Union Calendar No. 420

104TH CONGRESS

2D SESSION H. R. 2275

[Report No. 104–778, Part I]

A BILL

To reauthorize and amend the Endangered Species

Act of 1973.

SEPTEMBER 9, 1996

Reported from the Committee on Resources with an

amendment

SEPTEMBER 9, 1996

Referral to the Committee on Agriculture extended for a

period ending not later than September 9, 1996

SEPTEMBER 9, 1996

Committee on Agriculture discharged; committed to the

Union and ordered to be printedCommittee of the Whole House on the State of the
IB

Union Calendar No. 420

104TH CONGRESS

2D SESSION H. R. 2275

[Report No. 104–778, Part I]

To reauthorize and amend the Endangered Species Act of 1973.

IN THE HOUSE OF REPRESENTATIVES

SEPTEMBER 7, 1995

Mr. YOUNG of Alaska (for himself, Mr. POMBO, Mr. TAUZIN, Mr. BREWSTER,

Mr. DOOLITTLE, Mr. HANSEN, Mr. DOOLEY, Mr. CALVERT, Mr. CONDIT,

Mr. STENHOLM, Mr. STUMP, Mr. SMITH of Texas, Mr. GALLEGLY, Mr.

FIELDS of Texas, Mr. KOLBE, Ms. DANNER, Mr. HUTCHINSON, Mr.

HAYWORTH, Mr. HASTINGS of Washington, Mr. BONILLA, Mr. MCHUGH,

Mr. DORNAN, Mr. HERGER, Mr. EVERETT, Mr. TAYLOR of North Carolina, Mr. PACKARD, Mr. CUNNINGHAM, Mr. THORNBERRY, Mr. HAYES,

Mr. ROYCE, Mr. COMBEST, Mr. COOLEY, Mr. SALMON, Mr. BONO, Mr.

BAKER of California, Mr. HUNTER, Mr. LEWIS of California, Mrs.

CUBIN, Mr. MCKEON, Mr. RADANOVICH, Mr. RIGGS, Mr. ROHRABACHER,

Mrs. SEASTRAND, Mr. THOMAS, Mr. ALLARD, Mr. SCHAEFER, Mr. MICA,

Mr. CHAMBLISS, Mr. COLLINS of Georgia, Mr. LINDER, Mr. BAKER of

Louisiana, Mr. CRAPO, Mr. EWING, Mr. BURTON of Indiana, Mr.

HOSTETTLER, Mr. MCINTOSH, Mr. ROBERTS, Mr. LEWIS of Kentucky,

Mr. BARTLETT of Maryland, Mr. KNOLLENBERG, Mr. EMERSON, Mr.

HANCOCK, Mr. SKEEN, Mr. PAXON, Mr. SOLOMON, Mr. BALLENGER, Mr.

JONES, Mr. OXLEY, Mr. COBURN, Mr. LARGENT, Mr. LUCAS, Mr.

WATTS of Oklahoma, Mr. BARTON of Texas, Mr. DELAY, Mr. SAM

JOHNSON of Texas, Mr. STOCKMAN, Mr. SHADEGG, Mr. CALLAHAN, Mr.

LAUGHLIN, Mrs. VUCANOVICH, Mr. TEJEDA, Mr. BACHUS, Mr. COX of

California, Mr. FUNDERBURK, Mr. BOEHNER, Mr. CRANE, Mr. DREIER,

Mr. EDWARDS, Mr. NETHERCUTT, Mr. PETE GEREN of Texas, Mr.

ORTIZ, Mr. HALL of Texas, Mr. DUNCAN, Mr. MCCRERY, and Mr. LIVINGSTON) introduced the following bill; which was referred to the Committee on Resources, and in addition to the Committee on Agriculture,

for a period to be subsequently determined by the Speaker, in each case

for consideration of such provisions as fall within the jurisdiction of the

committee concerned
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SEPTEMBER 9, 1996

Additional sponsors: Mr. DICKEY, Mr. CHAPMAN, Mr. SHUSTER, Mr. NEY,

Mr. SPENCE, Mr. TIAHRT, Mr. CAMP, Mr. GEKAS, Mr. MCDADE, Mr.

NORWOOD, Mr. DEAL of Georgia, Mr. CHRISTENSEN, Mr. BATEMAN, Mr.

METCALF, Mr. LAHOOD, Mr. HASTERT, Mr. PARKER, Ms. DUNN of

Washington, Mr. HOEKSTRA, Mr. MYERS of Indiana, Mr. SCARBOROUGH,

Mr. ROTH, Mr. QUILLEN, Mr. CREMEANS, Mr. BRYANT of Tennessee,

Mr. MONTGOMERY, Mr. BARRETT of Nebraska, Mr. CRAMER, Mrs.

MYRICK, Mr. TATE, Mr. BARR of Georgia, Mr. ROGERS, and Mr.

UNDERWOOD

Deleted sponsor: Mr. MARTINEZ (added September 14, 1995; deleted

September 28, 1995)

SEPTEMBER 9, 1996

Reported from the Committee on Resources with an amendment

[Strike out all after the enacting clause and insert the part printed in italic]

SEPTEMBER 9, 1996

Referral to the Committee on Agriculture extended for a period ending not

later than September 9, 1996

SEPTEMBER 9, 1996

Committee on Agriculture discharged; committed to the Committee of the

Whole House on the State of the Union and ordered to be printed

[For text of introduced bill, see copy of bill as introduced on September 7, 1995]

A BILL

To reauthorize and amend the Endangered Species Act of

1973.

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 ‘‘En5 dangered Species Conservation and Management Act of

6 1995’’.
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1 (b) TABLE OF CONTENTS.—The table of contents for

2 this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. References to Endangered Species Act of 1973.

Sec. 3. Findings, purposes, and policy of Endangered Species Act of 1973.

TITLE I—PRIVATE PROPERTY RIGHTS AND VOLUNTARY

INCENTIVES FOR PRIVATE PROPERTY OWNERS

Sec. 101. Compensation for use or taking of private property.

Sec. 102. Voluntary cooperative management agreements.

Sec. 103. Grants for improving and conserving habitat for species.

Sec. 104. Technical assistance programs.

Sec. 105. Water rights.

TITLE II—IMPROVING ABILITY TO COMPLY WITH THE

ENDANGERED SPECIES ACT OF 1973

Sec. 201. Enforcement procedures.

Sec. 202. Removing punitive disincentives.

Sec. 203. Allowing non-Federal persons to use the consultation procedures.

Sec. 204. Permitting requirements for incidental takes.

Sec. 205. General, research, and educational permits.

Sec. 206. Maintenance of aquatic habitats for listed species.

Sec. 207. Compliance with international requirements and treaties.

Sec. 208. Incentives for protection of marine species.

Sec. 209. International cooperation to conserve sea turtles.

TITLE III—IMPROVING SCIENTIFIC INTEGRITY OF LISTING

DECISIONS AND PROCEDURES

Sec. 301. Improving the validity and credibility of decisions.

Sec. 302. Peer review.

Sec. 303. Making data public.

Sec. 304. Improving the petition and designation processes.

Sec. 305. Greater State involvement.

Sec. 306. Monitoring the status of species.

Sec. 307. Petitions to delist species.

Sec. 308. Determinations by the Secretary to delist.

TITLE IV—RECOGNIZING OTHER FEDERAL ACTION, LAWS, AND

MISSIONS

Sec. 401. Balance esa with other laws and missions.

Sec. 402. Exemptions from consultation and conferencing.

Sec. 403. Eliminating the exemption committee (GOD committee).

TITLE V—BETTER MANAGEMENT AND CONSERVATION OF LISTED

SPECIES

Sec. 501. Setting conservation objectives.

Sec. 502. Preparing a conservation plan.

Sec. 503. Interim measures.

Sec. 504. Critical habitat for species.

Sec. 505. Recognition of captive propagation as means of recovery.
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Sec. 506. Introduction of species.

Sec. 507. Conserving threatened species.

Sec. 508. Delegation of authority to States.

TITLE VI—HABITAT PROTECTIONS

Sec. 601. Federal biological diversity reserve.

Sec. 602. Land acquisition.

Sec. 603. Property exchanges.

TITLE VII—STATE AUTHORITY TO PROTECT ENDANGERED AND

THREATENED SPECIES

Sec. 701. State authority.

Sec. 702. State programs affected by the Convention.

Sec. 703. Collaborative rulemaking with the States.

TITLE VIII—FUNDING OF CONSERVATION MEASURES

Sec. 801. Authorizing increased appropriations.

Sec. 802. Funding of Federal mandates.

Sec. 803. National Endowment for Fish and Wildlife.

TITLE IX—MISCELLANEOUS PROVISIONS

Sec. 901. Amendments to definitions.

Sec. 902. Review of species of national interest.

Sec. 903. Preparation of conservation plans for species listed before enactment of

this Act.

Sec. 904. Application of conservation plans for single or multiple species to habitat conservation plans approved prior to this Act.

Sec. 905. Washington County, Utah Desert Tortoise Habitat Conservation Plan.

Sec. 906. Taking of species to conserve listed species.

Sec. 907. Conforming amendments.

Sec. 908. Application of provisions to certified applicators of registered pesticides.

1 SEC. 2. REFERENCES TO ENDANGERED SPECIES ACT OF

2 1973.

3 Except as otherwise expressly provided, whenever in

4 this Act an amendment or repeal is expressed in terms of

5 an amendment to, or repeal of, a section or other provision,

6 the reference shall be considered to be made to such section

7 or other provision of the Endangered Species Act of 1973

8 (16 U.S.C. 1531 et seq.).
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1 SEC. 3. FINDINGS, PURPOSES, AND POLICY OF ENDAN2 GERED SPECIES ACT OF 1973.

3 (a) FINDINGS.—Section 2(a) (16 U.S.C. 1531(a)) is

4 amended—

5 (1) by amending paragraph (1) to read as fol6 lows:

7 ‘‘(1) various species of fish, wildlife, and plants

8 in the United States have been rendered extinct be9 cause of inadequate conservation practices and natu10 ral processes;’’; and

11 (2) by striking ‘‘and’’ after the semicolon at the

12 end of paragraph (4)(G), by striking the period at the

13 end of paragraph (5) and inserting ‘‘; and’’, and by

14 adding at the end the following new paragraph:

15 ‘‘(6) the Nation’s economic well-being is essential

16 to the ability to maintain a sustainable resource base,

17 therefore economic impacts and private property own18 ers’ rights must be considered while encouraging prac19 tices that protect species.’’.

20 (b) PURPOSES AND POLICY.—Section 2 (b) and (c) (16

21 U.S.C. 1531 (b), (c)) are amended to read as follows:

22 ‘‘(b) PURPOSES.—The purposes of this Act are the fol23 lowing:

24 ‘‘(1) To provide a feasible and practical means

25 to conserve endangered species and threatened species
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1 consistent with protection of the rights of private

2 property owners and ensuring economic stability.

3 ‘‘(2) To provide a program for the conservation

4 and management of such endangered species and

5 threatened species taking into account the economic

6 and social consequences of such program.

7 ‘‘(3) To take such steps as may be practicable to

8 achieve the purposes of the treaties and conventions

9 set forth in subsection (a) of this section.

10 ‘‘(c) POLICY.—

11 ‘‘(1) FEDERAL AUTHORITY.—It is further de12 clared to be the policy of Congress that all Federal de13 partments and agencies shall seek to conserve and

14 manage endangered species and threatened species

15 and shall, consistent with and not prevailing over

16 their primary missions, utilize their authorities in

17 furtherance of the purposes of this Act.

18 ‘‘(2) COOPERATION WITH STATES.—It is further

19 declared to be the policy of Congress that Federal

20 agencies shall cooperate with State and local agencies

21 to resolve water resource issues in concert with con22 servation of endangered species and consistent with

23 State and local water laws.

24 ‘‘(3) PROTECTION OF PRIVATE PROPERTY

25 RIGHTS.—It is the policy of the Federal Government
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1 that agency action taken pursuant to this Act shall

2 not use or limit the use of privately owned property

3 when such action diminishes the value of such prop4 erty without payment of fair market value to the

5 owner of private property. Each Federal agency, offi6 cer, and employee shall exercise authority under this

7 Act to ensure that agency action will not violate the

8 policy established in this paragraph.’’.

9 TITLE I—PRIVATE PROPERTY

10 RIGHTS AND VOLUNTARY IN11 CENTIVES FOR PRIVATE

12 PROPERTY OWNERS

13 SEC. 101. COMPENSATION FOR USE OR TAKING OF PRIVATE

14 PROPERTY.

15 The Endangered Species Act of 1973 (16 U.S.C. 1531

16 et seq.) is amended by adding at the end the following new

17 section:

18 ‘‘SEC. 19. RIGHT TO COMPENSATION.

19 ‘‘(a) PROHIBITION.—The Federal Government shall

20 not take an agency action affecting privately owned prop21 erty or nonfederally owned property under this Act which

22 results in diminishment of value of any portion of that

23 property by 20 percent or more unless compensation is of24 fered in accordance with this section.
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1 ‘‘(b) COMPENSATION FOR USE OR LIMITATION ON

2 USE.—The agency or agencies that take an agency action

3 that exceeds the amount provided in subsection (a) shall

4 compensate the private property owner for the otherwise

5 lawful use or limitation on the otherwise lawful use in the

6 amount of the diminution in value of the portion of that

7 property resulting from the use or limitation on use. If the

8 diminution in value of a portion of that property is greater

9 than 50 percent, at the option of the owner, the agency or

10 agencies shall buy that portion of the property and shall

11 pay fair market value based on the value of the property

12 before the use or limitation on use was imposed. Compensa13 tion paid shall reflect the duration of the use or limitation

14 on use necessary to achieve the purposes of this Act.

15 ‘‘(c) REQUEST OF OWNER.—An owner seeking com16 pensation under this section shall make a written request

17 for compensation to the agency implementing the agency

18 action. The request shall, at a minimum, identify the af19 fected portion of the property, the nature of the use or limi20 tation, and the amount of compensation claimed. No such

21 request may be made later than one year after the owner

22 receives actual notice that the use of property has been lim23 ited by an agency action.

24 ‘‘(d) NEGOTIATIONS.—The agency may negotiate with

25 that owner to reach agreement on the amount of the com-
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1 pensation and the terms of any agreement for payment. If

2 such an agreement is reached, the agency shall within 90

3 days pay the owner the amount agreed upon. An agreement

4 under this section may include a transfer of the title or

5 an agreement to use the property for a limited period of

6 time.

7 ‘‘(e) CHOICE OF REMEDIES.—If, not later than 180

8 days after the written request is made, the parties have not

9 reached an agreement on compensation, the owner may elect

10 binding arbitration or seek compensation due under this

11 section in a civil action.

12 ‘‘(f) ARBITRATION.—The procedures that govern the

13 arbitration shall, as nearly as practicable, be those estab14 lished under title 9, United States Code, for arbitration pro15 ceedings to which that title applies. An award made in such

16 arbitration shall include a reasonable attorney’s fee and

17 other arbitration costs, including appraisal fees. The agency

18 shall promptly pay any award made to the owner.

19 ‘‘(g) CIVIL ACTION.—An owner who prevails in a civil

20 action against the agency pursuant to this section shall be

21 entitled to, and the agency shall be liable for, the amount

22 of compensation awarded plus reasonable attorney’s fees

23 and other litigation costs, including appraisal fees. The

24 court shall award interest on the amount of any compensa25 tion from the time of the limitation.
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1 ‘‘(h) SOURCE OF PAYMENTS.—Any payment made

2 under this section to an owner, and any judgment obtained

3 by an owner in a civil action under this section shall, not4 withstanding any other provision of law, be made from the

5 annual appropriation of the agency that took the agency

6 action. If the agency action resulted from a requirement im7 posed by another agency, then the agency making the pay8 ment or satisfying the judgment may seek partial or com9 plete reimbursement from the appropriated funds of the

10 other agency. For this purpose the head of the agency con11 cerned may transfer or reprogram any appropriated funds

12 available to the agency. If insufficient funds exist for the

13 payment or to satisfy the judgment, it shall be the duty

14 of the head of the agency to seek the appropriation of such

15 funds for the next fiscal year.

16 ‘‘(i) AVAILABILITY OF APPROPRIATIONS.—Notwith17 standing any other provision of law, any obligation of the

18 United States to make any payment under this section shall

19 be subject to the availability of appropriations.

20 ‘‘(j) DUTY OF NOTICE TO OWNERS.—An agency may

21 not take any action limiting the use of private property

22 unless the agency has given appropriate notice to the owners

23 of that property directly affected explaining their rights

24 under this section and the procedures for obtaining any

25 compensation that may be due to them under this section.
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1 ‘‘(k) RULES OF CONSTRUCTION.—The following rules

2 of construction shall apply to this Act:

3 ‘‘(1) OTHER RIGHTS PRESERVED.—Nothing in

4 this Act shall be construed to limit any right to com5 pensation that exists under the Constitution or under

6 other laws.

7 ‘‘(2) EXTENT OF FEDERAL AUTHORITY.—Pay8 ment of compensation under this section (other than

9 when the property is bought by the Federal Govern10 ment at the option of the owner) shall not confer any

11 rights on the Federal Government other than the use

12 or limitation on use resulting from the agency action

13 for the duration so that the agency action may

14 achieve the species conservation purposes of this Act.

15 ‘‘(l) DEFINITIONS.—For the purposes of this section:

16 ‘‘(1) AGENCY.—The term ‘agency’ has the mean17 ing given that term in section 551 of title 5, United

18 States Code.

19 ‘‘(2) AGENCY ACTION.—The term ‘agency ac20 tion’—

21 ‘‘(A) subject to subparagraph (B), has the

22 meaning given that term in section 551 of title

23 5, United States Code, and

24 ‘‘(B) includes—
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1 ‘‘(i) the loss of use of property to avoid

2 prosecution under section 11;

3 ‘‘(ii) a designation pursuant to section

4 9(i) of privately owned property as critical

5 habitat;

6 ‘‘(iii) the denial of a permit under sec7 tion 10 that restricts the use of private

8 property;

9 ‘‘(iv) an agency action pursuant to a

10 biological opinion under section 7 that

11 would cause an agency to restrict the use of

12 private property;

13 ‘‘(v) an agreement under section 6 to

14 set aside property for habitat under the

15 terms of an easement or other contract;

16 ‘‘(vi) a restriction imposed on private

17 property as part of a conservation plan

18 adopted by the Secretary under section 5;

19 ‘‘(vii) any other agency action that re20 stricts a legal right to use that property, in21 cluding, the right to alter habitat; and

22 ‘‘(viii) the making of a grant of land

23 or money, to a public authority or a private

24 entity as a predicate to an agency action by
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1 the recipient that would constitute a limita2 tion if done directly by the agency.

3 ‘‘(3) FAIR MARKET VALUE.—The term ‘fair mar4 ket value’ means the most probable price at which

5 property would change hands, in a competitive and

6 open market under all conditions requisite to fair

7 sale, between a willing buyer and willing seller, nei8 ther being under any compulsion to buy or sell and

9 both having reasonable knowledge of relevant facts,

10 prior to occurrence of the agency action.

11 ‘‘(4) LAW OF THE STATE.—The term ‘law of the

12 State’ includes the law of a political subdivision of a

13 State.

14 ‘‘(5) LIMITATION ON USE.—The term ‘limitation

15 on use’ means only a limitation on a use which is

16 otherwise permissable under applicable State property

17 or nuisance laws.

18 ‘‘(6) PRIVATE PROPERTY, PRIVATELY OWNED

19 PROPERTY, NON-FEDERAL PROPERTY.—The term ‘pri20 vate property’, ‘privately owned property’, or ‘non21 Federal property’ means property which is owned by

22 a person other than any Federal entity of govern23 ment.

24 ‘‘(7) PROPERTY.—The term ‘property’ means

25 land, an interest in land, the right to use or receive
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1 water, and any personal property that is subject to

2 use by the Federal Government or to a restriction on

3 use.’’.

4 SEC. 102. VOLUNTARY COOPERATIVE MANAGEMENT AGREE5 MENTS.

6 (a) COOPERATIVE MANAGEMENT AGREEMENT DE7 FINED.—Section 3 (16 U.S.C. 1532) is amended—

8 (1) by redesignating paragraphs (2) through (21)

9 in order as paragraphs (3), (4), (5), (7), (9), (10),

10 (11), (12), (13), (18), (19), (20), (22), (23), (24), (25),

11 (26), (27), and (28); and

12 (2) by adding after paragraph (5) (as redesig13 nated by paragraph (1) of this section) the following

14 new paragraph:

15 ‘‘(6) The term ‘cooperative management agreement’

16 means a voluntary agreement entered into under section

17 6(b).’’.

18 (b) VOLUNTARY COOPERATIVE MANAGEMENT AGREE19 MENTS.—Section 6 (16 U.S.C. 1535) is amended by strik20 ing so much as precedes subsection (c) and inserting the

21 following:

22 ‘‘SEC. 6. COOPERATION WITH NON-FEDERAL PERSONS.

23 ‘‘(a) GENERALLY.—In carrying out the program au24 thorized by this Act, the Secretary shall cooperate to the

25 maximum extent practicable with the States and other non-
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1 Federal persons. Such cooperation shall include consulta2 tion with the States and non-Federal persons concerned be3 fore acquiring any land or water, or interest therein, for

4 the purpose of conserving any endangered species or threat5 ened species.

6 ‘‘(b) COOPERATIVE MANAGEMENT AGREEMENTS.—

7 ‘‘(1) IN GENERAL.—The Secretary may enter

8 into a cooperative management agreement with any

9 State or group of States, political subdivision of a

10 State, local government, or non-Federal person—

11 ‘‘(A) for the management of a species or

12 group of species listed as endangered species or

13 threatened species under section 4, a species or

14 group of species proposed to be listed under sec15 tion 4, or species or group of species which are

16 candidates for listing; or

17 ‘‘(B) for the management or acquisition of

18 an area which provides habitat for a species.

19 ‘‘(2) SCOPE OF COOPERATIVE MANAGEMENT

20 AGREEMENTS.—(A) A cooperative management agree21 ment entered into under this subsection—

22 ‘‘(i) may provide for the management of a

23 species or group of species on both public and

24 private lands which are under the authority,

25 control or ownership of a State or group of
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1 States, political subdivision of a State, local gov2 ernment, or non-Federal person and which are

3 affected by a listing determination, proposed de4 termination, or proposed candidacy for deter5 mination; and

6 ‘‘(ii) may include the acquisition or des7 ignation of land as habitat for species.

8 ‘‘(B) A cooperative management agreement may

9 not restrict private or non-Federal property unless

10 written consent to such restrictions by the non-Fed11 eral owner is given either to the Secretary or the

12 State, political subdivision, local government, or non13 Federal person who is a party to the agreement.

14 ‘‘(C) The Secretary may grant to a party to an

15 agreement the authority to undertake programs to en16 hance the population or habitat of a species on feder17 ally owned lands, except that such authority shall not

18 otherwise conflict with other uses of such land which

19 are approved by the Secretary or authorized by the

20 Congress.

21 ‘‘(D) The Secretary is authorized, in conjunction

22 with entering into and as a part of any agreement

23 under this section, to provide funds to carry out the

24 agreement to a non-Federal person, as provided in

25 paragraph (11).
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1 ‘‘(3) NOTIFICATION.—Not later than 30 days

2 after submission of a request to enter into a coopera3 tive management agreement, the party submitting the

4 request shall provide notice of the request to any non5 Federal person or Federal power marketing adminis6 tration that would be subject to the proposed coopera7 tive management agreement.

8 ‘‘(4) DEVELOPMENT OF PROPOSED AGREE9 MENT.—(A) The requesting party shall develop and

10 submit to the Secretary a proposed cooperative man11 agement agreement.

12 ‘‘(B) The Secretary shall publish in the Federal

13 Register a notice of availability and a request for

14 public comment on any proposed cooperative manage15 ment agreement between the Secretary and any gov16 ernmental entity and shall hold a public hearing on

17 such a proposed cooperative management agreement

18 in each county or parish in which the proposed agree19 ment would be in effect.

20 ‘‘(C) Before entering into a cooperative manage21 ment agreement with another governmental entity or

22 a non-Federal person for the management of federally

23 owned land, the Secretary shall consider and weigh

24 carefully all information received in response to the

25 request for comment published under subparagraph
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1 (B) and testimony presented in each hearing held

2 under subparagraph (B).

3 ‘‘(5) APPROVAL OF AGREEMENT.—(A) Not later

4 than 120 days after the submission of a proposed co5 operative management agreement under paragraph

6 (4), the Secretary shall determine whether the pro7 posed agreement is in accordance with this subsection

8 and will promote the conservation of the species to

9 which the proposed agreement applies.

