II 

116TH CONGRESS 

2D SESSION S. 4589 

To amend the Endangered Species Act of 1973 to increase transparency, 

to support regulatory certainty, and to reauthorize that Act, and for 

other purposes. 

IN THE SENATE OF THE UNITED STATES 

SEPTEMBER 16, 2020 

Mr. BARRASSO introduced the following bill; which was read twice and 

referred to the Committee on Environment and Public Works 

A BILL 

To amend the Endangered Species Act of 1973 to increase 

transparency, to support regulatory certainty, and to reauthorize that Act, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Endangered Species Act Amendments of 2020’’. 

6 (b) TABLE OF CONTENTS.—The table of contents for 

7 this Act is as follows: 

Sec. 1. Short title; table of contents. 

TITLE I—TECHNICAL CORRECTIONS OF GENDER-SPECIFIC 

PRONOUNS 


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Sec. 101. Technical corrections of gender-specific pronouns. 

TITLE II—ENHANCING THE FEDERAL-STATE CONSERVATION 

PARTNERSHIP 

Sec. 201. Definitions. 

Sec. 202. State-Federal consultation relating to conservation and recovery of 

wildlife. 

Sec. 203. Recovery of threatened and endangered species. 

Sec. 204. Delisting, downlisting, and uplisting. 

Sec. 205. Cooperation with States and Indian Tribes. 

Sec. 206. State consultation regarding experimental populations. 

Sec. 207. State participation in settlements. 

TITLE III—ENCOURAGING CONSERVATION ACTIVITIES THROUGH 

REGULATORY CERTAINTY 

Sec. 301. Sense of Congress regarding conservation agreements and activities. 

Sec. 302. Conservation agreements as factors in listing decisions. 

Sec. 303. Conservation efforts as regulatory mechanisms. 

Sec. 304. Candidate conservation agreements with assurances. 

Sec. 305. Safe harbor agreements. 

Sec. 306. Conservation agreement templates. 

TITLE IV—STRENGTHENING CONSERVATION DECISIONMAKING 

THROUGH INCREASED TRANSPARENCY 

Sec. 401. Transparency of information. 

Sec. 402. Transparency in litigation. 

TITLE V—OPTIMIZING CONSERVATION THROUGH RESOURCE 

PRIORITIZATION 

Sec. 501. Prioritization of listing petitions, reviews, and determinations. 

TITLE VI—STUDIES TO IMPROVE CONSERVATION 

Sec. 601. Definition of Secretaries. 

Sec. 602. Study to review conservation factors. 

Sec. 603. Study and report on expenditures. 

Sec. 604. Study to quantify litigation expenses. 

TITLE VII—REAUTHORIZATION 

Sec. 701. Reauthorization. 

TITLE VIII—MISCELLANEOUS 

Sec. 801. Effect. 

Sec. 802. Sense of the Senate. 


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1 TITLE I—TECHNICAL CORREC2 TIONS OF GENDER-SPECIFIC 

3 PRONOUNS 

4 SEC. 101. TECHNICAL CORRECTIONS OF GENDER-SPECIFIC 

5 PRONOUNS. 

6 (a) DETERMINATION OF ENDANGERED SPECIES AND

7 THREATENED SPECIES.—Section 4 of the Endangered 

8 Species Act of 1973 (16 U.S.C. 1533) is amended— 

9 (1) in subsection (a)(2)— 

10 (A) by striking subparagraphs (A) and (B) 

11 and inserting the following: 

12 ‘‘(A) in any case in which the Secretary of 

13 Commerce determines that the species should 

14 be— 

15 ‘‘(i) listed as an endangered species or 

16 a threatened species, or changed in status 

17 from a threatened species to an endan18 gered species— 

19 ‘‘(I) the Secretary of Commerce 

20 shall submit to the Secretary of the 

21 Interior a notice of the determination; 

22 and 

23 ‘‘(II) the Secretary of the Inte24 rior shall list the species in accordance 

25 with this section; or 


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1 ‘‘(ii) removed from any list published 

2 pursuant to subsection (c), or changed in 

3 status from an endangered species to a 

4 threatened species— 

5 ‘‘(I) the Secretary of Commerce 

6 shall recommend that action to the 

7 Secretary of the Interior; and 

8 ‘‘(II) the Secretary of the Inte9 rior, on concurrence with the rec10 ommendation, shall implement the ac11 tion; and’’; and 

12 (B) by redesignating subparagraph (C) as 

13 subparagraph (B) and indenting the subpara14 graph appropriately; 

15 (2) in subsection (b)— 

16 (A) in paragraph (1)(A), by striking ‘‘to 

17 him’’; 

18 (B) in paragraph (2), in the second sen19 tence, by striking ‘‘he determines’’ each place it 

20 appears and inserting ‘‘the Secretary deter21 mines’’; 

22 (C) in paragraph (3)(D)(ii), by striking 

23 ‘‘the Secretary shall’’ and all that follows 

24 through the period at the end and inserting the 

25 following: ‘‘the Secretary shall— 


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1 ‘‘(I) determine the means by 

2 which to proceed with the requested 

3 revision; and 

4 ‘‘(II) promptly publish in the 

5 Federal Register a notice of the deter6 mination.’’; 

7 (D) in paragraph (5)(C), by striking ‘‘he 

8 deems’’ and inserting ‘‘the Secretary determines 

9 to be’’; 

10 (E) in paragraph (6)(B)(ii), in the third 

11 sentence, by striking ‘‘he determines’’ and in12 serting ‘‘the Secretary determines’’; and 

13 (F) in paragraph (7), in the third sentence 

14 of the undesignated matter following subpara15 graph (B), by striking ‘‘he shall withdraw it’’ 

16 and inserting ‘‘the Secretary shall withdraw the 

17 regulation’’; 

18 (3) in subsection (c)(1), in the first sentence, by 

19 striking ‘‘by him’’ each place it appears and insert20 ing ‘‘by the Secretary’’; 

21 (4) in subsection (d), in the first sentence, by 

22 striking ‘‘he deems’’ and inserting ‘‘the Secretary 

23 determines to be’’; 

24 (5) in subsection (e)— 


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1 (A) by redesignating subparagraphs (B) 

2 and (C) as paragraphs (2) and (3), respectively, 

3 and indenting the paragraphs appropriately; 

4 and 

5 (B) by striking ‘‘and to the extent’’ in the 

6 matter preceding subparagraph (A) and all that 

7 follows through ‘‘(A) such species’’ and insert8 ing the following: ‘‘to the extent the Secretary 

9 determines to be advisable, treat any species as 

10 an endangered species or threatened species, re11 gardless of whether the species is listed pursu12 ant to this section, if the Secretary finds that— 

13 ‘‘(1) the species’’; and 

14 (6) in subsection (f)(1), in the first sentence of 

15 the matter preceding subparagraph (A), by striking 

16 ‘‘he finds’’ and inserting ‘‘the Secretary finds’’. 

17 (b) LAND ACQUISITION.—Section 5(a)(2) of the En18 dangered Species Act of 1973 (16 U.S.C. 1534(a)(2)) is 

19 amended by striking ‘‘in him’’ and inserting ‘‘in the Sec20 retary’’. 

21 (c) COOPERATION WITH STATES.—Section 6 of the 

22 Endangered Species Act of 1973 (16 U.S.C. 1535) is 

23 amended— 

24 (1) in subsection (c)— 


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1 (A) in paragraph (1), in the matter pre2 ceding subparagraph (A), by striking ‘‘he’’ each 

3 place it appears and inserting ‘‘the Secretary’’; 

4 and 

5 (B) in paragraph (2), in the matter pre6 ceding subparagraph (A), by striking ‘‘he’’ each 

7 place it appears and inserting ‘‘the Secretary’’; 

8 (2) in subsection (d)(2)— 

9 (A) by striking the paragraph designation 

10 and all that follows through ‘‘agreement; and’’ 

11 in clause (i) and inserting the following: 

12 ‘‘(2) COOPERATIVE AGREEMENT REQUIRE13 MENTS.— 

14 ‘‘(A) IN GENERAL.—A cooperative agree15 ment under this section shall include provisions 

16 relating to— 

17 ‘‘(i) the benefits expected to be de18 rived in connection with the conservation 

19 of each applicable endangered species or 

20 threatened species; 

21 ‘‘(ii) the actions to be carried out 

22 by— 

23 ‘‘(I) the Secretary; and 

24 ‘‘(II) each applicable State; 


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1 ‘‘(iii) the estimated cost of the actions 

2 described in clause (ii); and 

3 ‘‘(iv) subject to subparagraph (B), the 

4 Federal and non-Federal shares of those 

5 costs. 

6 ‘‘(B) FEDERAL SHARE.—In establishing 

7 the provisions required under subparagraph 

8 (A)(iv), the Secretary shall ensure that— 

9 ‘‘(i) the Federal share of the applica10 ble program costs shall not exceed 75 per11 cent of the estimated program cost, as 

12 stated in the cooperative agreement; but’’; 

13 and 

14 (B) in the undesignated matter following 

15 clause (ii) of subparagraph (B) (as so des16 ignated)— 

17 (i) in the second sentence— 

18 (I) by striking ‘‘Secretary, whose 

19 decision’’ and inserting the following: 

20 ‘‘Secretary. 

21 ‘‘(II) TREATMENT OF DETER22 MINATION.—A determination of the 

23 Secretary pursuant to subclause (I)’’; 

24 and 


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1 (II) by striking ‘‘For the pur2 poses’’ and inserting the following: 

3 ‘‘(ii) FORM OF NON-FEDERAL

4 SHARE.— 

5 ‘‘(I) IN GENERAL.—For pur6 poses’’; and 

7 (ii) in the first sentence, by striking 

8 ‘‘The Secretary may, in his discretion, and 

9 under such rules and regulations as he 

10 may prescribe, advance’’ and inserting the 

11 following: 

12 ‘‘(C) NON-FEDERAL SHARE.— 

13 ‘‘(i) IN GENERAL.—At the discretion 

14 of the Secretary, the Secretary, by regula15 tion, may advance’’; 

16 (3) in subsection (e), by striking ‘‘his periodic 

17 review’’ and inserting ‘‘periodic review by the Sec18 retary’’; and 

19 (4) in subsection (g)(2)(B)(ii), in the first sen20 tence, by striking ‘‘applies such prohibition after he 

21 finds, and publishes his finding, that’’ and inserting 

22 ‘‘applies the prohibition after publishing a deter23 mination by the Secretary that’’. 


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1 (d) INTERAGENCY COOPERATION.—Section 7 of the 

2 Endangered Species Act of 1973 (16 U.S.C. 1536) is 

3 amended— 

4 (1) in subsection (a)— 

5 (A) in paragraph (1), in the first sentence, 

6 by striking ‘‘administered by him and utilize 

7 such’’ and inserting ‘‘administered by the Sec8 retary, and use those’’; and 

9 (B) in paragraph (3), by striking ‘‘his 

10 project’’ and inserting ‘‘the project of the appli11 cant’’; 

12 (2) in subsection (b)(3)(A), in the second sen13 tence, by striking ‘‘which he’’ and inserting ‘‘that 

14 the Secretary’’; and 

15 (3) in subsection (g)— 

16 (A) in paragraph (4), by striking ‘‘require17 ments set forth in paragraph (3)(A) (i), (ii) and 

18 (iii) he shall, in consultation with the Members 

19 of the Committee, hold’’ and inserting ‘‘require20 ments under clauses (i), (ii), and (iii) of para21 graph (3)(A), the Secretary, in consultation 

22 with the Committee, shall hold’’; and 

23 (B) in paragraph (7), by striking ‘‘such 

24 agency to the Secretary to assist him in car25 rying out his duties under’’ and inserting ‘‘the 


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1 Federal agency to the Secretary to assist the 

2 Secretary in carrying out’’. 

3 (e) INTERNATIONAL COOPERATION.—Section 8 of 

4 the Endangered Species Act of 1973 (16 U.S.C. 1537) 

5 is amended— 

6 (1) in subsection (a), in the second sentence, by 

7 striking ‘‘he deems’’ and inserting ‘‘the President 

8 determines to be’’; 

9 (2) in subsection (b)(3), by striking ‘‘as he’’ 

10 and inserting ‘‘as the Secretary’’; 

11 (3) in subsection (c)(1), by striking ‘‘his depart12 ment’’ and inserting ‘‘the Department of the Sec13 retary’’; and 

14 (4) in subsection (d), by striking ‘‘he deems’’ 

15 and inserting ‘‘the Secretary determines to be’’. 

16 (f) CONVENTION IMPLEMENTATION.—Section 

17 8A(c)(2) of the Endangered Species Act of 1973 (16 

18 U.S.C. 1537a(c)(2)) is amended by striking ‘‘by him’’ and 

19 inserting ‘‘by the Secretary’’. 

20 (g) PROHIBITED ACTS.—Section 9 of the Endan21 gered Species Act of 1973 (16 U.S.C. 1538) is amended— 

22 (1) in subsection (d)(2)— 

23 (A) in subparagraph (A), by striking ‘‘by 

24 him’’ each place it appears and inserting ‘‘by 

25 the person’’; and 


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1 (B) in subparagraph (B), by striking ‘‘his 

2 place of business, an opportunity to examine his 

3 inventory’’ and inserting ‘‘the place of business 

4 of the person, an opportunity to examine the in5 ventory of the person’’; and 

6 (2) in subsection (f)(1), in the third sentence— 

7 (A) by striking ‘‘as he’’ and inserting ‘‘as 

8 the Secretary’’; and 

9 (B) by striking ‘‘if, in his discretion, he 

10 deems it’’ and inserting ‘‘as the Secretary de11 termines to be’’. 

12 (h) EXCEPTIONS.—Section 10 of the Endangered 

13 Species Act of 1973 (16 U.S.C. 1539) is amended— 

14 (1) in subsection (a), by striking ‘‘he’’ each 

15 place it appears and inserting ‘‘the Secretary’’; 

16 (2) in subsection (b)— 

17 (A) in paragraph (1), by striking ‘‘applies 

18 to him’’ and inserting ‘‘submits to the Secretary 

19 an application’’; and 

20 (B) in paragraph (3)— 

21 (i) in the first sentence, by striking 

22 ‘‘as he deems fit’’ and inserting ‘‘as the 

23 Secretary determines to be appropriate’’; 

24 and 


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1 (ii) in the second sentence, by striking 

2 ‘‘in his discretion’’; 

3 (3) in subsection (d)— 

4 (A) by striking ‘‘such endangered species, 

5 and (3) will’’ and inserting the following: ‘‘an 

6 endangered species; and 

7 ‘‘(3) will’’; 

8 (B) by striking ‘‘faith, (2) if granted and 

9 exercised’’ and inserting the following: ‘‘faith; 

10 ‘‘(2) if granted and exercised,’’; and 

11 (C) by striking ‘‘and (b) of this section 

12 only if he finds and publishes his finding in the 

13 Federal Register that (1) such’’ and inserting 

14 the following: ‘‘and (b) only if the Secretary 

15 publishes in the Federal Register a determina16 tion by the Secretary that— 

17 ‘‘(1) the’’; 

18 (4) in subsection (e)(4), in the first sentence— 

19 (A) by striking ‘‘the provisions of para20 graph (1) of this subsection, whenever’’ and in21 serting ‘‘paragraph (1), in any case in which’’; 

22 and 

23 (B) by striking ‘‘he may’’ and inserting 

24 ‘‘the Secretary may’’; and 


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1 (5) in subsection (f), by striking ‘‘he’’ each 

2 place it appears and inserting ‘‘the Secretary’’. 

