3) RESPONSE TO PETITIONS.— (A) ACTION MAY BE WARRANTED.— (i) IN GENERAL.—Consistent with the ranking system

established by the Secretary under subsection (h)(3)

and to the maximum extent practicable, after receiving

the petition of an interested person under section 553(e)

of title 5, United States Code, to—

(I) add a species to;

(II) remove a species from; or

(III) change the status of a species from a previous determination with respect to;

either of the lists published under subsection (c), the

Secretary shall immediately publish in the Federal

Register a notice of receipt of the petition and shall

make a finding as to whether the petition presents substantial scientific or commercial information indicating

that the petitioned action may be warranted. If 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.

(ii) MINIMUM DOCUMENTATION.—A finding that the

petition presents the information described in clause (i)

shall not be made unless the petition provides—

(I) scientific documentation from a published scientific source that the fish or wildlife or plant that

is the subject of the petition is a species;

(II) a description of all available data on the historical and current range, population, and distribution of the species, an explanation of the

methodology used to collect the data, and an identification of the location where the data can be reviewed;

(III) scientific evidence that the population of the

species is declining or has declined from historic

population levels and beyond normal population

fluctuations for the species;

(IV) an appraisal of the available data on the

threats to the species or the causes of its decline;

(V) an identification of the information contained or referred to in the petition that has been

peer-reviewed or field-tested;

(VI) the reason that the petitioned action is warranted, based on the factors established under subsection (a);

(VII) a bibliography of scientific literature on the

species, if any, in support of the petition;

(VIII) the qualifications of any person cited in

the petition as an expert on the species or the status of the species; and

27

(IX) at least one study or credible expert opinion,

by a person who is not affiliated with the petitioner, to support the action requested in the petition.

(iii) NOTIFICATION TO THE STATES.—

(I) PETITIONED ACTIONS.—If the petition is found

to present the information described in clause (i),

the Secretary shall notify and provide a copy of the

petition to the Governor of each State in which the

species is believed to occur and to affected tribes,

and shall solicit the advice of each such Governor

and tribe as to whether the petitioned action is

warranted. Such advice shall be submitted to the

Secretary not later than 90 days after the notification.

(II) PEER REVIEW OF CERTAIN DETERMINATIONS.—If the Secretary’s determination that the

petitioned action is warranted is in direct conflict

with the information submitted by the Governor or

tribe, the finding shall not be final until the Secretary submits the finding to peer review as provided in subsection (f). The peer reviewers shall

have not more than 30 days to submit their findings and comments to the Secretary. If the peer reviewers and the Secretary find that the petition is

warranted, the Secretary shall prepare a record of

decision and shall submit the record to the Governor or tribe. Issuance of such record shall be

final agency action for purposes of chapter 7 of

title 5, United States Code (relating to judicial review).

(B) PETITION TO CHANGE STATUS OR DELIST.—A petition

may be submitted to the Secretary under subparagraph (A)

to change the status of a species or to remove a species from

either of the lists published under subsection (c) in accordance with subsection (a)(1), if—

(i) the current listing is no longer appropriate because of a change in the factors identified under subsection (a)(1); or

(ii) with respect to a petition to remove a species from

either of the lists—

(I) new data or a reinterpretation of prior data

indicate that removal is appropriate;

(II) the species is extinct;

(III) the recovery goals established for the species

in a recovery plan adopted under section 5 have

been achieved; or

(IV) the original listing of the species was not

subject to adequate peer review as required by this

Act.

(C) DETERMINATION.—Not later than the end of the 1-

year period beginning on the date the Secretary receives a

petition that is found under subparagraph (A)(i) to present

substantial information indicating that the petitioned acVerDate 11-MAY-2000 07:19 Oct 31, 2000 Jkt 089006 PO 00000 Frm 00027 Fmt 6659 Sfmt 6603 E:\PICKUP\HR1013.106 pfrm07 PsN: HR1013
28

tion may be warranted, the Secretary shall make one of the

following findings:

(i) NOT WARRANTED.—The petitioned action is not

warranted, in which case the Secretary shall promptly

publish the finding in the Federal Register.

(ii) WARRANTED.—The petitioned action is warranted, in which case the Secretary shall, within 45

days after making the determination and before

issuing any proposed rule to implement the determination, publish in the Federal Register a notice of a review of the status of the species that includes a description of the following:

(I) Any missing data that, if obtained, would

support the determination.

(II) Data that are necessary to make the determination and that can be collected within the period available for making the determination.

(III) Data that may be necessary in the future to

ensure the continued validity of the determination,

and the deadline or deadlines for collecting that

data.

(iii) WARRANTED BUT PRECLUDED.—The petitioned

action is warranted, but—

(I) the immediate proposal and timely promulgation of a final regulation implementing the petitioned action in accordance with paragraphs (5)

and (6) is precluded by pending proposals to determine whether any species is an endangered species

or a threatened species; and

(II) expeditious progress is being made to add

qualified species to either of the lists published

under subsection (c) and to remove from the lists

species for which the protections of this Act are no

longer necessary;

in which case the Secretary shall promptly publish the

finding in the Federal Register, together with a description and evaluation of the reasons and data on

which the finding is based.

(D) PUBLIC MEETINGS.—If requested by any person within 30 days after the date of publication of a finding under

subparagraph (C) regarding a species, the Secretary shall

conduct at least one public meeting on the finding in each

State in which the species is believed to occur and a person

making such a request resides. Public meetings in a State

under this clause shall include—

(i) a public meeting at a location that is as centrally

located as possible to the areas in the State believed by

the Secretary to be habitat of the species; and

(ii) at least one public meeting in each rural area of

the State that the Governor of the State determines is

affected by the determination.

(E) SUBSEQUENT DETERMINATION.—A petition with respect to which a finding is made under subparagraph

(C)(iii) shall be treated as a petition that is resubmitted to

the Secretary under subparagraph (A) on the date of the

29

finding and that presents substantial scientific or commercial information that the petitioned action may be warranted.

(F) JUDICIAL REVIEW.—(i) Any negative finding described

in subparagraph (A)(i) and any finding described in clause

(i) or (iii) of subparagraph (C) shall be subject to judicial

review. In any suit for review brought under this paragraph, any person may intervene as a matter of right if the

person can demonstrate that a determination to list will

have a direct economic impact on such person.

(ii) In any action seeking judicial review of a finding by

the Secretary described in subparagraph (C)(iii), the court

shall give great weight to the finding.

(G) MONITORING.—The Secretary shall implement a system to monitor effectively the status of each species with respect to which a finding is made under subparagraph

(C)(iii) and shall make prompt use of the authority under

paragraph (7) to prevent a significant risk to the well-being

of the species.

(H) DATA SOLICITATION.—(i) The Secretary shall, in the

one-year period referred to in subparagraph (C)—

(I) solicit, through publication in the Federal Register, information regarding the status of the species

that may be the subject of a proposed rule, including

current population, population trends, current habitat,

other State or local governmental conservation efforts,

Federal conservation lands that could provide habitat

for the species, food sources, predators, breeding habits,

captive breeding efforts, commercial, nonprofit, avocational, or voluntary conservation activities, or other

pertinent information that may assist in making the

determination referred to in subsection (a)(1); and

(II) collect and consider the data identified and described pursuant to subclause (I).

(ii) The solicitation shall establish a time period within

which to submit the information, that shall be not less than

180 days. The period shall be extended for an additional 60

days at the request of any person who submits a request for

such extension that includes a statement of the reasons for

the request. In making the determination referred to in subsection (a)(1), the Secretary shall give equal weight to the

information submitted in accordance with this subparagraph.

(H)(i) All data or information considered by the Secretary in

making the determination to list as provided in this section,

shall be considered public information and shall be subject to

section 552 of title 5, United States Code (commonly referred to

as the ‘Freedom of Information Act’) unless the Secretary, for

good cause, determines that the information must be kept confidential. The burden shall be on the Secretary to prove that

such information shall be confidential and such decision shall

be reviewable by a district court of competent jurisdiction,

which shall review the decision in chambers. Good cause can

include that the information is of a proprietary nature or that

30

release of the location of the species may endanger the species

further.

(ii) The Secretary shall not publish or otherwise publicly disclose the location of particular private property as habitat for

a species which is determined to be an endangered species or

threatened species or proposed to be determined to be an endangered species or threatened species, unless the Secretary first notifies the owner thereof and receives the consent of the owner,

or the information is otherwise public information.

* * * * * * *

ø(5) With respect to any regulation proposed by the Secretary to

implement a determination, designation, or revision referred to in

subsection (a)(1) or (3), the Secretary shall—

ø(A) not less than 90 days before the effective date of the

regulation—

ø(i) publish a general notice and the complete text of the

proposed regulation in the Federal Register, and

ø(ii) give actual notice of the proposed regulation (including the complete text of the regulation) to 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, and each such jurisdiction, thereon;

ø(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;

ø(C) give notice of the proposed regulation to such professional scientific organizations as he deems appropriate;

ø(D) publish a summary of the proposed regulation in a

newspaper of general circulation in each area of the United

States in which the species is believed to occur; and

ø(E) promptly hold one public hearing on the proposed regulation if any person files a request for such a hearing within

45 days after the date of publication of general notice.¿

(5) PROPOSED REGULATIONS AND REVIEW.—With respect to

any regulation proposed by the Secretary to implement a determination referred to in subsection (a)(1) of this section, the Secretary shall perform the following:

(A) Not later than 12 months before publishing the proposed regulation, the Secretary shall—

(i) notify the Governor of each State in which the species is believed to occur and each affected tribe; and

(ii) solicit submission by each such Governor and

tribe, by not later than 90 days after the notification,

of advice as to whether the determination is warranted.