10 ‘‘(B) The Secretary shall approve and enter into

11 a proposed cooperative management agreement, if the

12 Secretary finds that—

13 ‘‘(i) the requesting party has sufficient au14 thority under law to implement and carry out

15 the terms of the agreement;

16 ‘‘(ii) the agreement defines an area that

17 serves as habitat for the species or group of spe18 cies to which the agreement applies;

19 ‘‘(iii) the agreement adequately provides for

20 the administration and management of the iden21 tified management area;

22 ‘‘(iv) the agreement promotes the conserva23 tion of the species to which the agreement applies

24 by committing Federal or non-Federal efforts to

25 the conservation;
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1 ‘‘(v) the term of the agreement is of suffi2 cient duration to accomplish the provisions of

3 the agreement; and

4 ‘‘(vi) the agreement is adequately funded to

5 carry out the agreement.

6 ‘‘(C) No later than 30 days after entering into

7 a cooperative management agreement with a govern8 mental entity, the Secretary shall publish in the Fed9 eral Register a notice of availability of the terms of

10 such agreement and the response of the Secretary to

11 all information received or presented with respect to

12 the agreement pursuant to paragraph (4)(B).

13 ‘‘(6) ENVIRONMENTAL ASSESSMENTS.—Prepara14 tion, approval, and entering into a cooperative man15 agement agreement under this subsection shall not be

16 subject to section 102(2) of the National Environ17 mental Policy Act of 1969 (42 U.S.C. 4332(2)).

18 ‘‘(7) NO SURPRISES.—For any species or area

19 that is the subject of a cooperative management agree20 ment under this subsection, a party to the agreement

21 shall not be required—

22 ‘‘(A) to make any additional payment for

23 any purpose, or to accept any additional restric24 tion on any parcel of land available for develop-
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1 ment or land management under the agreement,

2 without consent of the party; or

3 ‘‘(B) to undertake any other measure to

4 minimize or mitigate impacts on the species in

5 addition to measures required by the agreement

6 as established.

7 ‘‘(8) EFFECT OF LISTING OF SPECIES.—A coop8 erative management agreement entered into under

9 this subsection shall remain in effect and shall not

10 be required to be amended if a species to which the

11 agreement does not apply is determined to be an en12 dangered species or threatened species under section

13 4.

14 ‘‘(9) APPLICABILITY OF CERTAIN PROVISIONS.—

15 Sections 5, 7, and 9 shall not apply to those activities

16 of a party to a cooperative management agreement

17 which are conducted in accordance with such agree18 ment.

19 ‘‘(10) VIOLATIONS OF AGREEMENTS.—(A) If the

20 Secretary determines that a party to a cooperative

21 management agreement is not administering or act22 ing in accordance with the agreement, the Secretary

23 shall notify the party.

24 ‘‘(B) If a party that is notified under subpara25 graph (A) fails to take appropriate corrective action
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1 within a period of time determined by the Secretary

2 to be reasonable (not to exceed 90 days after the date

3 of the notification)—

4 ‘‘(i) the Secretary shall rescind the entire

5 cooperative management agreement or the appli6 cability of the agreement to the party that is the

7 subject of the notification; and

8 ‘‘(ii) beginning on the date of the rescis9 sion—

10 ‘‘(I) the entire agreement shall not be

11 effective, or the agreement shall not be effec12 tive with respect to the party, whichever is

13 appropriate; and

14 ‘‘(II) sections 5, 7, and 9 shall apply

15 to activities of the party.

16 ‘‘(11) FACA.—Consultation with States pursu17 ant to this section shall not be subject to the Federal

18 Advisory Committee Act (5 U.S.C. App.).’’.

19 SEC. 103. GRANTS FOR IMPROVING AND CONSERVING HABI20 TAT FOR SPECIES.

21 Section 6 (16 U.S.C. 1535), as amended by section 105

22 of this Act, is further amended by adding at the end the

23 following new subsection:

24 ‘‘(k) HABITAT CONSERVATION GRANTS.—(1) The Sec25 retary may, from amounts in the account established by
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1 section 13 or from funds appropriated for such purpose,

2 provide a grant to a non-Federal person (other than an offi3 cer, employee, or agent (acting in an official capacity) or

4 a department or instrumentality of a State, municipality,

5 or political subdivision thereof) for the purpose of conserv6 ing, preserving, or improving habitat for any species that

7 is determined under section 4 to be an endangered species

8 or a threatened species or for any conservation measures

9 that enhances the survivability of such species, including

10 predator control.

11 ‘‘(2) The Secretary may provide a grant under this

12 subsection if the Secretary determines that—

13 ‘‘(A) the property for which the grant is provided

14 contains habitat that significantly contributes to the

15 protection of the population of the species;

16 ‘‘(B) the property has been managed for species

17 protection for a period of time that has been sufficient

18 to significantly contribute to the protection of the

19 population of the species; and

20 ‘‘(C) the management of the habitat advances the

21 interest of species protection.

22 ‘‘(3) A grant made under this subsection shall be trans23 ferable to subsequent owners of the property for which the

24 grant is provided.’’.
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1 SEC. 104. TECHNICAL ASSISTANCE PROGRAMS.

2 Section 5 (16 U.S.C. 1534), as added by section 501

3 of this Act and as amended by sections 502(a), 503, 504(a),

4 and 505 of this Act, is amended by adding at the end the

5 following new subsection:

6 ‘‘(m) TECHNICAL ASSISTANCE PROGRAM.—

7 ‘‘(1) IN GENERAL.—The Secretary shall initiate

8 a technical assistance program to provide technical

9 advice and assistance to non-Federal persons who

10 wish to participate in achieving the conservation ob11 jective for a species. The technical assistance provided

12 shall include information on habitat needs of species,

13 optimum management of habitat for species, methods

14 for propagation of species, feeding needs and habits,

15 predator controls, and any other information which

16 a non-Federal person may utilize or request for the

17 purpose of conserving a species determined to be an

18 endangered species or threatened species or proposed

19 to be determined as an endangered species or threat20 ened species.

21 ‘‘(2) REGULATIONS TO PROVIDE EXEMPTIONS

22 FROM SECTION 9.—The Secretary shall promulgate

23 regulations that establish exemptions from section 9

24 for any person who participates in a conservation

25 program under this subsection.’’.
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1 SEC. 105. WATER RIGHTS.

2 Section 6 (16 U.S.C. 1535) is amended by adding at

3 the end the following:

4 ‘‘(j) WATER RIGHTS.—Nothing in this Act shall be

5 construed to supersede, abrogate, or otherwise impair any

6 right or authority of a State to allocate or administer quan7 tities of water (including boundary waters). Nothing in this

8 Act shall be implemented, enforced, or construed to allow

9 any officer or agency of the United States to utilize directly

10 or indirectly the authorities established under this Act to

11 impose any requirement not imposed by the State which

12 would supersede, abrogate, condition, restrict, or otherwise

13 impair rights to the use of water resources allocated under

14 State law, interstate water compact, or Supreme Court de15 cree, or held by the United States for use by a State, its

16 political subdivisions, or its citizens. The exercise of author17 ity pursuant to or in furtherance of this Act shall not be

18 construed to create a limitation on the exercise of rights

19 to water or constitute a cause for nondelivery of water pur20 suant to contract or State law.’’.
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1 TITLE II—IMPROVING ABILITY

2 TO COMPLY WITH THE EN3 DANGERED SPECIES ACT OF

4 1973

5 SEC. 201. ENFORCEMENT PROCEDURES.

6 (a) IN GENERAL.—Section 9(a) (16 U.S.C. 1538(a))

7 is amended—

8 (1) in paragraph (1) by amending the matter

9 preceding subparagraph (A) to read as follows:

10 ‘‘(1) Except as provided in paragraph (3), section

11 6(g)(2), subsections (d)(3) and (e) of section 5, section 7(a),

12 and section 10, with respect to any endangered species of

13 fish or wildlife listed pursuant to section 4 it is unlawful

14 for any person subject to the jurisdiction of the United

15 States to—’’;

16 (2) in paragraph (2) by amending the matter

17 preceding subparagraph (A) to read as follows:

18 ‘‘(2) Except as provided in section 6(g)(2), subsections

19 (d)(3) and (e) of section 5, and section 10, with respect to

20 any endangered species of plants listed pursuant to section

21 4, it is unlawful for any person subject to the jurisdiction

22 of the United States to—’’; and

23 (3) by adding at the end the following new para24 graph:
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1 ‘‘(3) PERMITTED TAKINGS.—An activity of a

2 non-Federal person is not a taking of a species if the

3 activity—

4 ‘‘(A) is consistent with the provisions of a

5 final conservation plan or conservation objective;

6 ‘‘(B) complies with the terms and condi7 tions of an incidental take permit or a coopera8 tive management agreement;

9 ‘‘(C) addresses a critical, imminent threat

10 to public health or safety or a catastrophic natu11 ral event, or is mandated by any Federal, State,

12 or local government agency for public health or

13 safety purposes;

14 ‘‘(D) is incidental to, and not the purpose

15 of, the carrying out of an otherwise lawful activ16 ity that consists of—

17 ‘‘(i) on-going maintenance, routine op18 eration or use, and emergency repair of ex19 isting pipelines, fire breaks, transmission

20 and distribution lines, groundwater re21 charge facilities and areas, water storage fa22 cilities, water conveyance structures and

23 channels, and appurtenant facilities;

24 ‘‘(ii) road and right-of-away mainte25 nance, use, and repair; or
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1 ‘‘(iii) emergency repair or restoration

2 of any property or non-Federal facility to

3 the condition in which it existed or operated

4 immediately before an emergency or disas5 ter, meeting current standards; or

6 ‘‘(E) is incidental to, and not the purpose

7 of, the carrying out of an otherwise lawful activ8 ity that occurs within an area of the territorial

9 sea or exclusive economic zone established by

10 Proclamation Numbered 5030, dated March 10,

11 1983, that is not designated as critical habitat

12 under section 5(i), and the affected species is not

13 a species of fish.’’.

14 (b) REWARDS AND INCIDENTAL EXPENSES.—Section

15 11 (16 U.S.C. 1540) is amended—

16 (1) in subsection (d)(2) by inserting after ‘‘tem17 porary care for any’’ the following: ‘‘endangered spe18 cies or threatened species of’’;

19 (2) in subsection (e)(3) in the fourth sentence by

20 striking ‘‘Any fish, wildlife,’’ and inserting ‘‘Any en21 dangered species or threatened species of fish or wild22 life,’’;

23 (3) in subsection (e)(4)(A) by inserting ‘‘endan24 gered species or threatened species of’’ after ‘‘All’’;
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1 (4) in subsection (e)(4)(B) by inserting ‘‘endan2 gered species or threatened species of’’ after ‘‘import3 ing of any’’;

4 (5) in subsection (f) in the first sentence by in5 serting ‘‘endangered species or threatened species of’’

6 after ‘‘storage of’’;

7 (6) in subsection (a)(1) by striking ‘‘knowingly’’

8 each place it appears and inserting ‘‘with specific in9 tent’’;

10 (7) in subsection (b)(1) by striking ‘‘knowingly’’

11 each place it appears and inserting ‘‘with specific in12 tent’’;

13 (8) in subsection (e) by adding at the end the fol14 lowing new paragraph:

15 ‘‘(7) ADOPTION OF REGULATIONS.—No interpre16 tation, policy, guideline, finding, or other informal

17 determination may be relied upon by the Secretary in

18 the implementation and enforcement of this Act unless

19 such determination has been the subject of a proposed

20 rule, subject to review by the public and comment for

21 a period of no less than 60 days. Any proposed rule

22 under this subparagraph must include—

23 ‘‘(A) a plain-language explanation of the

24 reasons for and purpose of the proposed rule;
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1 ‘‘(B) an analysis of the anticipated impact

2 of the proposed rule;

3 ‘‘(C) an analysis showing that the restora4 tion benefit of the proposed rule outweighs any

5 negative conservation impact of that proposed

6 rule;

7 ‘‘(D) an analysis showing that compliance

8 with the proposed rule is reasonably within the

9 means of the State or the range nation con10 cerned; and

11 ‘‘(E) a summary of the literature reviewed

12 and experts consulted in regard to the species in13 volved, and a summary of the Secretary’s find14 ings based on that review and consultation.

15 ‘‘(8) BASIS FOR REFUSAL OF ENTRY.—No refusal

16 of entry, seizure of evidence, or other enforcement ac17 tion may take place under this Act if the action is

18 based solely on a notification under the Convention or

19 on a resolution of the Conference of the Parties to the

20 Convention.

21 ‘‘(9) DETENTION FOR PURPOSE OF IDENTIFICA22 TION.—The burden is on the Secretary to show that

23 a specimen belongs to a species which is determined

24 to be an endangered species or threatened species

25 under this Act or is included in an Appendix to the
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1 Convention. The Secretary may not detain a speci2 men for longer than 30 days for the purpose of identi3 fication except where the specimen has been substan4 tially changed from its natural appearance, in which

5 case it may be retained for an additional 30 days for

6 identification. If the specimen cannot be positively

7 identified within that time, then it shall be released.’’;

8 and

9 (9) by amending subsection (g) to read as fol10 lows:

11 ‘‘(g) CITIZEN SUITS.—

12 ‘‘(1) IN GENERAL.—Except as provided in para13 graph (2), a civil suit may be commenced by any per14 son on his or her own behalf, who satisfies the re15 quirements of the Constitution and who has suffered

16 or is threatened with economic or other injury result17 ing from the violation, regulation, application, non18 application, or failure to act—

19 ‘‘(A) to enjoin the United States or any

20 agency or official of the United States who is al21 leged to be in violation of any provision of this

22 Act or regulation issued under the authority

23 thereof, if the violation poses immediate and ir24 reparable harm to a threatened species or endan25 gered species;
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1 ‘‘(B) to compel the Secretary to apply, or

2 modify the application of, the prohibitions set

3 forth in or authorized pursuant to section

4 9(a)(1)(B) or 4(d);

5 ‘‘(C) to compel the Secretary to apply, or

6 modify the application of, the provisions of sec7 tion 10(a); or

8 ‘‘(D) against the Secretary where there is

9 alleged a failure of the Secretary to perform any

10 act or duty under section 4(d) which is not dis11 cretionary with the Secretary.

12 The district courts shall have jurisdiction to enforce

13 any such provision or regulation, or to order the Sec14 retary to perform such act or duty, as the case may

15 be.

16 ‘‘(2) PREREQUISITE PROCEDURES.—(A) No ac17 tion may be commenced under paragraph (1)(A)—

18 ‘‘(i) prior to 60 days after written notice of

19 the alleged violation has been given to the Sec20 retary, and to any agency or official of the Unit21 ed States who is alleged to be in violation, except

22 that a State may commence an action at any

23 time;
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1 ‘‘(ii) if the Secretary has commenced action

2 to impose a penalty pursuant to subsection (a);

3 or

4 ‘‘(iii) if the United States has commenced

5 and is diligently prosecuting a criminal action

6 in a court of the United States or a State to re7 dress the alleged violation of any such provision

8 or regulation.

9 ‘‘(B) No action may be commenced under para10 graph (1)(B) prior to 60 days after written notice has

11 been given to the Secretary setting forth the reasons

12 for applying, or modifying the application of, the

13 prohibitions with respect to the taking of a threatened

14 species.

15 ‘‘(C) No action may be commenced under para16 graph (1)(C) prior to 60 days after written notice has

17 been given to the Secretary, except that such action

18 may be brought immediately after such notification

19 in the case of an action under this subsection respect20 ing an emergency posing a significant risk to the

21 well-being of any species of fish or wildlife or plants.

22 ‘‘(3) VENUE.—Any suit under this subsection

23 may be brought in the judicial district in which the

24 violation occurs.
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1 ‘‘(4) COSTS.—The court, in issuing any final

2 order in any suit brought pursuant to paragraph (1),

3 may award costs of litigation (excluding attorney and

4 expert witness fees) to any party, whenever the court

5 determines such award is appropriate.

6 ‘‘(5) INJUNCTIVE RELIEF.—The injunctive relief

7 provided by this subsection shall not restrict any

8 right which any person (or class of persons) may have

9 under any statute or common law to seek enforcement

10 of any standard or limitation or to seek any other re11 lief (including relief against the Secretary or a State

12 agency).

13 ‘‘(6) INTERVENTION.—Any person may intervene

14 as a matter of right in any civil suit brought under

15 this subsection if such suit presents a reasonable

16 threat of economic injury to such person. Any interve17 nor under this paragraph shall have the same right

18 to present argument and to accept or reject potential

19 settlements as do the parties to the suit.’’.

20 SEC. 202. REMOVING PUNITIVE DISINCENTIVES.

21 Section 3(26) (as redesignated by section 102(a)(1) of

22 this Act) is amended to read as follows:

23 ‘‘(26)(A) The term ‘take’ means to harm, pursue,

24 hunt, shoot, wound, kill, trap, capture, or collect, or

25 to attempt to engage in that conduct.
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1 ‘‘(B) In subparagraph (A), the term ‘harm’

2 means an action that proximately and foreseeably

3 kills or physically injures an identifiable member of

4 an endangered species.’’.

5 SEC. 203. ALLOWING NON-FEDERAL PERSONS TO USE THE

6 CONSULTATION PROCEDURES.

7 Section 10(a) (16 U.S.C. 1539(a)), as amended by sec8 tion 204(b) of this Act, is amended by adding at the end

9 the following new paragraph:

10 ‘‘(3) VOLUNTARY CONSULTATION.—(A) Subject to

11 such regulations as the Secretary may issue, any non12 Federal person may initiate consultation with the

13 Secretary on any prospective activity of the person—

14 ‘‘(i) to determine if the activity is consistent

15 or inconsistent with a conservation plan or con16 servation objective; or

17 ‘‘(ii) if the person determines that the activ18 ity is inconsistent, to determine whether the ac19 tivity is likely to jeopardize the continued exist20 ence of an endangered species or a threatened

21 species, or to destroy or adversely modify the des22 ignated critical habitat of the species in a man23 ner that is likely to jeopardize the continued ex24 istence of the species.
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1 ‘‘(B) The voluntary consultation process for non2 Federal persons authorized by subparagraph (A) shall

3 be conducted in accordance with the procedures and

4 requirements for consultation on agency actions set

5 forth in section 7, except that—

6 ‘‘(i) the period for completion of the con7 sultation shall be 90 days from the date on

8 which the consultation is initiated, or not later

9 than such other date as is mutually agreeable to

10 the Secretary and the person initiating the con11 sultation;

12 ‘‘(ii) the person initiating the consultation

13 shall not be required to prepare a biological as14 sessment or equivalent document;

15 ‘‘(iii) neither the activity for which the con16 sultation process is sought nor the consultation

17 process itself shall be deemed a Federal action for

18 the purpose of compliance with section 102(2) of

19 the National Environmental Policy Act of 1969

20 (42 U.S.C. 4332(2)) or an agency action for the

21 purpose of compliance with the consultation re22 quirement of section 7(a)(2);

23 ‘‘(iv) the Secretary shall provide the person

24 initiating the consultation with a written opin25 ion only, unless such person requests a permit
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1 referred to in paragraph (1)(B) and meets the

2 requirements of clause (v); and

3 ‘‘(v) a permit described in clause (iv) shall

4 be issued if the Secretary makes a finding of—

5 ‘‘(I) consistency pursuant to subpara6 graph (A)(i);

7 ‘‘(II) no jeopardy pursuant to subpara8 graph (A)(ii); or

9 ‘‘(III) jeopardy pursuant to subpara10 graph (A)(ii), but offers a reasonable and

11 prudent alternative which the person initi12 ating the consultation accepts.

13 ‘‘(C) Any person that is not an owner of prop14 erty is prohibited from participating in the consulta15 tion process under this paragraph with respect to the

16 property without written permission from the owner

17 of the property.’’.

18 SEC. 204. PERMITTING REQUIREMENTS FOR INCIDENTAL

19 TAKES.

20 (a) INCIDENTAL TAKE PERMIT DEFINED.—Section 3

21 (16 U.S.C. 1532) is amended by adding after paragraph

22 (14) (as added by section 301(b)(3) of this Act) the following

23 new paragraph:

24 ‘‘(15) The term ‘incidental take permit’ means a

25 permit issued under section 10(a)(1)(B).’’.
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1 (b) TAKE PERMITS.—Section 10 (16 U.S.C. 1539) is

2 amended by striking so much as precedes subsection (b) and

3 inserting the following:

4 ‘‘SEC. 10. EXCEPTIONS.

5 ‘‘(a) PERMITS.—

6 ‘‘(1) AUTHORITY TO ISSUE PERMITS.—The Sec7 retary may permit, under such terms and conditions

8 as the Secretary shall prescribe—

9 ‘‘(A) any act otherwise prohibited by section

10 9 undertaken for scientific purposes or to en11 hance the propagation or survival of the affected

12 species, including, but not limited to—

13 ‘‘(i) acts necessary for the establish14 ment and maintenance of experimental pop15 ulations pursuant to subsection (j);

16 ‘‘(ii) the public display or exhibition of

17 living wildlife in a manner designed to edu18 cate, or which otherwise contributes to the

19 education of the public about the ecological

20 role and conservation needs of the affected

21 species;

22 ‘‘(iii) in the case of foreign species, acts

23 that are consistent with the Convention and

24 with conservation strategies adopted by the
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1 foreign nations responsible for the conserva2 tion of the species; and

3 ‘‘(iv) acts necessary for the research in

4 and carrying out of captive propagation; or

5 ‘‘(B) any taking otherwise prohibited by

6 section 9(a)(1)(B) if such taking is incidental to,

7 and not the purpose of, the carrying out of an

8 otherwise lawful activity.

9 ‘‘(2) SPECIES CONSERVATION PLANS.—(A) Ex10 cept as provided in paragraph (3), no permit may be

11 issued by the Secretary authorizing any taking re12 ferred to in paragraph (1)(B) unless the applicant

13 therefor submits to the Secretary a species conserva14 tion plan that specifies—

15 ‘‘(i) the impact on the species which will be

16 the likely result of the activities to be permitted;

17 ‘‘(ii) what steps the applicant can reason18 ably and economically take consistent with the

19 purposes and objectives of the activity to mini20 mize such impacts, and the funding that will be

21 available to implement such steps; and

22 ‘‘(iii) what alternative actions to such tak23 ing the applicant considered and the reasons

24 why such alternatives are not being utilized.
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1 ‘‘(B) If the Secretary finds, after opportunity for

2 public comment, with respect to a permit application

3 and the related species conservation plan that—

4 ‘‘(i) the taking will be incidental;

5 ‘‘(ii) the applicant will, to the extent rea6 sonable and economically practicable, minimize

7 the impacts of such taking;

8 ‘‘(iii) the applicant will ensure that ade9 quate funding for the plan will be provided;

10 ‘‘(iv) the taking will not appreciably reduce

11 the likelihood of the survival and conservation of

12 the species; and

13 ‘‘(v) the measures specified under subpara14 graph (A)(ii) will be met;

15 and the Secretary has received such other assurances

16 as the Secretary may require that the plan will be

17 implemented, the Secretary shall issue the permit.

18 The permit shall contain such reasonable and eco19 nomically practicable terms and conditions consistent

20 with the purposes and objectives of the activity as the

21 Secretary deems necessary or appropriate to carry

22 out the purposes of this paragraph, including, but not

23 limited to, such reporting requirements as the Sec24 retary deems necessary for determining whether such

25 terms and conditions are being complied with.
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1 ‘‘(C) The Secretary may not require the appli2 cant, as a condition of processing the application or

3 issuing the permit, to expand the application to in4 clude land, an interest in land, right to use or receive

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

6 applicant or to address a species other than the spe7 cies for which the application is made.

8 ‘‘(D)(i) The Secretary shall complete the process9 ing of, and approve or deny, any application for a

10 permit under paragraph (1)(B) within 90 days of the

11 date of submission of the application or within such

12 other period of time after such date of submission to

13 which the Secretary and the permit applicant mutu14 ally agree.

15 ‘‘(ii) The preparation and approval of a species

16 conservation plan and issuance of a permit under

17 paragraph (1)(B) shall not be subject to section

18 102(2) of the National Environmental Policy Act of

19 1969 (42 U.S.C. 4332(2)).

20 ‘‘(E) No additional measures to minimize and

21 mitigate impacts on a species that is a subject of a

22 permit issued under paragraph (1)(B) shall be re23 quired of a permittee that is in compliance with the

24 permit. With respect to any species that is a subject

25 of such a permit, under no circumstance shall a per-
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1 mittee in compliance with the permit be required to

2 make any additional payment for any purpose, or ac3 cept any additional restriction on any parcel of land

4 available for development or land management or any

5 water or water-related right under the permit, with6 out the consent of the permittee.

7 ‘‘(F)(i) For such activities as the Secretary de8 termines will not appreciably reduce the chances of

9 survival of a species, the Secretary may issue an in10 terim permit to any applicant for a permit under

11 this section that provides evidence of appropriate in12 terim measures that—

13 ‘‘(I) will minimize impacts of any inciden14 tal taking that may be associated with the activ15 ity proposed for permitting; and

16 ‘‘(II) are to be performed while the underly17 ing permit application is being considered under

18 this section.