3 (i) PENALTIES AND ENFORCEMENT.—Section 11 of 

4 the Endangered Species Act of 1973 (16 U.S.C. 1540) 

5 is amended— 

6 (1) in subsection (a)— 

7 (A) in paragraph (1), in the eighth sen8 tence, by striking ‘‘his action’’ and inserting 

9 ‘‘the action of the Secretary’’; and 

10 (B) in paragraph (3), by striking ‘‘that 

11 he’’ and inserting ‘‘that the defendant’’; 

12 (2) in subsection (b)(3), by striking ‘‘that he’’ 

13 and inserting ‘‘that the defendant’’; 

14 (3) in subsection (d), in the third sentence, by 

15 striking ‘‘his official duties’’ and inserting ‘‘an offi16 cial duty’’; 

17 (4) in subsection (e)— 

18 (A) in paragraph (3), in the second sen19 tence, by striking ‘‘Such persons may make ar20 rests without a warrant for any violation of this 

21 Act if he has reasonable grounds to believe that 

22 the person to be arrested is committing the vio23 lation in his presence or view’’ and inserting 

24 ‘‘An authorized person described in this para25 graph may make an arrest without a warrant 


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1 for any violation of this Act, if the authorized 

2 person has reasonable grounds to believe that 

3 the individual to be arrested is committing the 

4 violation in the presence or view of the author5 ized person’’; and 

6 (B) in paragraph (5), by striking ‘‘the Sec7 retary or by such persons as he may designate’’ 

8 and inserting ‘‘the Secretary (or a designee)’’; 

9 and 

10 (5) in subsection (g)(1), in the matter pre11 ceding subparagraph (A), by striking ‘‘his own be12 half’’ and inserting ‘‘behalf of the person’’. 

13 (j) EXEMPTIONS FROM ACT.—Section 15(b) of the 

14 Endangered Species Act of 1973 (16 U.S.C. 1542(b)) is 

15 amended by striking ‘‘to assist him and the Endangered 

16 Species Committee in carrying out their functions under 

17 sections 7 (e), (g), and (h)’’ and inserting ‘‘to assist the 

18 Secretary and the Endangered Species Committee in car19 rying out subsections (e), (g), and (h) of section 7’’. 

20 TITLE II—ENHANCING THE FED21 ERAL-STATE CONSERVATION 

22 PARTNERSHIP 

23 SEC. 201. DEFINITIONS. 

24 (a) IN GENERAL.—Section 3 of the Endangered Spe25 cies Act of 1973 (16 U.S.C. 1532) is amended— 


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1 (1) by striking the section designation and 

2 heading and all that follows through ‘‘purposes of 

3 this Act—’’ in the matter preceding paragraph (1) 

4 and inserting the following: 

5 ‘‘SEC. 3. DEFINITIONS. 

6 ‘‘In this Act:’’; 

7 (2) by redesignating paragraphs (1), (2) 

8 through (4), (5), (6) through (9), (10), (12) through 

9 (14), and (15) through (21) as paragraphs (2), (4) 

10 through (6), (8), (10) through (13), (15), (17) 

11 through (19), and (22) through (28), respectively; 

12 (3) by inserting before paragraph (2) (as so re13 designated) the following: 

14 ‘‘(1) AFFECTED PARTY.—The term ‘affected 

15 party’ means any unit of State, Tribal, or local gov16 ernment the rights of which may be affected by a 

17 determination made under section 4(a) in an action 

18 brought under section 11(g)(1)(C), including prop19 erty rights.’’; 

20 (4) by inserting after paragraph (2) (as so re21 designated) the following: 

22 ‘‘(3) APPROPRIATELY QUALIFIED SCIENTIST OR

23 OTHER QUALIFIED PERSON.—The term ‘appro24 priately qualified scientist or other qualified per25 son’— 


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1 ‘‘(A) has the meaning given the term by 

2 the Secretary in the rulemaking under section 

3 201(c)(2) of the Endangered Species Act 

4 Amendments of 2020; and 

5 ‘‘(B) includes a person with, at a min6 imum, expertise regarding a species, closer rel7 atives of a species, or the ecosystem on which 

8 a species depends.’’; 

9 (5) by inserting after paragraph (6) (as so re10 designated) the following: 

11 ‘‘(7) COVERED SETTLEMENT.—The term ‘cov12 ered settlement’ means a consent decree or a settle13 ment agreement in an action brought under section 

14 11(g)(1)(C).’’; 

15 (6) by inserting after paragraph (8) (as so re16 designated) the following: 

17 ‘‘(9) ELIGIBLE STATE AGENCY.—The term ‘eli18 gible State agency’— 

19 ‘‘(A) has the meaning given the term by 

20 the Secretary in the rulemaking under section 

21 201(c)(2) of the Endangered Species Act 

22 Amendments of 2020; and 

23 ‘‘(B) means a State agency of an impacted 

24 State that, at a minimum, demonstrates ade25 quate authority and capability to develop and 


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1 implement recovery plans and implementation 

2 plans, as applicable.’’; 

3 (7) by inserting after paragraph (13) (as so re4 designated) the following: 

5 ‘‘(14) IMPACTED STATE.—The term ‘impacted 

6 State’, with respect to a threatened species or en7 dangered species, means any State in which the 

8 threatened species or endangered species, as applica9 ble, is believed to occur.’’; 

10 (8) by inserting after paragraph (15) (as so re11 designated) the following: 

12 ‘‘(16) PARTY WITH A DIRECT INTEREST IN THE

13 LAND IN WHICH THE RELEVANT SPECIES IS BE14 LIEVED TO OCCUR.—The term ‘party with a direct 

15 interest in the land in which the relevant species is 

16 believed to occur’— 

17 ‘‘(A) has the meaning given the term by 

18 the Secretary in the rulemaking under section 

19 201(c)(2) of the Endangered Species Act 

20 Amendments of 2020; and 

21 ‘‘(B) includes— 

22 ‘‘(i) if a recovery team is established, 

23 each member of the recovery team; 

24 ‘‘(ii) if a recovery team is not estab25 lished, appropriately qualified scientists 


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1 and other qualified people who conduct the 

2 development of a recovery plan; and 

3 ‘‘(iii) parties who— 

4 ‘‘(I) own, lease, or otherwise hold 

5 a legal interest in land in which the 

6 relevant species is believed to occur; 

7 ‘‘(II) operate agricultural, en8 ergy, natural resource extraction, or 

9 other productive activities on the land 

10 in which the relevant species is be11 lieved to occur; and 

12 ‘‘(III) conduct land, habitat, and 

13 conservation activities on the land in 

14 which the relevant species is believed 

15 to occur.’’; and 

16 (9) by inserting after paragraph (19) (as so re17 designated) the following: 

18 ‘‘(20) RECOVERY PLAN.—The term ‘recovery 

19 plan’ means a plan for the conservation and recovery 

20 of a threatened species or an endangered species 

21 that— 

22 ‘‘(A) incorporates the best scientific and 

23 commercial data available; and 


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1 ‘‘(B) includes a description of the criteria 

2 and measures that will be used to monitor im3 plementation. 

4 ‘‘(21) RECOVERY TEAM.—The term ‘recovery 

5 team’ means a team established by the Secretary 

6 under section 4(f)(5)(B) for the purpose of devel7 oping, implementing, monitoring, and revising a re8 covery plan.’’. 

9 (b) CONFORMING AMENDMENTS.— 

10 (1) Section 4(b) of the Endangered Species Act 

11 of 1973 (16 U.S.C. 1533(b)) is amended— 

12 (A) in paragraph (2), in the first sentence, 

13 by inserting ‘‘and commercial’’ after ‘‘sci14 entific’’; and 

15 (B) in paragraph (7), in the third sentence 

16 of the undesignated matter following subpara17 graph (B), by striking ‘‘best appropriate data 

18 available to him’’ and inserting ‘‘best scientific 

19 and commercial data available’’. 

20 (2) Section 7(n) of the Endangered Species Act 

21 of 1973 (16 U.S.C. 1536(n)) is amended, in the first 

22 sentence, by striking ‘‘, as defined by section 3(13) 

23 of this Act,’’. 

24 (3) Section 10(j)(2)(B) of the Endangered Spe25 cies Act of 1973 (16 U.S.C. 1539(j)(2)(B)) is 


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1 amended by striking ‘‘best available information’’ 

2 and inserting ‘‘best scientific and commercial data 

3 available’’. 

4 (c) DEFINITION REGULATIONS.— 

5 (1) SENSE OF CONGRESS.—It is the sense of 

6 Congress that, for purposes of the Endangered Spe7 cies Act of 1973 (16 U.S.C. 1531 et seq.)— 

8 (A) any comment submitted to the Sec9 retary of the Interior by a State (as defined in 

10 section 3 of that Act (16 U.S.C. 1532)) should 

11 be afforded full and fair consideration by the 

12 Secretary; and 

13 (B) consultation with States to the max14 imum extent possible, as required by that Act 

15 (as amended by this Act), should be subject to 

16 a higher standard than the ‘‘maximum extent 

17 practicable’’ consultation standard in effect on 

18 the day before the date of enactment of this 

19 Act. 

20 (2) REGULATIONS.—Not later than 180 days 

21 after the date of enactment of this Act, the Sec22 retary of the Interior and the Secretary of Com23 merce shall initiate a rulemaking to define, for pur24 poses of the Endangered Species Act of 1973 (16 

25 U.S.C. 1531 et seq.)— 


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1 (A) the term ‘‘full and fair consideration’’, 

2 in accordance with the sense of Congress ex3 pressed in paragraph (1)(A); 

4 (B) the term ‘‘maximum extent possible’’, 

5 with respect to consultation with States, in ac6 cordance with the sense of Congress expressed 

7 in paragraph (1)(B); and 

8 (C) the terms ‘‘appropriately qualified sci9 entist or other qualified person’’, ‘‘eligible State 

10 agency’’, and ‘‘party with a direct interest in 

11 the land in which the relevant species is be12 lieved to occur’’, in accordance with section 3 of 

13 that Act (16 U.S.C. 1532) (as amended by sub14 section (a)). 

15 SEC. 202. STATE-FEDERAL CONSULTATION RELATING TO 

16 CONSERVATION AND RECOVERY OF WILD17 LIFE. 

18 (a) FINDINGS, PURPOSES, AND POLICY.—Section 2 

19 of the Endangered Species Act of 1973 (16 U.S.C. 1531) 

20 is amended— 

21 (1) in subsection (a)— 

22 (A) by redesignating paragraphs (4) and 

23 (5) as paragraphs (5) and (6), respectively; and 

24 (B) by inserting after paragraph (3) the 

25 following: 


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1 ‘‘(4) the States possess broad police powers and 

2 authorities for the conservation and management of 

3 fish and wildlife within State borders;’’; and 

4 (2) in subsection (c)— 

5 (A) by striking the subsection designation 

6 and heading and all that follows through ‘‘that 

7 all Federal’’ in paragraph (1) and inserting the 

8 following: 

9 ‘‘(c) POLICY.—It is the policy of Congress that— 

10 ‘‘(1) all Federal’’; 

11 (B) in paragraph (1), by striking the pe12 riod at the end and inserting a semicolon; 

13 (C) in paragraph (2)— 

14 (i) by striking the period at the end 

15 and inserting ‘‘; and’’; and 

16 (ii) by striking the paragraph designa17 tion and all that follows through ‘‘that 

18 Federal agencies’’ and inserting the fol19 lowing: 

20 ‘‘(3) Federal agencies’’; 

21 (D) by inserting before paragraph (3) (as 

22 so redesignated) the following: 

23 ‘‘(2) the Federal agency authority for conserva24 tion and management of fish and wildlife authorized 

25 by this Act should be exercised in conjunction with 


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1 the existing authorities of the States for the con2 servation and management of fish and wildlife;’’; 

3 and 

4 (E) by adding at the end the following: 

5 ‘‘(4) Congress supports conservation actions to 

6 preclude the need to list species as threatened spe7 cies or endangered species under this Act.’’. 

8 (b) ACTION ON RECEIPT OF PETITION TO LIST.— 

9 Section 4(b)(3)(A) of the Endangered Species Act of 1973 

10 (16 U.S.C. 1533(b)(3)(A)) is amended— 

11 (1) in the third sentence, by striking ‘‘The Sec12 retary’’ and inserting the following: 

13 ‘‘(iii) PUBLICATION OF FINDINGS.— 

14 The Secretary’’; 

15 (2) in the second sentence, by striking ‘‘If such 

16 a petition is found to present such information’’ and 

17 inserting the following: 

18 ‘‘(ii) REVIEW OF SPECIES STATUS.—If 

19 a petition under clause (i) is found to 

20 present the information described in that 

21 clause’’; 

22 (3) by striking ‘‘(3)(A) To’’ and inserting the 

23 following: 

24 ‘‘(3) PETITIONS FROM INTERESTED PER25 SONS.— 


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1 ‘‘(A) ACTION BY SECRETARY.— 

2 ‘‘(i) IN GENERAL.—To’’; and 

3 (4) by adding at the end the following: 

4 ‘‘(iv) NOTIFICATION TO STATES AND

5 INDIAN TRIBES.— 

6 ‘‘(I) IN GENERAL.—If a petition 

7 is filed under clause (i), the Secretary 

8 shall— 

9 ‘‘(aa) not later than 15 days 

10 after the date of receipt of the 

11 petition— 

12 ‘‘(AA) provide to the 

13 Governor and the State 

14 agency of each impacted 

15 State and to each Indian 

16 Tribe with jurisdiction over 

17 land in which the species 

18 covered by the petition is be19 lieved to occur, a notification 

20 of receipt of the petition and 

21 a copy of the petition; and 

22 ‘‘(BB) make a copy of 

23 the petition publicly avail24 able on the internet; and 


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1 ‘‘(bb) solicit comments from 

2 the Governor, State agency, and 

3 Indian Tribe, as applicable, to be 

4 submitted to the Secretary by not 

5 later than the date that is 60 

6 days after the date of receipt of 

7 the notification, regarding wheth8 er the petitioned action may be 

9 warranted. 

10 ‘‘(II) CONSIDERATION OF STATE

11 AND TRIBAL COMMENTS.—Before the 

12 date of publication under this sub13 paragraph of a determination that a 

14 petitioned action may be warranted, 

15 the Secretary shall give full and fair 

16 consideration to any State or Tribal 

17 comments submitted by the deadline 

18 described in subclause (I)(bb).’’. 