(B) Before publication of the proposed regulation, the Secretary shall consider advice received from State Governors

and tribes under subparagraph (A)(ii). If a Governor or

tribe provides scientific evidence pursuant to subparagraph

(A)(ii) that the determination is not warranted, the Secretary may not make the determination with respect to that

State or on the lands of that tribe, respectively, unless the

Secretary shows by a preponderance of scientific evidence

31

that the information submitted by the Governor or tribe is

incorrect and that the determination is warranted.

(C) 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 as provided in paragraph (8); and

(ii) give actual notice of the proposed regulation (including the complete text of the regulation) to the Governor of each State in which the species is believed to

occur, and invite the determination of such State as to

whether the action is warranted and if the Governor

notifies the Secretary that the action is not warranted,

the Secretary must provide to the Governor a record of

decision for such determination, including information

made available to the Secretary which did not support

the determination, and the written reasons for the determination.

(D) 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 consult with such nation

thereon.

(E) Give notice of the proposed regulation to any person

who requests such notice, any person who has submitted

additional data, each State and local government within

which the species is believed to occur or which is likely to

experience any effects of any measures to protect the species

under this Act, and such professional scientific organizations as the Secretary deems appropriate.

(F) Publish a summary of the proposed regulation in a

newspaper of general circulation in each area of the United

States in which the species is believed to occur.

(G) At the request of any person made not later than 45

days after the date of publication of general notice, promptly hold at least one public meeting in each State that would

be affected by the proposed regulation (including at least

one public meeting in an affected rural area, if any) except

that the Secretary shall not be required to hold more than

five public meetings under this subparagraph.

(H) Identify and include with the proposed rule a description of—

(i) all data that are to be considered in making the

determination under subsection (a)(1) to which the proposed rule relates and that have yet to be collected or

field verified;

(ii) any data that have not been collected and considered in the determination under subsection (a)(1) to

which the rule relates and that are necessary to ensure

the continued scientific integrity of the determination;

(iii) deadlines by which the Secretary shall collect

and consider the data in accordance with subparagraph (I);

32

(iv) a description of additional scientific and commercial data that would assist in the preparation of a

recovery plan for the species to which the rule relates;

(v) a list of known threats to the species and a description of the types of activities that may be affected

by the determination under subsection (a)(1) and any

restriction on use of property that may result from the

determination; and

(vi) other State, local, or Federal regulatory or conservation measures that may either at present or in the

future contribute to the conservation of the species.

(I) Not later than the deadline published by the Secretary

pursuant to subparagraph (H)(iii), the Secretary shall—

(i) collect the data;

(ii) provide an opportunity for public review and

comment on the data;

(iii) consider the data after that review and comment; and

(iv) publish in the Federal Register the results of that

consideration and a description of and schedule for

any actions warranted by the data.

ø(6)(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—

ø(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—

ø(I) a final regulation to implement such determination,

ø(II) a final regulation to implement such revision or a

finding that such revision should not be made,

ø(III) notice that such one-year period is being extended

under subparagraph (B)(i), or

ø(IV) notice that the proposed regulation is being withdrawn under subparagraph (B)(ii), together with the finding on which such withdrawal is based; or

ø(ii) subject to subparagraph (C), if a designation of critical

habitat is involved, either—

ø(I) a final regulation to implement such designation, or

ø(II) notice that such one-year period is being extended

under such subparagraph.¿

(6) FINAL REGULATIONS.—

(A) IN GENERAL.—Within the 1-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) a final regulation to implement the determination;

(ii) notice that the 1-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 the withdrawal is based.

(B)(i) If the Secretary finds with respect to a proposed regulation

referred to in subparagraph (A)(i) that there is substantial disagreement regarding the sufficiency or accuracy of the available

33

data relevant to the determination øor 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.

* * * * * * *

(iii) If the one-year period specified in subparagraph (A) is extended under clause (i) with respect to a proposed regulation, then

before the close of such extended period the Secretary shall publish

in the Federal Register either a final regulation to implement the

determination øor revision concerned, a finding that the revision

should not be made,¿ or a notice of withdrawal of the regulation

under clause (ii), together with the finding on which the withdrawal is based.

ø(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—

ø(i) it is essential to the conservation of such species that the

regulation implementing such determination be promptly published; or

ø(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.¿

* * * * * * *

(8) 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

øthe data¿ the best scientific and commercial data available on

which such regulation is based and shall show the relationship of

such data to such øregulation; 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.¿ regulation, and shall provide, to the degree that it is relevant and available, information regarding the status of the affected species, including current population, population trends, current habitat, food sources, predators,

breeding habits, captive breeding efforts, governmental and nongovernmental conservation efforts, or other pertinent information.

Each regulation proposed by the Secretary to implement a determination referred to in subsection (a)(1) shall be based primarily

and substantially on peer-reviewed scientific information obtainable

from any source, including governmental and nongovernmental

sources, that has been to the maximum extent feasible verified by

field testing. The Secretary shall identify any data that is used as

a basis for such a determination and that has not been verified by

field testing.

34

(9) ANALYSIS OF ECONOMIC AND SOCIAL COSTS.—(A) Concurrently with a determination that a species warrants listing as

an endangered species or threatened species, the Secretary shall

publish in the Federal Register with such determination an

analysis of the economic, social, and other public health, safety,

and welfare effects the listing may have.

(B) The analysis shall include—

(i) an estimate of the effects the listing may have on Federal, State, and local expenditures and revenues;

(ii) the costs and benefits of the listing for the private sector, including lost opportunity costs; and

(iii) an identification of the geographic area that may be

affected by the listing.

* * * * * * *

(c) LISTS.—(1) * * *

ø(2) The Secretary shall—

ø(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

ø(B) determine on the basis of such review whether any such

species should—

ø(i) be removed from such list;

ø(ii) be changed in status from an endangered species to

a threatened species; or

ø(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) The Secretary shall—

(A) conduct, at least once every 5 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, which shall be proposed

within 90 days of the date upon which it is determined

that—

(I) new data or a reinterpretation of prior data indicates that the previous determination was in error;

(II) the species is extinct; or

(III) the recovery goal established for the species in

a recovery plan under section 5(e) has been achieved;

(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 subsections (a) and (b) of this section.

* * * * * * *

ø(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

35

that such a plan will not promote the conservation of the species.

The Secretary, in development and implementing recovery plans,

shall, to the maximum extent practicable—

ø(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;

ø(B) incorporate in each plan—

ø(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;

ø(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

ø(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.

ø(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.

ø(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.

ø(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.

ø(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).¿

(f) PEER REVIEW REQUIREMENT.—

(1) DEFINITIONS.—In this subsection:

(A) The term ‘‘action’’ means—

(i) the determination that a species is an endangered

species or a threatened species under subsection (a);

(ii) the determination under subsection (a) that an

endangered species or a threatened species be removed

from any list published under subsection (c)(1);

(iii) the designation, or revision of the designation, of

critical habitat for an endangered species or a threatened species under section 5(k);

(iv) the determination that a proposed action is likely

to jeopardize the continued existence of a listed species

and the proposal of any reasonable and prudent alternatives by the Secretary under section 7(b)(3); and

36

(v) the issuance of any regulation or criteria establishing specific mitigation obligations with respect to a

species.

(B) The term ‘‘qualified individual’’ means an individual

with expertise in the biological sciences—

(i) who is by virtue of advanced education, training,

or avocational, academic, commercial, research, or

other experience competent to review the adequacy of

any scientific methodology supporting the action, the

validity of any conclusions drawn from the supporting

data, and the competency of the individual who conducted the research or prepared the data;

(ii) who is not otherwise employed by or under contract to the Secretary or the State in which the species

is located;

(iii) who has not actively participated in the

prelisting or listing processes or advocated that a listing decision be made;

(iv) who has not been employed by or under contract

to the Secretary or the State in which the species is located for work related to the action or species under

consideration; and

(v) who has no direct financial interest, and is not

employed by any person with a direct financial interest, in opposing the action under consideration.

(2) LIST OF PEER REVIEWERS.—In order to provide a substantial list of individuals who on a voluntary basis are available

to participate in peer review of actions, the Secretary shall,

through the Federal Register, through scientific and commercial

journals, and through the National Academy of Sciences and

other such institutions, seek nominations of persons who agree

to peer review an action upon appointment by the Secretary.

(3) APPOINTMENT OF PEER REVIEWERS.—Before any action

shall become final, the Secretary shall appoint, from among the

list prepared in accordance with paragraph (2), not more than

2 qualified individuals who shall review, and report to the Secretary on, the scientific information and analyses on which the

proposed action is based. The Governor of each State in which

the species is located that is the subject of the proposal, may appoint up to 2 qualified individuals to conduct peer review of the

action. If any individual declines the appointment, the Secretary or the Governor shall appoint another individual to conduct the peer review.