19 ‘‘(ii) An interim permit issued under clause

20 (i)—

21 ‘‘(I) shall specifically state the types of ac22 tivities that are authorized to be carried out

23 under the interim permit;

24 ‘‘(II) shall not create any right to the issu25 ance of a permit under this section;
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1 ‘‘(III) shall expire on the date of the grant2 ing or denial of the underlying permit applica3 tion; and

4 ‘‘(IV) may be revoked by the Secretary upon

5 failure to comply with any term of the interim

6 permit.

7 ‘‘(G) The Secretary shall revoke a permit issued

8 under this paragraph if he finds that the permittee is

9 not complying with the terms and conditions of the

10 permit.’’.

11 (c) MULTI-SPECIES PLANNING.—Section 10 (16

12 U.S.C. 1539) is amended by adding at the end the following

13 new subsection:

14 ‘‘(k) MULTIPLE SPECIES CONSERVATION PLANS.—

15 ‘‘(1) DEVELOPMENT.—The Secretary may assist

16 a non-Federal person in the development of a plan,

17 to be known as a ‘multiple species conservation plan’,

18 for the conservation of—

19 ‘‘(A) any species with respect to which a

20 finding is made and a status review is com21 menced under section 4(b)(3)(B); and

22 ‘‘(B) any other species that—

23 ‘‘(i) inhabit the area covered by the

24 plan; and
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1 ‘‘(ii) are designated in the plan or are

2 within a taxonomic group designated in the

3 plan.

4 ‘‘(2) ISSUANCE OF PERMITS.—A non-Federal

5 person may submit a species conservation plan pre6 pared under this subsection for the conservation of

7 multiple species to the Secretary for approval under

8 subsection (a)(2). If the Secretary approves the plan,

9 the Secretary shall issue an incidental take permit

10 authorizing take of any threatened species subject to

11 the plan under section 4(d). The Secretary shall also

12 recommend terms and conditions to address species

13 subject to the plan which have not been determined to

14 be endangered species or threatened species.

15 ‘‘(3) EFFECT OF LISTING OF SPECIES.—A mul16 tiple species conservation plan developed under this

17 subsection and a permit issued with respect to the

18 plan shall remain in effect and shall not be required

19 to be amended if a species to which the plan and per20 mit apply is determined to be an endangered species

21 or a threatened species under section 4, except that

22 the Secretary’s recommendations under paragraph (2)

23 shall become terms and conditions of the permit. No

24 additional restrictions or prohibitions under this Act

25 shall be imposed upon the plan permittee for such
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1 species or geographic area beyond those provided for

2 in the approved plan or the permit terms and condi3 tions.

4 ‘‘(4) CONSIDERATION OF STATE RECOMMENDA5 TIONS.—The Secretary shall, in cooperation with the

6 States, develop a process whereby full consideration

7 can be given to State recommendations regarding

8 standards and guidelines for the development and ap9 proval of a broad range of multiple species conserva10 tion plans. To the maximum extent practicable and

11 consistent with the conservation of the affected species,

12 such standards and guidelines shall—

13 ‘‘(A) develop clear criteria by which con14 servation plans would be approved;

15 ‘‘(B) encourage the development of conserva16 tion plans which would reduce economic impacts

17 while providing conservation of affected species;

18 ‘‘(C) include assurances that further con19 servation measures would not be required of a

20 non-Federal person should any species dependent

21 upon that habitat type be subsequently listed un22 less any additional costs are assumed by the Sec23 retary; and

24 ‘‘(D) provide incentives to a non-Federal

25 person who voluntarily agrees to manage to en-
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1 hance habitat for species on their property by ex2 cluding them from restrictions if they later re3 turn their land to its previous condition or use.

4 ‘‘(5) TECHNICAL ASSISTANCE OR GUIDANCE.—To

5 the maximum extent practicable, the Secretary and

6 other Federal agencies, in cooperation with the af7 fected States, are authorized and encouraged to pro8 vide technical assistance or guidance to any non-Fed9 eral person who is developing a multiple species con10 servation plan pursuant to this subsection.’’.

11 (d) FOREIGN SPECIES.—Section 10(a), as amended by

12 subsection (b) of this section and sections 203 and 205(a)

13 of this Act, is amended by adding at the end the following

14 new paragraph:

15 ‘‘(7) FOREIGN SPECIES.—(A) In determining

16 whether to issue a permit under subsection

17 (a)(1)(A)(iii), there shall be a rebuttable presumption

18 that the survival of a species is enhanced by the ordi19 nary benefit occurring from the taking of a specimen

20 for an inherently limited use in accordance with the

21 laws and wildlife management policies of the nation

22 in which it is found.

23 ‘‘(B) The Secretary may not refuse to issue a

24 permit for such specimens and may not limit the

25 number of such specimens which may be imported un-
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1 less he makes and publishes in the Federal Register

2 a finding that there is substantial evidence that the

3 detriment resulting from the taking of such specimens

4 outweighs the benefit derived, and subsequently pro5 mulgates regulations containing the limitation.

6 ‘‘(C) The Secretary shall transmit the full text

7 and a complete description of the proposed regulation

8 referred to in the preceding paragraph directly to the

9 appropriate wildlife management authorities of the

10 nations from which the specimens are exported, in the

11 language of those countries, with at least 180 days al12 lowed for review and comment. The 180-day period

13 shall be counted from the date of the delivery of the

14 materials to the wildlife management authority of

15 each of the nations.

16 ‘‘(D) For the purpose of this paragraph, the term

17 ‘inherently limited use’ means scientific collection,

18 live export for captive breeding, sport hunting, and

19 falconry.’’.

20 (e) EXPEDITED PERMITTING PROCESS FOR LOW-IM21 PACT ACTIVITIES.—Section 10(a), as amended by sub22 sections (b) and (d) of this section and sections 203, 205(a),

23 and 401(f) of this Act, is amended by adding at the end

24 the following new paragraph:
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1 ‘‘(9) EXPEDITED PERMITTING PROCESS FOR

2 LOW-IMPACT ACTIVITIES.—(A) Not later than 180

3 days after the date of the enactment of the Endan4 gered Species Conservation and Management Amend5 ments of 1995, the Secretary shall issue regulations

6 which establish a simple, standardized application

7 form for a permit under paragraph (1)(B) for a low8 impact activity.

9 ‘‘(B) If a person submits an application for a

10 permit under paragraph (1)(B) in accordance with

11 the form established by the Secretary under subpara12 graph (A)—

13 ‘‘(i) the person shall not be required to sub14 mit any other information to obtain the permit;

15 and

16 ‘‘(ii) the Secretary shall complete processing

17 of the application, and approve or deny the per18 mit, within 30 days after the date the Secretary

19 receives the completed application.

20 ‘‘(C) The regulations under this paragraph—

21 ‘‘(i) shall describe classes of activities that

22 are low-impact activities for purposes of this

23 paragraph; and

24 ‘‘(ii) shall treat as a low-impact activity

25 any activity which has no significant effect on
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1 the survival of endangered species and threatened

2 species.

3 ‘‘(D) For purposes of this paragraph, the term

4 ‘low-impact activity’ means an activity in a class of

5 activities described in regulations under subpara6 graph (C)(i).’’.

7 SEC. 205. GENERAL, RESEARCH, AND EDUCATIONAL PER8 MITS.

9 (a) IN GENERAL.—Section 10(a) (16 U.S.C. 1539(a)),

10 as amended by sections 203 and 204(b) of this Act, is

11 amended by adding at the end the following new para12 graphs:

13 ‘‘(4) GENERAL PERMITS.—(A) After providing

14 notice and opportunity for public hearing, the Sec15 retary may issue a general permit under paragraph

16 (1)(B) on a county, parish, State, regional, or nation17 wide basis for any category of activities that may af18 fect a species determined to be an endangered species

19 or threatened species if the Secretary determines that

20 the activities in the category are similar in nature,

21 will cause only minimal adverse effects on the species

22 if performed separately, and will have only minimal

23 cumulative adverse effects on the species generally. A

24 general permit issued under this paragraph shall
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1 specify the requirements and standards that apply to

2 an activity authorized by the general permit.

3 ‘‘(B) A general permit issued under this para4 graph shall be effective for a period to be specified by

5 the Secretary, but not to exceed the 5-year period that

6 begins on the date of issuance of the permit.

7 ‘‘(C) The Secretary may revoke or modify a gen8 eral permit if, after providing notice and opportunity

9 for public hearing, the Secretary determines that the

10 activities authorized by the general permit have a

11 greater than minimal adverse effect on a species that

12 is included in a list published under section 4(c)(1)

13 or that the activities are more appropriately author14 ized by individual permits issued under paragraph

15 (1) or (3).

16 ‘‘(5) RESEARCH ON ALTERNATIVE METHODS AND

17 TECHNOLOGIES.—Priority for issuing permits under

18 paragraph (1)(A) shall be accorded to applications for

19 permits to conduct research, captive breeding, or edu20 cation on alternative methods and technologies, and

21 the comparative costs of the methods and technologies,

22 to reduce the incidental taking as described in para23 graph (1)(B) of an endangered species or a threatened

24 species for which the employment of existing methods
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1 or technologies for avoidance of the incidental taking

2 entails significant costs for non-Federal persons.

3 ‘‘(6) EDUCATIONAL OR PROPAGATION PER4 MITS.—(A) A permit under paragraph (1)(A)(ii) or

5 (iv) shall be issued if—

6 ‘‘(i)(I) the applicant holds a current and

7 valid license as an exhibitor under the Animal

8 Welfare Act (7 U.S.C. 2131 et seq.);

9 ‘‘(II) in the case of a permit under para10 graph (1)(A)(ii), the applicant maintains a pub11 lic display or exhibition of living wildlife de12 scribed in that paragraph; and

13 ‘‘(III) viewing of the public display or exhi14 bition is not limited or restricted other than by

15 charging an admission fee; or

16 ‘‘(ii) in the case of a permit under para17 graph (1)(A)(iv), the applicant has demonstrated

18 the ability to use propagation techniques that re19 sult in increases in the populations of species

20 held in captivity for eventual release into the

21 wild, maintenance of live specimens, or falconry

22 purposes.

23 ‘‘(B)(i) The Secretary shall issue an educational

24 or propagation permit as authorized in subparagraph

25 (A) within 30 days from the effective date of this sub-
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1 paragraph to any qualified organization or qualified

2 person for educational or propagation purposes, who

3 has demonstrated the ability to propagate, handle, or

4 recover species for a minimum of 15 years or who had

5 at least 10 permits in the aggregate issued pursuant

6 to this Act or any of the laws listed in subparagraph

7 (H).

8 ‘‘(ii) The Secretary shall issue a permit within

9 90 days of receipt of a completed application from

10 any qualified organization or person who currently

11 does not hold any permit but who has demonstrated

12 the ability to handle or recover species for a mini13 mum of 15 years of who has received at least 10 per14 mits in the aggregate and who has not violated any

15 terms or conditions of any permits previously issued

16 pursuant to this Act or the laws listed in subpara17 graph (H).

18 ‘‘(C) A permit referred to in paragraph

19 (1)(A)(ii) shall be for a term of not less than 6 years.

20 ‘‘(D) A permit referred to in paragraph

21 (1)(A)(ii) shall also authorize the permittee to import,

22 export, sell, purchase, or otherwise transfer possession

23 of the affected species.
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1 ‘‘(E) The Secretary shall revoke a permit re2 ferred to in paragraph (1)(A)(ii) if the Secretary de3 termines that the permittee—

4 ‘‘(i) no longer meets the requirements of

5 subparagraph (A) and is not reasonably likely to

6 meet the requirements in the near future;

7 ‘‘(ii) is not complying with the terms and

8 conditions of the permit; or

9 ‘‘(iii) is engaging in an activity likely to

10 jeopardize the continued existence of the species

11 subject to the permit.

12 ‘‘(F) The Secretary may require an annual re13 port on the activities authorized by a general permit,

14 but may not require reports more frequently than an15 nually.

16 ‘‘(G) A permit authorized in this paragraph

17 shall be the only permit required for the activities au18 thorized therein, and may cover activities for one or

19 more species or taxa simultaneously.

20 ‘‘(H) The authorizations for any activities per21 mitted under this paragraph or permitted by the

22 Bald Eagle Protection Act (16 U.S.C. 668–668d), the

23 Fish and Wildlife Conservation Act of 1980 (16

24 U.S.C. 2901–2911), the Lacey Act Amendments of

25 1981 (18 U.S.C. 42; 16 U.S.C. 3371–3378), the Ma-
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1 rine Mammal Protection Act of 1972 (16 U.S.C.

2 1361–1407), the Migratory Bird Conservation Act (16

3 U.S.C. 715–715d), the Migratory Bird Treaty Act (16

4 U.S.C. 703–712), or the Wild Bird Conservation Act

5 of 1992 (Public Law 102–440) shall be consolidated

6 into a general permit to cover all authorized activi7 ties, notwithstanding any law or regulation to the

8 contrary.’’.

9 (b) EXCEPTIONS FOR WILDLIFE BRED IN CAP10 TIVITY.—Section 10, as amended by section 204(c) of this

11 Act, is amended by adding at the end the following new

12 subsection:

13 ‘‘(l) WILDLIFE BRED IN CAPTIVITY.—For the purposes

14 of this Act or any regulation adopted pursuant to this Act,

15 the terms ‘bred in captivity’ or ‘captive-bred’, with respect

16 to wildlife, means wildlife, including eggs, born or otherwise

17 produced in captivity from parents that mated or otherwise

18 transferred gametes in captivity if reproduction is sexual,

19 or from parents that were in captivity when development

20 of the progeny began, if development is asexual. Such prog21 eny shall be considered domestic fish or wildlife for all pur22 poses and shall not come under the provisions and prohibi23 tions of this Act and the laws listed in subsection (a)(6)(H)

24 unless intentionally and permanently released to the wild.

25 Any person holding any fish or wildlife or their progeny
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1 as described in this subsection must be able to demonstrate

2 that such fish or wildlife do, in fact, qualify under the pro3 vision of this subsection, and shall maintain and submit

4 to the Secretary, on request, such inventories, documenta5 tion, and records as the Secretary may by regulation re6 quire as being reasonable and appropriate to carry out the

7 purposes of this subsection. Such requirements shall not un8 necessarily duplicate the requirements of other rules and

9 regulations promulgated by the Secretary.’’.

10 SEC. 206. MAINTENANCE OF AQUATIC HABITATS FOR LIST11 ED SPECIES.

12 The Endangered Species Act of 1973 (16 U.S.C. 1851

13 et seq.) is amended by adding at the end the following new

14 section:

15 ‘‘SEC. 20. RECOGNIZING NET BENEFITS TO AQUATIC SPE16 CIES.

17 ‘‘(a) ENCOURAGING NET BENEFITS.—In carrying out

18 this Act, if the number of individual members of an endan19 gered species or threatened species exiting an aquatic habi20 tat area under the control, authority or ownership of a non21 Federal person is equal to or greater than the number of

22 individual members of the species entering such area, the

23 Secretary shall not require, provide for, or recommend the

24 imposition of any restriction or obligation on the activity

25 of the non-Federal person in a manner which would require
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1 the non-Federal person to support the maintenance of any

2 greater number of individual members of the species than

3 that which enters such aquatic habitat area.

4 ‘‘(b) CONSIDERATION OF HATCHERY POPULATIONS.—

5 In calculating the number of individual members of a spe6 cies entering and exiting a specific aquatic habitat area

7 pursuant to this section, the Secretary shall consider hatch8 ery populations.

9 ‘‘(c) LIMITATIONS.—The Secretary shall not require,

10 provide for, or recommend the imposition of any restriction

11 or obligation on the activity of any non-Federal person in

12 an aquatic habitat area to remedy adverse impacts on a

13 species resulting from activities of individuals other than

14 the non-Federal person.’’.

15 SEC. 207. COMPLIANCE WITH INTERNATIONAL REQUIRE16 MENTS AND TREATIES.

17 (a) RESPECTING THE SOVEREIGNTY OF OTHER NA18 TIONS.—Section 8 (16 U.S.C. 1537) is amended by adding

19 at the end the following new subsection:

20 ‘‘(e) ENCOURAGEMENT OF FOREIGN PROGRAMS.—Any

21 action taken by the Secretary pursuant to this Act in regard

22 to a foreign species which occurs in a country which is a

23 party to the Convention—

24 ‘‘(1) shall be done in cooperation with the wild25 life conservation authorities of such country; and
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1 ‘‘(2) shall not obstruct any wildlife conservation

2 program of such country unless the Secretary can

3 show, based on adequate findings supported by sub4 stantial evidence, that the country’s wildlife conserva5 tion program for the species in question is not con6 sistent with the Convention.’’.

7 (b) COMPLIANCE WITH THE CONVENTION.—Section

8 8A (16 U.S.C. 1537a) is amended by adding at the end

9 the following new subsections:

10 ‘‘(f) NONDUPLICATION OF FINDINGS.—The Secretary,

11 in making the findings required in paragraph 3(a) of Arti12 cle III of the Convention, shall limit such findings to the

13 purpose of the importation, and shall not duplicate the

14 findings required to be made by the exporting nation except

15 for good cause based on adequate findings supported by sub16 stantial evidence.

17 ‘‘(g) RELATIONSHIP OF PROTECTIVE REGULATIONS TO

18 THE CONVENTION.—In determining the provisions of pro19 tective regulations pursuant to section 4(d) of this Act when

20 such regulations relate to a foreign species—

21 ‘‘(1) the Secretary may not prohibit any act that

22 is permissible under the Convention, notwithstanding

23 Article XIV of the Convention;

24 ‘‘(2) the Secretary shall, prior to publishing a

25 proposal for such protective regulations in the Federal
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1 Register, transmit the full text and a complete de2 scription of the proposed regulation directly to the ap3 propriate wildlife management authority of that

4 country, in the language of that country, with at least

5 180 days allowed for review and comment, the 180

6 days shall be counted from the date of delivery of the

7 materials to the wildlife authorities of the country;

8 ‘‘(3) such transmission must be accompanied

9 by—

10 ‘‘(A) a plain-language explanation of the

11 reasons for and purpose of the proposed regula12 tion;

13 ‘‘(B) an analysis of the anticipated bene14 ficial impact or detrimental impact of the regu15 lation on the economic, social, and cultural utili16 zation of the species, if any, and of the beneficial

17 or detrimental impact on the resource manage18 ment and conservation programs of that country;

19 and

20 ‘‘(C) a summary of the literature reviewed

21 and experts consulted by the Secretary in regard

22 to the species involved, and a summary of the

23 Secretary’s findings based on that review and

24 consultation;
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1 ‘‘(4) the Secretary shall enter into discussions

2 with appropriate wildlife management officials of the

3 countries to which he has sent the transmission re4 ferred to in the previous paragraph, and if those offi5 cials feel that further studies of the species are indi6 cated the Secretary may assist in finding funds from

7 private sources for such studies and in carrying out

8 the studies; and

9 ‘‘(5) the Secretary must obtain the written con10 currence of all the nations contacted, and if such con11 currence is not obtained the Secretary may not issue

12 the proposed regulation except by an order submitted

13 to and approved by the President.’’.

14 (c) CONSERVATION OF THREATENED SPECIES.—Sec15 tion 9 (16 U.S.C. 1538), as amended by section 206 of this

16 Act, is amended by adding at the end the following new

17 subsection:

18 ‘‘(h) IMPORTATION AND EXPORTATION.—

19 ‘‘(1) LIMITATION ON IMPORTATION.—The prohi20 bition on importation in subsection (a) of this section

21 shall not apply to a specimen of a threatened species

22 taken for an inherently limited use in accordance

23 with the laws of a foreign nation which is a party

24 to the Convention and accompanied by an export per25 mit issued by that nation or an equivalent document.
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1 For the purpose of this subsection, the term ‘inher2 ently limited use’ means scientific collection, live ex3 port for captive breeding, sport hunting, and falconry.

4 ‘‘(2) REGULATIONS FOR SHIPPING UNDER CON5 VENTION.—(A) The Secretary shall adopt regulations

6 regarding the finding required by the Convention that

7 live specimens exported from the United States will be

8 so prepared as to minimize the risk of injury, damage

9 to health, or cruel treatment. Such regulations shall

10 provide clear, consistent and reliable guidance to ex11 porters.

12 ‘‘(B) In any instance in which the Secretary be13 lieves that a shipment for export is not prepared in

14 accordance with the regulations, a detailed written

15 notice of noncompliance shall be issued to the ex16 porter. The notice shall contain recommendations as

17 to how future shipments should be modified in order

18 to come into compliance with the regulations. The no19 tice shall go into effect 30 days after receipt by the

20 shipper, subject to appeal to an Administrative Law

21 Judge or a court. The filing of an appeal shall toll

22 the effectiveness of the notice. The issue of noncompli23 ance may be appealed as well as the issue of the ap24 propriateness of the recommendation for compli25 ance.’’.
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1 SEC. 208. INCENTIVES FOR PROTECTION OF MARINE SPE2 CIES.

3 (a) IN GENERAL.—Section 10 (16 U.S.C. 1539), as

4 amended by section 205(b) of this Act, is amended by add5 ing at the end the following new subsection:

6 ‘‘(m) INCENTIVES.—(1) The Secretary shall exempt,

7 under such terms and conditions as the Secretary may pre8 scribe by regulation, any operator of a trawl vessel required

9 to use a turtle excluder device under regulations promul10 gated under this Act from such requirement if such operator

11 agrees to support a conservation program approved under

12 paragraph (2) and such support is determined to be appro13 priate under paragraph (4).

14 ‘‘(2) No later than 180 days after the effective date of

15 this subsection and each year thereafter, the Secretary

16 shall—

17 ‘‘(A) review all those programs intended to con18 serve the endangered species and threatened species of

19 sea turtles found in the Gulf of Mexico and along the

20 Atlantic seaboard, including those programs involving

21 protection of nesting beaches in other nations;

22 ‘‘(B) approve any such program determined by

23 the Secretary to be of significant benefit to the recov24 ery of the species of such sea turtles under this sub25 section; and
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1 ‘‘(C) publish notice of such determination in the

2 Federal Register.

3 ‘‘(3)(A) Any person or group of persons operating

4 trawl vessels may submit in writing a request to the Sec5 retary for an exemption under this subsection.

6 ‘‘(B) Not later than 60 days after receipt of such re7 quest the Secretary shall provide such person or group writ8 ten notice of the issuance or denial of such request.

9 ‘‘(4) The Secretary shall determine that the support

10 offered by an operator in a written request submitted under

11 paragraph (3) is appropriate if the benefits provided by

12 such support to the recovery of such species exceed any harm

13 to the recovery of such species incurred as a result of the

14 operator not using turtle excluder devices under an exemp15 tion provided under this subsection.

16 ‘‘(5) The Secretary shall prescribe such regulations as

17 the Secretary considers necessary and appropriate to carry

18 out the purposes of this subsection.’’.

19 (b) INCIDENTAL TAKE STATEMENTS.—Section 7(b)

20 (16 U.S.C. 1536(b)) is amended by adding at the end of

21 paragraph (4)(C)(ii) the following: ‘‘including incentives to

22 encourage the support of conservation programs approved

23 under section 10(k),’’.
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1 SEC. 209. INTERNATIONAL COOPERATION TO CONSERVE

2 SEA TURTLES.

3 (a) IN GENERAL.—The Secretary of State, in consulta4 tion with the Secretary of Commerce and the Secretary of

5 the Interior, may enter into international agreements for

6 the conservation of sea turtles listed under section 4 of the

7 Endangered Species Act of 1973, as amended by this Act.

8 (b) TERMS OF AGREEMENT.—Any international agree9 ment entered into under this section shall—

10 (1) provide for the conservation of the habitat

11 and nesting beaches of sea turtles and encourage na12 tional programs to enhance sea turtle populations;

13 (2) include provisions with respect to commercial

14 fishing to ensure that—

15 (A) the capture, injury, and mortality of

16 sea turtles incidental to such fishing are reduced

17 to the extent practicable;

18 (B) the productivity of commercial fisheries

19 is maintained; and

20 (C) measures taken by the nations con21 cerned to reduce the capture, injury, and mortal22 ity of sea turtles incidental to such fishing are

23 comparable to each other;

24 (3) create an institutional mechanism for inter25 national cooperation on a continuing basis which can

26 take account of new developments and information,
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1 adopt measures relating to commercial fishing, and

2 otherwise facilitate international cooperation;

3 (4) provide for international cooperation in sci4 entific research on sea turtles; and

5 (5) provide for effective monitoring and evalua6 tion of measures taken by each country that is party

7 to the agreement to ensure compliance with the agree8 ment by persons and vessels subject to its jurisdiction.