19 (c) STATE AND TRIBAL PARTICIPATION IN REGU20 LATORY PROCESS.—Section 4 of the Endangered Species 

21 Act of 1973 (16 U.S.C. 1533) is amended— 

22 (1) in subsection (b)— 

23 (A) in paragraph (5)(A)— 

24 (i) in clause (i), by striking ‘‘, and’’ at 

25 the end and inserting ‘‘; and’’; and 


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1 (ii) in clause (ii)— 

2 (I) by striking ‘‘give’’ and insert3 ing ‘‘provide’’; 

4 (II) by striking ‘‘to the State 

5 agency in each State’’ and inserting 

6 the following: ‘‘to, and invite the com7 ment of— 

8 ‘‘(I) the Governor and the State 

9 agency of each impacted State; 

10 ‘‘(II) each Indian Tribe with ju11 risdiction over land’’; 

12 (III) in subclause (II) (as so des13 ignated), by striking ‘‘occur, and to 

14 each’’ and inserting the following: 

15 ‘‘occur; and 

16 ‘‘(III) each’’; and 

17 (IV) in subclause (III) (as so 

18 designated), by striking ‘‘occur, and 

19 invite’’ and all that follows through 

20 the semicolon at the end and inserting 

21 ‘‘occur;’’; and 

22 (B) in paragraph (7)(B), by striking ‘‘the 

23 State agency in each State in which such spe24 cies’’ and inserting ‘‘the Governor and State 

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1 dian Tribe with jurisdiction over land in which 

2 the species’’; and 

3 (2) by striking subsection (i) and inserting the 

4 following: 

5 ‘‘(i) JURISDICTION.—If, in the case of 

6 any regulation proposed by the Secretary 

7 pursuant to this section, a Governor, State 

8 agency, or Indian Tribe to which a notice 

9 of the proposed regulation was provided 

10 under subsection (b)(5)(A)(ii) or section 

11 6(a)(2)(C) submits to the Secretary com12 ments disagreeing with all or part of the 

13 proposed regulation, and the Secretary 

14 issues a final regulation that is in conflict 

15 with those comments, or if the Secretary 

16 fails to adopt a regulation pursuant to an 

17 action petitioned by a Governor, State 

18 agency, or Indian Tribe under subsection 

19 (b)(3), the Secretary shall submit to the 

20 Governor, State agency, or Indian Tribe a 

21 written justification for the failure to adopt 

22 regulations consistent with the relevant 

23 comments or petition.’’. 


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1 SEC. 203. RECOVERY OF THREATENED AND ENDANGERED 

2 SPECIES. 

3 (a) IN GENERAL.—Section 4(a) of the Endangered 

4 Species Act of 1973 (16 U.S.C. 1533(a)) is amended— 

5 (1) by striking the subsection designation and 

6 heading and all that follows through ‘‘The Sec7 retary’’ in paragraph (1) and inserting the following: 

8 ‘‘(a) DETERMINATION BY SECRETARY.— 

9 ‘‘(1) IN GENERAL.—The Secretary’’; 

10 (2) in paragraph (1)— 

11 (A) in each of subparagraphs (A) through 

12 (C), by striking the semicolon at the end of the 

13 subparagraph and inserting a period; 

14 (B) in subparagraph (A), by striking ‘‘(A) 

15 the’’ and inserting the following: 

16 ‘‘(A) The’’; 

17 (C) in subparagraph (B), by striking ‘‘(B) 

18 overutilization’’ and inserting the following: 

19 ‘‘(B) Overutilization’’; 

20 (D) in subparagraph (C), by striking ‘‘(C) 

21 disease’’ and inserting the following: 

22 ‘‘(C) Disease’’; 

23 (E) in subparagraph (D)— 

24 (i) by striking ‘‘(D) the’’ and inserting 

25 the following: 

26 ‘‘(D) The’’; and 


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1 (ii) by striking ‘‘; or’’ at the end and 

2 inserting a period; and 

3 (F) in subparagraph (E), by striking ‘‘(E) 

4 other’’ and inserting the following: 

5 ‘‘(E) Other’’; and 

6 (3) by adding at the end the following: 

7 ‘‘(4) RECOVERY GOALS.— 

8 ‘‘(A) IN GENERAL.—The Secretary shall 

9 initiate a status review to determine whether to 

10 delist or downlist, as applicable, a threatened 

11 species or endangered species in accordance 

12 with paragraph (5) if the species achieves the 

13 recovery goals described in the recovery plan for 

14 the species, which shall include criteria estab15 lished by the Secretary, in consultation with im16 pacted States. 

17 ‘‘(B) REQUIREMENTS.—The recovery goals 

18 required under subparagraph (A) shall— 

19 ‘‘(i) be based on the best scientific 

20 and commercial data available, including 

21 all information taken into consideration in 

22 the determination to list an applicable spe23 cies; and 


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1 ‘‘(ii) to the maximum extent prac2 ticable, be expressed using objective and 

3 measurable biological criteria. 

4 ‘‘(C) MODIFICATIONS.— 

5 ‘‘(i) IN GENERAL.—With the agreement of, at a minimum, 3 6 ⁄4 of the rep7 resentatives of State agencies from each 

8 impacted State participating as members 

9 of a recovery team, the recovery team may 

10 propose to the Secretary a modification of 

11 a recovery goal required under this para12 graph based on new science, new tech13 nology, new management practices, new re14 sources, or any other development that ma15 terially changes the underlying best sci16 entific and commercial data available based 

17 on which the goal was established. 

18 ‘‘(ii) APPROVAL BY SECRETARY.—Not 

19 later than 90 days after the Secretary re20 ceives a proposed modification under 

21 clause (i), the Secretary shall— 

22 ‘‘(I) approve the proposed modi23 fication; or 

24 ‘‘(II) reject the proposed modi25 fication. 


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1 ‘‘(iii) EXPLANATION.—If the Sec2 retary rejects a proposed modification 

3 under clause (ii)(II), the Secretary shall 

4 provide a detailed, comprehensive, written 

5 explanation of the rejection to— 

6 ‘‘(I) the recovery team for the 

7 species, if applicable; 

8 ‘‘(II) each applicable State agen9 cy of an impacted State; 

10 ‘‘(III) the Committees on Appro11 priations and Environment and Public 

12 Works of the Senate; and 

13 ‘‘(IV) the Committees on Appro14 priations and Natural Resources of 

15 the House of Representatives. 

16 ‘‘(iv) NO NOTICE AND COMMENT RE17 QUIRED.—Section 553 of title 5, United 

18 States Code, shall not apply to a modifica19 tion approved by the Secretary under 

20 clause (ii)(I). 

21 ‘‘(v) MODIFICATIONS NOT PROPOSED

22 BY A RECOVERY TEAM.— 

23 ‘‘(I) MODIFICATIONS BY THE

24 SECRETARY.—Subject to subclauses 

25 (II) and (III), if a recovery team for 


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1 a threatened species or endangered 

2 species does not propose a modifica3 tion under this subparagraph, the 

4 Secretary may modify a recovery goal 

5 based on— 

6 ‘‘(aa) new science; 

7 ‘‘(bb) new technology; 

8 ‘‘(cc) new management prac9 tices; 

10 ‘‘(dd) new resources; or 

11 ‘‘(ee) any other development 

12 that materially changes the un13 derlying best scientific and com14 mercial data available under 

15 which the recovery goal was es16 tablished. 

17 ‘‘(II) EXPLANATION.—Before 

18 making a modification under sub19 clause (I), the Secretary shall provide 

20 a detailed, comprehensive, written ex21 planation of the proposal to— 

22 ‘‘(aa) the recovery team for 

23 the species; 

24 ‘‘(bb) each applicable State 

25 agency of an impacted State; 


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1 ‘‘(cc) the Committees on Ap2 propriations and Environment 

3 and Public Works of the Senate; 

4 and 

5 ‘‘(dd) the Committees on 

6 Appropriations and Natural Re7 sources of the House of Rep8 resentatives. 

9 ‘‘(III) TIMING.—The Secretary 

10 may not make a modification under 

11 subclause (I) less than 30 days after 

12 the date on which the Secretary pro13 vides the explanation under subclause 

14 (II). 

15 ‘‘(IV) NO RECOVERY TEAM.—If 

16 there is no recovery team established 

17 for a threatened species or endan18 gered species, the Secretary may mod19 ify a recovery goal based on any of 

20 the factors described in items (aa) 

21 through (ee) of subclause (I). 

22 ‘‘(D) EFFECT.—Nothing in this paragraph 

23 requires a recovery goal to be achieved in order 

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1 ened species or endangered species under this 

2 section.’’. 

3 (b) RECOVERY AND IMPLEMENTATION.—Section 4(f) 

4 of the Endangered Species Act of 1973 (16 U.S.C. 

5 1533(f)) is amended— 

6 (1) in paragraph (1)— 

7 (A) in subparagraph (B), by redesignating 

8 clauses (i) through (iii) as subclauses (I) 

9 through (III), respectively, and indenting the 

10 subclauses appropriately; 

11 (B) by redesignating subparagraphs (A) 

12 and (B) as clauses (i) and (ii), respectively, and 

13 indenting the clauses appropriately; 

14 (C) in the matter preceding clause (i) (as 

15 so redesignated), in the second sentence, by 

16 striking ‘‘in developing and implementing’’ and 

17 inserting ‘‘in ensuring the development of’’; and 

18 (D) by adding at the end the following: 

19 ‘‘(B) PARTICIPANTS.—The Secretary shall 

20 ensure that the development of a recovery 

21 plan— 

22 ‘‘(i) is conducted by appropriately 

23 qualified scientists and other qualified peo24 ple, including representatives of— 


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1 ‘‘(I) the United States Fish and 

2 Wildlife Service or the National Ma3 rine Fisheries Service, as applicable; 

4 ‘‘(II) other relevant Federal land 

5 and wildlife management agencies; 

6 ‘‘(III) the State agency from 

7 each impacted State; 

8 ‘‘(IV) other relevant State and 

9 local land, natural resources, water, 

10 and wildlife management agencies 

11 from each impacted State; and 

12 ‘‘(V) relevant Indian Tribes, or 

13 Tribal land, natural resources, water, 

14 and wildlife management agencies, 

15 that have management authority over 

16 land in which the relevant species is 

17 believed to occur; and 

18 ‘‘(ii) may be informed by feedback 

19 from parties with a direct interest in the 

20 land in which the relevant species is be21 lieved to occur, including, as applicable, 

22 those parties described in paragraph 

23 (2)(C), specifically with regard to any 

24 practical consideration affecting the imple25 mentation of a recovery plan.’’; 


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1 (2) by striking the subsection designation and 

2 heading and all that follows through ‘‘ ‘recovery 

3 plans’)’’ and inserting the following: 

4 ‘‘(f) RECOVERY AND IMPLEMENTATION.— 

5 ‘‘(1) RECOVERY PLANS.— 

6 ‘‘(A) IN GENERAL.—The Secretary shall 

7 ensure the development of recovery plans’’; 

8 (3) in paragraph (2)— 

9 (A) in the first sentence, by striking ‘‘in 

10 developing and implementing’’ and inserting ‘‘in 

11 ensuring the development of’’; and 

12 (B) by striking the second sentence; 

13 (4) in paragraph (3), by striking ‘‘Committee 

14 on Merchant Marine and Fisheries’’ and inserting 

15 ‘‘Committee on Natural Resources’’; 

16 (5) in paragraph (5), by striking ‘‘paragraph 

17 (4)’’ and inserting ‘‘subparagraph (E)’’; 

18 (6) by redesignating paragraphs (2) through 

19 (5) as subparagraphs (C) through (F), respectively, 

20 and indenting the subparagraphs appropriately; and 

21 (7) by adding at the end the following: 

22 ‘‘(2) IMPLEMENTATION PLANS.— 

23 ‘‘(A) IN GENERAL.—The Secretary shall 

24 ensure the development of implementation plans 

25 for the purpose of implementing recovery plans 


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1 established under paragraph (1) for the con2 servation and survival of endangered species 

3 and threatened species listed pursuant to this 

4 section, unless the Secretary finds that such an 

5 implementation plan will not promote the con6 servation of the species. 

7 ‘‘(B) REQUIREMENTS.—The Secretary, in 

8 ensuring the development of an implementation 

9 plan, shall, to the maximum extent prac10 ticable— 

11 ‘‘(i) give priority to the endangered 

12 species or threatened species, without re13 gard to taxonomic classification, that are 

14 most likely to benefit from the implementa15 tion plan, particularly species that are, or 

16 may be, in conflict with construction or 

17 other development projects or other forms 

18 of economic activity; 

19 ‘‘(ii) incorporate into the implementa20 tion plan— 

21 ‘‘(I) a description of such site22 specific management actions as may 

23 be necessary to achieve the goal of the 

24 implementation plan for the conserva25 tion and survival of the species; 


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1 ‘‘(II) a description of such re2 search, captive propagation, or experi3 mental actions as may be necessary to 

4 achieve the goal of the implementation 

5 plan for the conservation and survival 

6 of the species; 

7 ‘‘(III) a description of such habi8 tat protection or conservation actions 

9 as may be necessary to achieve the 

10 goal of the implementation plan for 

11 the conservation and survival of the 

12 species; and 

13 ‘‘(IV) a description of any other 

14 actions as may be necessary to achieve 

15 the goal of the implementation plan 

16 for the conservation and survival of 

17 the species; and 

18 ‘‘(iii) provide estimates of the time re19 quired and the cost to carry out the meas20 ures needed to achieve the goal of the im21 plementation plan and to achieve inter22 mediate steps towards that goal. 

23 ‘‘(C) PARTICIPANTS.—The Secretary shall 

24 ensure that the development of an implementa25 tion plan is conducted by parties with a direct 


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1 interest in the land in which the relevant spe2 cies is believed to occur, including— 

3 ‘‘(i) appropriately qualified scientists 

4 and other qualified people who conduct the 

5 development of a recovery plan under para6 graph (1); and 

7 ‘‘(ii) as applicable, representatives 

8 of— 

9 ‘‘(I) private and public land10 owners; 

11 ‘‘(II) agricultural production; 

12 ‘‘(III) energy production; 

13 ‘‘(IV) natural resource com14 modity groups and user industries; 

15 ‘‘(V) homebuilders; 

16 ‘‘(VI) water resources groups; 

17 ‘‘(VII) outdoor recreation groups; 

18 ‘‘(VIII) environmental groups; 

19 and 

20 ‘‘(IX) land, habitat, and wildlife 

21 conservation groups. 

22 ‘‘(D) MODIFICATIONS.—The eligible State 

23 agency that is designated by the Secretary as 

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1 mentation plan as frequently as appropriate to 

2 reflect changes in species conservation status, 

3 conservation opportunities, new research, and 

4 changes to the best scientific and commercial 

5 data available regarding conservation strategies. 

6 ‘‘(E) NO NOTICE AND COMMENT RE7 QUIRED.—Section 553 of title 5, United States 

8 Code, shall not apply to the development, 

9 amendment, or modification of an implementa10 tion plan. 

11 ‘‘(3) IMPLEMENTATION.—The Secretary shall 

12 ensure the timely implementation of, as applicable, 

13 a recovery plan established under paragraph (1) or 

14 an implementation plan established under paragraph 

15 (2). 

16 ‘‘(4) STATE LEADERSHIP.— 

17 ‘‘(A) IN GENERAL.—In carrying out this 

18 subsection— 

19 ‘‘(i) in accordance with subparagraphs 

20 (B) and (C), the Secretary shall provide to 

21 each impacted State the opportunity— 

22 ‘‘(I) to lead recovery planning, 

23 implementation planning, and imple24 mentation under paragraphs (1), (2), 

25 and (3), respectively; 


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1 ‘‘(II) to expedite threatened spe2 cies or endangered species recovery by 

3 supporting State-level initiatives and 

4 partnerships; and 

5 ‘‘(III) to increase flexibility and 

6 feasibility for the applicability of re7 covery plans under paragraph (1) and 

8 implementation plans under para9 graph (2); and 

10 ‘‘(ii) the Secretary shall— 

11 ‘‘(I) consult, to the maximum ex12 tent possible, with impacted States, 

13 including Governors, State agencies, 

14 and local land, natural resources, 

15 water, and wildlife management agen16 cies of impacted States; and 

17 ‘‘(II) give full and fair consider18 ation to any comments or rec19 ommendations received from an im20 pacted State. 