(4) DATA PROVIDED TO PEER REVIEWER.—The Secretary shall

make available to each person conducting peer review all scientific information available regarding the species which is the

subject of the peer review. The Secretary shall not indicate to

a peer reviewer the name of any person that submitted a petition for listing or delisting that is reviewed by the reviewer.

(5) OPINION OF PEER REVIEWERS.—The peer reviewer shall

give his or her opinion with regard to any technical or scientific

deficiencies in the proposal, whether the methodology and analysis supporting the petition conform to the standards of the academic and scientific community, and whether the proposal is

supported by sufficient credible evidence.

37

(6) PUBLICATION OF PEER REVIEW REPORT.—The Secretary

shall publish with any final regulation implementing an action

a summary of the report of the peer review panel noting points

of disagreement between peer reviewers, if any, and the response

of the Secretary to the report. The report of the peer reviewers

shall be included in the official record of the proposed action

and shall be available for public review prior to the close of the

comment period on the regulation.

* * * * * * *

(h) AGENCY GUIDELINES.—øThe Secretary shall establish, and

publish in the Federal Register, agency guidelines to insure that

the purposes of this section are achieved efficiently and effectively.¿ The Secretary shall develop in cooperation with the States,

and publish in the Federal Register, agency guidelines to ensure

that cooperation with the States is achieved efficiently and effectively. Such guidelines shall include, but are not limited to—

(1) * * *

* * * * * * *

ø(i) If, in the case of any regulation proposed by the Secretary

under the authority of this section, a State agency 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 under subsection

(b)(3), the Secretary shall submit to the State agency a written justification for his failure to adopt regulations consistent with the

agency’s comments or petition.¿

(i) SUBMISSION TO STATE AGENCY OF JUSTIFICATION FOR REGULATIONS INCONSISTENT WITH STATE AGENCY’S COMMENTS OR PETITION.—If, in the case of any regulation proposed by the Secretary

under the authority of this section, a Governor who consulted with

the Secretary in accordance with subsection (b)(5)(A)(ii) files comments disagreeing with all or part of the proposed regulation, the

Secretary shall not issue a final regulation that is in conflict with

such comments until the Secretary further consults with the President. If the Secretary adopts a final regulation in conflict with comments made by the Governor of a State or fails to adopt a regulation

pursuant to an action petitioned by a Governor under subsection

(b)(3), the Secretary shall submit to the Governor a written justification for the failure of the Secretary to adopt regulations consistent

with the comments or petition of the Governor.

(j) JUDICIAL REVIEW OF DETERMINATIONS.—Any final determination that a species is a threatened species or endangered species

shall be subject to a de novo judicial review with the court determining whether the decision is supported by a preponderance of the

evidence.

* * * * * * *

RECOVERY PLANS

SEC. 5. (a) IN GENERAL.—The Secretary, in cooperation with the

States, and on the basis of the best scientific and commercial data

available, shall develop and implement plans (referred to in this Act

38

as ‘‘recovery plans’’) for the conservation and recovery of endangered

species and threatened species that are indigenous to the United

States or in waters with respect to which the United States exercises

sovereign rights or jurisdiction, in accordance with the requirements

and schedules described in this section, unless the Secretary finds,

after notice and opportunity for public comment, that a plan will

not promote the conservation of the species or because an existing

plan or strategy to conserve the species already serves as the functional equivalent to a recovery plan.

(b) PRIORITIES.—To the maximum extent practicable, the Secretary, in developing recovery plans, shall give priority, without regard to taxonomic classification, to recovery plans that—

(1) address significant and immediate threats to the survival

of an endangered species or a threatened species, have the

greatest likelihood of achieving recovery of the endangered species or the threatened species, and will benefit species that are

more taxonomically distinct;

(2) address multiple species including (A) endangered species,

(B) threatened species, or (C) species that the Secretary has

identified as candidates or proposed for listing under section 4

and that are dependent on the same habitat as the endangered

species or threatened species covered by the plan;

(3) reduce conflicts with construction, development projects,

jobs, agriculture, private property, or other economic activities;

and

(4) reduce conflicts with military training and operations.

(c) SCHEDULE.—For each species determined to be an endangered

species or a threatened species after the date of enactment of this

subsection for which the Secretary is required to develop a recovery

plan under subsection (a), the Secretary shall publish—

(1) not later than 18 months after the date of the publication

under section 4 of the final regulation containing the listing determination, a draft recovery plan; and

(2) not later than 30 months after the date of publication

under section 4 of the final regulation containing the listing determination, a final recovery plan.

(d) APPOINTMENT AND ROLE OF RECOVERY TEAM.—

(1) IN GENERAL.—(A) Not later than 60 days after the date of

the publication under section 4 of the final regulation containing the listing determination for a species, the Secretary, in

cooperation with the affected States, shall either—

(i) appoint a recovery team to develop a recovery plan for

the species; or

(ii) provide to each affected State and publish a notice

that a recovery team will not be appointed, stating the reasons for not appointing a recovery team; and

(B) Upon request by the Governor of any State in which the

species occurs made after publication of notice under subparagraph (A)(ii), the Secretary shall, as requested by the

Governor—

(i) appoint a recovery team to develop a recovery plan

under this section; or

(ii) delegate to the Governor, under subsection (l), the authority of the Secretary to develop a recovery plan for the

species for that State.

39

(2) APPOINTMENT OF RECOVERY TEAM.—(A) The recovery team

shall consist of—

(i) experts in biology or pertinent scientific fields, economics, property law and regulation, and other appropriate disciplines, including from the private sector;

(ii) a representative nominated by the Governor of each

affected State;

(iii) representatives nominated by each affected local government, if the local government agrees to the appointment

of a representative; and

(iv) representatives of persons who may be directly, economically impacted by the conservation plan.

(B) The chairman of the team shall be selected by the team

from among its members who are representatives of States or

local governments.

(3) DUTIES OF THE RECOVERY TEAM.—(A) Each recovery team

shall prepare and submit to the Secretary the draft recovery

plan, which shall include recovery strategies recommended by

the team and alternatives, if any, to meet the recovery goal

under subsection (e)(1). The recovery team may also be called

on by the Secretary to assist in the implementation, review, and

revision of recovery plans. The recovery team shall also advise

the Secretary concerning the designation of critical habitat, if

any.

(B) The recovery team shall assess the direct, indirect, and

cumulative economic and social impacts on the public and private sectors, including local governments, that may result from

the listing determination or from potential recovery strategies

recommended under subparagraph (A), including—

(i) impacts on the cost of governmental actions, tax and

other revenues, employment, the use and value of property,

and other social, cultural, and community values; and

(ii) commercial activity that might result in a net benefit

to the conservation of the species.

(C) The recovery team shall recommend to the Secretary

measures to balance the achievement of the recovery goal for a

species under subsection (e) with protecting the economic wellbeing of the area affected by implementation of the recovery

plan for the species.

(4) TRAVEL EXPENSES.—The Secretary may provide travel expenses (including per diem in lieu of subsistence at the same

level as authorized by section 5703 of title 5, United States

Code) to recovery team members.

(5) FEDERAL ADVISORY COMMITTEE ACT.—The Federal Advisory Committee Act (5 U.S.C. App.) shall not apply to the selection or activities of a recovery team appointed pursuant to this

subsection, except that meetings of the recovery team shall be

open to the public as provided in that Act for meetings of advisory committees.

(e) CONTENTS OF RECOVERY PLANS AND DRAFT RECOVERY

PLANS.—

(1) BIOLOGICAL RECOVERY GOAL.—Not later than 180 days

after the appointment of a recovery team under this section, the

recovery team shall establish and submit to the Secretary a recommended biological recovery goal to conserve and recover the

40

species that, when met, would result in the determination, in

accordance with section 4, that the species be removed from the

list. The recovery goal shall be expressed as objective and measurable population criteria. When the goal is met, the Secretary

shall initiate the procedures under this Act to remove the species from the list. The recovery team shall also report to the Secretary the scientific feasibility of full recovery of the species and

the time frame in which recovery is likely to occur.

(2) CONTENTS OF DRAFT PLAN.— (A) IN GENERAL.—Each draft recovery plan shall contain

the following:

(i) Recommendations for Federal agency compliance

with section 7(a)(1) and 7(a)(2).

(ii) Recommendations for avoiding a taking of a listed species prohibited under section 9(a)(1) and a list of

specific activities that would constitute a take under

section 9.

(iii) Alternative strategies to achieve the recovery goal

for the listed species, that range from a strategy requiring the least possible Federal management to achieve

the recovery goal to a strategy involving more intensive

Federal management to achieve the goal.

(iv) A description of economic and social impacts

identified under subsection (d)(3)(B).

(B) REQUIREMENTS FOR ALTERNATIVE STRATEGIES.—The

alternative strategies under subparagraph (A)(iii) must

achieve an appropriate balance among the following factors:

(i) The effectiveness of the measures in meeting the

recovery goal.

(ii) The length of time in which the recovery goal is

likely to be achieved if the time period within which

the recovery goal is to be achieved will not pose a significant risk to recovery of the species.

(iii) Minimizing the economic and social impacts on

the public and private sectors, including the impact on

employment, the cost of government actions, tax and

other revenues, the use and value of property, and

other social, cultural, and community values.