9 (c) ENTRY INTO FORCE.—International agreements

10 entered into under this section shall enter into force for the

11 United States in accordance with the procedures for govern12 ing international fishery agreements set forth in section 203

13 of the Magnuson Fishery Conservation and Management

14 Act (16 U.S.C. 1823).

15 (d) ACCEPTANCE AND IMPLEMENTATION OF REC16 OMMENDATIONS.—The Secretary of State is authorized to

17 act for the United States with respect to any international

18 agreement entered into under this section, and to receive,

19 on behalf of the United States, any recommendations for

20 the conservation of sea turtles made pursuant to such agree21 ment. Any such recommendation shall be acted on by the

22 United States unless the Secretaries of State, Commerce,

23 and the Interior agree otherwise. The Secretary of Com24 merce or the Secretary of the Interior shall promulgate such

25 regulations as may be necessary to carry out any such
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1 agreement or recommendation as has been accepted by the

2 United States, except that no regulation promulgated under

3 this Act may impose restrictions on United States commer4 cial fishing vessels which decrease the productivity of such

5 vessels more than provided for in an agreement or rec6 ommendation approved under this section.

7 (e) REPORT.—The Secretary of State shall submit to

8 Congress, not later than May 1, 1996, and every year there9 after a report describing the efforts of the Secretary to im10 plement this section, the results of such efforts, and any

11 plans for further such efforts. The report shall contain a

12 list of the countries participating effectively in and comply13 ing with agreements which have been approved pursuant

14 to subsection (c).

15 (f) EFFECT ON PRIOR LAW.—Section 609(b) of the Act

16 making appropriations for the Departments of Commerce,

17 Justice, and State, the Judiciary, and related agencies for

18 the fiscal year ending September 30, 1990, and for other

19 purposes (16 U.S.C. 1537 note) shall not apply to any coun20 try that is a party to, and is complying with, an agreement

21 entered into under this section whose geographical scope in22 cludes the Gulf of Mexico and the Wider Caribbean Sea.

23 The Secretary of State is encouraged to enter into inter24 national agreements under this section which include other

25 regions not affected by that Act.
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1 TITLE III—IMPROVING SCI2 ENTIFIC INTEGRITY OF LIST3 ING DECISIONS AND PROCE4 DURES

5 SEC. 301. IMPROVING THE VALIDITY AND CREDIBILITY OF

6 DECISIONS.

7 (a) BASING LISTINGS ON CREDIBLE SCIENCE.—

8 (1) LISTING DETERMINATIONS.—Section 4 (16

9 U.S.C. 1533) is amended—

10 (A) by striking so much as precedes sub11 section (a)(2) and inserting the following:

12 ‘‘SEC. 4. DETERMINATION OF ENDANGERED SPECIES AND

13 THREATENED SPECIES.

14 ‘‘(a) GENERALLY.—(1) The Secretary shall by regula15 tion promulgated in accordance with subsection (b) deter16 mine whether any species is an endangered species or a

17 threatened species because of any of the following factors:

18 ‘‘(A) The present or threatened loss of its habitat.

19 ‘‘(B) Overutilization for commercial, rec20 reational, scientific, or educational purposes.

21 ‘‘(C) Disease or predation.

22 ‘‘(D) The inadequacy of existing Federal, State,

23 and local government regulatory mechanisms.

24 ‘‘(E) Other natural or manmade factors affecting

25 its continued existence.’’;
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1 (B) by striking paragraph (3) of subsection

2 (a); and

3 (C) by amending so much of subsection (b)

4 as precedes paragraph (3) to read as follows:

5 ‘‘(b) SECRETARIAL DETERMINATIONS.—

6 ‘‘(1) BASIS FOR DETERMINATION.—(A) The Sec7 retary shall make determinations required by sub8 section (a)(1) solely on the basis of the best scientific

9 and commercial data available to the Secretary after

10 conducting a review of the status of the species and

11 after soliciting and fully considering the best sci12 entific and commercial data available concerning the

13 status of a species from any affected State or any in14 terested non-Federal person, and taking into account

15 those efforts being made by any State, any political

16 subdivision of a State, or any non-Federal person or

17 conservation organization, to protect such species,

18 whether by predator control, protection of habitat and

19 food supply, or other conservation practices, within

20 any area under its jurisdiction, or on the high seas,

21 and shall accord greater weight, consideration, and

22 preference to empirical data rather than projections

23 or other extrapolations developed through modeling.

24 ‘‘(B) In making a determination whether a spe25 cies is an endangered species or a threatened species
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1 under this section, the Secretary shall fully consider

2 populations of the species that are bred through pri3 vate sector, university, and Federal, State, and local

4 government breeding programs for release in the habi5 tat of the species. In the case of fish species, the bred

6 populations referred to in the preceding sentence shall

7 include hatchery populations.

8 ‘‘(C) In making a determination whether a spe9 cies is an endangered species or threatened species

10 under this section, the Secretary shall consider the fu11 ture conservation benefits to be provided to the species

12 under any species conservation plans prepared pursu13 ant to section 10 or to any cooperative management

14 agreement entered into under section 6.

15 ‘‘(2) CONSIDERATION OF STATE RECOMMENDA16 TIONS.—In making a determination pursuant to

17 paragraph (1), the Secretary shall give consideration

18 to species which have been identified as in danger of

19 extinction, or likely to become so within the foresee20 able future, by any State agency that is responsible

21 for the conservation of fish or wildlife or plants.’’.

22 (2) STANDARDS FOR TAXONOMIC DECISIONS.—

23 Section 4(b)(1) (15 U.S.C. 1533(b)(1)), as amended

24 by paragraph (1), is further amended by adding at

25 the end the following:
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1 ‘‘(D) Within 18 months after the date of the enactment

2 of the Endangered Species Conservation and Management

3 Act of 1995, the Secretary shall promulgate scientifically

4 valid standards for rendering taxonomic determinations of

5 species and subspecies. The standards shall provide that to

6 be eligible for determination as a subspecies under this Act,

7 a subspecies must be reproductively isolated from other sub8 specific population units and constitute an important com9 ponent in the evolutionary legacy of the species.’’.

10 (3) LISTING FOREIGN SPECIES.—Section 4(b)

11 (16 U.S.C. 1533(b)), as amended by subsection (f) of

12 this section, is amended by adding at the end the fol13 lowing new paragraph:

14 ‘‘(10) FOREIGN SPECIES.—(A) In determining

15 under subsection (a) whether a foreign species is an

16 endangered species or a threatened species, the Sec17 retary shall not determine that a species that is listed

18 under the Convention is endangered or threatened un19 less he makes an adequate finding, supported by sub20 stantial evidence, that the Convention does not pro21 vide adequate regulation.

22 ‘‘(B) The Secretary shall, prior to publishing a

23 proposal in the Federal Register to determine that a

24 foreign species is endangered or threatened, transmit

25 the full text and a complete description of the pro-
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1 posed listing directly to the appropriate wildlife man2 agement authority of that nation, in the language of

3 that nation, with at least 180 days allowed for review

4 and comment. The 180 days shall be counted from the

5 date of delivery of the materials supporting the pro6 posed listing to the wildlife authorities of the country.

7 ‘‘(C) Such transmission must be accompanied

8 by—

9 ‘‘(i) a plain-language explanation of the ob10 jective criteria for and purpose of the proposed

11 listing;

12 ‘‘(ii) an analysis of the anticipated bene13 ficial impact or detrimental impact of the listing

14 on the economic, social, and cultural utilization

15 of the species, if any, and of the beneficial or det16 rimental impact on the resource management

17 and conservation programs of that nation; and

18 ‘‘(iii) a summary of the literature reviewed

19 and experts consulted by the Secretary in regard

20 to the species involved, and a summary of the

21 Secretary’s findings based on that review and

22 consultation.

23 ‘‘(D) The Secretary shall enter into discussions

24 with the appropriate wildlife management officials of

25 the nations to which he has sent the transmission re-
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1 ferred to in subparagraph (C). If those officials feel

2 that further studies of the species are indicated, the

3 Secretary shall assist in finding the funds for such

4 studies and in carrying out the studies.

5 ‘‘(E) The Secretary must obtain the written con6 currence of all the nations contacted. If such concur7 rence is not obtained, the Secretary may not issue the

8 proposed regulation except by an order submitted to

9 and approved by the President.’’.

10 (b) DEFINITIONS.—Section 3 (16 U.S.C. 1532) is

11 amended—

12 (1) by adding after paragraph (1) the following

13 new paragraph:

14 ‘‘(2) The term ‘best scientific and commercial

15 data available’ means factual information, including

16 but not limited to peer reviewed scientific information

17 and genetic data, obtainable from any source, includ18 ing governmental and nongovernmental sources,

19 which has been to the maximum extent feasible veri20 fied by field testing.’’;

21 (2) by adding after paragraph (7) (as redesig22 nated by section 102(a)(1) of this Act) the following

23 new paragraphs:

24 ‘‘(8) The term ‘distinct population of national

25 interest’ means a distinct population of a vertebrate
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1 species that is not otherwise an endangered species or

2 threatened species in the United States, Canada, or

3 Mexico, but which because of its value to the Nation

4 as a whole has been designated by Congress as need5 ing protection under this Act.

6 ‘‘(8a) The term ‘foreign species’ means a species

7 naturally occurring outside the territory of the United

8 States, but does not include any marine species, any

9 species having a significant population occurring in

10 the wild within the United States, or any migratory

11 species whose migration route includes United States

12 territory.’’;

13 (3) by adding after paragraph (13) (as redesig14 nated by section 102(a)(1) of this Act) the following

15 new paragraph:

16 ‘‘(14) The term ‘imminent threat to the existence

17 of’, with respect to a species, means, as determined by

18 the Secretary under section 4(b)(7) or the President

19 under section 5(e)(2) solely on the basis of the best

20 scientific and commercial data available, that there is

21 a significant likelihood that the species will become

22 extinct, or will be placed on an irreversible course to

23 extinction, during the 2-year period beginning on the

24 date of the determination that the species is an en25 dangered species or a threatened species, unless the
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1 species is accorded fully the protection available

2 under this Act during such period.’’; and

3 (4) by amending paragraph (23) (as redesig4 nated by section 102(a)(1) of this Act) to read as fol5 lows:

6 ‘‘(23) The term ‘species’ includes any subspecies

7 of fish or wildlife or plants, and any distinct popu8 lation of national interest of any species or vertebrate

9 fish or wildlife which interbreeds when mature.’’.

10 (c) SOLICITING SCIENTIFIC INFORMATION.—Section

11 4(b)(3) (16 U.S.C. 1533(b)(3)), as amended by sections

12 303(a), 304(a), 305(a), and 306 of this Act, is amended by

13 adding at the end the following new subparagraph:

14 ‘‘(F) Before any further action is taken in ac15 cordance with this paragraph, the Secretary shall

16 publish in the Federal Register a solicitation for fur17 ther information regarding the status of a species

18 which is the subject of a proposed rule to list the spe19 cies as an endangered species or threatened species,

20 including current population, populations trends,

21 current habitat, Federal conservation lands which

22 could provide habitat for the species, food sources,

23 predators, breeding habits, captive breeding efforts,

24 commercial, nonprofit, avocational, or voluntary con25 servation activities, or other pertinent information
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1 which may assist in making a determination under

2 this section. The solicitation shall give a time limit

3 within which to submit the information which shall

4 be not less than 180 days. The time limit shall be ex5 tended for an additional 180 days at the request of

6 any person who submits a request for such extension

7 along with the reasons therefor. The Secretary in

8 making the determination required in this subsection,

9 shall give equal weight to the information submitted

10 in accordance with this paragraph.’’.

11 (d) EMERGENCY LISTINGS.—Section 4(b)(7) (16

12 U.S.C. 1533(b)(7)) is amended—

13 (1) by striking the matter preceding subpara14 graph (A) and inserting the following:

15 ‘‘(7) EMERGENCY REGULATIONS.—Neither para16 graph (4), (5), or (6) of this subsection nor section

17 553 of title 5, United States Code, shall apply to any

18 regulation issued by the Secretary in regard to any

19 emergency posing an imminent threat to the existence

20 of any species of fish or wildlife or plants, but only

21 if—’’; and

22 (2) by adding at the end the following new sen23 tence: ‘‘The Secretary may not delegate the final deci24 sion to issue an emergency regulation under this

25 paragraph.’’.
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1 (e) USING BEST DATA.—Section 4(b)(8) (16 U.S.C.

2 1538(b)(8)) is amended—

3 (1) by striking ‘‘the data’’ and inserting ‘‘the

4 best scientific and commercial data available’’; and

5 (2) by adding at the end the following new sen6 tence: ‘‘Each regulation proposed by the Secretary to

7 implement a determination referred to in subsection

8 (a)(1) shall be based only upon peer-reviewed sci9 entific information obtainable from any source, in10 cluding governmental and nongovernmental sources,

11 which has been to the maximum extent feasible veri12 fied by field testing.’’.

13 (f) IDENTIFYING DATA USED FOR DECISIONS.—Sec14 tion 4(b) (16 U.S.C. 1533(b)) is amended by adding at the

15 end the following new paragraph:

16 ‘‘(9) PUBLICATION IN FEDERAL REGISTER.—(A)

17 The Secretary shall identify and publish in the Fed18 eral Register with each proposed rule under para19 graph (1) or section 5(i) a description of—

20 ‘‘(i) all data that are to be considered in

21 making the determination under the subsection

22 to which the proposed rule relates and that have

23 yet to be collected or field verified;
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1 ‘‘(ii) data that are necessary to make deter2 minations and that can be collected prior to any

3 determination; and

4 ‘‘(iii) data that are necessary to ensure the

5 scientific validity of the determination, and each

6 deadline for collecting these data.

7 ‘‘(B) In making a determination pursuant to

8 paragraph (1) or section 5(i), the Secretary shall col9 lect and consider the data identified and described

10 pursuant to subparagraph (A)(ii).

11 ‘‘(C) The Secretary shall identify and publish in

12 the Federal Register with each final rule promulgated

13 under paragraph (1) or section 5(i)—

14 ‘‘(i) a description of any data that have not

15 been collected and considered in the determina16 tion to which the rule relates and that are nec17 essary to ensure the continued scientific validity

18 of the determination; and

19 ‘‘(ii) each deadline by which the Secretary

20 shall collect and consider the data in accordance

21 with subparagraph (D).

22 ‘‘(D) Not later than the deadline published by

23 the Secretary pursuant to subparagraph (C)(ii), the

24 Secretary shall—
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1 ‘‘(i) collect the data referred to in each

2 paragraph;

3 ‘‘(ii) provide an opportunity for public re4 view and comment on the data;

5 ‘‘(iii) consider the data after the review and

6 comment; and

7 ‘‘(iv) publish in the Federal Register the re8 sults of that consideration and a description of

9 and schedule for any actions warranted by the

10 data.’’.

11 (g) JUDICIAL REVIEW.—Section 4 (16 U.S.C. 1533),

12 as amended by section 302 of this Act, is amended by add13 ing at the end the following new subsection:

14 ‘‘(j) JUDICIAL REVIEW OF DETERMINATIONS.—Any

15 determination with regard to whether a species is a threat16 ened species or endangered species shall be subject to a de

17 novo judicial review with the court determining whether the

18 decision is supported by a preponderance of the evidence.’’.

19 (h) ANALYSIS OF ECONOMIC AND SOCIAL EFFECTS.—

20 Section 4(b) (16 U.S.C. 1533(b)), as amended by section

21 305(d) of this Act, is further amended by adding at the end

22 the following new paragraph:

23 ‘‘(12) ANALYSIS OF ECONOMIC AND SOCIAL

24 COSTS.—Concurrently with a determination that a

25 species warrants listing as an endangered species or
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1 threatened species, the Secretary shall issue an analy2 sis of the economic and social effects the listing may

3 have. The analysis shall be published in the Federal

4 Register with the listing determination and shall in5 clude an estimate of the effects the listing may have

6 on Federal, State, and local expenditures and reve7 nues, and the costs and benefits of the listing for the

8 private sector, including lost opportunity costs.’’.

9 SEC. 302. PEER REVIEW.

10 Section 4 (16 U.S.C. 1533) is amended by adding after

11 subsection (h), as redesignated by section 507(b)(2) of this

12 Act, the following new subsection:

13 ‘‘(i) PEER REVIEW REQUIREMENT.—

14 ‘‘(1) DEFINITIONS.—In this subsection:

15 ‘‘(A) The term ‘action’ means—

16 ‘‘(i) the determination that a species is

17 an endangered species or a threatened spe18 cies under subsection (a);

19 ‘‘(ii) the determination under sub20 section (a) that an endangered species or a

21 threatened species be removed from any list

22 published under subsection (c)(1);

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

24 designation, of critical habitat for an en-
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1 dangered species or a threatened species

2 under section 5(i); and

3 ‘‘(iv) the determination that a pro4 posed action is likely to jeopardize the con5 tinued existence of a listed species and the

6 proposal of any reasonable and prudent al7 ternatives by the Secretary under section

8 7(b)(3).

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

10 an individual with expertise in the biological

11 sciences—

12 ‘‘(i) who is by virtue of advanced edu13 cation, training, or avocational, academic,

14 commercial, research, or other experience

15 competent to review the adequacy of any

16 scientific methodology supporting the ac17 tion, the validity of any conclusions drawn

18 from the supporting data, and the com19 petency of the individual who conducted the

20 research or prepared the data;

21 ‘‘(ii) who is not otherwise employed by

22 or under contract to the Secretary or the

23 State in which the species is located;

24 ‘‘(iii) who has not actively partici25 pated in the prelisting or listing processes
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1 or advocated that a listing decision be

2 made;

3 ‘‘(iv) who has not been employed by or

4 under contract to the Secretary or the State

5 in which the species is located for work re6 lated to the action or species under consid7 eration; and

8 ‘‘(v) who has no direct financial inter9 est, and is not employed by any person with

10 a direct financial interest, in opposing the

11 action under consideration.

12 ‘‘(2) LIST OF PEER REVIEWERS.—In order to

13 provide a substantial list of individuals who on a vol14 untary basis are available to participate in peer re15 view actions, the Secretary shall, through the Federal

16 Register, through scientific and commercial journals,

17 and through the National Academy of Sciences and

18 other such institutions, seek nominations of persons

19 who agree to peer review action upon appointment by

20 the Secretary.

21 ‘‘(3) APPOINTMENT OF PEER REVIEWERS.—Be22 fore any action shall become final, the Secretary shall

23 appoint, from among the list prepared in accordance

24 with paragraph (2), not more than 2 qualified indi25 viduals who shall review, and report to the Secretary
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1 on, the scientific information and analyses on which

2 the proposed action is based. The Governor of each

3 State in which the species is located that is the subject

4 of the proposal, may appoint up to 2 qualified indi5 viduals to conduct peer review of the action. If any

6 individual declines the appointment, the Secretary or

7 the Governor shall appoint another individual to con8 duct the peer review.

9 ‘‘(4) DATA PROVIDED TO PEER REVIEWER.—The

10 Secretary shall make available to each person con11 ducting peer review all scientific information avail12 able regarding the species which is the subject of the

13 peer review. The Secretary shall not indicate to a peer

14 reviewer the name of any person that submitted a pe15 tition for listing or delisting that is reviewed by the

16 reviewer.

17 ‘‘(5) OPINION OF PEER REVIEWERS.—The peer

18 reviewer shall give his or her opinion with regard to

19 any technical or scientific deficiencies in the proposal,

20 whether the methodology and analysis supporting the

21 petition conform to the standards of the academic and

22 scientific community, and whether the proposal is

23 supported by sufficient credible evidence.

24 ‘‘(6) PUBLICATION OF PEER REVIEW REPORT.—

25 The Secretary shall publish with any final regulation
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1 implementing an action a summary of the report of

2 the peer review panel noting points of disagreement

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

4 Secretary to the report. The report of the peer review5 ers shall be included in the official record of the pro6 posed action and shall be available for public review

7 prior to the close of the comment period on the regula8 tion.’’.

9 SEC. 303. MAKING DATA PUBLIC.

10 (a) PUBLIC DATA.—Section 4(b)(3) (16 U.S.C.

11 1533(b)(3)), as amended by sections 304(a), 305(a), and

12 306 of this Act, is amended by adding at the end the follow13 ing new subparagraph:

14 ‘‘(E)(i) All data or information considered by

15 the Secretary in making the determination to list as

16 provided in this section, shall be considered public in17 formation and shall be subject to section 552 of title

18 5, United States Code (commonly referred to as the

19 ‘Freedom of Information Act’) unless the Secretary,

20 for good cause, determines that the information must

21 be kept confidential. The burden shall be on the Sec22 retary to prove that such information shall be con23 fidential and such decision shall be reviewable by a

24 district court of competent jurisdiction, which shall

25 review the decision in chambers. Good cause can in-
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1 clude that the information is of a proprietary nature

2 or that release of the location of the species may en3 danger the species further.

4 ‘‘(ii) The Secretary shall minimize releasing the

5 identification of particular private property as habi6 tat for a species which is determined to be an endan7 gered species or threatened species or proposed to be

8 determined to be an endangered species or threatened

9 species, unless the Secretary first notifies the owner

10 thereof and receives his or her consent, or the infor11 mation is otherwise public information.’’.

12 (b) PUBLIC HEARINGS.—Section 4(b) (16 U.S.C.

13 1533(b)) is amended—

14 (1) in paragraph (5) (as amended by section

15 305(b) of this Act) by adding at the end the following

16 new subparagraph:

17 ‘‘(E) promptly hold at least 1 hearing in each

18 State in which the species proposed for determination

19 as an endangered species or a threatened species is be20 lieved to occur, and in a location that is as close as

21 possible to the center of the habitat of such species in

22 such State, including at least one hearing in an af23 fected rural area specified by the Governor of the

24 State, if the Governor determines that 1 or more rural
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1 areas within the State are affected by the determina2 tion.’’; and

3 (2) in paragraph (6) by amending all that pre4 cedes subparagraph (B) to read as follows:

5 ‘‘(6) PUBLICATION OF DETERMINATION.—(A)

6 Within the one-year period beginning on the date on

7 which general notice is published in accordance with

8 paragraph (5)(A)(i) regarding a proposed regulation,

9 the Secretary shall publish in the Federal Register,

10 if a determination as to whether a species is an en11 dangered species or a threatened species is involved,

12 either—

13 ‘‘(i) a final regulation to implement such

14 determination,

15 ‘‘(ii) a final regulation to implement such

16 revision or a finding that such revision should

17 not be made,

18 ‘‘(iii) notice that such one-year period is

19 being extended under subparagraph (B)(i), or

20 ‘‘(iv) notice that the proposed regulation is

21 being withdrawn under subparagraph (B)(ii),

22 together with the finding on which such with23 drawal is based.’’.

24 (c) NOTICE OF HEARINGS AND MEETINGS.—Section

25 14 is amended to read as follows:
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1 ‘‘SEC. 14. PUBLIC HEARINGS AND PUBLIC MEETINGS.

2 ‘‘(a) IN GENERAL.—Except as otherwise provided by

3 this Act, the Secretary shall provide notice of any hearing

4 or other public meeting at which public comment is accept5 ed under this Act by publication in the Federal Register

6 and in a newspaper of general circulation in the location

7 of the hearing or meeting at least 30 days prior to the hear8 ing or meeting.

9 ‘‘(b) HEARINGS.—Public hearings held pursuant to

10 this Act shall provide an opportunity for the public to make

11 statements and receive information from the agency regard12 ing the impact of the proposal that is the subject of the pub13 lic hearing. To the maximum extent practicable, the Sec14 retary shall ensure that members of the public are provided

15 with the information sought at the public hearing.’’.

16 SEC. 304. IMPROVING THE PETITION AND DESIGNATION

17 PROCESSES.

18 (a) PETITIONS TO LIST.—Section 4(b)(3) (16 U.S.C.

19 1533(b)(3)) is amended to read as follows:

20 ‘‘(3) PETITIONS.—(A) A petition submitted to

21 the Secretary asserting that a species is a threatened

22 species or endangered species and requesting that the

23 Secretary make a determination to that effect shall

24 contain at a minimum the following:

25 ‘‘(i) Information on the current population

26 and range of the species.
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1 ‘‘(ii) Any information on efforts to field test

2 the population estimates on the species.

3 ‘‘(iii) If literature from scientific or other

4 journals, dissertations or other such scientific

5 writings of another person are submitted, they

6 must be accompanied by an affidavit that the

7 literature or writings have been peer reviewed.

8 ‘‘(iv) The qualifications of any person as9 serting expertise on the species or status of the

10 species.

11 ‘‘(v) Information about the demonstrated

12 habitat needs of the species, along with the

13 known occupied habitat of the species.

14 ‘‘(vi) Known causes of the species decline.