21 ‘‘(B) NO RECOVERY TEAM OR IMPLEMEN22 TATION TEAM ESTABLISHED.— 

23 ‘‘(i) IN GENERAL.—The Secretary, in 

24 consultation with the States, shall promul25 gate regulations governing a process by 


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1 which, in a case in which a recovery team 

2 or implementation team is not established 

3 for a threatened species or endangered spe4 cies under paragraph (5) or (6), respec5 tively, the Secretary shall provide to an eli6 gible State agency of an impacted State 

7 the opportunity— 

8 ‘‘(I) to develop a recovery plan 

9 under paragraph (1) or an implemen10 tation plan under paragraph (2), as 

11 applicable; and 

12 ‘‘(II) to implement that recovery 

13 plan or implementation plan, as appli14 cable. 

15 ‘‘(ii) REQUIREMENTS.—The regula16 tions promulgated under clause (i) shall in17 clude guidelines, criteria, and a process 

18 that— 

19 ‘‘(I) the Secretary shall follow 

20 when determining that— 

21 ‘‘(aa) a State agency shall 

22 be authorized as an eligible State 

23 agency; 

24 ‘‘(bb) an eligible State agen25 cy shall be designated as the 


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1 leader of the development of a re2 covery plan or implementation 

3 plan, as applicable, including in 

4 cases in which 2 or more eligible 

5 State agencies request to serve as 

6 the leader; 

7 ‘‘(cc) an eligible State agen8 cy shall be designated as the 

9 leader of the implementation of a 

10 recovery plan or implementation 

11 plan, as applicable, including in 

12 cases in which 2 or more eligible 

13 State agencies request to serve as 

14 the leader; and 

15 ‘‘(dd) the authorization of a 

16 State agency as an eligible State 

17 agency shall be withdrawn; 

18 ‘‘(II) an eligible State agency 

19 that is designated as the leader of— 

20 ‘‘(aa) the development of a 

21 recovery plan shall follow in 

22 order to cooperate with each im23 pacted State and participant de24 scribed in paragraph (1)(B); 


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1 ‘‘(bb) the development of an 

2 implementation plan shall follow 

3 in order to cooperate with each 

4 impacted State and participant 

5 described in paragraph (2)(C); or 

6 ‘‘(cc) the implementation of 

7 a recovery plan or implementa8 tion plan, as applicable, shall fol9 low in order to cooperate with 

10 each impacted State and partici11 pant described in paragraph 

12 (1)(B) or (2)(C), as applicable; 

13 ‘‘(III) the Secretary or a designee 

14 of the Secretary, in consultation with 

15 each impacted State, shall follow when 

16 serving as the leader of the develop17 ment of a recovery plan or implemen18 tation plan, as applicable, in any case 

19 in which— 

20 ‘‘(aa) no eligible State agen21 cy requests to serve as the leader; 

22 or 

23 ‘‘(bb) no eligible State agen24 cy is designated by the Secretary 

25 as the leader; and 


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1 ‘‘(IV) the Secretary or a designee 

2 of the Secretary, in consultation with 

3 each impacted State, shall follow when 

4 serving as the leader of the implemen5 tation of a recovery plan or implemen6 tation plan, as applicable, in any case 

7 in which— 

8 ‘‘(aa) no eligible State agen9 cy requests to serve as the leader; 

10 or 

11 ‘‘(bb) no eligible State agen12 cy is designated by the Secretary 

13 as the leader. 

14 ‘‘(C) RECOVERY TEAM OR IMPLEMENTA15 TION TEAM ESTABLISHED.— 

16 ‘‘(i) IN GENERAL.—In a case in which 

17 a recovery team or implementation team is 

18 established for a threatened species or en19 dangered species under paragraph (5) or 

20 (6), as applicable, the Secretary shall pro21 vide to each impacted State the oppor22 tunity to lead the recovery team or imple23 mentation team, as applicable. 

24 ‘‘(ii) RESPONSIBILITIES.—An im25 pacted State that leads a recovery team or 


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1 implementation team under clause (i) shall 

2 be responsible for— 

3 ‘‘(I) developing a recovery plan 

4 or implementation plan, as applicable; 

5 and 

6 ‘‘(II) implementing a recovery 

7 plan or implementation plan, as appli8 cable. 

9 ‘‘(5) RECOVERY TEAMS.— 

10 ‘‘(A) IN GENERAL.—If a species is in11 cluded on the list of threatened species or en12 dangered species under this section, an im13 pacted State may request the establishment of 

14 a recovery team with respect to the applicable 

15 threatened species or endangered species and 

16 shall submit that request to the Secretary. 

17 ‘‘(B) ESTABLISHMENT.—Not later than 

18 the deadline for the establishment of a recovery 

19 team in the schedule promulgated under para20 graph (8)(A)(i), the Secretary shall establish a 

21 science-based recovery team for the species, if— 

22 ‘‘(i) an impacted State, acting alone 

23 or in conjunction with another impacted 

24 State, submits to the Secretary a request 

25 to establish the recovery team; or 


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•S 4589 IS

1 ‘‘(ii) in the case of such a species with 

2 respect to which more than 1 impacted 

3 State exists, the Secretary determines that 

4 establishing a recovery team would pro5 mote the conservation and recovery of the 

6 species. 

7 ‘‘(C) MEMBERSHIP.— 

8 ‘‘(i) IN GENERAL.—The members of a 

9 recovery team— 

10 ‘‘(I) shall be appointed by the 

11 Secretary; 

12 ‘‘(II) shall be composed solely of 

13 appropriately qualified scientists and 

14 other qualified people; and 

15 ‘‘(III) shall include representa16 tives of— 

17 ‘‘(aa) the United States 

18 Fish and Wildlife Service or the 

19 National Marine Fisheries Serv20 ice, as applicable; 

21 ‘‘(bb) other relevant Federal 

22 land and wildlife management 

23 agencies; 

24 ‘‘(cc) the State agency from 

25 each impacted State, unless the 


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1 impacted State elects not to par2 ticipate in the recovery team; 

3 ‘‘(dd) other relevant State 

4 and local land, natural resources, 

5 water, and wildlife management 

6 agencies from each impacted 

7 State, nominated by the Gov8 ernor of the impacted State, un9 less the impacted State elects not 

10 to participate in the recovery 

11 team; and 

12 ‘‘(ee) relevant Indian Tribes, 

13 or Tribal land, natural resources, 

14 and wildlife management agen15 cies, that have management au16 thority over land in which the rel17 evant species is believed to occur, 

18 unless the Indian Tribe elects not 

19 to participate in the recovery 

20 team. 

21 ‘‘(ii) COMPOSITION.— 

22 ‘‘(I) IN GENERAL.—The Sec23 retary, in consultation with the 

24 States, shall promulgate regulations 


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1 governing the composition of a recov2 ery team, including— 

3 ‘‘(aa) criteria that the Sec4 retary shall follow when deter5 mining the number of members 

6 of a recovery team, including the 

7 number of representatives of each 

8 of the Federal Government, par9 ticipating State governments, and 

10 other appropriately qualified sci11 entists and other qualified people, 

12 which shall be reasonably bal13 anced; 

14 ‘‘(bb) a process by which the 

15 Secretary shall fill a vacancy on 

16 the recovery team; and 

17 ‘‘(cc) a quorum requirement 

18 that a recovery team shall meet 

19 in order to conduct business that 

20 requires, at a minimum, the presence of 1 21 ⁄3 of the representatives 

22 of the State agencies from par23 ticipating impacted States. 

24 ‘‘(iii) LEADERSHIP.—The Secretary, 

25 in consultation with the States, shall proVerDate Sep 11 2014 18:13 Sep 23, 2020 Jkt 099200 PO 00000 Frm 00050 Fmt 6652 Sfmt 6201 E:\BILLS\S4589.IS S4589

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1 mulgate regulations governing the leader2 ship of a recovery team, including— 

3 ‘‘(I) a process by which the Sec4 retary shall provide to each impacted 

5 State the opportunity to lead a recov6 ery team; and 

7 ‘‘(II) a process by which the Sec8 retary or a designee of the Secretary, 

9 in consultation with each impacted 

10 State, shall lead a recovery team if— 

11 ‘‘(aa) no impacted State 

12 submits a request to lead a recov13 ery team; or 

14 ‘‘(bb) no impacted State is 

15 otherwise designated by the Sec16 retary to lead a recovery team. 

17 ‘‘(D) DUTIES.—A recovery team shall— 

18 ‘‘(i) lead the development of a recov19 ery plan; 

20 ‘‘(ii) not later than the deadline for 

21 issuing a final recovery plan in the sched22 ule promulgated under paragraph 

23 (8)(A)(ii), issue a final recovery plan; 


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1 ‘‘(iii) if an implementation team is not 

2 established to implement the final recovery 

3 plan, implement the final recovery plan; 

4 ‘‘(iv) if an implementation team is es5 tablished to implement the final recovery 

6 plan, lead the implementation team, in7 cluding in the implementation of the final 

8 recovery plan; 

9 ‘‘(v) propose modifications to the re10 covery plan in accordance with subsection 

11 (a)(4)(C)(i), including associated recovery 

12 goals; and 

13 ‘‘(vi) recommend delisting or 

14 downlisting (as those terms are defined in 

15 subsection (a)(5)(A)) once the established 

16 recovery plan criteria for the species have 

17 been satisfied, in accordance with sub18 section (a)(5)(B)(ii)(II), or uplisting (as 

19 that term is defined in subsection 

20 (a)(5)(A)), as applicable. 

21 ‘‘(E) ADMINISTRATION.—A recovery team 

22 shall be conducted in accordance with para23 graph (7). 

24 ‘‘(6) IMPLEMENTATION TEAMS.— 


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1 ‘‘(A) IN GENERAL.—If a species is in2 cluded on the list of threatened species or en3 dangered species under this section and the 

4 Secretary establishes a recovery team under 

5 paragraph (5), an impacted State may request 

6 the establishment of an implementation team 

7 with respect to the applicable threatened species 

8 or endangered species and shall submit that re9 quest to the Secretary. 

10 ‘‘(B) ESTABLISHMENT.—At the same time 

11 the Secretary establishes a recovery team under 

12 paragraph (5), the Secretary shall establish an 

13 implementation team for the species, if— 

14 ‘‘(i) an impacted State, acting alone 

15 or in conjunction with another impacted 

16 State, submits to the Secretary a request 

17 to establish an implementation team; or 

18 ‘‘(ii) in the case of such a species with 

19 respect to which more than 1 impacted 

20 State exists, the Secretary determines that 

21 establishing an implementation team would 

22 promote the conservation and recovery of 

23 the species. 

24 ‘‘(C) MEMBERSHIP.— 


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1 ‘‘(i) IN GENERAL.—The members of 

2 an implementation team— 

3 ‘‘(I) shall be appointed by the 

4 Secretary; 

5 ‘‘(II) shall be composed solely of 

6 parties with a direct interest in the 

7 land in which the species is believed to 

8 occur; 

9 ‘‘(III) shall include each member 

10 of a recovery team established under 

11 paragraph (5); and 

12 ‘‘(IV) shall include, as applicable, 

13 representatives of— 

14 ‘‘(aa) private and public 

15 landowners; 

16 ‘‘(bb) agricultural produc17 tion; 

18 ‘‘(cc) energy production; 

19 ‘‘(dd) natural resource com20 modity groups and user indus21 tries; 

22 ‘‘(ee) homebuilders; 

23 ‘‘(ff) water resources groups; 

24 ‘‘(gg) outdoor recreation 

25 groups; 


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1 ‘‘(hh) environmental groups; 

2 and 

3 ‘‘(ii) land, habitat, and wild4 life conservation groups. 

5 ‘‘(D) COMPOSITION.—The Secretary, in 

6 consultation with the States, shall promulgate 

7 regulations governing the composition of an im8 plementation team, including— 

9 ‘‘(i) criteria that the Secretary shall 

10 follow when determining the number of 

11 members of an implementation team, in12 cluding the number of representatives of 

13 each of the landowners, regulated indus14 tries, environmental groups, wildlife con15 servation groups, and other parties with a 

16 direct interest in the land in which the spe17 cies is believed to occur, which shall be rea18 sonably balanced; 

19 ‘‘(ii) a process by which the Secretary 

20 shall fill a vacancy on the implementation 

21 team; and 

22 ‘‘(iii) a quorum requirement that a re23 covery team shall meet in order to conduct 

24 business that requires, at a minimum, the 


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presence of 1 1 ⁄3 of each of the representa2 tives of— 

3 ‘‘(I) the State agencies from par4 ticipating impacted States; and 

5 ‘‘(II) the parties with a direct in6 terest in the land in which the species 

7 is believed to occur who are not mem8 bers of a recovery team under para9 graph (5). 

10 ‘‘(E) LEADERSHIP.—The leader of an im11 plementation team shall be the leader of the ap12 plicable recovery team, as designated under 

13 paragraph (5)(C)(iii). 

14 ‘‘(F) DUTIES.—An implementation team 

15 shall— 

16 ‘‘(i) provide feedback solicited by the 

17 recovery team established under paragraph 

18 (5) in order to aid the recovery team in 

19 fulfilling the duties of the recovery team, 

20 including developing and implementing a 

21 recovery plan and associated recovery 

22 goals, specifically with regard to any prac23 tical considerations affecting the imple24 mentation of a recovery plan; 


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1 ‘‘(ii) lead the development of an im2 plementation plan; 

3 ‘‘(iii) at the same time that a recovery 

4 team issues a final recovery plan, issue a 

5 final implementation plan; 

6 ‘‘(iv) amend or modify the implemen7 tation plan in accordance with paragraph 

8 (2)(D); and 

9 ‘‘(v) lead the implementation of the 

10 implementation plan, including the imple11 mentation of the final recovery plan. 

12 ‘‘(G) ADMINISTRATION.—An implementa13 tion team shall be conducted in accordance with 

14 paragraph (7). 

15 ‘‘(7) ADMINISTRATION OF RECOVERY TEAMS

16 AND IMPLEMENTATION TEAMS.— 

17 ‘‘(A) REMOTE PARTICIPATION.—Any mem18 ber of a recovery team or an implementation 

19 team may participate in a meeting of the recov20 ery team or implementation team, as applicable, 

21 through the use of— 

22 ‘‘(i) teleconferencing; or 

23 ‘‘(ii) any other remote business tele24 communications method that allows each 

25 participating member to simultaneously 


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1 hear each other participating member dur2 ing the meeting. 

3 ‘‘(B) EFFECT OF ELECTION NOT TO PAR4 TICIPATE.— 

5 ‘‘(i) PERMISSIBLE ACTIVITIES.—An 

6 impacted State, or an Indian Tribe or a 

7 Tribal agency, that elects not to partici8 pate in a recovery team or implementation 

9 team may provide to the recovery team or 

10 implementation team, as applicable, data, 

11 written comments, and other information 

12 to aid the recovery team or implementation 

13 team, as applicable, in carrying out the du14 ties of the recovery team or implementa15 tion team, as applicable. 

16 ‘‘(ii) PROHIBITED ACTIVITIES.—Ex17 cept as provided in clause (i), if an im18 pacted State, or an Indian Tribe or a Trib19 al agency, elects not to participate in a re20 covery team or implementation team, the 

21 impacted State, Indian Tribe, or Tribal 

22 agency, as applicable, may not participate 

23 in the activities of the recovery team or im24 plementation team, as applicable, in car25 rying out the duties of the recovery team 


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1 or implementation team, as applicable, in2 cluding for purposes of establishing a 

3 quorum or voting. 