(3) BENCHMARKS.—The recovery plan shall include objective,

measurable benchmarks expected to be achieved over the course

of the recovery plan to determine whether progress is being

made toward the recovery goal. To the extent possible, current

and historical population estimates, along with other relevant

factors, should be considered in determining whether progress

is being made toward meeting the recovery goal.

(4) EQUITABLE TREATMENT OF AFFECTED STATES AND OTHER

NON-FEDERAL PERSONS.—Each recovery plan under this section

shall—

(A) provide equitable treatment of each affected State and

all other non-Federal persons affected by the plan; and

(B) seek to minimize and fairly distribute the social and

economic costs that may result from implementation of the

plan.

(f) PUBLIC NOTICE AND COMMENT.—

41

(1) IN GENERAL.—If the Secretary makes a preliminary determination that the draft recovery plan meets the requirements of

this section, the Secretary shall publish in the Federal Register,

and a newspaper of general circulation in areas in each affected

State that are located as close to the affected area as possible,

a notice of availability and a summary of, and a request for

public comment on, the draft recovery plan. The notice shall include a description of the activities that will require a permit

under section 10, a description of the economic and social impacts referred to in subsection (d)(3)(B), and the recommendations of the recovery team on the recovery goal under subsection

(e)(1).

(2) HEARINGS.—At the request of any person, the Secretary

shall hold at least 1 public meeting on each draft recovery plan

in each State to which the plan would apply (including at least

1 public meeting in an affected rural area, if any), except that

the Secretary may not be required to hold more than 5 public

meetings under this paragraph.

(g) REVIEW AND SELECTION BY THE SECRETARY.—

(1) REVIEW AND APPROVAL.—The Secretary shall review each

plan submitted by a recovery team to determine whether the

plan was developed in accordance with the requirements of this

section. If the Secretary determines that the plan does not satisfy such requirements, the Secretary shall notify the recovery

team and give the team an opportunity to address the concerns

of the Secretary and resubmit a plan that satisfies the requirements of this section. After notice and opportunity for public

comment on the recommendations of the recovery team, the Secretary shall adopt a final recovery plan that is consistent with

the requirements of this section.

(2) SELECTION OF RECOVERY STRATEGIES.—In each final plan

the Secretary shall select recovery strategies that achieve the recovery goal and the benchmarks while achieving an appropriate

balance among the factors described in subsection (e)(2)(B), except that the Secretary shall select the recovery strategy that

would impose the least costs and result in the least socioeconomic impacts in achieving the recovery goal.

(3) STRATEGIES RECOMMENDED BY RECOVERY TEAM.—If the

Secretary selects strategies other than those recommended by

the recovery team, the Secretary shall publish with the final

plan an explanation of why the strategies recommended by the

recovery team were not selected for the final recovery plan.

(4) PUBLICATION OF NOTICE ON FINAL PLAN.—The Secretary

shall publish in the Federal Register a notice of availability,

and a summary, of the final recovery plan, and include in the

final recovery plan a response to significant comments that the

Secretary received on the draft recovery plan.

(h) REVIEW.—

(1) EXISTING PLANS.—Not later than five years after date of

enactment of this subsection, the Secretary shall review recovery

plans published prior to that date of enactment.

(2) SUBSEQUENT PLANS.—The Secretary shall review each recovery plan first approved or revised under this section after the

date of enactment of this subsection, not later than 5 years after

42

the date of approval or revision of the plan and every 5 years

thereafter.

(i) REVISION OF RECOVERY PLANS.—Notwithstanding any other

provision of this section, the Secretary shall revise a recovery plan

if the Secretary finds, based on the best scientific and commercial

data available, that substantial new information, which may include failure to meet the benchmarks included in the plan, indicates

that the recovery goal contained in the recovery plan will not

achieve the conservation and recovery of the endangered species or

threatened species covered by the plan. The Secretary shall convene

a recovery team to develop the revisions required by this subsection,

unless the Secretary has published a notice that a recovery team

shall not be appointed pursuant to subsection (d)(3).

(j) EXISTING PLANS.—Except as provided in subsection (i), nothing

in this section shall require the modification of—

(1) a recovery plan approved before the date of the enactment

of the Common Sense Protections for Endangered Species Act;

or

(2) a recovery plan on which public notice and comment has

been initiated before that date of enactment.

(k) CRITICAL HABITAT DESIGNATION.— (1) RECOMMENDATION OF THE RECOVERY TEAM.—Concurrent

with the submission of the draft recovery plan for a species to

the Secretary, the recovery team appointed for the species shall

provide the Secretary with a description of any habitat of the

species that is recommended for designation as critical habitat

pursuant to this subsection and any recommendations for special management considerations or protection that are specific

to the habitat.

(2) DESIGNATION BY THE SECRETARY.— (A) IN GENERAL.—The Secretary, to the maximum extent

prudent and determinable, may by regulation designate or

revise an existing designation of critical habitat of each endangered species or threatened species that is indigenous to

the United States or to waters with respect to which the

United States exercises sovereign rights or jurisdiction.

(B) EMERGENCY AUTHORITY.—The Secretary may publish

a regulation designating critical habitat for an endangered

species or a threatened species concurrently with the final

regulation implementing the determination that the species

is endangered or threatened if the Secretary determines

that designation of such habitat at the time of listing is essential to avoid the imminent extinction of the species.

(3) FACTORS TO BE CONSIDERED.—The designation of critical

habitat shall be made on the basis of the best scientific and

commercial data available and after taking into consideration

the economic impact, impacts to military training and operations, and any other relevant impact, of specifying any particular area as critical habitat. The Secretary shall describe the

economic impacts and other relevant impacts that are to be considered under this subsection in the publication of any proposed

regulation designating critical habitat.

(4) PROPOSED AND FINAL REGULATIONS.—Any regulation to

designate critical habitat or implement a requested revision

shall be proposed and promulgated in the same manner as a

43

regulation to implement a determination with respect to listing

a species.

(5) ECONOMIC IMPACTS DEFINED.—In this subsection, the term

‘‘economic impact’’ means the cumulative economic effects (including costs) resulting from the listing of a species and the

designation of critical habitat of the species, for communities

and industries that are located in the area designated as critical habitat or that receive revenue from use of the area.

(l) STATE AUTHORITY FOR RECOVERY PLANNING.—

(1) IN GENERAL.—At the request of the Governor of a State,

or the Governors of several States in cooperation, the Secretary

may delegate to the State agency, or to the State agencies of

such States acting jointly, respectively, the authority of the Secretary to develop and implement the recovery plan for an endangered species or a threatened species in accordance with the

requirements and schedules of subsections (c), (d)(1), (d)(2), and

(e) and this subsection, if the Secretary finds that—

(A) the State agency (or agencies, jointly) has entered into

a cooperative agreement with the Secretary pursuant to section 6(c); and

(B) the State agency (or agencies, jointly) has submitted

a statement to the Secretary demonstrating adequate authority and capability to carry out the requirements and

schedules of subsections (c), (d)(1), (d)(2), and (e) and this

subsection.

(2) RESPONSE TO CONCERNS OF SECRETARY.—If the Secretary

finds that a State agency lacks any authority or capability required under paragraph (1)(B), the Secretary shall notify the

State agency and provide the State agency with an opportunity

to address the concerns of the Secretary.

(3) STANDARDS AND GUIDELINES.—The Secretary, in cooperation with the States, shall publish standards and guidelines for

the development of recovery plans by State agencies under this

subsection, including standards and guidelines for interstate

cooperation and for the grant and withdrawal of authorization

by the Secretary under this subsection.

(4) DUTIES OF RECOVERY TEAM.—The recovery team shall prepare a draft recovery plan in accordance with this section and

shall transmit the draft plan to the Secretary through the State

agency authorized to develop the recovery plan.

(5) REVIEW OF DRAFT PLANS.—Prior to publication of a notice

of availability of a draft recovery plan, the Secretary shall review each draft recovery plan developed pursuant to this subsection to determine whether the plan meets the requirements of

this section and shall give the State an opportunity to address

any deficiencies in the plan. Thereafter, if the Secretary determines that the plan does not meet such requirements, the Secretary shall notify the State agency and, in cooperation with the

State agency, develop a recovery plan in accordance with this

section.

(6) REVIEW AND APPROVAL OF FINAL PLANS.—On receipt of a

draft recovery plan transmitted by a State agency, the Secretary

shall review and adopt the plan in accordance with subsection

(g).

44

(7) WITHDRAWAL OF AUTHORITY.—(A) The Secretary may

withdraw the authority from a State that has been delegated

authority to develop a recovery plan pursuant to this subsection

if the actions of the State agency are not in accordance with the

substantive and procedural requirements of subsections (c),

(d)(1), (d)(2), and (e) and this subsection. The Secretary shall

give the State agency an opportunity to correct any deficiencies

identified by the Secretary and may withdraw the authority

from the State unless the State agency within 60 days has corrected the deficiencies identified by the Secretary.

(B) Following withdrawal of authority delegated to a State

pursuant to this subsection, the Secretary shall, in accordance

with this section—

(i) within 18 months after the date of that withdrawal,

publish a draft recovery plan for the State; and

(ii) within 12 months after publication of the draft recovery plan, publish a final recovery plan for the State.