15 ‘‘(B) Petitions to add a species to, or to remove

16 a species from, either of the lists published under sub17 section (c)(1) shall be submitted in accordance with

18 section 553(e) of title 5, United States Code. The Sec19 retary may commence a review of the status of the

20 species concerned consistent with the priorities set by

21 the Secretary for the listing of species. The Secretary

22 shall promptly publish any finding made under this

23 subparagraph in the Federal Register.’’.

24 (b) CONFORMING AMENDMENTS.—Section 4(g), as re25 designated by section 507(b)(2), is amended—
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1 (1) by striking paragraph (2); and

2 (2) by redesignating paragraphs (3) and (4) in

3 order as paragraphs (2) and (3).

4 SEC. 305. GREATER STATE INVOLVEMENT.

5 (a) STATE CONSULTATION ON PETITIONS.—Section

6 4(b)(3) (16 U.S.C. 1533(b)(3)), as amended by section

7 304(a) of this Act, is amended by adding after subpara8 graph (B) the following subparagraph:

9 ‘‘(C) At the time the review provided in subpara10 graph (B) is commenced—

11 ‘‘(i) the Secretary shall contact the Gov12 ernor of each State in which the proposed species

13 is located and shall solicit from the Governor in14 formation about the action requested in the peti15 tion in that State necessary to render a decision

16 and shall solicit the advice of the Governor on

17 whether the status of species merits the action pe18 titioned for, and if the Governor advises that the

19 petition action is not warranted and thereafter

20 the Secretary proceeds with the action, the Sec21 retary shall have the burden of showing that the

22 information submitted by the Governor is incor23 rect and that the action is warranted; and

24 ‘‘(ii) the Secretary shall, to the maximum

25 extent feasible, require by field testing, the ver-
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1 ification of the information presented regarding

2 the status of the species.’’.

3 (b) REGULATIONS TO IMPLEMENT DETERMINA4 TIONS.—Section 4(b)(5) (16 U.S.C. 1533(b)(5)) is amended

5 to read as follows:

6 ‘‘(5) NOTICE REQUIRED.—With respect to any

7 regulation proposed by the Secretary to implement a

8 determination referred to in subsection (a)(1) of this

9 section, the Secretary shall—

10 ‘‘(A) not less than 90 days before the effec11 tive date of the regulation—

12 ‘‘(i) publish a general notice and the

13 complete text of the proposed regulation in

14 the Federal Register, and

15 ‘‘(ii) give actual notice of the proposed

16 regulation (including the complete text of

17 the regulation) to the Governor of each

18 State in which the species is believed to

19 occur, and invite the determination of such

20 State as to whether the action is warranted

21 and if the Governor notifies the Secretary

22 that the action is not warranted, the Sec23 retary must provide to the Governor a

24 record of decision for such determination,

25 including information made available to the
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1 Secretary which did not support the deter2 mination, and the written reasons for the

3 determination;

4 ‘‘(B) in cooperation with the Secretary of

5 State, give notice of the proposed regulation to

6 each foreign nation in which the species is be7 lieved to occur or whose citizens harvest the spe8 cies on the high seas, and consult with such na9 tion thereon;

10 ‘‘(C) give notice of the proposed regulation

11 to any person who requests such notice, any per12 son who has submitted additional data, each

13 State and local government within which the

14 species is believed to occur or which is likely to

15 experience any effects of any measures to protect

16 the species under this Act, and such professional

17 scientific organizations as the Secretary deems

18 appropriate;

19 ‘‘(D) publish a summary of the proposed

20 regulation in a newspaper of general circulation

21 in each area of the United States in which the

22 species is believed to occur; and’’.

23 (c) STATE CONSULTATION ON FINAL DETERMINA24 TION.—Section 4(h), as redesignated by section 507(b)(2)

25 of this Act, is amended to read as follows:
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1 ‘‘(h) SUBMISSION TO STATE AGENCY OF JUSTIFICA2 TION FOR REGULATIONS INCONSISTENT WITH STATE

3 AGENCY’S COMMENTS OR PETITION.—If, in the case of any

4 regulation proposed by the Secretary under the authority

5 of this section, a Governor who consulted with the Secretary

6 in accordance with subsection (b)(5)(A)(ii) of this section

7 files comments disagreeing with all or part of the proposed

8 regulation, the Secretary shall not issue a final regulation

9 which is in conflict with such comments until the Secretary

10 further consults with the President. If the Secretary adopts

11 a final regulation in conflict with comments made by the

12 Governor of a State or fails to adopt a regulation pursuant

13 to an action petitioned by a Governor under subsection

14 (b)(3) of this section, the Secretary shall submit to the Gov15 ernor a written justification for the failure of the Secretary

16 to adopt regulations consistent with the comments or peti17 tion of the Governor.’’.

18 (d) FACA.—Section 4(b) (16 U.S.C. 1533(b)), as

19 amended by section 301(a)(3) and (f) of this Act, is further

20 amended by adding at the end the following new paragraph:

21 ‘‘(11) FACA.—Consultation with States regard22 ing petitions and proposed regulations under this

23 subsection shall not be subject to the Federal Advisory

24 Committee Act (5 U.S.C. App.).’’.
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1 SEC. 306. MONITORING THE STATUS OF SPECIES.

2 Section 4(b)(3) (16 U.S.C. 1533(b)(3)), as amended by

3 sections 304(a) and 305(a) of this Act, is amended by add4 ing after subparagraph (C) the following subparagraph:

5 ‘‘(D) The Secretary shall implement a system to

6 monitor effectively the status of all species with re7 spect to which a finding is made that the petitioned

8 action is warranted but precluded by proposals to de9 termine whether any species is an endangered species

10 or a threatened species and progress is being made to

11 add qualified species to the list published under sub12 section (c) and to remove from lists published under

13 that subsection species for which protection of this Act

14 is no longer necessary, and shall make prompt use of

15 the authority under paragraph (7) to prevent an im16 minent threat to the existence of any such species.’’.

17 SEC. 307. PETITIONS TO DELIST SPECIES.

18 Section 4(b)(3) (16 U.S.C. 1533(b)(3)), as amended by

19 sections 301(c), 303(a), 304(a), 305(a), and 306 of this Act,

20 is further amended by adding at the end the following new

21 subparagraphs:

22 ‘‘(G) Any person may submit to the Secretary a

23 petition to revise a previous determination by the

24 Secretary under this Act that a species is an endan25 gered species or threatened species and to remove the
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1 species from a list published under subsection (c), on

2 the basis that—

3 ‘‘(i) new data or a reinterpretation of prior

4 data indicates that the previous determination

5 was in error;

6 ‘‘(ii) the species is extinct;

7 ‘‘(iii) the population level target established

8 for the species in a conservation plan under sec9 tion 5(c)(3)(C)(vii) has been achieved; or

10 ‘‘(iv) the original listing of the species did

11 not undergo adequate peer review.

12 ‘‘(H)(i) After receiving a petition under sub13 paragraph (G), the Secretary shall complete a review

14 of the species, which review shall include the solicita15 tion of information as described in subparagraph (F).

16 ‘‘(ii) The determination of the Secretary with re17 spect to such petition shall be considered an action for

18 purposes of subsection (i).

19 ‘‘(iii) If the Secretary has not made a final de20 termination by the end of the 18-month period begin21 ning on the date of the filing of a petition under sub22 paragraph (G), the species covered by the petition

23 shall not be considered to be an endangered species or

24 threatened species for the purposes of this Act and
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1 shall not be included or considered to be included in

2 any list published under subsection (c).

3 ‘‘(iv) If, following review required under clause

4 (i) of this paragraph and subsection (i) of this sec5 tion, the final determination of the Secretary is to re6 tain the species as an endangered species or threat7 ened species on a list published under subsection (c),

8 that decision shall be considered to be a listing deter9 mination for purposes of section 5.

10 ‘‘(v) This subparagraph shall not apply to a pe11 tition to delist a species for which a review, as re12 quired by this subparagraph, has been conducted by

13 the Secretary in the preceding 10-year period.’’.

14 SEC. 308. DETERMINATIONS BY THE SECRETARY TO DELIST.

15 Section 4(c)(2) (16 U.S.C. 1533(c)(2)) is amended to

16 read as follows:

17 ‘‘(2) The Secretary shall—

18 ‘‘(A) conduct, at least once every 5 years, a re19 view of all species included in a list which is pub20 lished pursuant to paragraph (1) and which is in ef21 fect at the time of such review; and

22 ‘‘(B) determine on the basis of such review

23 whether any such species should—
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1 ‘‘(i) be removed from such list, which shall

2 be proposed within 90 days of the date upon

3 which it is determined that—

4 ‘‘(I) new data or a reinterpretation of

5 prior data indicates that the previous deter6 mination was in error;

7 ‘‘(II) the species is extinct; or

8 ‘‘(III) the population level target estab9 lished for the species in a conservation plan

10 under section 5(c)(3)(C)(vii) has been

11 achieved;

12 ‘‘(ii) be changed in status from an endan13 gered species to a threatened species; or

14 ‘‘(iii) be changed in status from a threat15 ened species to an endangered species.

16 Each determination under subparagraph (B) shall be made

17 in accordance with the provisions of subsections (a) and

18 (b) of this section.’’.

19 TITLE IV—RECOGNIZING OTHER

20 FEDERAL ACTION, LAWS, AND

21 MISSIONS

22 SEC. 401. BALANCE ESA WITH OTHER LAWS AND MISSIONS.

23 (a) FEDERAL AGENCY ACTIONS.—Section 7 (16 U.S.C.

24 1536) is amended by amending the matter preceding sub25 section (b) to read as follows:
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1 ‘‘SEC. 7. INTERAGENCY COOPERATION.

2 ‘‘(a) FEDERAL AGENCY ACTIONS AND CONSULTA3 TIONS.—

4 ‘‘(1) PROGRAMS ADMINISTERED BY THE SEC5 RETARY OF THE INTERIOR.—The Secretary shall re6 view other programs administered by the Secretary

7 and utilize such programs in furtherance of the pur8 poses of this Act. Except as provided in section 5(d)

9 and (e), all other Federal agencies shall, consistent

10 with their primary missions and in consultation with

11 and with the assistance of the Secretary, utilize their

12 authorities in furtherance of the purposes of this Act

13 by carrying out programs for the conservation of en14 dangered species and threatened species listed pursu15 ant to section 4.

16 ‘‘(2) PROGRAMS ADMINISTERED BY OTHER AGEN17 CIES.—Except as provided in section 5(d) and (e),

18 each Federal agency shall ensure that any action au19 thorized, funded, or carried out by such agency (here20 inafter in this section referred to as an ‘agency ac21 tion’) is not likely to jeopardize the continued exist22 ence of any endangered species or threatened species

23 or destroy or adversely modify any habitat that is

24 designated by the Secretary as critical habitat of the

25 species in a manner that is likely to jeopardize the

26 continued existence of the species. In the case of any
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1 agency action that the agency has determined is sub2 ject to this paragraph and that is likely to signifi3 cantly and adversely affect an endangered species or

4 a threatened species, the Federal agency shall fulfill

5 the requirements of this paragraph in consultation

6 with and with the assistance of the Secretary. As pro7 vided in section 5(d)(2), each Federal agency may

8 initiate consultation with the Secretary to receive

9 guidance from the Secretary on the consistency of its

10 action with the conservation objective or conservation

11 plan for such species developed pursuant to section 5,

12 with an incidental take permit for such species issued

13 pursuant to section 10(a), or with a cooperative man14 agement agreement concerning such species executed

15 pursuant to section 6(b). In fulfilling the require16 ments of this paragraph each agency shall use the best

17 available scientific and commercial data, shall con18 sider expert opinion and any reasonable and prudent

19 alternatives developed under subsection (b)(3)(A), and

20 shall render the decision of the agency in a manner

21 consistent with the obligations and responsibilities of

22 the agency under each applicable law and treaty.

23 ‘‘(3) INVOLVEMENT OF APPLICANTS FOR FED24 ERAL APPROVALS.—Subject to such guidelines as the

25 Secretary may establish, a Federal agency shall con-
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1 sult with the Secretary on any prospective agency ac2 tion at the request of, with the involvement of, and in

3 cooperation with, the prospective permit or license

4 applicant if the applicant has reason to believe that

5 an endangered species or a threatened species may be

6 present in the area affected by his project, that the

7 project is inconsistent with the conservation objective

8 or plan for such species developed pursuant to section

9 5, an incidental take permit for such species issued

10 pursuant to section 10(a), or a cooperative manage11 ment agreement for such species executed pursuant to

12 section 6(b), and that implementation of such action

13 will likely affect such species.

14 ‘‘(4) CONFERRING ON SPECIES PROPOSED FOR

15 LISTING.—Each Federal agency shall confer with the

16 Secretary on any agency action which is likely to

17 jeopardize the continued existence of any species pro18 posed to be listed under section 4 or to destroy or ad19 versely modify any habitat that is proposed to be des20 ignated by the Secretary as critical habitat of such a

21 species in a manner that is likely to jeopardize the

22 continued existence of the species. This paragraph

23 does not require a limitation on the commitment of

24 resources as described in subsection (d).
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1 ‘‘(5) LIMITATIONS ON MODIFICATIONS TO LAND

2 MANAGEMENT.—Notwithstanding any other provision

3 of this Act, the authority in this Act shall not be con4 strued to authorize or form the basis for any Federal

5 agency to modify a land management plan, policy,

6 standard, or guideline or water allocation plan unless

7 a determination has been made under section 4 that

8 a species is threatened or endangered. Notwithstand9 ing any other law or regulation, management plans,

10 practices, policies, projects, or guidelines, including

11 management plans which, as of October 1, 1995, are

12 subject to modification pending completion of a final

13 environmental impact statement, shall not be amend14 ed for the purpose of maintaining viable populations

15 of native and desired non-native species unless it is

16 determined under this Act that current practices are

17 likely to jeopardize the continued existence of the spe18 cies.

19 ‘‘(6) DEMONSTRATION BY SECRETARY RE20 QUIRED.—The Secretary shall have the responsibility

21 of demonstrating, based on the best information avail22 able at the time of the request for consultation, that—

23 ‘‘(A) a threatened species or endangered spe24 cies or its respective critical habitat is located in
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1 the geographic area that would be affected by the

2 proposed action; and

3 ‘‘(B) such proposed action will jeopardize

4 the continued existence of a threatened species or

5 endangered species.

6 ‘‘(7) PROHIBITION ON OPINIONS BASED ON IN7 SUFFICIENT DATA.—The Secretary shall not issue an

8 opinion under subsection (b) that a proposed action

9 will jeopardize the continued existence of a threatened

10 or endangered species based on the insufficiency of

11 available data on the impact of a proposed action on

12 such species.’’.

13 (b) RESOLVING CONFLICTS BETWEEN FEDERAL AGEN14 CIES.—Section 7(a), as amended by subsection (a) of this

15 section and section 402 of this Act, is amended by adding

16 at the end the following new paragraphs:

17 ‘‘(10) RELATIONSHIP TO DUTIES UNDER OTHER

18 LAWS.—(A) The responsibilities of a Federal agency

19 under this Act shall not supersede and shall be imple20 mented in a manner consistent with duties assigned

21 to the Federal agency by any other laws or by any

22 treaties.

23 ‘‘(B)(i) If a Federal agency determines that the

24 responsibilities and duties described in subparagraph
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1 (A) are in irreconcilable conflict, the action agency

2 shall request the President to resolve the conflict.

3 ‘‘(ii) In determining a resolution to such a con4 flict, the President shall consider and choose the

5 course of action that best meets the public interest

6 and, to the extent possible, balances pursuit of the

7 conservation objective or the purposes of the conserva8 tion plan with economic and social needs and pursuit

9 of the purposes of the other laws or treaties. The au10 thority assigned to the President by this subpara11 graph may not be delegated to a member of the execu12 tive branch who has not been confirmed by the Sen13 ate.

14 ‘‘(11) MODIFICATION OF PROJECTS AND FACILI15 TIES.—Any consultation and conferencing required

16 under paragraphs (2) and (4) for an agency action

17 that consists solely of a modification of a Federal,

18 State, local government, or private project or facility

19 shall be limited to the consideration of the effects that

20 result from the modification that comprises the agen21 cy action.’’.

22 (c) PROCEDURES FOR CONSULTATION.—Section 7(b)

23 (16 U.S.C. 1536(b)) is amended by striking so much as pre24 cedes paragraph (3)(B) and inserting the following:

25 ‘‘(b) OPINION OF SECRETARY.—
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1 ‘‘(1) PERIODS WITHIN WHICH CONSULTATION

2 MUST BE COMPLETED.—(A) Consultation under sub3 section (a)(2) with respect to any agency action shall

4 be concluded within the 90-day period beginning on

5 the date on which initiated by the Federal agency.

6 The period may be extended by not more than 45

7 days by the Secretary or head of the Federal agency

8 by publication of notice in the Federal Register that

9 sets forth the reasons for the extension. Consultation

10 on an agency action involving a permit or license ap11 plicant shall be concluded not later than the earlier

12 of—

13 ‘‘(i) 1 year after the date of submission of

14 the application to the Federal agency; or

15 ‘‘(ii) the end of the period established under

16 subparagraph (B).

17 ‘‘(B) Subject to subparagraph (A), in the case of

18 an agency action involving a permit or license appli19 cant, the Secretary and the Federal agency may not

20 mutually agree to conclude consultation within a pe21 riod exceeding 90 days unless the Secretary, before the

22 close of the 90th day referred to in subparagraph

23 (A)—

24 ‘‘(i) if the consultation period proposed to

25 be agreed to will end before the 150th day after
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1 the date on which consultation was initiated,

2 submits to the applicant a written statement set3 ting forth—

4 ‘‘(I) the reasons why a longer period is

5 required,

6 ‘‘(II) the information that is required

7 to complete the consultation, and

8 ‘‘(III) the estimated date on which con9 sultation will be completed; or

10 ‘‘(ii) if the consultation period proposed to

11 be agreed to will end on or after the 150th day

12 but before the 210th day after the date on which

13 consultation was initiated, obtains the consent of

14 the applicant to such period.

15 ‘‘(C) If consultation is not concluded and the

16 written statement of the Secretary required under

17 paragraph (3)(A) is not provided to the Federal agen18 cy by the applicable deadline established under this

19 paragraph, the requirements of subsection (a)(2) shall

20 be deemed met and the Federal agency may proceed

21 with the agency action.

22 ‘‘(D) A permit or license applicant shall be enti23 tled to participate fully in any consultation or con24 ferencing under this section with respect to any agen-
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1 cy action required for the granting of an authoriza2 tion or provision of funding to the applicant.

3 ‘‘(2) PROCEDURE FOR APPLICANT CONSULTA4 TION.—Consultation under subsection (a)(3) shall be

5 concluded within such period as is agreeable to the

6 Secretary, the Federal agency, and the applicant con7 cerned.

8 ‘‘(3) WRITTEN OPINION OF SECRETARY.—(A)(i)

9 Promptly after conclusion of consultation under para10 graph (2) or (3) of subsection (a), the Secretary shall

11 provide to the Federal agency and the applicant, if

12 any, a written statement setting forth the Secretary’s

13 opinion, and a summary of the information on which

14 the opinion is based, detailing whether the agency ac15 tion is consistent with the conservation objective or

16 plan developed pursuant to section 5, an incidental

17 taking permit issued pursuant to section 10(a), or a

18 cooperative management agreement executed pursuant

19 to section 6(b). If the Secretary determines that the

20 action is likely to jeopardize the continued existence

21 of the species as described in subsection (a), the Sec22 retary shall suggest reasonable and prudent alter23 natives (considering any reasonable and prudent al24 ternatives undertaken by other Federal agencies) that

25 are consistent with subsection (a)(2) and that impose
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1 the least social and economic costs. In the develop2 ment of a biological opinion, the Secretary shall so3 licit and utilize information and advice from the

4 Governor of any State in which is located a species

5 or land that is the subject of the Federal action re6 quiring consultation.

7 ‘‘(ii) Unless required by law other than sub8 sections (a) through (d), the Secretary, in any opin9 ion or statement concerning an agency action made

10 under this subsection (including any reasonable and

11 prudent alternative suggested under clause (i) or any

12 reasonable and prudent measure specified under

13 clause (ii) of paragraph (4)), and the head of the Fed14 eral agency proposing the agency action, may not re15 quire, provide for, or recommend the imposition of

16 any restriction or obligation on the activity of any

17 person that is not authorized, funded, carried out, or

18 otherwise subject to regulation by the Federal agency.

19 Nothing in this clause prevents the Secretary from

20 pursuing any appropriate remedy under section 11

21 for any activity prohibited by section 4(d) or 9.

22 ‘‘(iii) The Secretary shall not require a reason23 able and prudent alternative that may or will result

24 in a significant adverse impact upon waterfowl popu25 lations, waterfowl habitat management, or waterfowl
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1 hunting opportunities in a significant waterfowl

2 breeding, staging, or wintering habitat area. In this

3 clause, the term ‘significant adverse impact’ means

4 any actions, proposed or in effect, which individually

5 or cumulatively are likely to reduce the carrying ca6 pacity of habitat for waterfowl by 10 percent or more

7 of its current capability, as determined on a local, re8 gional, statewide or national basis. In this clause, the

9 term ‘significant waterfowl breeding, staging, or win10 tering habitat areas’ means those private or public

11 lands managed primarily for, or providing, waterfowl

12 breeding, staging or wintering habitat including sea13 sonal/permanent marsh lands or land under rice cul14 tivation for three out of the past five years.

15 ‘‘(iv) Notwithstanding any other provision of

16 law, if the Secretary renders an opinion or suggests

17 any reasonable and prudent alternative which has

18 general application to a group of individuals con19 ducting a commercial operation, the Secretary may

20 not promulgate an emergency rule without providing

21 at least 30 days for public comment on the emergency

22 rule.

23 ‘‘(v) No additional measures to minimize or

24 mitigate impacts on a species that is a subject of an

25 opinion issued under this paragraph shall be required
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1 of a permit applicant or licensee that is in compli2 ance with the opinion and any agreement or permit

3 issued to implement the opinion.’’.

4 (d) ACTIVITIES PRIOR TO COMPLETION OF CONSULTA5 TION.—Section 7(d) (16 U.S.C. 1536(d)) is amended to

6 read as follows:

7 ‘‘(d) LIMITATION ON COMMITMENT OF RESOURCES.—

8 ‘‘(1) IN GENERAL.—Except as provided in para9 graph (2), after initiation of consultation required

10 under subsection (a)(2), the Federal agency and the

11 permit or license applicant shall not make any irre12 versible or irretrievable commitment of resources with

13 respect to the agency action which has the effect of

14 foreclosing the formulation or implementation of any

15 reasonable and prudent alternative measures which

16 would not violate subsection (a)(2).

17 ‘‘(2) RELATIONSHIP TO LAND MANAGEMENT

18 PLANNING REQUIREMENTS.—If the listing of a species,

19 or other procedure or decision related to a species list20 ed under section 4(c)(1), requires consultation under

21 subsection (a)(2) on a land use plan or land or re22 source management plan (or an amendment to or re23 vision of the plan) prepared under section 202 of the

24 Federal Land Policy and Management Act of 1976

25 (43 U.S.C. 1712) or section 6 of the Forest and
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1 Rangeland Renewable Resources Planning Act of

2 1974 (16 U.S.C. 1604), the land management agency

3 implementing the plan may authorize, fund, or carry

4 out an agency action that is consistent with the plan

5 prior to the completion of the consultation, if, under

6 the procedures established by this section, the head of

7 the land management agency responsible for the ac8 tion determines or has determined that the action—

9 ‘‘(A) is not likely to significantly and ad10 versely affect the species; or

11 ‘‘(B) is likely to significantly and adversely

12 affect the species, and the Secretary issues an

13 opinion on the action that finds that the ac14 tion—

15 ‘‘(i) is not likely to jeopardize the con16 tinued existence of the species; or

17 ‘‘(ii) is likely to jeopardize the contin18 ued existence of the species, and the agency

19 agrees to a reasonable and prudent alter20 native.’’.