4 ‘‘(C) SAVINGS CLAUSE.— 

5 ‘‘(i) IMPACTED STATES.—The partici6 pation on or leadership of a recovery team 

7 or implementation team by an impacted 

8 State does not infringe on or otherwise 

9 limit the authority of the impacted State 

10 within the borders of that impacted State. 

11 ‘‘(ii) INDIAN TRIBES.—The participa12 tion on a recovery team or implementation 

13 team by an Indian Tribe or Tribal agency 

14 does not infringe on or otherwise limit the 

15 authority of the Indian Tribe or Tribal 

16 agency, as applicable, within the land over 

17 which the Indian Tribe or Tribal agency, 

18 as applicable, has management authority. 

19 ‘‘(D) ADMINISTRATIVE COST REDUC20 TION.—A recovery team or implementation 

21 team, as applicable, shall, to the maximum ex22 tent practicable, minimize the administrative 

23 costs of the recovery team or implementation 

24 team, as applicable, including by encouraging 

25 the use of remotely participating in meetings of 


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1 the recovery team or implementation team, as 

2 applicable, as described in subparagraph (A) to 

3 reduce travel costs. 

4 ‘‘(E) FACA.—The Federal Advisory Com5 mittee Act (5 U.S.C. App.) shall not apply to 

6 a recovery team or an implementation team. 

7 ‘‘(8) SCHEDULE.— 

8 ‘‘(A) IN GENERAL.—As part of a rule9 making to list a species as a threatened species 

10 or an endangered species under this section, the 

11 Secretary, in consultation with the States, shall 

12 promulgate a schedule that contains— 

13 ‘‘(i) a date by which a recovery team 

14 or implementation team, as applicable, for 

15 the species shall be established under para16 graph (5) or (6), as applicable, which shall 

17 be not later than 2 years after the date on 

18 which the final rule listing the species as 

19 threatened or endangered is published in 

20 the Federal Register; and 

21 ‘‘(ii) a date by which a recovery plan 

22 or implementation plan, as applicable, for 

23 the species shall be established under para24 graph (1) or (2), as applicable, which shall 

25 be not later than 5 years after the date on 


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1 which the final rule listing the species as 

2 threatened or endangered is published in 

3 the Federal Register. 

4 ‘‘(B) TIMELINESS.—A schedule under sub5 paragraph (A) shall ensure the establishment of 

6 a recovery team, implementation team, recovery 

7 plan, or implementation plan, as applicable, as 

8 expeditiously as possible. 

9 ‘‘(C) EXTENSION OF THE SCHEDULE.— 

10 The Secretary may extend a date contained in 

11 a schedule under subparagraph (A) by not more 

12 than 30 months, in which case the Secretary 

13 shall publish a written explanation for the ex14 tension in the Federal Register.’’. 

15 SEC. 204. DELISTING, DOWNLISTING, AND UPLISTING. 

16 (a) IN GENERAL.—Section 4(a) of the Endangered 

17 Species Act of 1973 (16 U.S.C. 1533(a)) (as amended by 

18 section 203(a)(3)) is amended by adding at the end the 

19 following: 

20 ‘‘(5) DELISTING, DOWNLISTING, AND

21 UPLISTING.— 

22 ‘‘(A) DEFINITIONS.—In this paragraph: 

23 ‘‘(i) DELIST.—The term ‘delist’ 

24 means to remove a species from the list of 


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1 threatened species or endangered species, 

2 as applicable, under this subsection. 

3 ‘‘(ii) DOWNLIST.—The term ‘downlist’ 

4 means to move a species included on the 

5 list of endangered species under this sub6 section to the list of threatened species 

7 under this subsection. 

8 ‘‘(iii) UPLIST.—The term ‘uplist’ 

9 means to move a species included on the 

10 list of threatened species under this sub11 section to the list of endangered species 

12 under this subsection. 

13 ‘‘(B) DETERMINATION BY SECRETARY.— 

14 ‘‘(i) STATUS REVIEW.—The Secretary 

15 shall conduct a review of the status of a 

16 threatened species or endangered species in 

17 accordance with this subparagraph and 

18 paragraph (4)(A) for purposes of delisting, 

19 downlisting, or uplisting the species, as ap20 plicable. 

21 ‘‘(ii) INITIATION.— 

22 ‘‘(I) IN GENERAL.—The Sec23 retary shall initiate a status review 

24 under clause (i) or paragraph (4)(A), 


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1 as applicable, by not later than 30 

2 days after the earlier of— 

3 ‘‘(aa) the date on which the 

4 Secretary determines that the ap5 plicable recovery goals required 

6 under paragraph (4)(A) are 

7 achieved with respect to the spe8 cies; 

9 ‘‘(bb) the date on which the 

10 Secretary receives from the re11 covery team for the species a re12 port that— 

13 ‘‘(AA) describes the 

14 means by which the recovery 

15 goals required under para16 graph (4)(A) have been 

17 achieved with respect to the 

18 species; and 

19 ‘‘(BB) recommends the 

20 delisting or downlisting of 

21 the species, as applicable; 

22 and 

23 ‘‘(cc) the date on which the 

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1 port that recommends the 

2 uplisting of the species. 

3 ‘‘(II) PETITIONS TO DELIST, 

4 DOWNLIST, OR UPLIST AND ACTING

5 ON INITIATIVE OF THE SECRETARY.— 

6 ‘‘(aa) IN GENERAL.— 

7 ‘‘(AA) PETITION.— 

8 Nothing in this subsection 

9 affects the ability of an in10 terested person to submit to 

11 the Secretary a petition to 

12 delist, downlist, or uplist a 

13 threatened species or an en14 dangered species in accord15 ance with this subsection 

16 and subsection (b). 

17 ‘‘(BB) SECRETARY’S

18 INITIATIVE.—The Secretary 

19 may, on the initiative of the 

20 Secretary and in addition to 

21 the required status review 

22 under subclause (I), delist, 

23 downlist, or uplist a threat24 ened species or endangered 

25 species in accordance with 


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1 this subsection and sub2 section (b). 

3 ‘‘(bb) CRITERIA TO BE

4 USED.—If the Secretary initiates 

5 a review to delist or downlist a 

6 threatened species or endangered 

7 species under item (aa), the de8 termination of the Secretary shall 

9 be based on the factors identified 

10 in paragraph (1), irrespective of 

11 whether the recovery goals de12 scribed in paragraph (4)(A) have 

13 been achieved. 

14 ‘‘(iii) DETERMINATION.—Not later 

15 than 90 days after the date on which a 

16 status review is initiated pursuant to 

17 clause (i), the Secretary shall determine 

18 whether to delist, downlist, or uplist, as 

19 applicable, the species that is the subject 

20 of the status review. 

21 ‘‘(iv) ACTION ON DETERMINATION.— 

22 ‘‘(I) POSITIVE DETERMINA23 TION.—On determining to delist, 

24 downlist, or uplist a species under 

25 clause (iii), the Secretary shall publish 


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1 in the Federal Register, by not later 

2 than 1 year after the date of the de3 termination, a final regulation to 

4 delist, downlist, or uplist the species 

5 that is the subject of the determina6 tion. 

7 ‘‘(II) NEGATIVE DETERMINA8 TION.—On determining not to delist, 

9 downlist, or uplist a species under 

10 clause (iii), the Secretary shall publish 

11 in the Federal Register, by not later 

12 than 90 days after the date of the de13 termination, a detailed, comprehensive 

14 written explanation of the determina15 tion. 

16 ‘‘(v) MONITORING REQUIREMENTS.— 

17 If the Secretary delists a threatened spe18 cies or an endangered species as described 

19 in this subparagraph, the monitoring pe20 riod described in subsection (g) shall begin 

21 on the date on which a final regulation to 

22 delist the species is published in the Fed23 eral Register. 

24 ‘‘(C) JUDICIAL REVIEW.—Until the expira25 tion of the applicable monitoring period under 


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1 subsection (g), in accordance with clause (ii)(II) 

2 or (iv)(I) of subparagraph (B)— 

3 ‘‘(i) a determination of the Secretary 

4 to delist a species under subparagraph (B) 

5 shall not be considered to be a final agency 

6 action for purposes of chapter 7 of title 5, 

7 United States Code; and 

8 ‘‘(ii) no judicial review of the deter9 mination may commence.’’. 

10 (b) CONFORMING AMENDMENT.—Section 10(f)(5) of 

11 the Endangered Species Act of 1973 (16 U.S.C. 

12 1539(f)(5)) is amended, in the undesignated matter fol13 lowing subparagraph (B), by striking the second sentence. 

14 SEC. 205. COOPERATION WITH STATES AND INDIAN TRIBES. 

15 Section 6 of the Endangered Species Act of 1973 (16 

16 U.S.C. 1535) is amended— 

17 (1) in subsection (a)— 

18 (A) in the second sentence, by striking 

19 ‘‘Such cooperation shall include consultation 

20 with the States concerned’’ and inserting the 

21 following: 

22 ‘‘(2) INCLUSIONS.—The consultation required 

23 under this subsection shall— 

24 ‘‘(A) be based on the best scientific and 

25 commercial data available; 


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1 ‘‘(B) include consultation with each im2 pacted State’’; and 

3 (B) by striking the subsection designation 

4 and heading and all that follows through the 

5 first sentence and inserting the following: 

6 ‘‘(a) REQUIREMENT.— 

7 ‘‘(1) IN GENERAL.—In carrying out this Act, 

8 the Secretary shall— 

9 ‘‘(A) consult to the maximum extent pos10 sible with the States; and 

11 ‘‘(B) acknowledge and respect the primary 

12 authority of State agencies to manage fish and 

13 wildlife within State borders, except as other14 wise provided in this Act with respect to an ex15 ercise by the Secretary of specific authority to 

16 manage a threatened species or an endangered 

17 species.’’; 

18 (2) in subsection (b), in the first sentence, by 

19 striking ‘‘may’’ and inserting ‘‘shall offer to’’; 

20 (3) in subsection (c)— 

21 (A) in paragraph (2), by striking ‘‘(2) In 

22 furtherance of the purposes of this Act, the 

23 Secretary is authorized’’ and inserting the fol24 lowing: 


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1 ‘‘(3) PLANTS.—In furtherance of the purposes 

2 of this Act, the Secretary shall offer’’; 

3 (B) in paragraph (3) (as so redesig4 nated)— 

5 (i) in subparagraph (D), by indenting 

6 clauses (i) and (ii) appropriately; and 

7 (ii) by indenting subparagraphs (A) 

8 through (D) appropriately; 

9 (C) by striking the subsection designation 

10 and heading and all that follows through ‘‘au11 thorized’’ in the first sentence of paragraph (1) 

12 and inserting the following: 

13 ‘‘(c) COOPERATIVE AGREEMENTS.— 

14 ‘‘(1) DEFINITION OF STATE.—In this sub15 section, the term ‘State’ includes— 

16 ‘‘(A) an Indian tribe (as defined in section 

17 4 of the Indian Self-Determination and Edu18 cation Assistance Act (25 U.S.C. 5304)); and 

19 ‘‘(B) a Native Corporation (as defined in 

20 section 3 of the Alaska Native Claims Settle21 ment Act (43 U.S.C. 1602)). 

22 ‘‘(2) AUTHORIZATION.—In furtherance of the 

23 purposes of this Act, the Secretary shall offer’’; and 

24 (D) in paragraph (2) (as so redesig25 nated)— 


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1 (i) in subparagraph (E), by indenting 

2 clauses (i) and (ii) appropriately; and 

3 (ii) by indenting subparagraphs (A) 

4 through (E) appropriately; 

5 (4) in subsection (h), by striking ‘‘relating to fi6 nancial assistance’’ and inserting the following: ‘‘re7 lating to— 

8 ‘‘(1) fulfilling the obligation of the Secretary to 

9 carry out this Act in consultation with the States; 

10 and 

11 ‘‘(2) the provision of financial assistance’’; and 

12 (5) in subsection (i)(1), by striking ‘‘the Sport 

13 Fishing Restoration Account established under 1016 

14 of the Act of July 18, 1984’’ and inserting ‘‘the 

15 Sport Fish Restoration and Boating Trust Fund es16 tablished by section 9504(a) of the Internal Revenue 

17 Code of 1986’’. 

18 SEC. 206. STATE CONSULTATION REGARDING EXPERI19 MENTAL POPULATIONS. 

20 Section 10(j) of the Endangered Species Act of 1973 

21 (16 U.S.C. 1539(j)) is amended— 

22 (1) in paragraph (1), by striking ‘‘(1) For pur23 poses of’’ and inserting the following: 

24 ‘‘(1) DEFINITION OF EXPERIMENTAL POPU25 LATION.—In’’; and 


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1 (2) in paragraph (2)— 

2 (A) by striking ‘‘(2)(A) The Secretary’’ 

3 and inserting the following: 

4 ‘‘(2) AUTHORIZATION OF RELEASES.— 

5 ‘‘(A) IN GENERAL.—Subject to subpara6 graphs (B) and (C), the Secretary’’; 

7 (B) in subparagraph (C)— 

8 (i) by striking ‘‘subparagraph (B)’’ 

9 each place it appears and inserting ‘‘sub10 paragraph (C)’’; 

11 (ii) by indenting clauses (i) and (ii) 

12 appropriately; and 

13 (iii) by striking ‘‘(C) For the pur14 poses’’ and inserting the following: 

15 ‘‘(D) TREATMENT AS THREATENED SPE16 CIES.—For the purposes’’; and 

17 (C) in subparagraph (B) (as amended by 

18 section 201(b)(3)), by striking ‘‘(B) Before’’ 

19 and inserting the following: 

20 ‘‘(B) REQUIREMENTS.— 

21 ‘‘(i) IN GENERAL.—The Secretary 

22 shall in good faith negotiate with the State 

23 agency of each impacted State in which an 

24 experimental population is authorized to be 

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1 ment with respect to the management au2 thority of the experimental population, in3 cluding— 

4 ‘‘(I) the boundaries of the area in 

5 which the experimental population is 

6 authorized to be released; 

7 ‘‘(II) the ideal population size of 

8 the experimental population; 

9 ‘‘(III) the processes related to 

10 supplemental introductions of the ex11 perimental population; 

12 ‘‘(IV) circumstances in which 

13 takings of the experimental population 

14 are authorized; 

15 ‘‘(V) the role of the experimental 

16 population with respect to the contin17 ued existence of an endangered spe18 cies or threatened species; 

19 ‘‘(VI) the conditions under which 

20 the Secretary would authorize the re21 moval of an experimental population 

22 from the impacted State; 

23 ‘‘(VII) controls to mitigate 

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1 tion, translocation, removal, or taking 

2 of a member of the experimental pop3 ulation that depredates on livestock; 

4 and 

5 ‘‘(VIII) Federal compensation for 

6 losses generated by the experimental 

7 population, such as when a member of 

8 the experimental population dep9 redates on livestock. 

10 ‘‘(ii) MANAGEMENT PLAN.— 

11 ‘‘(I) IN GENERAL.—If the Sec12 retary cannot, after good faith nego13 tiations, reach an agreement under 

14 clause (i) with a State agency, the 

15 Secretary shall develop a plan with re16 spect to the management authority of 

17 the experimental population that ad18 dresses each requirement described in 

19 subclauses (I) through (VIII) of that 

20 clause. 

21 ‘‘(II) REQUIREMENT.—In devel22 oping a plan under subclause (I), the 

23 Secretary shall— 

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1 pacted State and the State agen2 cy of each impacted State; and 

3 ‘‘(bb) give full and fair con4 sideration to any input with re5 spect to the plan from each im6 pacted State and the State agen7 cy of each impacted State. 