(8) DEFINITION OF STATE AGENCY.—For purposes of this subsection, the term ‘‘State agency’’ means—

(A) a State agency (as defined in section 3) of each State

entering into a cooperative request under paragraph (1);

and

(B) for fish and wildlife, including related spawning

grounds and habitat, on the Columbia River and its tributaries, the Pacific Northwest Electric Power and Conservation Planning Council established under the Pacific Northwest Electric Power Planning and Conservation Act (16

U.S.C. 839 et seq.).

(m) OFFICE OF RECOVERY PLANNING.—

(1) ESTABLISHMENT.—Not later than 6 months after the date

of the enactment of the Common Sense Protections for Endangered Species Act, the Secretary shall establish in the United

States Fish and Wildlife Service a separate office, to be known

as the Office of Species Recovery.

(2) AUTHORITIES.—The Secretary, subject to subsection (l),

shall delegate to the head of the Office of Species Recovery authority of the Secretary under this Act to—

(A) provide support services to recovery teams to develop,

or where a recovery team cannot be appointed to develop,

implement recovery plans under this section;

(B) otherwise seek the recovery of all species listed under

section 4(c) as endangered species or threatened species;

(C) make all determinations to remove a species from

such a list; and

(D) assist in the designation of critical habitat.

LAND ACQUISITION

SEC. ø5¿ 5A. (a) 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—

45

(1) * * *

* * * * * * *

COOPERATION WITH THE STATES

SEC. 6. (a) * * *

* * * * * * *

(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 ø(C)¿ (G) of section 4(b)(3) and recovered

species pursuant to section 4(g). 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) * * *

* * * * * * *

øINTERAGENCY COOPERATION

øSEC. 7. (a) FEDERAL AGENCY ACTIONS AND CONSULTATIONS.—(1)

The Secretary shall review other programs administered by him

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.¿

SEC. 7. INTERAGENCY COOPERATION.

(a) FEDERAL AGENCY ACTIONS AND CONSULTATIONS.—

(1) PROGRAMS ADMINISTERED BY THE SECRETARY OF THE INTERIOR.—The Secretary shall review other programs administered by the Secretary and utilize such programs in furtherance

of the purposes of this Act. Except as provided in section 5(k)(2),

all other Federal agencies shall, consistent with their primary

missions and 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.

* * * * * * *

(5) INITIATION OF CONSULTATION.—A Federal agency that receives a request under paragraph (3) shall initiate consultation

within 15 days after the date on which the request is received

from the permit or license applicant.

(6) DEMONSTRATION BY SECRETARY REQUIRED.—If the Secretary asserts the applicability of section 7 to any property, the

Secretary shall have the responsibility of demonstrating, based

on the best information available at the time any consultation

under this subsection is initiated, that—

46

(A) a threatened species or endangered species or its respective critical habitat is located in the geographic area

that is the subject of the consultation; and

(B) such proposed action will jeopardize the continued existence of a threatened species or endangered species.

(7) PROHIBITION ON OPINIONS BASED ON INSUFFICIENT

DATA.—The Secretary shall not issue an opinion under subsection (b) that a proposed action will jeopardize the continued

existence of a threatened species or endangered species based on

the insufficiency of available data on the impact of a proposed

action on such species.

(8) EFFECT OF LISTING ON EXISTING PLANS.— (A) DEFINITION OF ACTION.—For the purposes of this

paragraph, the term ‘‘action’’ includes the adoption of land

use plans under the Federal Land Policy and Management

Act of 1976 (43 U.S.C. 1701 et seq.) and land and resource

management plans under the Forest and Rangeland Renewable Resources Planning Act of 1974 (16 U.S.C. 1600 et

seq.), as amended by the National Forest Management Act

of 1976 (16 U.S.C. 1600 (note)).

(B) REINITIATION OF CONSULTATION.—Whenever a determination to list a species as an endangered species or a

threatened species or a designation of critical habitat requires reinitiation of consultation on an already approved

action, the consultation shall commence promptly, but not

later than 90 days after the date of the determination or

designation, and shall be completed not later than 1 year

after the date on which the consultation is commenced.

During that 1-year period, the site specific actions referred

to in subparagraph (C) may not be enjoined under this Act

based on that listing.

(C) SITE-SPECIFIC ACTIONS DURING CONSULTATION.—Notwithstanding subsection (d), the Federal agency implementing the land use plan or land and resource management plan under subparagraph (B) may authorize, fund, or

carry out a site-specific ongoing or previously scheduled action within the scope of the plan on the lands prior to completing consultation on the plan under subparagraph (B)

pursuant to the consultation procedures of this section and

related regulations, if—

(i) no consultation on the action is required; or

(ii) consultation on the action is required, the Secretary issues or has issued a biological opinion, and

the action satisfies the requirements of this section.

(9) RELATIONSHIP TO DUTIES UNDER OTHER LAWS.—(A) The

responsibilities of a Federal agency under this Act shall not supersede and shall be implemented in a manner consistent with

duties assigned to the Federal agency by any other laws or by

any treaties.

(B)(i) If a Federal agency determines that the responsibilities

and duties described in subparagraph (A) are in irreconcilable

conflict, the action agency shall request the President to resolve

the conflict.

(ii) In determining a resolution to such a conflict, the President shall consider and choose the course of action that best

47

meets the public interest and, to the extent possible, balances

pursuit of the recovery objective or the purposes of the recovery

plan with economic and social needs and pursuit of the purposes of the other laws or treaties. The authority assigned to the

President by this subparagraph may not be delegated to a member of the executive branch who has not been confirmed by the

Senate.

* * * * * * *

(b) OPINION OF SECRETARY.—(1)(A) * * *

* * * * * * *

(C) If consultation is not concluded and the written statement

of the Secretary required under paragraph (3)(A) is not provided to the Federal agency by the applicable deadline established under this paragraph, the requirements of subsection

(a)(2) shall be deemed met and the Federal agency may proceed

with the agency action.

ø(2) Consultation under subsection (a)(3) shall be concluded within such period as is agreeable to the Secretary, the Federal agency,

and the applicant concerned.¿

(2) OPPORTUNITY TO PARTICIPATE IN CONSULTATIONS.—(A) In

conducting a consultation under subsection (a)(2), the Secretary

shall provide any person who has sought authorization or funding from a Federal agency for an action that is the subject of

the consultation, the opportunity to—

(i) prior to the development of a draft biological opinion

under paragraph (3), submit and discuss with the Secretary and the Federal agency information relevant to the

effect of the proposed action on the species and the availability of reasonable and prudent alternatives (if a jeopardy

opinion is to be issued) that the Federal agency and the

person can take to avoid violation of subsection (a)(2);

(ii) receive information, on request, subject to the exemptions specified in section 552(b) of title 5, United States

Code, on the status of the species, threats to the species, and

conservation measures, used by the Secretary to develop the

draft biological opinion and the final biological opinion, including the associated incidental taking statements; and

(iii) receive a copy of the draft biological opinion from the

Federal agency and, prior to issuance of the final biological

opinion, submit comments on the draft biological opinion

and discuss with the Secretary and the Federal agency the

basis for any finding in the draft biological opinion.

(B) If reasonable and prudent alternatives are proposed by a

person under subparagraph (A) and the Secretary does not include the alternatives in the final biological opinion under

paragraph (3), the Secretary shall explain, in writing, to the

person why those alternatives were not included in the opinion.

(C) Consultation under subsection (a)(3) shall be concluded

within such period as is agreeable to the Secretary, the Federal

agency, and the applicant concerned.

(3)(A) * * *

* * * * * * *

48

(C) In the development of an opinion under this paragraph

with respect to public lands, the Secretary shall solicit and utilize information and advice regarding those lands from the

Governor of each State in which the lands are located. With respect to nonpublic lands, the Secretary shall solicit such advice

only upon the request of the affected landowner.

(D) Unless required by law other than subsections (a) through

(d), the Secretary, in any opinion or statement under this subsection concerning an agency action (including any reasonable

and prudent alternative suggested under subparagraph (A) or

any reasonable and prudent measure specified under clause (ii)

of paragraph (4)), and the head of the Federal agency proposing

the agency action, may not require, provide for, or recommend

the imposition of any restriction or obligation on the activity of

any person that is not authorized, funded, carried out, or otherwise subject to regulation by the Federal agency.

* * * * * * *

(5) The Secretary shall provide to each applicant for a permit or

license that is subject to consultation under this section a written

statement that shall guarantee that, so long as the project at issue

is carried out consistent with the statement issued under paragraph

(4), the applicant shall not be subject to new or additional requirements for the specific protection of any species identified in the

statement beyond the requirements set forth in the statement. All

Federal entities shall be bound by the Secretary’s guarantee.

(6)(A) The Secretary shall not refuse to provide an incidental take

statement under paragraph (4), unless the Secretary has provided

to the agency and the permit applicant—

(i) all conditions for issuance of the statement, in writing;

and

(ii) an opportunity for the agency and the permit applicant to

provide a written response to the conditions.

(B) Any refusal to provide an incidental take statement without

first providing the written conditions therefore and providing an opportunity to respond in accordance with subparagraph (A), is

deemed to be arbitrary and capricious.

(7) The Secretary may not require any measures under subsection

(b)(4) that exceed in nature, scope, or effect the impact of the taking

for which the statement is issued.

(c) BIOLOGICAL ASSESSMENT.—ø(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. If the Secretary advises, based on the best scientific and commercial data

available, 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

49

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).