21 (e) DEFINITIONS.—Section 3 (16 U.S.C. 1532) is

22 amended—

23 (1) by adding after paragraph (15) (as added by

24 section 204(a) of this Act) the following new para25 graph:
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1 ‘‘(16) The term ‘likely to jeopardize the contin2 ued existence of ’, with respect to an action or activity

3 affecting an endangered species or a threatened spe4 cies, means an action or activity that significantly

5 diminishes the likelihood of the survival of the species

6 by significantly reducing the numbers or distribution

7 of the entire species.’’;

8 (2) by amending paragraph (18) (as redesig9 nated by section 102(a)(1) of this Act) to read as fol10 lows:

11 ‘‘(18) The term ‘permit or license applicant’

12 means, with respect to the consultation procedures es13 tablished by section 7, any person that requires au14 thorization or funding from a Federal agency as a

15 prerequisite to conducting an activity (including a

16 party to a written lease, right-of-way, license, con17 tract to purchase or provide a product or service, or

18 other permit with a Federal agency) that requires an

19 action from the agency to obtain the benefit of the ac20 tivity.’’; and

21 (3) by adding after paragraph (20) (as redesig22 nated by section 102(a)(1) of this Act) the following

23 new paragraph:

24 ‘‘(21) The term ‘reasonable and prudent alter25 native’ means an alternative action under section
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1 7(b)(3) during consultation on an agency action

2 that—

3 ‘‘(A) can be implemented in a manner con4 sistent with the intended purpose of the agency

5 action or the activity of a non-Federal person

6 under section 10;

7 ‘‘(B) can be implemented consistent with

8 the scope of the legal authority and jurisdiction

9 of the Federal agency;

10 ‘‘(C) is economically and technologically

11 feasible for the applicant or non-Federal person

12 to undertake; and

13 ‘‘(D) the Secretary believes would avoid

14 being likely to jeopardize the continued existence

15 of the species.’’.

16 (f) RESTRICTION ON NEW OR ADDITIONAL REQUIRE17 MENTS.—

18 (1) COMPLIANCE WITH BIOLOGICAL OPINION.—

19 Section 7(b) (16 U.S.C. 1536(b)) is amended by add20 ing at the end the following new paragraph:

21 ‘‘(5) The Secretary shall, once a Biological Opinion

22 has been rendered and the applicant has agreed to the terms

23 and conditions contained in the Biological Opinion, pro24 vide to the applicant a written approval which shall guar25 antee that, so long as the project at issue is pursued consist-
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1 ent with the Biological Opinion, the applicant shall not be

2 subject to new or additional requirements for the specific

3 protection of any species beyond the requirements set forth

4 in the Biological Opinion. All public entities shall be bound

5 by the Secretary’s approval.’’.

6 (2) COMPLIANCE WITH PERMIT.—Section 10(a)

7 (16 U.S.C. 1539(a)) is further amended by adding at

8 the end the following new paragraph:

9 ‘‘(8) RESTRICTION ON NEW OR ADDITIONAL RE10 QUIREMENTS.—The Secretary shall, as part of the

11 conservation planning process, guarantee that, so long

12 as the permittee is complying with the terms and con13 ditions of the permit issued under this section, the

14 permittee shall not be subject to new or additional re15 quirements for the specific protection of any species

16 beyond the requirements set forth in the conservation

17 plan. All public entities shall be bound by this guar18 antee.’’.

19 SEC. 402. EXEMPTIONS FROM CONSULTATION AND CON20 FERENCING.

21 Section 7(a), as amended by section 401(a) of this Act,

22 is amended by adding at the end the following new para23 graphs:

24 ‘‘(8) ACTIONS EXEMPT FROM CONSULTATION AND

25 CONFERENCING.—Consultation and conferencing
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1 under paragraphs (2) and (4) shall not be required

2 for any agency action that—

3 ‘‘(A) is consistent with the provisions of a

4 final conservation plan under section 5(c)(5) or

5 a conservation objective described in section

6 5(b)(3);

7 ‘‘(B) is consistent with a cooperative man8 agement agreement or an incidental taking per9 mit;

10 ‘‘(C) addresses a critical, imminent threat

11 to public health or safety or a catastrophic natu12 ral event or compliance with Federal, State, or

13 local safety or public health requirements;

14 ‘‘(D) consists of routine operation, mainte15 nance, rehabilitation, repair, or replacement to a

16 Federal or non-Federal project or facility, in17 cluding operation of a project or facility in ac18 cordance with a previously issued Federal li19 cense, permit, or other authorization; or

20 ‘‘(E) permits activities that occur on pri21 vate land.

22 ‘‘(9) ACTIONS NOT PROHIBITED.—An agency ac23 tion shall not constitute a taking of a species prohib24 ited by this Act or any regulation issued under this

25 Act if the action is consistent with—
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1 ‘‘(A) the actions provided for in a final con2 servation plan under section 5(c)(5) or a con3 servation objective described in section 5(b)(3);

4 ‘‘(B) a cooperative management agreement

5 or an incidental take permit; or

6 ‘‘(C) the terms and conditions specified in

7 a written statement provided under subsection

8 (b)(3) of this section.’’.

9 SEC. 403. ELIMINATING THE EXEMPTION COMMITTEE (GOD

10 COMMITTEE).

11 (a) CONFORMING AMENDMENTS.—Section 7(c) (16

12 U.S.C. 1536(c)) is amended—

13 (1) in the first full sentence by striking ‘‘(1) To

14 facilitate’’ and inserting ‘‘To facilitate’’; and

15 (2) by striking paragraph (2).

16 (b) PRESIDENTIAL EXEMPTIONS.—Section 7(e) (16

17 U.S.C. 1536(e)) is amended to read as follows:

18 ‘‘(e) EXEMPTIONS.—Notwithstanding any other provi19 sion of this Act—

20 ‘‘(1) the Secretary shall grant an exemption from

21 this Act for any activity if the Secretary of Defense

22 determines that the exemption of the activity is nec23 essary for reasons of national security; and

24 ‘‘(2) the President may grant an exemption from

25 this Act for any area that the President has declared
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1 to be a major disaster area under The Robert T. Staf2 ford Disaster Relief and Emergency Assistance Act

3 (42 U.S.C. 5121 et seq.) for any project for the repair

4 or replacement of a public facility substantially as

5 the facility existed prior to the disaster under section

6 405 or 406 of that Act (42 U.S.C. 5171 and 5172),

7 if the President determines that the project—

8 ‘‘(A) is necessary to prevent the recurrence

9 of such a natural disaster and to reduce the po10 tential loss of human life; and

11 ‘‘(B) involves an emergency situation that

12 does not allow the procedures of this Act (other

13 than this subsection) to apply.’’.

14 (c) REPEAL.—Subsections (f) through (p) of section 7

15 (16 U.S.C. 1536(f)–(p)) are repealed.

16 TITLE V—BETTER MANAGEMENT

17 AND CONSERVATION OF LIST18 ED SPECIES

19 SEC. 501. SETTING CONSERVATION OBJECTIVES.

20 Section 5 (16 U.S.C. 1534) is redesignated as section

21 5A, and the following new section is added after section 4:

22 ‘‘SEC. 5. SPECIES CONSERVATION PLANS.

23 ‘‘(a) IN GENERAL.—Except as provided in subsection

24 (b)(3)(C), the Secretary shall publish a conservation objec25 tive and a conservation plan for each species determined
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1 to be an endangered species or a threatened species pursu2 ant to section 4.

3 ‘‘(b) DEVELOPMENT OF CONSERVATION OBJECTIVE.—

4 ‘‘(1) ASSESSMENT AND PLANNING TEAM.—Not

5 later than 30 days after the listing determination, the

6 Secretary shall appoint an assessment and planning

7 team which shall not be subject to the Federal Advi8 sory Committee Act (5 U.S.C. App.) and shall consist

9 of—

10 ‘‘(A) experts in biology or pertinent sci11 entific fields, economics, property law and regu12 lation, and other appropriate disciplines from

13 the Department of the Secretary, other Federal

14 agencies, and the private sector;

15 ‘‘(B) a representative nominated by the

16 Governor of each affected State;

17 ‘‘(C) representatives nominated by each af18 fected local government, if the local government

19 agrees to the appointment of a representative;

20 and

21 ‘‘(D) representatives of persons who may be

22 directly, economically impacted by the conserva23 tion plan.
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1 The chairman of the team shall be selected from rep2 resentatives of participating States or local govern3 ments.

4 ‘‘(2) ASSESSMENTS.—Not later than 180 days

5 after the listing determination, the assessment and

6 planning team shall report to the Secretary the as7 sessment of the following biological, economic, and

8 intergovernmental factors with respect to the listed

9 species:

10 ‘‘(A) The team shall assess—

11 ‘‘(i) the biological considerations nec12 essary to carry out this Act;

13 ‘‘(ii) the biological significance of the

14 species;

15 ‘‘(iii) the geographic range and occu16 pied habitat of the species, and the type and

17 amounts of habitat needed, at a minimum,

18 to maintain the existence of the species and,

19 at a maximum, to secure recovery of the

20 species;

21 ‘‘(iv) the current population, and the

22 population trend, of the species;

23 ‘‘(v) the technical practicality of recov24 ering the species;
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1 ‘‘(vi) the potential management meas2 ures capable of recovering, or reducing the

3 risks to survival of, the species, including

4 the contribution of existing or potential

5 captive breeding programs for the species,

6 predator control, enhancement of food

7 sources, supplemental feeding, and other

8 methods which enhance the survival of the

9 young of the species; and

10 ‘‘(vii) where appropriate, the demon11 strable commercial or medicinal value of the

12 species.

13 ‘‘(B) The team shall assess the direct, indi14 rect, and cumulative economic and social im15 pacts on the public and private sectors, includ16 ing local governments, that may result from the

17 listing determination and any potential manage18 ment measures identified under subparagraph

19 (A)(vi), including impacts on the cost of govern20 mental actions, tax and other revenues, employ21 ment, the use and value of property, other social,

22 cultural, and community values, and an assess23 ment of any commercial activity which could po24 tentially result in a net benefit to the conserva25 tion of the species.
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1 ‘‘(C) The team shall assess the impacts on

2 State and local land use laws, conservation

3 measures, and water allocation policies that may

4 result from the listing determination and from

5 the potential management measures identified

6 under subparagraph (A)(vi).

7 ‘‘(D) The Secretary shall provide funding to

8 the team to employ or obtain such technical as9 sistance as necessary to fulfill its duties under

10 this paragraph.

11 ‘‘(E) Upon completion of the assessment, the

12 Secretary shall publish in the Federal Register a

13 notice of availability of the report and allow 30

14 days for public comment.

15 ‘‘(3) SECRETARIAL REVIEW OF ASSESSMENTS

16 AND ESTABLISHMENT OF CONSERVATION OBJEC17 TIVE.—(A) Not later than 210 days after a listing de18 termination, the Secretary shall review the report of

19 the assessment and planning team prepared pursuant

20 to paragraph (2), establish a conservation objective

21 for the species, and publish in the Federal Register

22 the conservation objective, along with a statement of

23 findings on which the conservation objective was es24 tablished.
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1 ‘‘(B) The conservation objective may be, in the

2 discretion of the Secretary—

3 ‘‘(i) recovery of the listed species;

4 ‘‘(ii) such level of conservation of the species

5 which the Secretary determines practicable and

6 reasonable to the extent that the benefits of the

7 potential conservation measures outweigh the

8 economic and social costs of such measures, in9 cluding but not limited to maintenance of exist10 ing population levels;

11 ‘‘(iii) no Federal action other than enforce12 ment against any person whose activity violates

13 the prohibitions specified in section 9(a), includ14 ing any activity that results in a taking of the

15 species, unless the taking is incidental to, and

16 not the purpose of, the carrying out of an other17 wise lawful activity; or

18 ‘‘(iv) such other objective as the Secretary

19 may determine that does not provide a lesser

20 level of protection than the level described in

21 clause (iii).

22 ‘‘(C) If the conservation objective established by

23 the Secretary is the objective provided in subpara24 graph (B)(iii), the Secretary shall not develop a con-
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1 servation plan for the affected species under sub2 section (c).’’.

3 SEC. 502. PREPARING A CONSERVATION PLAN.

4 (a) IN GENERAL.—Section 5 (16 U.S.C. 1534), as

5 added by section 501 of this Act, is amended by adding

6 at the end the following new subsections:

7 ‘‘(c) DEVELOPMENT OF CONSERVATION PLAN.—

8 ‘‘(1) PRIORITIES.—In the development and im9 plementation of a conservation plan under this sub10 section, the Secretary shall accord priority to—

11 ‘‘(A) the development of an integrated plan

12 for 2 or more endangered species or threatened

13 species that are likely to benefit from an inte14 grated conservation plan;

15 ‘‘(B) the geographic areas where conflicts

16 between the conservation of the affected species

17 and development projects or other forms of eco18 nomic activity exist or are likely to exist;

19 ‘‘(C) protection of the listed species on units

20 of the National Biological Diversity Reserve as

21 provided in section 5A(a);

22 ‘‘(D) the implementation of conservation

23 measures that have the least economic and social

24 costs;
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1 ‘‘(E) nonregulatory, incentive-based con2 servation measures and commercial activities

3 that provide a net benefit to the conservation of

4 the species; and

5 ‘‘(F) plans in which States or private orga6 nizations or persons are the primary

7 implementors.

8 ‘‘(2) PUBLICATION OF DRAFT PLAN.—Not later

9 than 12 months after the date of a determination that

10 a species is an endangered species or a threatened

11 species, the assessment and planning team for the spe12 cies shall publish a draft conservation plan for the

13 species which is based on the assessments made pursu14 ant to subsection (b)(2) and designed to achieve the

15 conservation objective established pursuant to sub16 section (b)(3).

17 ‘‘(3) CONTENTS OF DRAFT PLAN.—Each draft

18 conservation plan shall contain—

19 ‘‘(A) recommendations for Federal agency

20 compliance with section 7(a)(1) and 7(a)(2);

21 ‘‘(B) recommendations for avoiding a tak22 ing of a listed species prohibited under section

23 9(a)(1) and a list of specific activities that

24 would constitute a take under section 9;
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1 ‘‘(C) alternative strategies to achieve the

2 conservation objective for the listed species which

3 range from a strategy requiring the least possible

4 Federal management to achieve the conservation

5 objective to a strategy involving more intensive

6 Federal management to achieve the objective,

7 each of which contains—

8 ‘‘(i) an estimate of the risks to the sur9 vival and recovery of the species that the al10 ternative would entail;

11 ‘‘(ii) a description of any site-specific

12 management measures recommended for the

13 alternative;

14 ‘‘(iii) an analysis of the relationship of

15 any habitat of the species proposed for des16 ignation as critical habitat to the rec17 ommended management measures;

18 ‘‘(iv) a description of the direct, indi19 rect, and cumulative economic and social

20 impacts on the public and private sectors

21 including impacts on employment, the cost

22 of government actions, tax and other reve23 nues, the use and value of property, and

24 other social, cultural, and community val25 ues;
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1 ‘‘(v) a description of any captive

2 breeding program recommended for the al3 ternative;

4 ‘‘(vi) an analysis of whether the alter5 native would include any release of an ex6 perimental population outside the current

7 range of the species and an identification of

8 candidate geographic areas for the release;

9 ‘‘(vii) objective and measurable cri10 teria, including a population level target,

11 that, if met, would result in a determina12 tion under section 4 that the species is no

13 longer an endangered species or threatened

14 species;

15 ‘‘(viii) estimates of the time and costs

16 required to carry out the management

17 measures, including any intermediate steps;

18 and

19 ‘‘(ix) a description of the role of each

20 affected State, if any, in achieving the con21 servation objective.

22 ‘‘(4) PLAN PREPARATION PROCEDURES.—(A)

23 The Secretary shall consult with the Governor of each

24 State in which the affected species is located during

25 the preparation of each draft and final conservation
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1 plan. Each plan shall provide for equitable treatment

2 of affected States and other non-Federal persons.

3 ‘‘(B) The Secretary shall publish in the Federal

4 Register and a newspaper of general circulation in

5 each affected county and parish a notice of the avail6 ability and a summary of, and a request for the sub7 mission of comments on, each draft conservation plan.

8 ‘‘(C) The Secretary shall hold at least 1 hearing

9 on each draft conservation plan in each State to

10 which the plan would apply in a location that is as

11 close as possible to the center of the habitat of the af12 fected species in such State.

13 ‘‘(D) Prior to any decision to adopt a final con14 servation plan, the Secretary shall consider and weigh

15 carefully all information presented during each hear16 ing held under subparagraph (C) or received in re17 sponse to a request for comments published under sub18 paragraph (B).

19 ‘‘(5) PUBLICATION OF FINAL PLAN.—Not later

20 than 18 months from the date of a determination that

21 a species is an endangered species or a threatened

22 species, the Secretary shall publish in the Federal

23 Register a notice of the availability, and a summary,

24 of a final conservation plan for the species. The notice

25 shall include a detailed description of—
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1 ‘‘(A) the reasons for the selection of the final

2 conservation plan;

3 ‘‘(B) the reasons for not selecting each of the

4 other alternatives included in the draft conserva5 tion plan, including, if any alternative is se6 lected other than the alternative that would im7 pose the least total costs on the public and pri8 vate sectors, the reasons for such selection;

9 ‘‘(C) the effect of the priorities specified in

10 paragraph (1) on the selection; and

11 ‘‘(D) the response of the Secretary to the in12 formation referred to in paragraph (4).

13 ‘‘(6) PARTICIPATION BY OTHER PERSONS.—In

14 developing and implementing conservation plans, the

15 Secretary may use the services of appropriate public

16 and private agencies and institutions and other

17 qualified persons.

18 ‘‘(7) PLAN REVISION OR AMENDMENT.—Any re19 vision of or amendment to a conservation plan shall

20 be made in accordance with the procedures and re21 quirements of subsection (b) and this subsection, ex22 cept that the Secretary by regulation may provide for

23 other procedures and requirements for any amend24 ment that does not increase the direct or indirect cost
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1 of implementation of the plan or enlarge the area to

2 which the plan applies.

3 ‘‘(d) NO FURTHER PROCEDURES OR REQUIREMENTS

4 FOR ACTIONS CONSISTENT WITH THE CONSERVATION

5 PLAN.—If a conservation plan is prepared under subsection

6 (c) or if a conservation objective is established under sub7 section (b)(3)(C)—

8 ‘‘(1) any Federal agency that determines that the

9 actions of the agency are consistent with the provi10 sions of the conservation plan or conservation objec11 tive shall be considered to comply with section 7(a)(1)

12 for the affected species;

13 ‘‘(2) any agency action that the Federal agency

14 determines is consistent with the provisions of the

15 conservation plan or conservation objective shall not

16 be subject to section 7(a)(2) for the affected species, ex17 cept that a Federal agency may initiate consultation

18 under section 7(a)(2) if the agency desires guidance

19 from the Secretary on the consistency of the action of

20 the agency with the conservation plan or conservation

21 objective; and

22 ‘‘(3) any action of any person that is consistent

23 with the provisions of the conservation plan or con24 servation objective shall not constitute a violation

25 concerning the affected species of any applicable pro-
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1 hibition under section 9(a) or 4(d), except that a non2 Federal person may initiate consultation under sec3 tion 10(a)(2)—

4 ‘‘(A) if the person desires guidance from the

5 Secretary on the consistency of the action with

6 the plan or objective; or

7 ‘‘(B) in order to determine whether to apply

8 for a permit under section 10 for any action that

9 is inconsistent with the plan or objective.’’.

10 (b) CONSERVATION OBJECTIVE AND CONSERVATION

11 RULE DEFINED.—Section 3(4) (16 U.S.C. 1532), as redes12 ignated by section 102(a) of this Act, is amended to read

13 as follows:

14 ‘‘(4) The terms ‘conservation objective’ and ‘con15 servation plan’ (except when modified by ‘non-Fed16 eral’) mean a conservation objective and a conserva17 tion plan, respectively, developed under section 5.’’.

18 SEC. 503. INTERIM MEASURES.

19 Section 5, as added by section 501 of this Act and as

20 amended by section 502 of this Act, is amended by adding

21 at the end the following new subsections:

22 ‘‘(e) MANAGEMENT PRIOR TO PUBLICATION OF CON23 SERVATION PLAN.—

24 ‘‘(1) IN GENERAL.—After a listing determination

25 and before the publication of a final conservation
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1 plan, or, if no plan is required pursuant to subsection

2 (b)(3)(C), a conservation objective, for the species—

3 ‘‘(A) the prohibitions of section 9(a) shall

4 apply to any person, except in the case of a tak5 ing of a member of the species that is incidental

6 to, and not the purpose of, the carrying out of

7 an otherwise lawful activity which incidental

8 taking activity may include but is not limited to

9 the routine operation, maintenance, rehabilita10 tion, replacement, or repair of any structure,

11 building, road, dam, airport, or any irrigation

12 or other facility which is in operation prior to

13 the publication of the determination under sec14 tion 4(b)(6); and

15 ‘‘(B) no Federal agency shall be required to

16 comply with section 7(a)(1) and no consultation

17 shall be required on any agency action under

18 section 7(a)(2), except that the species shall con19 tinue to be treated as a species proposed for list20 ing under section 4 solely for purposes of section

21 7(a)(4).

22 ‘‘(2) EMERGENCY RULEMAKING PROTECTIONS.—

23 Notwithstanding paragraph (1), sections 7(a) and

24 9(a) shall apply fully to the listed species during a

25 period in which an emergency rulemaking is in effect
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1 pursuant to section 4(b)(7) or if the President de2 clares, and advises the Secretary, that there exists an

3 imminent threat to the existence of the species. Such

4 declaration of the President expires upon the deadline

5 for publication of a final conservation plan for the

6 species pursuant to subsection (c)(5) or the publica7 tion of a conservation objective for the species pro8 vided in subsection (b)(3) or if no conservation plan

9 is required pursuant to subsection (b)(3)(C).

10 ‘‘(f) SUSPENSION OF CONSERVATION PLAN OR OBJEC11 TIVE.—If the Secretary issues an incidental take permit or

12 enters into a cooperative management agreement under sec13 tion 6, the Secretary, by publication of notice in the Federal

14 Register, shall suspend the conservation objective or con15 servation plan with respect to the geographic area or action

16 applicable to the species to which the permit or agreement

17 applies.

18 ‘‘(g) NONDELEGATION OF DUTIES.—The Secretary

19 may not delegate the authority to make the final decision

20 to select a conservation objective, issue a conservation plan,

21 or designate critical habitat under this section.

22 ‘‘(h) REVIEW OF CONSERVATION PLANS.—

23 ‘‘(1) DEADLINES.—The Secretary shall review

24 each conservation plan and the conservation objective

25 on which it is based before the end of the 5-year pe-
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1 riod that begins on the date of publication of the con2 servation plan, and before the end of each 5- year pe3 riod thereafter.

4 ‘‘(2) REVISIONS.—The Secretary shall revise a

5 conservation plan or the conservation objective on

6 which it is based if the Secretary determines—

7 ‘‘(A) through a 5-year review under para8 graph (1), that the conservation plan or con9 servation objective does not meet the require10 ments of this section; or

11 ‘‘(B) at any time—

12 ‘‘(i) that funding is not available for

13 the implementation of a specific conserva14 tion measure that is integral to the con15 servation plan or that a more cost-effective

16 alternative exists for a specific conservation

17 measure that is integral to the conservation

18 plan; or

19 ‘‘(ii) on the basis of scientific or com20 mercial data that were not available during

21 the development of the conservation objective

22 or conservation plan, that the conservation

23 objective is not achievable or the conserva24 tion plan will not achieve the conservation

25 objective.
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1 ‘‘(3) NO REOPENING OF CONSULTATIONS.—Sec2 tion 7 consultations shall not be reopened as a result

3 of modifications to a conservation plan under para4 graph (2).’’.

5 SEC. 504. CRITICAL HABITAT FOR SPECIES.

6 (a) CRITICAL HABITAT DESIGNATION.—Section 5, as

7 added by section 501 of this Act and as amended by sections

8 502 and 503 of this Act, is amended by adding at the end

9 the following new subsections:

10 ‘‘(i) CRITICAL HABITAT DESIGNATION.—

11 ‘‘(1) DESIGNATION.—The Secretary—

12 ‘‘(A) may, by regulation and to the extent

13 prudent and determinable, designate critical

14 habitat of a species determined to be an endan15 gered species or threatened species that meets the

16 requirements of paragraph (3) utilizing the Na17 tional Biodiversity Reserve established under sec18 tion 5A(a) as a first priority;

19 ‘‘(B) may by regulation and to the extent

20 prudent and determinable, revise a critical habi21 tat designation on determining that the critical

22 habitat does not meet the requirements of para23 graph (3); and

24 ‘‘(C) shall, by regulation and upon receiv25 ing a written request from a non-Federal person
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1 requesting a review of the critical habitat des2 ignation on such person’s private property, re3 vise a critical habitat designation on such pri4 vate property on determining that the critical

5 habitat does not meet the requirements of para6 graph (3).

7 Designation or revision of critical habitat shall not

8 result in reopening or reinitiation of consultations on

9 Federal actions pursuant to section 7.

10 ‘‘(2) DEADLINES FOR DESIGNATION.—Any pro11 posed regulation and any final regulation to des12 ignate or revise critical habitat shall be published not

13 later than 12 months and 18 months, respectively,

14 after the date on which the affected species is deter15 mined to be an endangered species or a threatened

16 species, or on which the Secretary receives a written

17 request to review a critical habitat designation under

18 paragraph (1)(C).