8 ‘‘(iii) AGREEMENT OR PLAN FOR

9 EACH IMPACTED STATE.—For each release 

10 of an experimental population authorized 

11 under this paragraph, the Secretary shall, 

12 for each impacted State in which the ex13 perimental population is authorized to be 

14 released, have a separate— 

15 ‘‘(I) agreement under clause (i); 

16 or 

17 ‘‘(II) management plan under 

18 clause (ii)(I). 

19 ‘‘(C) IDENTIFICATION AND DETERMINA20 TION.—Before’’. 

21 SEC. 207. STATE PARTICIPATION IN SETTLEMENTS. 

22 Section 11(g)(2)(C) of the Endangered Species Act 

23 of 1973 (16 U.S.C. 1540(g)(2)(C)) is amended— 


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1 (1) by striking ‘‘(C) No action may be com2 menced under subparagraph (1)(C) of this section 

3 prior to sixty’’ and inserting the following: 

4 ‘‘(C) SETTLEMENT ACTIONS.— 

5 ‘‘(i) TIMING.— 

6 ‘‘(I) IN GENERAL.—Except as 

7 provided in subclause (II), no action 

8 may be commenced under paragraph 

9 (1)(C) before the date that is 60’’; 

10 (2) by striking ‘‘Secretary; except that such ac11 tion may be brought’’ and inserting the following: 

12 ‘‘Secretary. 

13 ‘‘(II) EXCEPTION FOR EMER14 GENCIES.—Notwithstanding subclause 

15 (I), an action may be commenced 

16 under paragraph (1)(C)’’; and 

17 (3) by adding at the end the following: 

18 ‘‘(ii) PARTICIPATION BY STATES.— 

19 ‘‘(I) IN GENERAL.—In preparing 

20 or entering into a settlement (includ21 ing a covered settlement) or other 

22 agreement relating to an action under 

23 paragraph (1)(C), the Secretary shall 

24 provide notice to, consult with, and 


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1 otherwise take appropriate actions to 

2 include, each impacted State. 

3 ‘‘(II) EFFECT OF CLAUSE.— 

4 Nothing in this clause limits the abil5 ity of any other party to participate in 

6 a settlement described in subclause 

7 (I).’’. 

8 TITLE III—ENCOURAGING CON9 SERVATION ACTIVITIES 

10 THROUGH REGULATORY CER11 TAINTY 

12 SEC. 301. SENSE OF CONGRESS REGARDING CONSERVA13 TION AGREEMENTS AND ACTIVITIES. 

14 It is the sense of Congress that— 

15 (1) voluntary conservation agreements benefit 

16 species and the habitats on which the species rely; 

17 (2) States, Indian Tribes, units of local govern18 ment, landowners, and other stakeholders should be 

19 encouraged to participate in voluntary conservation 

20 agreements; and 

21 (3) the Secretary of the Interior, acting through 

22 the Director of the United States Fish and Wildlife 

23 Service, and the Secretary of Commerce, acting 

24 through the Assistant Administrator of the National 

25 Marine Fisheries Service, should consider the enrollVerDate Sep 11 2014 18:13 Sep 23, 2020 Jkt 099200 PO 00000 Frm 00076 Fmt 6652 Sfmt 6201 E:\BILLS\S4589.IS S4589

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1 ment in, and performance of, conservation agree2 ments and investment in, and implementation of, 

3 general conservation activities by States, Indian 

4 Tribes, units of local government, landowners, and 

5 other stakeholders in making determinations under 

6 the Endangered Species Act of 1973 (16 U.S.C. 

7 1531 et seq.). 

8 SEC. 302. CONSERVATION AGREEMENTS AS FACTORS IN 

9 LISTING DECISIONS. 

10 Section 4 of the Endangered Species Act of 1973 (16 

11 U.S.C. 1533) is amended— 

12 (1) in subsection (c)— 

13 (A) in paragraph (1)— 

14 (i) in the third sentence, by striking 

15 ‘‘The Secretary’’ and inserting the fol16 lowing: 

17 ‘‘(C) REVISION.—The Secretary’’; 

18 (ii) in the second sentence, by striking 

19 ‘‘Each list’’ and inserting the following: 

20 ‘‘(B) CONTENTS.—Each list’’; and 

21 (iii) in the first sentence, by striking 

22 ‘‘(1) The Secretary’’ and inserting the fol23 lowing: 

24 ‘‘(1) REQUIREMENTS.— 

25 ‘‘(A) PUBLICATION.—The Secretary’’; and 


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1 (B) in paragraph (2)— 

2 (i) by striking ‘‘(2) The Secretary’’ 

3 and inserting the following: 

4 ‘‘(2) REVIEW.—The Secretary’’; 

5 (ii) in subparagraph (B), in the mat6 ter preceding clause (i), by inserting ‘‘in 

7 accordance with subsections (a) and (b),’’ 

8 before ‘‘determine’’; and 

9 (iii) by striking the undesignated mat10 ter following subparagraph (B); 

11 (2) in subsection (f) (as amended by section 

12 203(b)(7)), by adding at the end the following: 

13 ‘‘(9) TREATMENT.— 

14 ‘‘(A) IN GENERAL.—A conservation agree15 ment (including any agreement described in 

16 subparagraph (B)) entered into or endorsed by 

17 the Secretary shall be considered under any of 

18 the factors under subsection (a)(1) for purposes 

19 of determining whether to include or maintain 

20 a species on the list of threatened species or en21 dangered species pursuant to this section. 

22 ‘‘(B) DESCRIPTION OF AGREEMENTS.—An 

23 agreement referred to in subparagraph (A) in24 cludes— 

25 ‘‘(i) a wildlife conservation agreement; 


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1 ‘‘(ii) a candidate conservation agree2 ment with assurances; 

3 ‘‘(iii) a candidate conservation agree4 ment; 

5 ‘‘(iv) a safe harbor agreement; 

6 ‘‘(v) a habitat conservation plan under 

7 section 10(a)(2)(A); 

8 ‘‘(vi) an interagency agreement ap9 proved by the Secretary; and 

10 ‘‘(vii) a plan that— 

11 ‘‘(I) relates to the conservation of 

12 a species; 

13 ‘‘(II) affects the viability of the 

14 species; and 

15 ‘‘(III) is implemented, or pro16 posed to be implemented, by— 

17 ‘‘(aa) a State; 

18 ‘‘(bb) 2 or more States; 

19 ‘‘(cc) a unit of local govern20 ment; or 

21 ‘‘(dd) 2 or more units of 

22 local government.’’; and 

23 (3) in subsection (g)(2), by striking ‘‘paragraph 

24 7 of subsection (b) of this section’’ and inserting 

25 ‘‘subsection (b)(7)’’. 


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1 SEC. 303. CONSERVATION EFFORTS AS REGULATORY 

2 MECHANISMS. 

3 Section 4(f) of the Endangered Species Act of 1973 

4 (16 U.S.C. 1533(f)) (as amended by section 302(2)) is 

5 amended by adding at the end the following: 

6 ‘‘(10) CONSERVATION EFFORTS.— 

7 ‘‘(A) IN GENERAL.—Not later than 180 

8 days after the date of enactment of the Endan9 gered Species Act Amendments of 2020, the 

10 Secretary shall establish a framework for the 

11 consideration of conservation efforts by States, 

12 Indian Tribes, local governments, private land13 owners, lessees, or third-party organizations as 

14 regulatory mechanisms under subsection (a)(1). 

15 ‘‘(B) EVALUATION; TREATMENT.—In car16 rying out this section, the Secretary shall— 

17 ‘‘(i) evaluate conservation efforts 

18 using the framework established under 

19 subparagraph (A); and 

20 ‘‘(ii) if the Secretary determines that 

21 a conservation effort meets the applicable 

22 criteria under that framework, consider the 

23 conservation effort to be a regulatory 

24 mechanism under subsection (a)(1).’’. 


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1 SEC. 304. CANDIDATE CONSERVATION AGREEMENTS WITH 

2 ASSURANCES. 

3 (a) IN GENERAL.—Section 4(f) of the Endangered 

4 Species Act of 1973 (16 U.S.C. 1533(f)) (as amended by 

5 section 303) is amended by adding at the end the fol6 lowing: 

7 ‘‘(11) CANDIDATE CONSERVATION AGREEMENTS

8 WITH ASSURANCES.—Notwithstanding any other 

9 provision of law (including regulations), in entering 

10 into, or carrying out, any candidate conservation 

11 agreement with assurances under this Act, the Sec12 retary— 

13 ‘‘(A) shall adhere to the terms of each can14 didate conservation agreement with assurances 

15 entered into before March 21, 2017; 

16 ‘‘(B) shall promulgate regulations or estab17 lish policies— 

18 ‘‘(i) to expedite the process for enter19 ing into those agreements; and 

20 ‘‘(ii) to protect sensitive personal and 

21 business-related information of each party 

22 to the agreement; 

23 ‘‘(C) shall take into consideration whether 

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1 tion benefit for a species covered by the agree2 ment; and 

3 ‘‘(D) shall not preclude a party to the 

4 agreement from enrolling applicable land, or 

5 otherwise participating, in any other Federal 

6 conservation program.’’. 

7 (b) EFFECT ON REGULATIONS.—The Secretary of 

8 the Interior shall amend part 17 of title 50, Code of Fed9 eral Regulations (as in effect on the date of enactment 

10 of this Act), to ensure that part is in accordance with 

11 paragraph (11)(C) of section 4(f) of the Endangered Spe12 cies Act of 1973 (16 U.S.C. 1533(f)). 

13 SEC. 305. SAFE HARBOR AGREEMENTS. 

14 Section 4(f) of the Endangered Species Act of 1973 

15 (16 U.S.C. 1533(f)) (as amended by section 304(a)) is 

16 amended by adding at the end the following: 

17 ‘‘(12) SAFE HARBOR AGREEMENTS.—The Sec18 retary may enter into an agreement, to be known as 

19 a ‘safe harbor agreement’, with 1 or more entities, 

20 including a State or local government, a private 

21 landowner, a lessee, or a third-party organization, 

22 that— 

23 ‘‘(A) shall provide for the taking of any 

24 threatened species or endangered species con25 sistent with the announcement of final policy 


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1 entitled ‘Announcement of Final Safe Harbor 

2 Policy’ (64 Fed. Reg. 32717 (June 17, 1999)); 

3 and 

4 ‘‘(B) may provide for the taking of any 

5 threatened species or endangered species that 

6 occupies an adjacent property due to the im7 proved conditions on the property enrolled 

8 under the agreement.’’. 

9 SEC. 306. CONSERVATION AGREEMENT TEMPLATES. 

10 Section 6(c) of the Endangered Species Act of 1973 

11 (16 U.S.C. 1535(c)) (as amended by section 205(3)) is 

12 amended by adding at the end the following: 

13 ‘‘(4) TEMPLATES.—With respect to agreements 

14 described in section 4(f)(9)(B), the Secretary of the 

15 Interior shall, to the maximum extent practicable— 

16 ‘‘(A) implement standard procedures, and 

17 encourage widespread use of templates, in de18 veloping conservation agreements under this 

19 subsection; 

20 ‘‘(B) simplify the application and approval 

21 processes relating to those agreements; 

22 ‘‘(C) reduce the burdens associated with 

23 reporting and monitoring under the agreements; 

24 and 


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1 ‘‘(D) provide for the protection of sensitive 

2 personal and business-related information of 

3 any party to the agreements, in accordance 

4 with— 

5 ‘‘(i) subsection (a)(3); and 

6 ‘‘(ii) section 4(b)(9)(C).’’. 

7 TITLE IV—STRENGTHENING 

8 CONSERVATION DECISION9 MAKING THROUGH IN10 CREASED TRANSPARENCY 

11 SEC. 401. TRANSPARENCY OF INFORMATION. 

12 (a) PUBLICATION ON INTERNET OF BASIS FOR LIST13 INGS.—Section 4(b) of the Endangered Species Act of 

14 1973 (16 U.S.C. 1533(b)) is amended by adding at the 

15 end the following: 

16 ‘‘(9) PUBLICATION ON INTERNET OF BASIS FOR

17 LISTINGS.— 

18 ‘‘(A) IN GENERAL.—Except as provided in 

19 subparagraph (C), the Secretary shall make 

20 publicly available on the internet the best sci21 entific and commercial data available that are 

22 the basis for each regulation (including each 

23 proposed regulation) promulgated pursuant to 

24 this section. 


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1 ‘‘(B) INCLUSIONS.—The information re2 quired to be made available under subpara3 graph (A) includes any applicable— 

4 ‘‘(i) status review, including all infor5 mation— 

6 ‘‘(I) cited in the review; or 

7 ‘‘(II) submitted for the review by 

8 a third party; 

9 ‘‘(ii) list of threatened species or en10 dangered species under subsection (c), in11 cluding— 

12 ‘‘(I) any final or proposed regula13 tions relating to such a list; and 

14 ‘‘(II) the results of any 5-year re15 view of such a list; 

16 ‘‘(iii) draft or final recovery plan; 

17 ‘‘(iv) information relating to the eco18 nomic impacts of a critical habitat designa19 tion, especially with respect to the impacts 

20 on State and local governments and pri21 vate persons; and 

22 ‘‘(v) required report or other data. 

23 ‘‘(C) EXCEPTIONS.—For purposes of dis24 closure under subparagraph (A)— 


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1 ‘‘(i) the Secretary shall not make 

2 available— 

3 ‘‘(I) on receipt of a request from 

4 the Governor (or a designee) of an im5 pacted State, any information the 

6 public disclosure of which is prohib7 ited by applicable State law, as deter8 mined by the impacted State; or 

9 ‘‘(II) any information that may 

10 be withheld under section 552 of title 

11 5, United States Code (commonly 

12 known as the ‘Freedom of Informa13 tion Act’); and 

14 ‘‘(ii) in the case of any information 

15 that includes copyrighted material, the 

16 Secretary shall— 

17 ‘‘(I) to the maximum extent prac18 ticable, obtain consent from the copy19 right holder to publish the informa20 tion; and 

21 ‘‘(II) publish the information 

22 only if that consent is granted.’’. 

23 (b) INFORMATION PROVIDED TO STATES AND INDIAN

24 TRIBES.— 


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1 (1) IN GENERAL.—Paragraph (2) of section 

2 6(a) of the Endangered Species Act of 1973 (16 

3 U.S.C. 1535(a)) (as designated by section 

4 205(1)(A)) is amended by adding at the end the fol5 lowing: 

6 ‘‘(C) in any case in which the Secretary 

7 has not received a petition described in section 

8 4(b)(3)(A) relating to a species and the Sec9 retary is considering proposing to list the spe10 cies as a threatened species or an endangered 

11 species under section 4(a), include— 

12 ‘‘(i) providing to the Governor and the 

13 State agency of each impacted State and 

14 each Indian Tribe in which the species is 

15 believed to occur a notification of the con16 sideration, which shall be made publicly 

17 available on the internet; 

18 ‘‘(ii) soliciting comments from each 

19 Governor, State agency, and Indian Tribe 

20 described in clause (i) to be submitted to 

21 the Secretary by not later than the date 

22 that is 60 days after the date of receipt of 

23 the notification, regarding whether the list24 ing is in accordance with section 4(a); and 


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1 ‘‘(iii) taking into consideration, and 

2 giving full and fair consideration to, any 

3 comments submitted by the deadline de4 scribed in clause (ii) before publication of 

5 a proposed regulation to list the species; 

6 ‘‘(D) before making any determination 

7 under section 4(a), include providing to each 

8 impacted State and Indian Tribe in which the 

9 species is believed to occur all information on 

10 which the determination is based, and making 

11 that information publicly available on the inter12 net in accordance with section 4(b)(9); 

13 ‘‘(E) include taking into consideration, giv14 ing full and fair consideration to, and using 

15 State data, analyses, and comments in all deci16 sionmaking under this Act; and 

17 ‘‘(F) include accepting comments from the 

18 Governor and State agency of, and any Indian 

19 Tribe within, an impacted State regarding any 

20 proposed regulation under this Act.’’. 