ø(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.¿

* * * * * * *

ø(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’’).

ø(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.

ø(3) The Committee shall be composed of seven members as follows:

ø(A) The Secretary of Agriculture.

ø(B) The Secretary of the Army.

ø(C) The Chairman of the Council of Economic Advisors.

ø(D) The Administrator of the Environmental Protection

Agency. Agency.

ø(E) The Secretary of the Interior.

ø(F) The Administrator of the National Oceanic and Atmospheric Administration.

ø(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.

ø(4)(A) Members of the Committee shall receive no additional

pay on account of their service on the Committee.

ø(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.

ø(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 transVerDate 11-MAY-2000 07:19 Oct 31, 2000 Jkt 089006 PO 00000 Frm 00049 Fmt 6659 Sfmt 6601 E:\PICKUP\HR1013.106 pfrm07 PsN: HR1013
50

action of any function of the Committee if that function involves a

vote by the Committee on any matter before the Committee.

ø(B) The Secretary of the Interior shall be the Chairman of the

Committee.

ø(C) The Committee shall meet at the call of the Chairman or

five of its members.

ø(D) All meetings and records of the Committee shall be open to

the public.

ø(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.

ø(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.

ø(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.

ø(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.

ø(D) The Committee may use the United States mails in the

same manner and upon the same conditions as a Federal agency.

ø(E) The Administrator of General Services shall provide to the

Committee on a reimbursable basis such administrative support

services as the Committee may request.

ø(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.

ø(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.

ø(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.¿

(e) EXEMPTIONS.—Notwithstanding any other provision of this

Act—

(1) the Secretary shall grant an exemption from this Act for

any activity if the Secretary of Defense determines that the exemption of the activity is necessary for reasons of national security; and

(2) the President may grant an exemption from this Act for

any area that the President has declared to be a major disaster

area under The Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq.) for any project for

the repair or replacement of a public facility substantially as

the facility existed prior to the disaster under section 405 or 406

of that Act (42 U.S.C. 5171 and 5172), if the President determines that the project—

51

(A) is necessary to prevent the recurrence of such a natural disaster or to reduce the potential loss of human life;

and

(B) involves an emergency situation that makes the application of the procedures of this Act (other than this subsection) impractical.

ø(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—

ø(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

ø(2) a statement describing why such action cannot be altered or modified to conform with the requirements of subsection (a)(2) of this section.

ø(g) APPLICATION FOR EXEMPTION AND REPORT TO THE COM- MITTEE.—(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.

ø(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.

ø(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

52

the information contained in the application and a description of

the agency action with respect to which the application for exemption has been filed.

ø(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—

ø(A) determine that the Federal agency concerned and the

exemption applicant have—

ø(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);

ø(ii) conducted any biological assessment required by

subsection (c); and

ø(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

ø(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.

ø(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).

ø(5) Within 140 days after making the determinations under

paragraph (3) or within such other period of time as in mutually

agreeable to the exemption applicant and the Secretary, the Secretary shall submit to the Committee a report discussing—

ø(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 of the critical habitat;

ø(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;

ø(C) appropriate reasonable mitigation and enhancement

measures which should be considered by the Committee; and

ø(D) whether the Federal agency concerned and the exemption applicant refrained from making any irreversible or irretrievable commitment of resources prohibited by subsection (d).

ø(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 conVerDate 11-MAY-2000 07:19 Oct 31, 2000 Jkt 089006 PO 00000 Frm 00052 Fmt 6659 Sfmt 6602 E:\PICKUP\HR1013.106 pfrm07 PsN: HR1013
53

duct 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.

ø(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.

ø(8) All meetings and records resulting from activities pursuant

to this subsection shall be open to the public.

ø(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—

ø(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—

ø(i) there are no reasonable and prudent alternatives to

the agency action;

ø(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;

ø(iii) the action is of regional or national significance;

and

ø(iv) neither the Federal agency concerned nor the exemption applicant made any irreversible or irretrievable

commitment of resources prohibited by subsection (d); and

ø(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.

ø(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—

ø(i) regardless whether the species was identified in the biological assessment; and

ø(ii) only if a biological assessment has been conducted

under subsection (c) with respect to such agency action.

ø(B) An exemption shall be permanent under subparagraph (A)

unless—

ø(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

54

ø(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.

ø(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.

ø(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.

ø(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.

ø(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.

ø(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.

55

ø(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.

ø(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.¿

ø(o) EXEMPTION AS PROVIDING EXCEPTION ON TAKING OF ENDANGERED SPECIES.¿ (f) EXCEPTION FOR TAKING IN ACCORDANCE WITH

STATEMENT.—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 øsuch

section—

ø(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

ø(2) any taking¿ such section, 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.

ø(p) 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 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.¿

* * * * * * *

(q) ACTIONS NOT REQUIRING CONSULTATION AND CONFERENCING.—

56

(1) IN GENERAL.—Consultation and conferencing under paragraphs (2) and (4) of subsection (a) shall not be required for any

agency action that—

(A) is consistent with the provisions of a final recovery

plan under section 5;

(B) is consistent with a cooperative management agreement under section 6 or an incidental taking permit under

section 10; or

(C) consists of routine operation, maintenance, rehabilitation, repair, or replacement to a Federal or non-Federal

project or facility, including operation of a project or facility in accordance with a previously issued Federal license,

permit, or other authorization.

(2) EMERGENCY CONSULTATIONS.—In response to, or to prevent or minimize damage from, a natural event or other emergency, consultation under subsection (a)(2) may be waived by a

Federal agency for the repair or maintenance of a natural gas

pipeline, hazardous liquid pipeline, flood control facility, or

electrical distribution transmission, or substation facility, if the

repair or maintenance is necessary to address a probable imminent threat to human lives or a probable and significant threat

to the environment. If a consultation is required by the Secretary for such repair or maintenance, it shall be completed

within 10 days of any request by the applicant for consultation.

Any measure required to be taken to avoid take for an activity

that is the subject of such a waiver may not exceed in nature,

scope, and extent the effect of the activity and shall not be required prior to the completion of the repair or maintenance action.

(3) ACTIONS NOT PROHIBITED.—An agency action shall not

constitute a taking of a species prohibited by this Act or any

regulation issued under this Act if the action is consistent

with—

(A) the actions provided for in a final recovery plan

under section 5;

(B) a cooperative management agreement or an incidental take permit; or

(C) the terms and conditions specified in a written statement provided under subsection (b)(3) of this section.

* * * * * * *

PROHIBITED ACTS

SEC. 9. (a) GENERAL.—(1) * * *

* * * * * * *

(3) PROTECTING PUBLIC HEALTH AND SAFETY.—An activity of

a non-Federal person is not a taking of a species for purposes

of paragraph (1) if the activity—

(A) addresses a critical, probable threat to public health

or safety or a catastrophic natural event, or is mandated by

any Federal, State, or local government agency for public

health or safety purposes; or

(B) is incidental to, and not the purpose of, the carrying

out of an otherwise lawful activity that consists of—

57

(i) ongoing maintenance, routine operation or use,

and emergency repair of existing pipelines, flood control facilities or projects, fire breaks, transmission and

distribution lines, groundwater recharge facilities and

areas, water storage and recycling facilities, water

drainage or water conveyance structures and channels,

and appurtenant facilities;

(ii) road and right-of-away maintenance, use, and repair; or

(iii) emergency repair or restoration of any property

or non-Federal facility to the condition in which it existed or operated immediately before an emergency or

disaster, meeting current standards.

* * * * * * *

EXCEPTIONS

SEC. 10. (a) PERMITS.—(1) * * *

* * * * * * *

ø(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—

ø(i) the impact which will likely result from such taking;

ø(ii) what steps the applicant will take to minimize and mitigate such impacts, and the funding that will be available to

implement such steps;

ø(iii) what alternative actions to such taking the applicant

considered and the reasons why such alternatives are not

being utilized; and

ø(iv) such other measures that the Secretary may require as

being necessary or appropriate for purposes of the plan.

ø(B) If the Secretary finds, after opportunity for public comment,

with respect to a permit application and the related conservation

plan that—

ø(i) the taking will be incidental;

ø(ii) the applicant will, to the maximum extent practicable,

minimize and mitigate the impacts of such taking;

ø(iii) the applicant will ensure that adequate funding for the

plan will be provided;

ø(iv) the taking will not appreciably reduce the likelihood of

the survival and recovery of the species in the wild; and

ø(v) the measures, if any, required under subparagraph

(A)(iv) will be met;

and he has received such other assurances as he 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.

ø(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.¿

58

(2) SPECIES CONSERVATION PLANS.—(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 species conservation plan that specifies—

(i) the impact on the species which will be the likely result of the taking to be permitted;

(ii) what steps the applicant can reasonably and economically take consistent with the purposes and objectives of the

taking to minimize and mitigate such impacts, and the

funding that will be available to implement such steps; and

(iii) what alternative actions to such taking the applicant

considered and the reasons why such alternatives are not

being utilized.

(B) If the Secretary finds, after opportunity for public comment, with respect to a permit application and the related species conservation plan that—

(i) the taking will be incidental;

(ii) the applicant will, to the extent reasonable and economically practicable, minimize the impacts of such taking;

(iii) the applicant will ensure that adequate funding for

the plan will be provided;

(iv) the taking will not appreciably reduce the likelihood

of the survival and recovery of the species; and

(v) the measures specified under subparagraph (A)(ii)

will be met;

and the Secretary has received such other assurances as the

Secretary may require that the plan will be implemented, the

Secretary shall issue the permit. The permit shall contain such

reasonable and economically practicable terms and conditions

consistent with the purposes and objectives of the activity as the

Secretary deems necessary 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.