19 ‘‘(3) BASIS FOR DESIGNATION.—The designation

20 of critical habitat, and any revision of the designa21 tion, shall be made on the basis of the best available

22 scientific and commercial data after taking into con23 sideration the economic impact, and any other rel24 evant impact, of designating any particular area as

25 critical habitat and of the determination that the af-
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1 fected species is an endangered species or threatened

2 species. The Secretary shall exclude any area from

3 critical habitat—

4 ‘‘(A) which does not meet the definition of

5 critical habitat set forth in section 3(7);

6 ‘‘(B) which is not necessary to achieve the

7 conservation objective for the affected species es8 tablished pursuant to subsection (b);

9 ‘‘(C) for which the Secretary determines

10 that the benefits of the exclusion of the area from

11 designation as critical habitat outweigh the bene12 fits of designation, unless the Secretary deter13 mines, on the basis of the best available scientific

14 and commercial data, that the failure to des15 ignate the area as critical habitat will result in

16 the extinction of the affected species; or

17 ‘‘(D) in the case of property owned by a

18 non-Federal person, where the owner thereof has

19 not given written consent to the designation, has

20 withdrawn such consent in writing, or has not

21 been compensated as provided in section 19.

22 ‘‘(4) PROCEDURE FOR DESIGNATION.—In the

23 Federal Register notice containing the proposed regu24 lation to designate critical habitat, the Secretary shall

25 describe the economic impacts and other relevant im-
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1 pacts that are to be considered, and the benefits that

2 are to be weighed, under paragraph (3) in designat3 ing an area as critical habitat, along with maps

4 showing the location of the area to be designated as

5 critical habitat. The Secretary shall submit the de6 scription, and the documentation supporting the de7 scription, to the Bureau of Labor Statistics of the De8 partment of Labor. The Commissioner of Labor Sta9 tistics shall submit written comments during the com10 ment period on the proposed regulation. The Sec11 retary shall hold at least one public hearing in each

12 State on the proposed rule in which critical habitat

13 is designated for a species. In issuing any final regu14 lation designating critical habitat, the Secretary shall

15 respond separately and fully to each comment.

16 ‘‘(5) JUDICIAL REVIEW OF CRITICAL HABITAT

17 DESIGNATION.—The decision whether to designate

18 critical habitat shall be subject to a de novo judicial

19 review with the court determining whether the deci20 sion is supported by a preponderance of the evidence.

21 ‘‘(j) JUDICIAL REVIEW OF CONSERVATION OBJECTIVE

22 OR PLAN.—The standard for judicial review of any decision

23 of the Secretary, or a Federal agency pursuant to this sec24 tion shall be whether the decision is arbitrary, capricious,
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1 an abuse of discretion, or otherwise not in accordance with

2 law.

3 ‘‘(k) CONSERVATION PLANS FOR FOREIGN SPECIES.—

4 In developing conservation objectives and conservation

5 plans under this section, the Secretary shall, in regard to

6 foreign species—

7 ‘‘(1) act consistently with the Convention; and

8 ‘‘(2) cooperate and support the conservation

9 strategy adopted for that species by any foreign na10 tion in which the species occurs.’’.

11 (b) CONFORMING AMENDMENTS.—Section 4(b)(6) (16

12 U.S.C. 1533(b)(6)) is amended—

13 (1) in subparagraph (B)(i) by striking ‘‘or revi14 sion concerned’’;

15 (2) in subparagraph (B)(iii) by striking ‘‘or re16 vision concerned, a finding that the revision should

17 not be made,’’; and

18 (3) by striking subparagraph (C).

19 (c) CONFORMING AMENDMENT.—Section 4(b)(8) (16

20 U.S.C. 1533(b)(8)) is amended by striking ‘‘regulation’’ the

21 third time it appears and all that follows through the end

22 of the paragraph and inserting ‘‘regulation.’’.

23 (d) DEFINITION OF CRITICAL HABITAT.—Section 3(7),

24 as redesignated by section 102(a) of this Act, is amended

25 to read as follows:
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1 ‘‘(7)(A) The term ‘critical habitat’ for an endan2 gered species or a threatened species means the spe3 cific areas which are within the geographic area

4 found to be occupied by a species at the time the spe5 cies is determined to be an endangered species or a

6 threatened species in accordance with section 4 and

7 which contain such physical or biological features

8 as—

9 ‘‘(i) are essential to the persistence of the

10 species over the 50-year period beginning on the

11 date the regulation designating the critical habi12 tat, or any revision of the regulation, is promul13 gated; and

14 ‘‘(ii) require special management consider15 ations or protection.

16 ‘‘(B) Except in those circumstances determined

17 by the Secretary, critical habitat shall not include the

18 entire geographical area occupied by the threatened

19 species or endangered species.’’.

20 SEC. 505. RECOGNITION OF CAPTIVE PROPAGATION AS

21 MEANS OF RECOVERY.

22 Section 5, as added by section 501 of this Act and as

23 amended by sections 502, 503, and 504 of this Act, is

24 amended by adding at the end the following new subsection:
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1 ‘‘(l) RECOGNITION OF CAPTIVE PROPAGATION AS

2 MEANS OF CONSERVATION.—

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

4 Secretary shall recognize to the maximum extent

5 practicable, and may utilize, captive propagation as

6 a means of protecting or conserving an endangered

7 species or a threatened species.

8 ‘‘(2) CAPTIVE PROPAGATION GRANTS.—The Sec9 retary may, subject to appropriations therefor, pro10 vide annual grants to non-Federal persons to fund

11 captive propagation programs for the purpose of pro12 tecting or conserving any species that is determined

13 under section 4 to be an endangered species or a

14 threatened species, if the Secretary determines that

15 such a program contributes to enhancement of the

16 population of the species.’’.

17 SEC. 506. INTRODUCTION OF SPECIES.

18 Section 10(j) (16 U.S.C. 1539(j)) is amended—

19 (1) by amending paragraph (2)(B) to read as

20 follows:

21 ‘‘(B) Before authorizing the release of any population

22 under subparagraph (A), the Secretary shall by regula23 tion—

24 ‘‘(i) identify the population and the precise

25 boundaries of the geographic area for the release and
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1 determine, on the basis of the best available informa2 tion, whether the release is in the public interest,

3 whether or not such population is essential to the con4 tinued existence of an endangered species or a threat5 ened species; and

6 ‘‘(ii) in the case of a release of a species of pred7 atory mammal in a unit of the National Park System

8 or the National Wildlife Refuge System—

9 ‘‘(I) require that if the species enters private

10 property, measures shall be taken to remove the

11 species from the property and protect the safety

12 and welfare of the public and domestic animals,

13 including livestock; and

14 ‘‘(II) provide funding for such measures, in15 cluding compensation for diminution of property

16 values pursuant to section 19 of this Act.’’;

17 (2) in paragraph (2)(C)—

18 (A) in clause (i) by striking ‘‘and’’ after the

19 semicolon; and

20 (B) by striking clause (ii) and inserting the

21 following:

22 ‘‘(ii) for the purposes of sections 4(d) and

23 9(a)(1)(B), any member of an experimental popu24 lation found outside the geographic area in which the

25 population is released shall not be treated as a threat-
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1 ened species if the member poses a threat to the wel2 fare of the public; and

3 ‘‘(iii) critical habitat shall not be designated

4 under this Act or if designated prior to the Endan5 gered Species Conservation and Management Act of

6 1995, shall be removed from any non-Federal land,

7 for any experimental population determined under

8 subparagraph (B) to be not essential to the continued

9 existence of a species.’’;

10 (3) by adding at the end of paragraph (2) the

11 following new subparagraph:

12 ‘‘(D) The Secretary shall determine under subpara13 graph (B) that a population is not essential to the contin14 ued existence of an endangered species or threatened species,

15 unless the Secretary determines on the basis of the best

16 available scientific and commercial data that the loss of one

17 or more of the members of the population will result in the

18 extinction of the species.’’;

19 (4) by redesignating paragraph (3) as para20 graph (6); and

21 (5) by inserting after paragraph (2) the follow22 ing new paragraphs:

23 ‘‘(3) REQUIREMENTS FOR RELEASES.—In au24 thorizing the release of a population under paragraph

25 (2), the Secretary shall require that—
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1 ‘‘(A) to the maximum extent practicable, the

2 release occurs only in a unit of the National

3 Park System or the National Wildlife Refuge

4 System;

5 ‘‘(B) a release outside a unit occurs only in

6 an area that has been identified as a candidate

7 site for release of the population in a conserva8 tion plan for the species;

9 ‘‘(C) in the case of a release outside a unit,

10 measures to protect the safety and welfare of the

11 public and domestic animals and the funding for

12 the measures are identified in the regulations au13 thorizing the release and are implemented;

14 ‘‘(D) the regulations authorizing the release

15 identify precisely the geographic area for the re16 lease;

17 ‘‘(E) a release on non-Federal land occurs

18 only with the written consent of the owner of the

19 land;

20 ‘‘(F) the regulations authorizing the release

21 include measurable reintroduction goals to re22 store viable populations only within the specific

23 geographic area identified for release in the regu24 lations;
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1 ‘‘(G) the regulations authorizing the release

2 obligate the Secretary to remove members of the

3 population from non-Federal land at the written

4 request of the landowner and within a reasonable

5 period of time after receiving such a request, not

6 to exceed 90 days; and

7 ‘‘(H) the regulations authorizing the release

8 of a population that is determined under this

9 paragraph to not be essential to the survival of

10 a species shall provide that, notwithstanding any

11 other provision of this Act, a taking of a member

12 of such population shall not be treated as a tak13 ing if it is—

14 ‘‘(i) not knowing,

15 ‘‘(ii) not willful, or

16 ‘‘(iii) incidental to, and not the pur17 pose of, otherwise lawful activity.

18 ‘‘(4) COMPLIANCE WITH STATE LAW.—In author19 izing any release under paragraph (2), the Secretary

20 shall ensure that the release does not conflict with the

21 laws of affected States relating to the species to be re22 leased.

23 ‘‘(5) DETERMINATION REGARDING POPULATIONS

24 AUTHORIZED BEFORE EFFECTIVE DATE OF ENDAN25 GERED SPECIES CONSERVATION AND MANAGEMENT
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1 ACT OF 1995.—(A) For each population of a species

2 that the Secretary, before the effective date of the En3 dangered Species Conservation and Management Act

4 of 1995, authorized the release of in a geographical

5 area separate from the other populations of the spe6 cies, the Secretary shall determine by regulation

7 whether or not the population is essential to the con8 tinued existence of the species.

9 ‘‘(B) If the Secretary receives a written request

10 for the issuance of a regulation under subparagraph

11 (A) for a population for which the Secretary has not

12 issued such a regulation, the Secretary shall promptly

13 issue such a regulation by not later than 180 days

14 after receiving the request.’’.

15 SEC. 507. CONSERVING THREATENED SPECIES.

16 (a) REGULATIONS.—Section 4(d) (16 U.S.C. 1533(d))

17 is amended to read as follows:

18 ‘‘(d) REGULATIONS TO PROTECT THREATENED SPE19 CIES.—Whenever any species is listed as a threatened spe20 cies pursuant to subsection (c), the Secretary shall issue,

21 concurrently with the regulation that provides for the list22 ing of the species, such regulations as the Secretary deems

23 necessary and advisable to provide for the conservation of

24 such species. Such regulations may apply to the threatened

25 species one or more of the prohibitions under section
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1 9(a)(1), in the case of fish and wildlife, or section 9(a)(2)

2 in the case of plants, with respect to endangered species.

3 The prohibition applied to the threatened species shall ad4 dress the specific circumstances of such species and may not

5 be as restrictive as such prohibition for endangered species.

6 With respect to the taking of resident species of fish or wild7 life, such regulations shall apply in any State which has

8 entered into a cooperative agreement or delegation agree9 ment pursuant to section 6 only to the extent that such reg10 ulations have also been adopted by such State.’’.

11 (b) CONFORMING AMENDMENTS.—Section 4 (16 U.S.C.

12 1533) is amended—

13 (1) by striking subsection (f); and

14 (2) by redesignating subsections (g), (h), and (i)

15 in order as subsections (f), (g), and (h).

16 (c) CONSERVATION GUIDELINES.—Section 4 is amend17 ed in subsection (g), as redesignated by subsection (b)(2)

18 of this section, by amending paragraph (3), as redesignated

19 by section 304(b)(2) of this Act, to read as follows:

20 ‘‘(3) a system for developing and implementing,

21 on a priority basis, conservation objectives and con22 servation plans. The Secretary shall provide to the

23 public notice of, and opportunity to submit written

24 comments on, any guideline (including any amend-
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1 ment thereto) proposed to be established under this

2 subsection.’’.

3 SEC. 508. DELEGATION OF AUTHORITY TO STATES.

4 Section 5 is further amended by adding at the end the

5 following new subsection:

6 ‘‘(n) DELEGATION TO STATE.—(1) At the request of

7 a State, the Secretary shall delegate either under a coopera8 tive management plan or a delegation agreement as pro9 vided in section 6, to the State the authority to develop and

10 implement conservation objectives and plans for a species

11 or group of species determined to be endangered species or

12 threatened species, unless the Secretary determines that the

13 State lacks authority and capability to carry out the re14 quirements of this Act. If the Secretary determines that the

15 State lacks authority and capability, the Secretary shall no16 tify the Governor of the State of the specific concerns and

17 specify measures necessary to address those concerns and

18 provide the Governor with the opportunity to take the ac19 tions necessary to address those concerns.

20 ‘‘(2) The Secretary shall monitor the actions of the

21 State to develop and implement a conservation objective

22 and conservation plan. The Secretary shall assist the States

23 in coordinating their actions with other affected States

24 where the species may occur.
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1 ‘‘(3) If the Secretary determines that the State is not

2 in compliance with this Act, the cooperative management

3 agreement, or the delegation agreement, the Secretary shall

4 so notify the State and shall specify the areas of noncompli5 ance. The States shall have 60 days in which to respond

6 and in which to come into compliance. If the State fails

7 to adequately respond or to come into compliance, the Sec8 retary is authorized to resume responsibility for the develop9 ment and implementation of the conservation objective and

10 plan.’’.

11 TITLE VI—HABITAT

12 PROTECTIONS

13 SEC. 601. FEDERAL BIOLOGICAL DIVERSITY RESERVE.

14 Section 5A, as redesignated by section 501 of this Act,

15 is amended to read as follows:

16 ‘‘SEC. 5A. PROTECTION OF HABITAT.

17 ‘‘(a) ESTABLISHMENT OF NATIONAL BIOLOGICAL DI18 VERSITY RESERVE.—

19 ‘‘(1) IN GENERAL.—There is hereby established a

20 National Biological Diversity Reserve (hereinafter in

21 this Act referred to as the ‘Reserve’). The Reserve shall

22 be composed of units of Federal and State lands des23 ignated in accordance with paragraph (2) and man24 aged in accordance with paragraph (3).
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1 ‘‘(2) DESIGNATION OF RESERVE UNITS.—(A) Not

2 later than 18 months after the date of enactment of

3 the Endangered Species Conservation and Manage4 ment Act of 1995, the Secretary of the Interior and

5 the Secretary of Agriculture shall designate to the Re6 serve by regulation those units of the national con7 servation systems which are within the jurisdiction of

8 the Secretary concerned and which the Secretary de9 termines would contribute to biological diversity in

10 accordance with the provisions of this Act. The term

11 ‘national conservation systems’ means wholly feder12 ally owned lands within the National Park System,

13 the National Wildlife Refuge System, or the National

14 Wilderness Preservation System, and wild segments of

15 rivers within the National Wild and Scenic Rivers

16 System.

17 ‘‘(B) The Secretary of the Interior shall—

18 ‘‘(i) designate to the Reserve by regulation

19 a unit of State-owned lands if such unit is nomi20 nated for designation by the Governor of the

21 State and is managed under State law in ac22 cordance with paragraph (3);

23 ‘‘(ii) designate to the Reserve by regulation

24 privately owned land that is nominated for des25 ignation by the owner of the land, and shall re-
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1 move such land from the Reserve if the owner re2 quests removal;

3 ‘‘(iii) remove from the Reserve by regulation

4 any unit designated pursuant to clause (i) which

5 the Secretary finds is not managed under State

6 law in accordance with paragraph (3); and

7 ‘‘(iv) remove from the Reserve any State8 owned lands at the request of the Governor of

9 that State.

10 ‘‘(C) Designation of a Reserve unit shall not af11 fect any valid existing permit, contract, license, right,

12 right-of-way, access, interest in land, right to use or

13 receive water, or property right.

14 ‘‘(3) MANAGEMENT OF THE RESERVE.—(A) Each

15 unit of the Reserve may have as a goal the conserva16 tion of biological diversity. Such goal shall be supple17 mentary and secondary to other purposes established

18 for such unit by or pursuant to any provision of law

19 applicable to such unit. Management for biological di20 versity shall not be inconsistent with or diminish

21 other unit purposes, other provisions of law applica22 ble to such unit, and activities which occur or are au23 thorized to occur on such unit.

24 ‘‘(B) The manager of each Reserve unit should

25 consistent with paragraph (4) utilize his authority to
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1 use active management and recovery measures, in2 cluding those specified in section 5(b)(2)(A)(vi), and

3 shall conduct a survey to determine the populations

4 of species within the Reserve.

5 ‘‘(C) Nothing in this section shall—

6 ‘‘(i) alter, establish, or affect the respective

7 rights of the United States, the States, or any

8 person with respect to any water or water-relat9 ed right; or

10 ‘‘(ii) affect the laws, rules, and regulations

11 pertaining to hunting, fishing, and other lawful

12 wildlife harvest under existing State and Federal

13 laws and Indian treaties.

14 ‘‘(D) Within 1 year of the designation of a unit

15 to the Reserve, the manager of such unit shall com16 plete, and the Secretary concerned shall make avail17 able to the public by notice in the Federal Register,

18 an inventory of the species composing the biological

19 diversity within such unit.

20 ‘‘(4) OTHER FEDERAL LANDS.—Nothing in this

21 Act shall be construed as limiting the authority of the

22 Secretary of the Interior or the Secretary of Agri23 culture to take such actions as are necessary and au24 thorized by other law to protect, maintain, and en25 hance biological diversity on other Federal lands not
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1 designated to the Reserve except that, before taking

2 any such action, the Secretary concerned shall make

3 a finding based on the best available scientific and

4 commercial data, that the biological diversity for

5 which such action is proposed is not protected, main6 tained, or enhanced in whole or substantial part on

7 any unit of the Reserve. Such finding shall be pub8 lished, along with the reasons therefor in the Federal

9 Register.’’.

10 SEC. 602. LAND ACQUISITION.

11 Section 5A, as redesignated by section 501 of this Act

12 and as amended by section 601 of this Act, is amended by

13 adding at the end the following new subsection:

14 ‘‘(b) LAND ACQUISITION.—

15 ‘‘(1) PROGRAM.—The Secretary, and the Sec16 retary of Agriculture with respect to the National

17 Forest System, shall establish and implement a pro18 gram to conserve fish, wildlife, and plants, including

19 those which are determined to be endangered species

20 or threatened species pursuant to section 4. To carry

21 out such a program, the appropriate Secretary—

22 ‘‘(A) shall utilize the land acquisition and

23 other authority under the Fish and Wildlife Act

24 of 1956 (16 U.S.C. 742a et seq.), the Fish and

25 Wildlife Coordination Act (16 U.S.C. 661 et
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1 seq.), and the Migratory Bird Conservation Act

2 (16 U.S.C. 715 et seq.), as appropriate; and

3 ‘‘(B) is authorized to acquire by purchase,

4 lease, donation, or otherwise, lands, waters, or

5 interest therein, including short- or long-term

6 conservation easements, and such authority shall

7 be in addition to any other land acquisition au8 thority vested in that Secretary.

9 ‘‘(2) AVAILABILITY OF FUNDS FOR ACQUISITION

10 OF LANDS, WATER, ETC.—Funds made available pur11 suant to the Land and Water Conservation Fund Act

12 of 1965 (16 U.S.C. 4601–4 et seq.) and funds made

13 available under section 13(c)(4) may be used for the

14 purpose of acquiring or leasing lands, waters, or in15 terests therein under this subsection.’’.

16 SEC. 603. PROPERTY EXCHANGES.

17 Section 5A, as redesignated by section 501 of this Act

18 and as amended by sections 601 and 602 of this Act, is

19 amended by adding at the end the following new sub20 sections:

21 ‘‘(c) EXCHANGES.—

22 ‘‘(1) IN GENERAL.—In accordance with sub23 section (a), the Secretary of the Interior and the Sec24 retary of Agriculture shall encourage exchanges of

25 lands, waters, or interests in land or water within the
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1 jurisdiction of each Secretary (other than units of the

2 National Park System and units of the National Wil3 derness Preservation System) for lands, waters, or in4 terests in land or water that are not in Federal own5 ership and that are affected by this Act.

6 ‘‘(2) TIMING OF EXCHANGES.—An exchange

7 under this subsection may be made if the Secretary

8 of the Interior or the Secretary of Agriculture deter9 mines, without a formal appraisal, that the lands to

10 be exchanged are of approximately equal value after

11 allowing the State in which the land being exchanged

12 is located 30 days in which to comment on the ex13 change.

14 ‘‘(3) ENVIRONMENTAL ASSESSMENT.—An envi15 ronmental assessment shall be the only document

16 under section 102(2) of the National Environmental

17 Policy Act of 1976 (16 U.S.C. 4332(2)) that shall be

18 prepared with respect to any exchange under this sub19 section.

20 ‘‘(4) EXPEDITIOUS EXCHANGE DECISIONS.—An

21 exchange under this subsection shall be processed as

22 expeditiously as practicable. The Secretary of the In23 terior or the Secretary of Agriculture shall periodi24 cally provide information to the non-Federal land25 owner on the status of the exchange.
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1 ‘‘(5) APPLICABLE LAW.—The Secretary of the In2 terior and the Secretary of Agriculture shall process

3 exchanges under this subsection in accordance with

4 applicable laws that are consistent with this sub5 section.

6 ‘‘(d) VALUATION.—Any land, water, or interest in

7 land or water to be acquired by the Secretary or the Sec8 retary of Agriculture by purchase, exchange, donation, or

9 otherwise under this section shall be valued as if the land,

10 water, or interest in land or water were not subject to any

11 restriction on use under this Act imposed after the date of

12 acquisition by the current owner of the land, water, or in13 terest in land or water.

14 ‘‘(e) IMPACTS ON ADJACENT PROPERTIES.—For any

15 land or water acquired by the Secretary or the Secretary

16 of Agriculture by purchase, exchange, lease, donation or oth17 erwise under this section, the Secretary or Secretary of Ag18 riculture shall ensure that such purchase, exchange, lease,

19 donation, or other transfer shall not supersede, abrogate, or

20 otherwise impair existing easements, rights-of-way, fencing,

21 water sources, water delivery lines or ditches, and current

22 uses of adjacent land.’’.
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1 TITLE VII—STATE AUTHORITY

2 TO PROTECT ENDANGERED

3 AND THREATENED SPECIES

4 SEC. 701. STATE AUTHORITY.

5 (a) IN GENERAL.—Section 6 (16 U.S.C. 1535) is

6 amended by striking subsection (c) and all that follows

7 through subsection (f) and inserting the following:

8 ‘‘(c) STATE AUTHORITY TO PROTECT ENDANGERED

9 AND THREATENED SPECIES.—

10 ‘‘(1) DELEGATION OF AUTHORITY.—In further11 ance of the purposes of this Act, the Secretary may

12 delegate to a State which establishes and maintains

13 an adequate program for the conservation of endan14 gered species and threatened species the authority con15 tained in this Act with respect to species that are

16 residents in the State. Within 120 days after the Sec17 retary receives a certified copy of such a proposed

18 State program, the Secretary shall make a determina19 tion whether such program will be adequate to pro20 vide protections to endangered species and threatened

21 species in such State. In order for a State program

22 to be determined to be an adequate program for the

23 conservation of endangered species and threatened

24 species, the Secretary must find that under the State

25 program—
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1 ‘‘(A)(i) authority resides in the State agen2 cy to conserve resident species that are deter3 mined by the State agency or the Secretary to be

4 endangered species or threatened species;

5 ‘‘(ii) the State agency has established ac6 ceptable conservation programs, consistent with

7 the purposes and policies of this Act, for all resi8 dent species in the State which are determined

9 by the Secretary to be endangered species or

10 threatened species or for those species or taxo11 nomic groups of species which the State proposes

12 to cover under its program, and has furnished a

13 copy of such plan and program together with all

14 pertinent details, information, requested to the

15 Secretary;

16 ‘‘(iii) the State agency is authorized to con17 duct investigations to determine the status and

18 requirements for survival of resident endangered

19 species and threatened species;

20 ‘‘(iv) an agency of the State is authorized to

21 establish programs, including the acquisition of

22 land or aquatic habitat or interests therein, for

23 the conservation of resident endangered species or

24 threatened species;
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1 ‘‘(v) provision is made for public participa2 tion in designating resident species as endan3 gered species or threatened species; and

4 ‘‘(vi) the State agency has initiated or en5 couraged voluntary or incentive based programs

6 to further the conservation objectives for the spe7 cies; or

8 ‘‘(B)(i) the requirements set forth in clauses

9 (iii), (iv), and (v) of subparagraph (A) are com10 plied with, and

11 ‘‘(ii) plans are included under which imme12 diate attention will be given to those resident

13 species which are determined by the Secretary or

14 the State agency to be endangered species or

15 threatened species and which the Secretary and

16 the State agency agree are most urgently in need

17 of conservation programs.