21 (2) EXCEPTIONS.—Section 6(a) of the Endan22 gered Species Act of 1973 (16 U.S.C. 1535(a)) (as 

23 amended by section 205(1)) is amended by adding 

24 at the end the following: 


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1 ‘‘(3) EXCEPTIONS.—For purposes of disclosure 

2 of any information under paragraph (2)— 

3 ‘‘(A) the Secretary shall not make avail4 able— 

5 ‘‘(i) on receipt of a request from the 

6 Governor (or a designee) of an impacted 

7 State, any information the public disclo8 sure of which is prohibited by applicable 

9 State law, as determined by the impacted 

10 State; or 

11 ‘‘(ii) any information that may be 

12 withheld under section 552 of title 5, 

13 United States Code (commonly known as 

14 the ‘Freedom of Information Act’); and 

15 ‘‘(B) in the case of any information that 

16 includes copyrighted material, the Secretary 

17 shall— 

18 ‘‘(i) to the maximum extent prac19 ticable, obtain consent from the copyright 

20 holder to publish the information; and 

21 ‘‘(ii) publish the information only if 

22 that consent is granted.’’. 

23 SEC. 402. TRANSPARENCY IN LITIGATION. 

24 Section 11(g) of the Endangered Species Act of 1973 

25 (16 U.S.C. 1540(g)) is amended— 


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1 (1) in paragraph (3), by adding at the end the 

2 following: 

3 ‘‘(C) PUBLICATION OF COMPLAINT; INTER4 VENTION.— 

5 ‘‘(i) PUBLICATION OF COMPLAINT.— 

6 ‘‘(I) IN GENERAL.—Not later 

7 than 30 days after the date on which 

8 the plaintiff serves the defendant with 

9 the complaint in an action brought 

10 under paragraph (1)(C) in accordance 

11 with Rule 4 of the Federal Rules of 

12 Civil Procedure, the Secretary shall 

13 make the complaint publicly available 

14 on the internet. 

15 ‘‘(II) FAILURE TO MEET DEAD16 LINE.—The failure of the Secretary to 

17 meet the 30-day deadline described in 

18 subclause (I) shall not be the basis for 

19 an action under paragraph (1)(C). 

20 ‘‘(ii) INTERVENTION.— 

21 ‘‘(I) OPPORTUNITY TO INTER22 VENE.— 

23 ‘‘(aa) IN GENERAL.—After 

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1 fected party shall be given a rea2 sonable opportunity to move to 

3 intervene in the action described 

4 in clause (i), until the end of 

5 which action a party may not file 

6 a motion for a consent decree or 

7 to dismiss the case pursuant to a 

8 settlement agreement. 

9 ‘‘(bb) EFFECT OF SUB10 CLAUSE.—Nothing in this sub11 clause limits the ability of any 

12 other party to move to intervene 

13 in an action described in clause 

14 (i). 

15 ‘‘(II) REBUTTABLE PRESUMP16 TION.—In considering a motion to in17 tervene by any affected party, the 

18 court shall presume, subject to rebut19 tal, that the interests of that party 

20 would not be represented adequately 

21 by the parties to the action described 

22 in clause (i). 

23 ‘‘(III) PARTIES INCLUDED IN

24 SETTLEMENT DISCUSSIONS.— 


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1 ‘‘(aa) IN GENERAL.—Any 

2 settlement discussion relating to 

3 an action described in clause (i) 

4 shall include each— 

5 ‘‘(AA) plaintiff; 

6 ‘‘(BB) defendant agen7 cy; and 

8 ‘‘(CC) intervenor that 

9 is an affected party. 

10 ‘‘(bb) EFFECT OF SUB11 CLAUSE.—Nothing in this sub12 clause limits the ability of any 

13 other party to participate in a 

14 settlement discussion relating to 

15 an action described in clause 

16 (i).’’; and 

17 (2) by adding at the end the following: 

18 ‘‘(6) NOTICE OF PROPOSED COVERED SETTLE19 MENT REQUIRED.— 

20 ‘‘(A) DEFINITION OF SPECIES.—In this 

21 paragraph, the term ‘species’ means a species 

22 that is the subject of an action brought under 

23 paragraph (1)(C). 

24 ‘‘(B) NOTICE.—The Secretary shall pro25 vide each impacted State and Indian Tribe in 


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1 which a species is believed to occur notice of a 

2 proposed covered settlement. 

3 ‘‘(7) DISCLOSURE REQUIRED FOR ATTORNEY

4 FEES.—The head of any Federal agency that pays 

5 to any person an amount for attorney fees in con6 nection with an action brought under paragraph 

7 (1)(C) relating to a determination made under sec8 tion 4(a) shall disclose to the Attorney General for 

9 publication under paragraph (8) the amount paid. 

10 ‘‘(8) PUBLICATION OF AMOUNTS PAID.—The 

11 Attorney General shall publish annually in the Fed12 eral Register a report that— 

13 ‘‘(A) with respect to each action brought 

14 under paragraph (1)(C) relating to a deter15 mination made under section 4(a), describes the 

16 amounts paid in the action (including amounts 

17 paid for attorney fees as disclosed under para18 graph (7), the hourly rate charged by the legal 

19 services entity on which attorney fees are based, 

20 any other amounts awarded by a judge, and 

21 amounts paid pursuant to a covered settlement) 

22 during the year covered by the report to any— 

23 ‘‘(i) litigant; 

24 ‘‘(ii) law firm; or 

25 ‘‘(iii) expert witness; and 


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1 ‘‘(B) identifies— 

2 ‘‘(i) each party to whom the amounts 

3 referred to in subparagraph (A) were paid, 

4 as that party is identified in the order or 

5 other agency document making the award; 

6 and 

7 ‘‘(ii) each civil action in connection 

8 with which the amounts were paid.’’. 

9 TITLE V—OPTIMIZING CON10 SERVATION THROUGH RE11 SOURCE PRIORITIZATION 

12 SEC. 501. PRIORITIZATION OF LISTING PETITIONS, RE13 VIEWS, AND DETERMINATIONS. 

14 (a) IN GENERAL.—Section 4 of the Endangered Spe15 cies Act of 1973 (16 U.S.C. 1533) is amended by adding 

16 at the end the following: 

17 ‘‘(j) NATIONAL LISTING WORK PLAN.— 

18 ‘‘(1) IN GENERAL.—Not later than the date de19 scribed in paragraph (2), the Secretary shall submit 

20 to Congress a national listing work plan that estab21 lishes, for each species included in the plan in ac22 cordance with paragraph (3), a schedule for the 

23 completion during the 7-fiscal year period beginning 

24 on October 1 of the first fiscal year after the date 

25 of submission of the work plan of— 


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1 ‘‘(A) status reviews regarding petitions for 

2 listing the species under this Act; 

3 ‘‘(B) status reviews relating to the species 

4 listings initiated by the Secretary; 

5 ‘‘(C) proposed and final determinations re6 garding listing the species under this section; 

7 and 

8 ‘‘(D) proposed and final critical habitat 

9 designations under subsection (a)(3) relating to 

10 the species. 

11 ‘‘(2) SUBMISSION TO CONGRESS.— 

12 ‘‘(A) IN GENERAL.—The Secretary shall 

13 submit to Congress— 

14 ‘‘(i) the initial work plan required 

15 under paragraph (1) together with the 

16 budget request of the Secretary for the 

17 first fiscal year beginning after the date of 

18 enactment of this subsection; and 

19 ‘‘(ii) an updated work plan under 

20 paragraph (1) together with the budget re21 quest of the Secretary for each fiscal year 

22 thereafter. 

23 ‘‘(B) ADDITIONAL INCLUSIONS.—The Sec24 retary shall also include with each budget re25 quest referred to in subparagraph (A) a deVerDate Sep 11 2014 18:13 Sep 23, 2020 Jkt 099200 PO 00000 Frm 00095 Fmt 6652 Sfmt 6201 E:\BILLS\S4589.IS S4589

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1 scription of the amounts to be requested to 

2 carry out the work plan for each fiscal year cov3 ered by the work plan, including any amounts 

4 requested to resolve emergency petitions not ad5 dressed in the work plan. 

6 ‘‘(3) PRIORITY.— 

7 ‘‘(A) IN GENERAL.—In developing the 

8 work plan under this subsection, the Secretary 

9 shall assign to each species covered by the work 

10 plan a priority classification of Priority 1 

11 through Priority 5, such that, as determined by 

12 the Secretary— 

13 ‘‘(i) Priority 1 represents species of 

14 the highest priority, to be designated as 

15 critically imperiled and in need of imme16 diate action; 

17 ‘‘(ii) Priority 2 represents species with 

18 respect to which the best scientific and 

19 commercial data available already support 

20 a clear decision regarding the status of the 

21 species for purposes of this Act; 

22 ‘‘(iii) Priority 3 represents species 

23 with respect to which studies regarding the 

24 status of the species for purposes of this 

25 Act are being carried out— 


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1 ‘‘(I) to answer key questions that 

2 may influence the findings of a peti3 tion under this Act relating to the 

4 species; and 

5 ‘‘(II) to resolve any uncertainty 

6 regarding the status of the species 

7 within a reasonable timeframe; 

8 ‘‘(iv) Priority 4 represents species for 

9 which proactive conservation efforts likely 

10 to reduce threats to the species are being 

11 developed or carried out, within a reason12 able timeframe and in an organized man13 ner, by Federal agencies, States, land14 owners, and other stakeholders; and 

15 ‘‘(v) Priority 5 represents species— 

16 ‘‘(I) for which there exists little 

17 information regarding— 

18 ‘‘(aa) threats to the species; 

19 or 

20 ‘‘(bb) the status of the spe21 cies for purposes of this Act; or 

22 ‘‘(II) that the Secretary deter23 mines would receive limited conserva24 tion benefit in the foreseeable future 

25 by listing the species as a threatened 


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1 species or endangered species under 

2 this section. 

3 ‘‘(B) USE OF METHODOLOGY.— 

4 ‘‘(i) IN GENERAL.—Except as pro5 vided in clause (ii), the Secretary shall es6 tablish and assign priority classifications 

7 under subparagraph (A) in accordance 

8 with the notice of the Director of the 

9 United States Fish and Wildlife Service 

10 entitled ‘Methodology for Prioritizing Sta11 tus Reviews and Accompanying 12-Month 

12 Findings on Petitions for Listing Under 

13 the Endangered Species Act’ (81 Fed. Reg. 

14 49248 (July 27, 2016)). 

15 ‘‘(ii) ADDITIONAL CONSIDERATION.— 

16 In the case of a Priority 5 classification 

17 under clause (i), in addition to the notice 

18 described in that clause, the Secretary 

19 shall consider whether there would be lim20 ited conservation benefit in the foreseeable 

21 future by listing the species as a threat22 ened species or an endangered species. 

23 ‘‘(C) EXTENSIONS FOR CERTAIN PRIORITY

24 CLASSIFICATIONS.— 


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1 ‘‘(i) PRIORITY 3.—In the case of a 

2 species classified as Priority 3 under sub3 paragraph (A)(iii), if the Secretary deter4 mines that additional time would allow for 

5 more complete data collection or the com6 pletion of studies relating to the species, 

7 the Secretary may retain the species under 

8 the work plan for a period of not more 

9 than 5 years after the deadline under para10 graph (4) with respect to the species. 

11 ‘‘(ii) PRIORITY 4.—In the case of a 

12 species classified as Priority 4 under sub13 paragraph (A)(iv), if the Secretary deter14 mines that existing conservation efforts 

15 continue to meet the conservation needs of 

16 the species, the Secretary may retain the 

17 species under the work plan for a period of 

18 not more than 5 years after the deadline 

19 under paragraph (4) with respect to the 

20 species. 

21 ‘‘(iii) PRIORITY 5.—In the case of a 

22 species classified as Priority 5 under sub23 paragraph (A)(v), the Secretary may retain 

24 the species under the work plan for a pe25 riod of not more than 5 years after the 


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1 deadline under paragraph (4) with respect 

2 to the species. 

3 ‘‘(D) REVISION OF PRIORITY CLASSIFICA4 TION ASSIGNMENT.—The Secretary may revise, 

5 in accordance with subparagraph (A), the as6 signment to a priority classification of a species 

7 included in the work plan under this subsection 

8 at any time during the fiscal year to which the 

9 work plan applies. 

10 ‘‘(E) EFFECT OF ASSIGNMENT.—The as11 signment to a priority classification of a species 

12 included in the work plan under this subsection 

13 shall not be a final agency action. 

14 ‘‘(4) APPLICABILITY OF DEADLINES.—In the 

15 case of a species for which a priority classification 

16 is assigned by a work plan under this subsection, the 

17 following shall apply: 

18 ‘‘(A) DEADLINE.—Except as provided in 

19 subparagraph (B), the Secretary shall act on 

20 the relevant action relating to the species in the 

21 work plan under this subsection to which the 

22 species was first assigned not later than the last 

23 day of the period of that work plan. 

24 ‘‘(B) EXTENSION.—If the Secretary re25 tains the species under the work plan for addiVerDate Sep 11 2014 18:13 Sep 23, 2020 Jkt 099200 PO 00000 Frm 00100 Fmt 6652 Sfmt 6201 E:\BILLS\S4589.IS S4589

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1 tional time under paragraph (3)(C), the dead2 line under subparagraph (A) shall be extended 

3 accordingly. 

4 ‘‘(5) INCLUSION OF PETITIONED SPECIES IN

5 WORK PLAN.—On a finding by the Secretary under 

6 subsection (b)(3)(A) that a petitioned action to add 

7 a species to a list published under subsection (c) 

8 may be warranted, the Secretary shall include the 

9 species in the work plan under this subsection. 

10 ‘‘(6) REGULATIONS.—The Secretary may pro11 mulgate such regulations as the Secretary deter12 mines to be appropriate to carry out this subsection. 

13 ‘‘(7) EFFECT OF SUBSECTION.—Nothing in this 

14 subsection precludes the emergency listing authority 

15 of the Secretary under subsection (b)(7).’’. 