The Secretary shall include those terms and conditions that accomplish the goals of this section for the least cost to the permit

applicant.

(C) The Secretary may not require the applicant, as a condition of processing the application or issuing the permit—

(i) to expand the application to include land, an interest

in land, a right to use or receive water, or a proprietary

water right not owned by the applicant or to address a species other than the species for which the application is

made;

(ii) to carry out mitigation that exceeds in nature, scope,

or effect the impacts of the taking for which the permit is

issued;

(iii) to minimize and mitigate for loss of habitat resulting

from activities under the permit, in an area of land greater

than the area of land that is subject to impacts for which

the mitigation is required; or

(iv) to expend an aggregate amount greater than the cost

of fencing and preserving current conditions of the land on

which activities are conducted under the permit.

59

(D)(i) The Secretary shall complete the processing of, and approve or deny, any application for a permit under paragraph

(1)(B) within 90 days of the date of submission of the application or within such other period of time after such date of submission to which the Secretary and the permit applicant mutually agree.

(ii) The preparation and approval of a species conservation

plan and issuance of a permit with respect to nonpublicly

owned lands under paragraph (1)(B) shall not be subject to section 102(2) of the National Environmental Policy Act of 1969

(42 U.S.C. 4332(2)).

(iii) If the Secretary considers a plan submitted under subparagraph (A) to be insufficient or incomplete, the Secretary

shall respond in writing to the applicant within 30 days after

receiving the application, stating why the application is incomplete or insufficient and stating any additional conditions that

must be met for the issuance of the permit. Any denial of a permit under paragraph (1)(B) without first providing such conditions in writing is deemed to be arbitrary and capricious.

(iv) If the application is resubmitted after the Secretary responds under clause (iii), the Secretary shall, within 60 days

after receiving the resubmitted application—

(I) issue the permit;

(II) at the request of the permit applicant, provide written

reasons for refusal to complete consideration of the application; or

(III) formally deny the permit, in writing, stating the reasons for the denial.

(E) No consultation is required under section 7 for—

(i) any action by a permittee under this section that is authorized by the terms and conditions of the permit;

(ii) any action by the Secretary in implementing, enforcing, or monitoring compliance with a permit under this section; or

(iii) the issuance, amendment, or renewal of any permit

under this section, if the Secretary determines that the

issuance, amendment, or renewal, respectively, will not appreciably reduce the likelihood of the survival and recovery

of any species that is authorized to be taken under the permit.

(F) No additional measures to minimize and mitigate impacts

on a species that is a subject of a permit issued under paragraph (1)(B) shall be required of a permittee that is in compliance with the permit. With respect to any species that is a subject of such a permit, under no circumstance shall a permittee

in compliance with the permit be required to make any additional payment for any purpose, or accept any additional restriction on any parcel of land available for development or

land management or any water or water-related right under the

permit, without the consent of the permittee.

(G) After providing a permittee notice and an opportunity to

make appropriate corrections, the Secretary shall revoke a permit issued under this paragraph if the Secretary finds that the

permittee is not complying with the terms and conditions of the

permit or the species conservation plan required for the permit.

60

(H) Notwithstanding any other provision of law, a person

may not commence any action or proceeding to challenge the

approval of a permit under this section unless suit is filed within 45 days after publication in the Federal Register of notice of

issuance of the permit.

* * * * * * *

(k) LIMITATION ON REQUIRED MITIGATION.— (1) IN GENERAL.—Subsection (a)(2) does not require, and the

Secretary may not require as a term or condition of a permit

under subsection (a)(1)(B), that a permittee for a public project

take any measures to minimize or mitigate impacts of a taking

under the permit—

(A) if the costs of implementing such measures will exceed 10 percent of the total project costs of the public

project; or

(B) for any activity that occurred prior to the date of the

issuance of the permit.

(2) DEFINITIONS.—In this subsection—

(A) the term ‘‘public project’’ means any construction

project that is carried out or funded (in whole or in part)

by a Federal, State, or local agency; and

(B) the term ‘‘total project costs’’ means the aggregate

costs of acquiring land and carrying out construction.

(l) SAFE HARBOR AGREEMENTS.— (1) AGREEMENTS.— (A) IN GENERAL.—The Secretary may enter into agreements with non-Federal persons to benefit the conservation

of endangered species or threatened species by creating, restoring, or improving habitat or by maintaining currently

unoccupied habitat for endangered species or threatened

species. Under an agreement, the Secretary shall permit the

person to take endangered species or threatened species included under the agreement on lands or waters that are

subject to the agreement if the taking is incidental to, and

not the purpose of, carrying out of an otherwise lawful activity, and does not violate the baseline requirement established under subparagraph (B).

(B) BASELINE REQUIREMENT.—For each agreement under

this subsection, the Secretary shall establish a baseline requirement that is mutually agreed upon by the applicant

and the Secretary at the time of the agreement that will, at

a minimum, maintain existing conditions for the species

covered by the agreement on lands and waters that are subject to the agreement. The baseline requirement may be expressed in terms of the abundance or distribution of endangered species or threatened species, quantity or quality of

habitat, or such other indicators as appropriate.

(2) STANDARDS AND GUIDELINES.—The Secretary shall issue

standards and guidelines for the development and approval of

safe harbor agreements in accordance with this subsection.

(3) FINANCIAL ASSISTANCE.— (A) IN GENERAL.—In cooperation with the States and

subject to the availability of appropriations to carry out

this section, the Secretary may provide a grant of up to

$10,000 to any individual private landowner to assist the

61

landowner in carrying out a safe harbor agreement under

this subsection.

(B) PROHIBITION ON ASSISTANCE FOR REQUIRED ACTIVI- TIES.—The Secretary may not provide assistance under this

paragraph for any action that is required by a permit

issued under this Act or that is otherwise required under

this Act or other Federal law.

* * * * * * *

PENALTIES AND ENFORCEMENT

SEC. 11. (a) CIVIL PENALTIES.—(1) * * *

* * * * * * *

ø(g) CITIZEN SUITS.—(1) Except as provided in paragraph (2) of

this subsection any person may commence a civil suit on his own

behalf—

ø(A) to enjoin any person, including the United States and

any other governmental instrumentality or agency (to the extent permitted by the eleventh amendment to the Constitution), who is alleged to be in violation of any provision of this

Act or regulation issued under the authority thereof; or¿

(g) CITIZEN SUITS.—

(1) IN GENERAL.—Except as provided in paragraph (2), a civil

suit may be commenced by any person on his or her own behalf,

who satisfies the requirements of the Constitution and who has

suffered or is threatened with economic or other injury resulting

from the violation, regulation, application, nonapplication, or

failure to act—

(A) to enjoin the United States or any agency or official

of the United States who is alleged to be in violation of any

provision of this Act or regulation issued under the authority thereof, if the violation poses immediate and irreparable

harm to a threatened species or endangered species;

* * * * * * *

(6) INTERVENTION.—Any person may intervene as a matter of

right in any civil suit brought under this subsection if such suit

presents a reasonable threat of economic injury to such person.

Any intervenor under this paragraph shall have the same right

to present argument and to accept or reject potential settlements

as do the parties to the suit.

* * * * * * *

øREPEALER

øSEC. 14. The Endangered Species Conservation Act of 1969 (sections 1 through 3 of the Act of October 15, 1966, and sections 1

through 6 of the Act of December 5, 1969; 16 U.S.C. 668aa–668cc–

6), is repealed.

øAUTHORIZATION OF APPROPRIATIONS

øSEC. 15. (a) IN GENERAL.—Except as provided in subsection (b),

(c), and (d), there are authorized to be appropriated—

ø(1) not to exceed $35,000,000 for fiscal year 1988,

$36,500,000 for fiscal year 1989, $38,000,000 for fiscal year

62

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;

ø(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 year 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

ø(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.

ø(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.

ø(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.¿

SEC. 14. PUBLIC HEARINGS AND PUBLIC MEETINGS.

(a) IN GENERAL.—Except as otherwise provided by this Act, the

Secretary shall provide notice of any hearing or public meeting at

which public comment is accepted under this Act by publication in

the Federal Register and in a newspaper of general circulation in

the location of the hearing or public meeting at least 30 days prior

to the hearing or public meeting.

(b) PUBLIC MEETINGS.—Each public meeting held pursuant to

this Act shall provide an opportunity for the public to make statements and receive information and answers, respectively, from the

agency regarding all aspects of and questions regarding the petition

or other matter that is the subject of the public meeting. To the maximum extent practicable, the Secretary shall ensure that members of

the public are provided with the information sought at the public

meeting.

SEC. 15. AUTHORIZATION OF APPROPRIATIONS.