16 (b) CONFORMING AMENDMENTS.— 

17 (1) Section 4(b)(3) of the Endangered Species 

18 Act of 1973 (16 U.S.C. 1533(b)(3)) is amended— 

19 (A) in subparagraph (B)— 

20 (i) by striking clause (iii); 

21 (ii) by redesignating clauses (i) and 

22 (ii) as subclauses (I) and (II), respectively, 

23 and indenting appropriately; 

24 (iii) in the undesignating matter fol25 lowing subclause (II) (as so redesignated), 


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1 by striking ‘‘in which case’’ and inserting 

2 the following: 

3 ‘‘(ii) PUBLICATION.—After making a 

4 finding under clause (i),’’; and 

5 (iv) in the matter preceding subclause 

6 (I) (as so redesignated), by striking ‘‘(B) 

7 Within 12 months after’’ and inserting the 

8 following: 

9 ‘‘(B) FINDINGS.— 

10 ‘‘(i) IN GENERAL.—In accordance 

11 with the national listing work plan sub12 mitted under subsection (j), after’’; 

13 (B) in subparagraph (C)— 

14 (i) in clause (ii), by striking ‘‘or (iii)’’; 

15 (ii) by striking clause (iii); and 

16 (iii) by striking the subparagraph des17 ignation and all that follows through ‘‘Any 

18 negative’’ in clause (ii) and inserting the 

19 following: 

20 ‘‘(C) JUDICIAL REVIEW.—Any negative’’; 

21 and 

22 (C) in subparagraph (D)(ii) (as amended 

23 by section 101(a)(2)(C)), in the matter pre24 ceding subclause (I), by striking ‘‘(ii) Within 12 

25 months after’’ and inserting the following: 


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1 ‘‘(ii) ACTION ON POSITIVE FINDING.— 

2 In accordance with the national listing 

3 work plan submitted under subsection (j), 

4 after’’. 

5 (2) Section 6(d)(1) of the Endangered Species 

6 Act of 1973 (16 U.S.C. 1535(d)(1)) is amended, in 

7 the matter preceding subparagraph (A), in the first 

8 sentence, by striking ‘‘candidate species pursuant to 

9 subparagraph (C) of section 4(b)(3)’’ and inserting 

10 ‘‘species on the national listing work plan submitted 

11 under section 4(j) (referred to in this paragraph as 

12 ‘candidate species’)’’. 

13 TITLE VI—STUDIES TO IMPROVE 

14 CONSERVATION 

15 SEC. 601. DEFINITION OF SECRETARIES. 

16 In this title, the term ‘‘Secretaries’’ means— 

17 (1) the Secretary of Agriculture; 

18 (2) the Secretary of Commerce, acting through 

19 the Assistant Administrator of the National Marine 

20 Fisheries Service; and 

21 (3) the Secretary of the Interior, acting through 

22 the Director of the United States Fish and Wildlife 

23 Service. 


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1 SEC. 602. STUDY TO REVIEW CONSERVATION FACTORS. 

2 (a) IN GENERAL.—To assess factors affecting suc3 cessful conservation activities under the Endangered Spe4 cies Act of 1973 (16 U.S.C. 1531 et seq.), the Secretaries 

5 shall carry out a study— 

6 (1) to review any factors that threaten or en7 danger a species for which a listing under the En8 dangered Species Act of 1973 (16 U.S.C. 1531 et 

9 seq.) would not contribute to the conservation of the 

10 species; 

11 (2) to review any barriers to— 

12 (A) the delivery of Federal, State, local, or 

13 private funds for those conservation activities, 

14 including statutory or regulatory impediments, 

15 staffing needs, and other relevant consider16 ations; or 

17 (B) the implementation of conservation 

18 agreements, plans, or other cooperative agree19 ments, including agreements focused on vol20 untary activities, multispecies efforts, and other 

21 relevant considerations; 

22 (3) to review factors that impact the ability of 

23 the Federal Government to successfully implement 

24 the Endangered Species Act of 1973 (16 U.S.C. 

25 1531 et seq.); 


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1 (4) to develop recommendations regarding 

2 methods to address barriers identified under para3 graph (2), if any; 

4 (5) to review determinations under the Endan5 gered Species Act of 1973 (16 U.S.C. 1531 et seq.) 

6 in which a species is determined to be recovered by 

7 the Secretary of the Interior, acting through the Di8 rector of the United States Fish and Wildlife Serv9 ice, or the Secretary of Commerce, acting through 

10 the Assistant Administrator of the National Marine 

11 Fisheries Service, but remains listed under that Act, 

12 including— 

13 (A) an explanation of the factors pre14 venting a delisting or downlisting of the species; 

15 and 

16 (B) recommendations regarding methods 

17 to address the factors described in subpara18 graph (A); and 

19 (6) to review any determinations under the En20 dangered Species Act of 1973 (16 U.S.C. 1531 et 

21 seq.) in which a species has been identified as need22 ing listing or uplisting under that Act but remains 

23 unlisted or listed as a threatened species, respec24 tively, including— 


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1 (A) an explanation of the factors pre2 venting a listing or uplisting of the species; and 

3 (B) recommendations regarding methods 

4 to address the factors described in subpara5 graph (A). 

6 (b) REPORT.—Not later than 1 year after the date 

7 of enactment of this Act, the Secretaries shall submit to 

8 the Committees on Appropriations and Environment and 

9 Public Works of the Senate and the Committees on Appro10 priations and Natural Resources of the House of Rep11 resentatives and make publicly available a report describ12 ing the results of the study under subsection (a). 

13 SEC. 603. STUDY AND REPORT ON EXPENDITURES. 

14 (a) REPORTS ON EXPENDITURES.— 

15 (1) FEDERAL DEPARTMENTS AND AGENCIES.— 

16 (A) IN GENERAL.—At the determination of 

17 the Comptroller General of the United States 

18 (referred to in this section as the ‘‘Comptroller 

19 General’’), to facilitate the preparation of the 

20 reports from the Comptroller General under 

21 paragraph (2), the head of each Federal depart22 ment and agency shall submit to the Comp23 troller General data and other relevant informa24 tion that describes the amounts expended or 

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1 antees, grants, or any other financing mecha2 nism) by the department or agency as a direct 

3 result of any provision of the Endangered Spe4 cies Act of 1973 (16 U.S.C. 1531 et seq.) (in5 cluding any regulation promulgated pursuant to 

6 that Act) during— 

7 (i) with respect to the first report 

8 under paragraph (2), the 3 fiscal years 

9 preceding the date of submission of the re10 port; and 

11 (ii) with respect to the second report 

12 under paragraph (2), the 2 fiscal years 

13 preceding the date of submission of the re14 port. 

15 (B) REQUIREMENTS.—Data and other rel16 evant information submitted under subpara17 graph (A) shall describe, with respect to the ap18 plicable amounts— 

19 (i) the programmatic office of the de20 partment or agency on behalf of which 

21 each amount was expended or disbursed; 

22 (ii) the provision of the Endangered 

23 Species Act of 1973 (16 U.S.C. 1531 et 

24 seq.) (or regulation promulgated pursuant 


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1 to that Act) pursuant to which each 

2 amount was expended or disbursed; and 

3 (iii) the project or activity carried out 

4 using each amount, in detail sufficient to 

5 reflect the breadth, scope, and purpose of 

6 the project or activity. 

7 (2) COMPTROLLER GENERAL.—Not later than 

8 2 years and 4 years after the date of enactment of 

9 this Act, the Comptroller General shall submit to the 

10 Committees on Appropriations, Commerce, Science, 

11 and Transportation, and Environment and Public 

12 Works of the Senate and the Committee on Appro13 priations and Natural Resources of the House of 

14 Representatives a report that describes— 

15 (A) the aggregate amount expended or dis16 bursed by all Federal departments and agencies 

17 as a direct result of any provision of the En18 dangered Species Act of 1973 (16 U.S.C. 1531 

19 et seq.) (including any regulation promulgated 

20 pursuant to that Act) during— 

21 (i) with respect to the first report, the 

22 3 fiscal years preceding the date of submis23 sion of the report; and 


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1 (ii) with respect to the second report, 

2 the 2 fiscal years preceding the date of 

3 submission of the report; 

4 (B) the provision of the Endangered Spe5 cies Act of 1973 (16 U.S.C. 1531 et seq.) (or 

6 regulation promulgated pursuant to that Act) 

7 pursuant to which each such amount was ex8 pended or disbursed; and 

9 (C) with respect to each relevant depart10 ment or agency— 

11 (i) the total amount expended or dis12 bursed by the department or agency as de13 scribed in subparagraph (A); and 

14 (ii) the information described in 

15 clauses (i) through (iii) of paragraph 

16 (1)(B). 

17 (b) REPORT ON CONSERVATION ACTIVITIES.— 

18 (1) FEDERAL DEPARTMENTS AND AGENCIES.— 

19 At the determination of the Comptroller General, to 

20 facilitate the preparation of the report under para21 graph (2), the head of each Federal department and 

22 agency shall submit to the Comptroller General data 

23 and other relevant information that describes the 

24 conservation activities by the Federal department or 

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1 dangered Species Act of 1973 (16 U.S.C. 1531 et 

2 seq.) (including any regulation promulgated pursu3 ant to that Act) during— 

4 (A) with respect to the first report under 

5 paragraph (2), the 3 fiscal years preceding the 

6 date of submission of the report; and 

7 (B) with respect to the second report 

8 under paragraph (2), the 2 fiscal years pre9 ceding the date of submission of the report. 

10 (2) COMPTROLLER GENERAL.—Not later than 

11 2 years and 4 years after the date of enactment of 

12 this Act, the Comptroller General shall submit to the 

13 Committees on Commerce, Science, and Transpor14 tation and Environment and Public Works of the 

15 Senate and the Committee on Natural Resources of 

16 the House of Representatives a report that— 

17 (A) describes the conservation activities by 

18 all Federal departments and agencies for spe19 cies listed as a threatened species or endan20 gered species under the Endangered Species 

21 Act of 1973 (16 U.S.C. 1531 et seq.), as re22 ported under paragraph (1), during— 

23 (i) with respect to the first report, the 

24 3 fiscal years preceding the date of submis25 sion of the report; and 


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1 (ii) with respect to the second report, 

2 the 2 fiscal years preceding the date of 

3 submission of the report; 

4 (B) is organized into categories with re5 spect to whether a recovery plan for a species 

6 has been established; 

7 (C) includes conservation outcomes associ8 ated with the conservation activities; and 

9 (D) as applicable, describes the conserva10 tion activities that required interaction between 

11 Federal agencies and between Federal agencies 

12 and State and Tribal agencies and units of local 

13 government pursuant to the Endangered Spe14 cies Act of 1973 (16 U.S.C. 1531 et seq.). 

15 SEC. 604. STUDY TO QUANTIFY LITIGATION EXPENSES. 

16 Section 11(g) of the Endangered Species Act of 1973 

17 (16 U.S.C. 1540(g)) (as amended by section 402(2)) is 

18 amended by adding at the end the following: 

19 ‘‘(9) STUDY TO QUANTIFY LITIGATION EX20 PENSES.—Not later than 1 year after the date of en21 actment of this paragraph, the Comptroller General 

22 of the United States shall conduct, and submit to 

23 the Committees on Appropriations and Environment 

24 and Public Works of the Senate and the Committees 

25 on Appropriations and Natural Resources of the 


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1 House of Representatives a report describing the re2 sults of, a study that quantifies the amount of Fed3 eral funds expended before that date of enactment 

4 in connection with any litigation (including any con5 sent decree or a settlement agreement in an action 

6 brought under paragraph (1)(C)) relating to a deter7 mination made under section 4(a).’’. 

8 TITLE VII—REAUTHORIZATION 

9 SEC. 701. REAUTHORIZATION. 

10 Section 15 of the Endangered Species Act of 1973 

11 (16 U.S.C. 1542) is amended— 

12 (1) in the matter preceding paragraph (1), by 

13 striking ‘‘subsection (b), (c), and (d)’’ and inserting 

14 ‘‘subsections (d) and (e)’’; 

15 (2) in subsection (a)— 

16 (A) in paragraph (1), by striking 

17 ‘‘$35,000,000 for fiscal year 1988, $36,500,000 

18 for fiscal year 1989, $38,000,000 for fiscal year 

19 1990, $39,500,000 for fiscal year 1991, and 

20 $41,500,000 for fiscal year 1992’’ and inserting 

21 ‘‘$160,000,000 for fiscal year 2021, 

22 $165,000,000 for fiscal year 2022, 

23 $170,000,000 for fiscal year 2023, 

24 $175,000,000 for fiscal year 2024, and 

25 $180,000,000 for fiscal year 2025’’; 


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1 (B) in paragraph (2), by striking ‘‘not to 

2 exceed $5,750,000 for fiscal year 1988, 

3 $6,250,000 for each of fiscal years 1989 and 

4 1990, and $6,750,000 for each of fiscal years 

5 1991 and 1992’’ and inserting ‘‘for each of fis6 cal years 2021 through 2025, not to exceed 10 

7 percent of the total amount appropriated for 

8 the fiscal year under paragraphs (1) and (3) 

9 and subsection (b)’’; and 

10 (C) in paragraph (3), by striking 

11 ‘‘$2,200,000 for fiscal year 1988, $2,400,000 

12 for each of fiscal years 1989 and 1990, and 

13 $2,600,000 for each of fiscal years 1991 and 

14 1992,’’ and inserting ‘‘$4,000,000 for each of 

15 fiscal years 2021 through 2025’’; 

16 (3) by redesignating subsections (b) and (c) as 

17 subsections (d) and (e), respectively; and 

18 (4) by inserting after subsection (a) the fol19 lowing: 

20 ‘‘(b) RECOVERY IMPLEMENTATION.—There are au21 thorized to be appropriated to the Secretary to assist in 

22 the implementation of recovery plans developed under sec23 tion 4(f)(1) $214,000,000 for each of fiscal years 2021 

24 through 2025. 


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1 ‘‘(c) LIMITATION ON USE OF FUNDS.—Of the 

2 amounts appropriated under this section for a fiscal year, 

3 the Secretary shall use not less than 15 percent to support 

4 proactive, voluntary conservation activities, including 

5 those undertaken by private landowners, pursuant to— 

6 ‘‘(1) a conservation agreement described in sec7 tion 4(f)(9); 

8 ‘‘(2) a conservation effort that meets the re9 quirements of the framework established under sec10 tion 4(f)(10); 

11 ‘‘(3) a cooperative agreement entered into 

12 under section 6; and 

13 ‘‘(4) any other Federal program that supports 

14 the conservation of species in the United States that 

15 are listed as threatened species or endangered spe16 cies, candidate species, or at-risk species.’’. 

17 TITLE VIII—MISCELLANEOUS 

18 SEC. 801. EFFECT. 

19 Nothing in this Act or an amendment made by this 

20 Act— 

21 (1) limits the legal rights under the Endan22 gered Species Act of 1973 (16 U.S.C. 1531 et seq.) 

23 or any other law of— 

24 (A) any regulated entity, including an in25 dustry, agricultural producer, or landowner; 


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1 (B) any nongovernmental organization, in2 cluding an environmental, conservation, or land3 owner group; or 

4 (C) any county or equivalent jurisdiction; 

5 or 

6 (2) diminishes the value or credibility of infor7 mation or comments provided under that Act by any 

8 regulated entity, nongovernmental organization, and 

9 county or equivalent jurisdiction described in para10 graph (1) as compared to information or comments 

11 provided by any other source of information or com12 ments based solely on the source. 

13 SEC. 802. SENSE OF THE SENATE. 

14 It is the sense of the Senate that each State is en15 couraged— 

16 (1) to collaborate with county or equivalent ju17 risdictions and local governments in the State in car18 rying out State responsibilities and authorities under 

19 the Endangered Species Act of 1973 (16 U.S.C. 

20 1531 et seq.); 

21 (2) to give full and fair consideration to the 

22 input of county or equivalent jurisdictions and local 

23 governments in the State when exercising State obli24 gations under that Act; and 


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1 (3) to provide notice, when practicable, to coun2 ty or equivalent jurisdictions and local governments 

3 in the State of issues affecting those governments 

4 under that Act. 

Æ 


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