(a) IN GENERAL.—There are authorized to be appropriated—

(1) to the Department of the Interior to carry out the duties

of the Secretary of the Interior under this Act $130,000,000 for

fiscal year 2001, $140,000,000 for fiscal year 2002,

$150,000,000 for fiscal year 2003, and $160,000,000 for fiscal

year 2004;

(2) to the Department of Commerce to carry out the duties of

the Secretary of Commerce under this Act $30,000,000 for fiscal

year 2001, $35,000,000 for fiscal year 2002, $40,000,000 for fiscal year 2003, and $45,000,000 for fiscal year 2004; and

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(3) to the Department of Agriculture to carry out the duties of the Secretary of Agriculture under this Act $4,000,000 for

each of fiscal years 2001 through 2004.

(b) CONVENTION IMPLEMENTATION.—In addition to the other

amounts authorized by this section, there are authorized to be appropriated to the Secretary of the Interior to carry out section 8A

$1,000,000 for each of fiscal years 2001 through 2004, to remain

available until expended.

(c) SAFE HARBOR AGREEMENTS.—In addition to the other

amounts authorized by this section, there are authorized to be appropriated to the Secretary to carry out section 10(l) $10,000,000 for

each of fiscal years 2001 through 2004, to remain available until expended.

* * * * * * *

(64)

DISSENTING VIEWS

We remain strongly opposed to H.R. 3160. We do not deny there

are frustrations with the ESA and the manner in which it is implemented. We also all recognize that changes in the law could be

made to address those frustrations. We agree that listing decisions

should be made on the best science available and that states and

local governments can and should play a role in recovery efforts;

that there can and should provide more incentives for private landowners to protect species on their property; and that the law has

not done enough to recover species and get them off the list. This

bill, however, is not the answer to those needed changes.

While H.R. 3160 purports to address the problems of recovery

and the scientific integrity of the listing process, it goes far beyond

those goals and makes broad sweeping changes to the Act that will

fundamentally undermine the law’s premise of protecting and recovering endangered species throughout the United States. Some of

the most obvious concerns are discussed below, but by no means

does this constitute a comprehensive litany of all the concerns regarding the legislation.

Changes to scientific requirements and listing procedures

While the premise of these new requirements are valid, that listing decisions under the Act should be based on the best scientific

information available, the bill also adds many other requirements

that are so burdensome that the overall effect will be to greatly

slow not only the listing process, but the delisting and critical habitat designations processes as well.

For example, the bill requires peer reviews at each step of the

regulatory process to protect species, including the listing decision,

identification of critical habitat, jeopardy decisions, and for mitigation requirements under section 10 HCPs. While peer review of

FWS and NMFS decisions is warranted, this duplicative review requirement could simply delay it to the point where emergency listing is required or listing is no longer needed because the species

is extinct. In addition, while the term peer review implies a review

that is consistent with the academic peer review process, the process that is established in the bill is very different and could be

quite difficult to implement.

In addition, the legislation requires the Secretary to demonstrate

by a preponderance of the scientific evidence that a species should

be listed anytime a listing is challenged by the Governor or a tribe,

but does not stipulate the quality of the evidence that must be provided to support the challenge. It also allows for petitions to delist

any species currently listed, if such species was not subject to the

new peer review requirements laid out in this bill. This could potentially result in a flood of delisting petitions with which the Secretary would be forced to contend.

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Finally, H.R. 3160 would preclude the federal listing of a distinct

population of a species if it is already listed under a state plan and

the state law prohibits the unpermitted take of such species. This

provision will result in inconsistent protections for species between

states and much weaker protection within states that have ESA

programs which are not comparable to the Federal program.

Reduced Federal agency responsibility

Perhaps even more significant and serious are the provisions of

the bill that dramatically reduce the responsibility of Federal agencies to protect species. Under the current law, all federal agencies

must consult with the FWS or NMFS to insure that their actions

neither jeopardize the continued existence of endangered or threatened species nor adversely modify critical habitat. H.R. 3160 makes

several significant changes to current law that greatly reduce the

mandatory and paramount nature of the obligations imposed on

federal agencies under Section 7 of the ESA to protect and recover

species.

First, the consultation requirement is qualified with the phrase

‘‘consistent with their primary mission’’, thereby requiring agencies

to accommodate the needs of listed species only to the extent that

they deem it to be consistent with their other duties. This shift in

the burden of responsibility will greatly reduce the protection that

these federal agencies are compelled to provide. In fact, this approach was first adopted in 1966 in the original ESA, but was soon

revised because few if any federal agencies found the protection of

species consistent with their primary mission.

Second, the bill weakens the jeopardy standard. While maintaining the requirement that federal agencies insure their actions are

not ‘‘likely to jeopardize the continued existence of any endangered

or threatened species’’, it defines the term ‘‘likely to jeopardize the

continued existence of’’ to mean an action or activity that significantly diminishes the likelihood of survival of the species by significantly reducing the numbers or distribution of the entire species’’,

thereby undermining the effectiveness of the requirement. According to Administration comments on 1995 legislation which included

the same language, this new definition of the jeopardy standard

‘‘would make it difficult, if not impossible, to find that any Federal

action jeopardized any distinct population segment such as the bald

eagle, any subspecies, or any species which, although endangered

in the U.S. is found anywhere else in the world’’. In addition, it

would be difficult to find jeopardy in one part of the U.S. if the species occurred elsewhere in the country or possibly even in captivity.

Finally, the bill exempts routine maintenance, repair or replacement of any Federal or non-Federal facility from the consultation

requirements of the Act. Moreover, it does not define ‘‘Federal or

non-Federal facility’’. With this latitude, it could potentially exempt

the operation and maintenance of virtually everything from roads

to dams from the requirements to protect species. The effect of this

exemption is so broad and far reaching that, combined with the

change in the jeopardy standard and the consistency provision, it

could effectively eliminate consideration and protection of listed

species by federal agencies.

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Changes in permitting and enforcement requirements

While it might be assumed that the requirements to protect species would then fall to private land owners and non-Federal entities, the bill makes several changes to Section 9 of the Act that effectively undermine those protections as well.

Currently, Section 9 prohibits activities that ‘‘take’’ listed species

and require an incidental take permit that will minimize and mitigate impacts of such activities. Take is defined by the Act as any

activity which would ‘‘harm, harass, pursue, hunt, shoot, wound,

kill, trap, capture, or collect’’ a listed species. Court rulings have

interpreted this definition to include activities that would impact

habitat of listed species. Exemptions from this permitting process

are allowed in emergency situations. H.R. 3160, however, would exempt ongoing maintenance, routine operation or use, and emergency repair of pipelines, flood control facilities or projects, transmission and distribution lines, water storage, drainage, conveyance,

or recycling facilities as well as road and right-of-way maintenance,

use and repair from the take prohibition and make no requirement

that they minimize and mitigate their impact on listed species.

Similar to, but even broader than, legislation that was considered and rejected by the House in 1997 (H.R. 478), this could include a wide range of activities from the operation of a dam to the

construction of a drainage ditch next to a road. This exemption

would apply at any time, not just in emergency situations. While

this would have clear negative impacts on listed species, it could

also have unintended consequences as other interests, including

fishermen, cattlemen, and loggers, would still be subject to the requirements of the Act. For example, operations of flood control and

water conveyance, storage and irrigation systems in Northern California could be virtually exempt from the requirements to protect

and recover species like salmon. At the same time, small boat fishermen, who have already seen their salmon harvest reduced to economically unsustainable levels to rebuild salmon stocks, will be

forced to cut their harvest even more and possibly be shut down

altogether. This is not fair and it does nothing to solve the problem

of recovering species.

H.R. 3160 also makes changes in conditions for issuing incidental

take permits. In order to receive an ITP, an individual must demonstrate, among other things, that the take of the species will not

‘‘appreciably reduce the likelihood of the survival and recovery of

the species in the wild’’. H.R. 3160 amends this requirement by deleting the phrase ‘‘in the wild’’, potentially establishing a situation

where species could exist in captivity and the take of the species

in the wild would not be regarded as impacting the survival and

recovery of the species. Clearly, this is a weaker standard than now

exists.

In conclusion, in the name of good science, the bill shifts the burden of proof for listing species, and creates a situation where the

absence of perfect scientific knowledge delays listings indefinitely.

The effect will be to delay listings to the point where they likely

are not needed because the species is extinct.

The bill also provides broad exemptions from the requirements to

protect species for the routine operation, maintenance, rehabilitation, repair or replacement of any federal or non-federal facility,

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and stipulates that federal agencies must only protect species to

the extent that it is consistent with their ‘‘primary mission’’. These

changes will significantly reduce—if not elliminate—federal agencies’ responsibilities to protect listed species.

At the same time, the equally broad exemption from the take

prohibition provisions of the law for the ongoing maintenance and

routine operation or use of any water storage, drainage, conveyance

or recycling facility as well as flood control facilities, transmission

and distribution lines, and roads, may leave some wondering who

will be subject to the ESA and the requirements to protect species.

In fact, it will be fishermen and farmers, and perhaps grazers, who

will be forced to bear an even greater responsibility for species conservation.

If we are serious about our desire to reform the ESA and start

recovering species, then let’s do that. Let’s work together to draft

legislation that will have the support of the Administration, the environmental community, fishermen, and small landowners and

achieves our common goal—an ESA that recovers species and

works for landowners. This bill will not have that support or

achieve that goal, and instead will be divisive and ultimately unsuccessful.

GEORGE MILLER.

FRANK PALLONE, Jr.

MARK UDALL.

JIM SAXTON.

RUSH D. HOLT.

Æ