18 ‘‘(2) PROHIBITIONS NOT AFFECTED.—A delega19 tion to a State whose program is determined adequate

20 under paragraph (1) shall not affect the applicability

21 of prohibitions set forth in or authorized pursuant to

22 section 4(d) or section 9(a)(1) or (2) with respect to

23 the taking of any resident endangered species or

24 threatened species in the State.

25 ‘‘(d) ALLOCATION OF FUNDS.—
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1 ‘‘(1) FINANCIAL ASSISTANCE.—(A) The Secretary

2 may provide financial assistance to any State,

3 through its respective State agency, which has entered

4 into a cooperative management agreement under sub5 section (b) or received authority under a delegation

6 pursuant to subsection (c) of this section to assist in

7 development of programs for the conservation of en8 dangered species and threatened species or to assist in

9 monitoring the status of candidate species pursuant

10 to subparagraph (C) of section 4(b)(3) and recovered

11 species pursuant to section 4(f). The Secretary shall

12 allocate each annual appropriation made in accord13 ance with subsection (i) to such States based on con14 sideration of—

15 ‘‘(i) the international commitments of the

16 United States to protect endangered species or

17 threatened species;

18 ‘‘(ii) the readiness of a State to proceed

19 with a conservation program consistent with the

20 objectives and purposes of this Act;

21 ‘‘(iii) the number of endangered species and

22 threatened species within a State;

23 ‘‘(iv) the potential for restoring endangered

24 species and threatened species within a State;
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1 ‘‘(v) the relative urgency to initiate a pro2 gram to restore and protect an endangered spe3 cies or threatened species in terms of survival of

4 the species;

5 ‘‘(vi) the importance of monitoring the sta6 tus of candidate species within a State to pre7 vent a significant risk to the well-being of any

8 such species; and

9 ‘‘(vii) the importance of monitoring the sta10 tus of recovered species within a State to assure

11 that such species do not return to the point at

12 which the measures provided pursuant to this

13 Act are again necessary.

14 ‘‘(B) So much of the annual appropriation made

15 in accordance with subsection (i) allocated for obliga16 tion to any State for any fiscal year as remains un17 obligated at the close thereof may be made available

18 to that State until the close of the succeeding fiscal

19 year. Any amount allocated to any State which is un20 obligated at the end of the period during which it is

21 available for expenditure may be made available for

22 expenditure by the Secretary in conducting programs

23 under this section.

24 ‘‘(2) CONTENTS OF DELEGATION AGREEMENT.—

25 Such delegation shall provide for—
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1 ‘‘(A) the actions to be taken by the Sec2 retary and the States;

3 ‘‘(B) the benefits that are expected to be de4 rived in connection with the conservation of en5 dangered species or threatened species;

6 ‘‘(C) the estimated cost of these actions; and

7 ‘‘(D) the share of such costs to be borne by

8 the Federal Government and by the States; ex9 cept that—

10 ‘‘(i) the Federal share of such program

11 costs shall not exceed 75 percent of the esti12 mated program cost stated in the agree13 ment; and

14 ‘‘(ii) the Federal share may be in15 creased to 90 percent whenever two or more

16 States having a common interest in one or

17 more endangered species or threatened spe18 cies, the conservation of which may be en19 hanced by cooperation of such States, enter

20 jointly into an agreement with the Sec21 retary.

22 The Secretary may, in the Secretary’s discretion, and

23 under such rules and regulations as he may prescribe,

24 advance funds to the State for financing the United

25 States pro rata share agreed upon in the cooperative
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1 agreement. For the purposes of this section, the non2 Federal share may, in the discretion of the Secretary,

3 be in the form of money or real property, the value

4 of which will be determined by the Secretary, whose

5 decision shall be final.

6 ‘‘(3) COMPLIANCE WITH PROCEDURES.—In im7 plementing this Act under authority delegated to a

8 State by the Secretary, the State shall comply with

9 all requirements, prohibitions, and procedures set

10 forth by this Act.

11 ‘‘(e) REVIEW OF STATE PROGRAMS.—Any action

12 taken by the Secretary under this section shall be subject

13 to his periodic review at no greater than intervals of 5

14 years.

15 ‘‘(f) CONFLICTS BETWEEN FEDERAL AND STATE

16 LAWS.—Any State law or regulation which applies with

17 respect to the importation or exportation of, or interstate

18 or foreign commerce in, endangered species or threatened

19 species is void to the extent that it may effectively—

20 ‘‘(1) permit what is prohibited by this Act or by

21 any regulation which implements this Act, or

22 ‘‘(2) prohibit what is authorized pursuant to an

23 exemption or permit provided for in this Act or in

24 any regulation which implements this Act. This Act

25 shall not otherwise be construed to void any State law
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1 or regulation which is intended to conserve migratory,

2 resident, or introduced fish or wildlife, or to permit

3 or prohibit sale of such fish or wildlife. Any State law

4 or regulation respecting the taking of an endangered

5 species or threatened species may be more restrictive

6 than the exemptions or permits provided for in this

7 Act or in any regulation which implements this Act.’’.

8 (b) CONFORMING AMENDMENT.—Section 6(g)(2)(A)

9 (16 U.S.C. 1535(g)(2)(A)) is amended to read as follows:

10 ‘‘(A) to which the Secretary has delegated au11 thority under subsection (c); or’’.

12 (c) FACA.—Section 6 (16 U.S.C. 1535), as amended

13 by sections 103 and 105 of this Act, is further amended

14 by adding at the end the following new subsection:

15 ‘‘(l) FACA.—Consultation with States regarding this

16 section shall not be subject to the Federal Advisory Commit17 tee Act (5 U.S.C. App.).’’.

18 SEC. 702. STATE PROGRAMS AFFECTED BY THE CONVEN19 TION.

20 Section 8A (16 U.S.C. 1537a), as amended by section

21 207(b) of this Act, is amended by adding at the end the

22 following new subsection:

23 ‘‘(h) ISSUANCE OF PERMITS FOR EXPORT.—

24 ‘‘(1) COMPLIANCE WITH STATE RECOMMENDA25 TION.—In any instance in which a State has a pro-
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1 gram for management of a native species which is the

2 subject of a request for an export permit under the

3 Convention, the Secretary shall act in accordance

4 with the recommendation of the State unless the Sec5 retary makes a finding and publishes a notice in the

6 Federal Register that scientific evidence justifies a

7 conclusion contrary to the advice of the State.

8 ‘‘(2) APPEAL.—The State which is the subject to

9 such a finding, or any person in that State directly

10 affected because of inability to obtain a permit, may

11 appeal the finding to an Administrative Law Judge

12 or a court. The burden shall be on the Secretary to

13 show that the evidence supports a finding contrary to

14 the recommendation of the State.’’.

15 SEC. 703. COLLABORATIVE RULEMAKING WITH THE STATES.

16 Section 6(h) (16 U.S.C. 1535(h)) is amended to read

17 as follows:

18 ‘‘(h) RULEMAKING AUTHORITY AND PROCEDURES.—

19 The Secretary is authorized to promulgate such regulations

20 as may be appropriate to carry out the provisions of this

21 subsection, subject to the following requirements:

22 ‘‘(1) The Secretary shall not propose a rule,

23 under the authority of this Act, that has application

24 in a State, until the Secretary and the State have

25 consulted and the State has been given a meaningful
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1 opportunity to assist in the development of the rule,

2 and shall seek to integrate into the proposed rule the

3 recommendations of the State, including recommenda4 tions with regard to field practices.

5 ‘‘(2) The Secretary shall establish procedures for

6 rulemaking that include the applicable State within

7 60 days after the effective date of the Endangered

8 Species Conservation and Management Act of 1995. If

9 the rule will affect more than 1 State, the rule shall

10 provide a means by which the States or their rep11 resentatives may participate in the rulemaking.

12 ‘‘(3) Where the term ‘in cooperation with the

13 States’ is used in this Act, the requirements of this

14 subsection shall apply.’’.

15 TITLE VIII—FUNDING OF

16 CONSERVATION MEASURES

17 SEC. 801. AUTHORIZING INCREASED APPROPRIATIONS.

18 Section 15 (16 U.S.C. 1542) is amended to read as

19 follows:

20 ‘‘SEC. 15. AUTHORIZATION OF APPROPRIATIONS.

21 ‘‘(a) IN GENERAL.—In addition to the amounts au22 thorized to be appropriated under section 6(i) and sub23 sections (b) through (e), there are authorized to be appro24 priated—
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1 ‘‘(1) to the Department of the Interior to carry

2 out the duties of the Secretary of the Interior under

3 this Act $110,000,000 for fiscal year 1996,

4 $120,000,000 for fiscal year 1997, $130,000,000 for

5 fiscal year 1998, $140,000,000 for fiscal year 1999,

6 $150,000,000 for fiscal year 2000, and $160,000,000

7 for fiscal year 2001;

8 ‘‘(2) to the Department of Commerce to carry out

9 the duties of the Secretary of Commerce under this

10 Act $15,000,000 for fiscal year 1996, $20,000,000 for

11 fiscal year 1997, $25,000,000 for fiscal year 1998,

12 $30,000,000 for fiscal year 1999, $35,000,000 for fis13 cal year 2000, and $40,000,000 for fiscal year 2001;

14 and

15 ‘‘(3) to the Department of Agriculture to carry

16 out the duties of the Secretary of Agriculture under

17 this Act $4,000,000 for each of fiscal years 1996

18 through 2001.

19 ‘‘(b) COOPERATIVE MANAGEMENT AGREEMENTS.—

20 There are authorized to be appropriated to the Department

21 of the Interior to carry out section 16(b)(4), $20,000,000

22 for each of fiscal years 1996 through 2001, to remain avail23 able until expended.

24 ‘‘(c) CONVENTION IMPLEMENTATION.—There are au25 thorized to be appropriated to the Department of the Inte-
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1 rior to carry out section 8A(e) $1,000,000 for each of fiscal

2 years 1996 through 2001, to remain available until ex3 pended.

4 ‘‘(d) NON-FEDERAL CONSERVATION PLANNING.—

5 There are authorized to be appropriated to the Department

6 of the Interior to carry out section 16(b)(3) $20,000,000 for

7 each of fiscal years 1996 through 2001, to remain available

8 until expended.

9 ‘‘(e) HABITAT CONSERVATION GRANTS.—There are au10 thorized to be appropriated to the Department of the Inte11 rior to provide habitat conservation grants under section

12 6(k) $20,000,000 for each of fiscal years 1996 though 2001,

13 to remain available until expended.’’.

14 SEC. 802. FUNDING OF FEDERAL MANDATES.

15 Section 16 is amended to read as follows:

16 ‘‘SEC. 16. FEDERAL COST-SHARING REQUIREMENTS FOR

17 CONSERVATION OBLIGATIONS.

18 ‘‘(a) DIRECT COSTS DEFINED.—In this section, the

19 term ‘direct costs’ means—

20 ‘‘(1) expenditures on labor, material, facilities,

21 utilities, equipment, supplies and other resources

22 which are necessary to undertake a specific conserva23 tion measure;

24 ‘‘(2) increased purchase power costs and lost rev25 enues caused by changes in the operation of a hydro-
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1 power system from which the non-Federal person or

2 Federal power marketing administration markets

3 power to meet a specific conservation measure; and

4 ‘‘(3) other reimbursable costs specifically identi5 fied by the Secretary as directly related to the per6 formance of a specific conservation measure.

7 ‘‘(b) COST-SHARING.—

8 ‘‘(1) CONSERVATION PLANS.—For any non-Fed9 eral person or Federal power marketing administra10 tion, the Secretary shall pay 50 percent of any direct

11 costs that result from the compliance by the person or

12 administration mandated by a conservation plan is13 sued under section 5 or any conservation measure

14 that provides protection to a listed species under a

15 plan developed under the Pacific Northwest Electric

16 Power Planning and Conservation Act (16 U.S.C.

17 839 et seq.) including a plan that provides protection

18 to a larger population unit of the same listed species.

19 ‘‘(2) CONSULTATION REQUIREMENTS.—For any

20 non-Federal person or Federal power marketing ad21 ministration, the Secretary shall pay 50 percent of

22 direct costs that result solely from requirements im23 posed by the Secretary on the person or marketing ad24 ministration under section 7.
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1 ‘‘(3) INCIDENTAL TAKE PERMITS.—For any non2 Federal person issued an incidental take permit

3 under section 10, the Secretary shall pay to such per4 son 50 percent of the direct costs of preparing the ap5 plication for the permit and implementing the terms

6 and conditions of the permit.

7 ‘‘(4) COOPERATIVE MANAGEMENT AGREE8 MENTS.—The Secretary shall pay 50 percent of the

9 direct costs of preparing and implementing the terms

10 and conditions of a cooperative management agree11 ment under section 6(b) incurred by a party to the

12 agreement and any costs incurred by any other non13 Federal person or Federal power marketing adminis14 tration subject to the terms of such agreement.

15 ‘‘(c) METHOD OF COST-SHARING.—

16 ‘‘(1) IN GENERAL.—Except as provided in para17 graph (2), the Secretary may make a contribution re18 quired under subsection (b) by—

19 ‘‘(A) providing a habitat reserve grant

20 under section 6(b)(14);

21 ‘‘(B) acquiring, from or for the party to the

22 cost-share, land or an interest in land as pro23 vided in section 5A; or

24 ‘‘(C) providing appropriated funds.
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1 ‘‘(2) COST-SHARE PAYMENT FOR FEDERAL

2 POWER MARKETING ADMINISTRATIONS AND OTHER

3 STATE OR LOCAL GOVERNMENTAL ENTITIES.—The

4 Secretary shall make a contribution under subsection

5 (b) to a Federal power marketing administration or

6 any other State or local governmental entity by pro7 viding appropriated funds directly to the administra8 tion or governmental entity.

9 ‘‘(3) APPROPRIATED FUNDS.—To the maximum

10 extent practicable, any appropriated funds paid by

11 the Secretary under paragraphs (1) and (2) shall be

12 paid directly (in lieu of reimbursement) to the party,

13 person, or administration.

14 ‘‘(4) LOANS.—The Secretary may not consider a

15 loan to the party to the cost-share as a contribution

16 or portion of a contribution under subsection (b).

17 ‘‘(5) RECOVERED COSTS.—The Secretary may

18 not claim as a portion of the Federal share under

19 subsection (b) any costs to the Federal Government

20 that are recovered through rates for the sale or trans21 mission of power or water.

22 ‘‘(6) EFFECT OF FEDERAL NONPAYMENT.—If the

23 Secretary fails to make the contribution required

24 under subsection (b), the application of the applicable

25 provision of the conservation plan, requirement under
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1 section 7, term under the incidental take permit, or

2 provision of the cooperative management agreement

3 shall be suspended until such time as the full con4 tribution is made. If the suspended provision or re5 quirement includes a conservation easement or other

6 instrument restricting title to the property of the non7 Federal person, nonpayment of the full contribution

8 shall result in the nullification of the previously

9 granted restriction on title.

10 ‘‘(7) IN-KIND CONTRIBUTIONS.—A non-Federal

11 person or Federal power marketing administration

12 may include in-kind contributions in calculating the

13 appropriate share of the costs of the person or admin14 istration under this section.

15 ‘‘(8) COSTS PAID BY THE SECRETARY.—Com16 pensation from the Federal Government under section

17 19 may not cover costs incurred by a non-Federal

18 person that were otherwise paid by the Secretary

19 under subsection (b).

20 ‘‘(d) EXISTING COST-SHARING AGREEMENTS.—Any

21 cost-sharing agreement with a non-Federal person provided

22 in any recovery plan or other agreement in existence prior

23 to the date of enactment of this subsection shall remain in

24 effect unless the non-Federal person requests that the cost25 sharing percentage be reconsidered.
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1 ‘‘(e) ADJUSTMENTS TO COST-SHARING PERCENT2 AGE.—At the request of the non-Federal person, the Sec3 retary may adjust the percentage of the Federal contribu4 tion to a higher share.’’.

5 SEC. 803. NATIONAL ENDOWMENT FOR FISH AND WILDLIFE.

6 Section 13 is amended to read as follows:

7 ‘‘SEC. 13. NATIONAL ENDOWMENT FOR FISH AND WILDLIFE

8 TRUST FUND.

9 ‘‘(a) ESTABLISHMENT.—There is established in the

10 general fund of the Treasury a separate account which shall

11 be known as the ‘National Endowment for Fish and Wild12 life Trust Fund’ (in this section referred to as the ‘Fund’).

13 ‘‘(b) CONTENTS.—The Fund shall consist of the follow14 ing:

15 ‘‘(1) Amounts received as gifts, bequests, and de16 vises under subsection (d).

17 ‘‘(2) Other amounts appropriated to or otherwise

18 deposited in the Fund.

19 ‘‘(c) USE.—Amounts in the fund shall be available to

20 the Secretary, subject to appropriations, for the following:

21 ‘‘(1) Payment of compensation under section 19.

22 ‘‘(2) Habitat conservation grants under section

23 6(k).

24 ‘‘(3) Payment of cost sharing under section 16.
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1 ‘‘(4) Acquisition or leasing of lands, waters, or

2 interests therein under section 5A(b).

3 ‘‘(d) GIFTS, BEQUESTS, AND DEVISES.—

4 ‘‘(1) IN GENERAL.—The Secretary may accept,

5 use, and dispose of gifts, bequests, or devises of serv6 ices or property, both real and personal, for the pur7 pose of carrying out this Act.

8 ‘‘(2) DEPOSIT INTO FUND.—Gifts, bequests, or

9 devises of money, and proceeds from sales of other

10 property received as gifts, bequests, or devises, shall be

11 deposited in the Fund and shall be available for dis12 bursement upon order of the Secretary.’’.

13 TITLE IX—MISCELLANEOUS

14 PROVISIONS

15 SEC. 901. AMENDMENTS TO DEFINITIONS.

16 Section 3 (16 U.S.C. 1532) is amended—

17 (1) by adding after paragraph (16) (as added by

18 section 401(e)(1) of this Act) the following new para19 graph:

20 ‘‘(17) The term ‘non-Federal person’ means a

21 person other than an officer, employee, agent, depart22 ment, or instrumentality of the Federal Government

23 or a foreign government, acting in the official capac24 ity of the person.’’; and
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1 (2) by amending paragraph (3) (as redesignated

2 by section 102(a)(1) of this Act) to read as follows:

3 ‘‘(3) The term ‘commercial activity’ means all

4 activities of industry and trade, including, but not

5 limited to, the buying or selling of commodities and

6 activities conducted for the purpose of facilitating

7 such buying and selling, except that it does not in8 clude exhibition of commodities or species by exhibi9 tors licensed under the Animal Welfare Act (7 U.S.C.

10 2131 et seq.), museums, or similar cultural or histori11 cal organizations.’’.

12 SEC. 902. REVIEW OF SPECIES OF NATIONAL INTEREST.

13 No later than 60 days after the date of the enactment

14 of this Act, the Secretary (as that term is defined in section

15 3 of the Endangered Species Act of 1973, as amended by

16 this Act) shall identify those species which are listed under

17 section 4 of that Act as a result of being determined to be

18 a population segment. No later than one year after the date

19 of the enactment of this Act, the Secretary shall review and

20 determine whether or not it is in the national interest to

21 continue to list each such population segment. Those popu22 lation segments which the Secretary recommends for contin23 ued listing in the national interest shall be submitted to

24 the Congress for approval. Any population segment which
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1 is not determined to be in the national interest shall be

2 delisted within 180 days after that determination.

3 SEC. 903. PREPARATION OF CONSERVATION PLANS FOR

4 SPECIES LISTED BEFORE ENACTMENT OF

5 THIS ACT.

6 (a) LISTED SPECIES WITHOUT RECOVERY PLANS.—

7 (1) PRIORITY FOR DEVELOPMENT OF CONSERVA8 TION PLANS.—Not later than 30 days after the date

9 of enactment of this Act, the Secretary (as defined in

10 section 3 of the Endangered Species Act of 1973, as

11 amended by this Act) shall publish a list of all species

12 that were determined to be endangered species or

13 threatened species under section 4 of the Act (16

14 U.S.C. 1533) for which no final recovery plans were

15 issued under section 4(f) of the Act (16 U.S.C.

16 1533(f)) (as in effect on the day before the date of en17 actment of this Act) divided equally into three tiers

18 of priority for preparation of conservation objectives

19 and conservation plans therefor pursuant to section 5

20 of the Act. Any species which is listed as an endan21 gered species or threatened species in more than one

22 State shall be placed in the first tier of priority.

23 (2) SCHEDULE FOR ADOPTION OF PLANS.—The

24 Secretary shall publish pursuant to section 5 of the

25 Endangered Species Act of 1973 a conservation objec-
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1 tive, draft conservation plan, and final conservation

2 plan (except when a conservation objective is pub3 lished pursuant to section 5(b)(3)(C) of such Act) for

4 each species within each tier of priority identified

5 pursuant to paragraph (1) within the following peri6 ods after the date of enactment of this Act:

7 (A) Conservation objective: First tier, 120

8 days; second tier, 12 months; and third tier, 24

9 months.

10 (B) Draft conservation plan: First tier, 6

11 months; second tier, 18 months; and third tier,

12 30 months.

13 (C) Final conservation plan: First tier, 12

14 months; second tier, 24 months; and third tier,

15 36 months.

16 (b) LISTED SPECIES WITH RECOVERY PLANS.—

17 (1) PRIORITY FOR REVISION OF EXISTING

18 PLANS.—Except as provided in paragraph (3), a

19 final recovery plan issued under section 4(f) of the

20 Endangered Species Act of 1973 (16 U.S.C. 1533(f))

21 (as in effect on the day before the date of enactment

22 of this Act) shall continue in effect until the expira23 tion of the deadline for revision thereof established

24 under this paragraph. Within 90 days after the date

25 of enactment of this Act, the Secretary shall publish
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1 a list of all species that were determined to be endan2 gered species or threatened species under section 4 of

3 such Act (16 U.S.C. 1533) and for which final recov4 ery plans were issued under section 4(f) of such Act

5 (16 U.S.C. 1533(f)) (as in effect on the day before the

6 date of enactment of this Act) divided equally into

7 three tiers of priority for preparation of conservation

8 objectives pursuant to section 5(b) of such Act and re9 visions of the recovery plans consistent with the re10 quirements for conservation plans set forth in section

11 5(c) of such Act. Any species which is listed as an en12 dangered species or threatened species in more than

13 one State shall be placed in the first tier of priority.

14 (2) SCHEDULE FOR REVISION OF PLANS.—The

15 Secretary shall publish pursuant to section 5 of the

16 Endangered Species Act of 1973 a conservation objec17 tive, draft revision of the existing recovery plan, and

18 final revision of the existing recovery plan (except

19 when a conservation objective is published pursuant

20 to section 5(b)(3)(C) of such Act) for each species

21 within each tier of priority identified pursuant to

22 paragraph (1) within the following periods after the

23 date of enactment of this Act:
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1 (A) Conservation objective: First tier, 180

2 days; second tier, 18 months; and third tier, 30

3 months.

4 (B) Draft revised recovery plan: First tier,

5 12 months; second tier, 24 months; and third

6 tier, 36 months.

7 (C) Final revised recovery plan: First tier,

8 18 months; second tier, 30 months; and third

9 tier, 42 months.

10 (3) SPECIES FOR WHICH NO CONSERVATION PLAN

11 IS REQUIRED.—If the Secretary publishes a conserva12 tion objective for which no conservation plan is re13 quired pursuant to section 5(b)(3)(C) of the Endan14 gered Species Act of 1973 for any species subject to

15 this subsection, the final recovery plan applicable to

16 the species shall be rescinded.

17 (c) PROHIBITION ON ADDITIONAL REQUIREMENTS.—

18 The Secretary or any other Federal agency may not require

19 any increase in any measurable criterion contained in, or

20 any site specific management action in addition to those

21 provided in, a final recovery plan issued under section 4(f)

22 of the Endangered Species Act of 1973 (16 U.S.C. 1533(f))

23 (as in effect on the day before the date of enactment of this

24 Act) until such time as a conservation plan, or, pursuant
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1 to section 5(b)(3)(C) of such Act, a conservation objective,

2 has been published under section 5 of such Act.

3 (d) EXISTING BIOLOGICAL OPINIONS.—In conjunction

4 with the issuance of a conservation plan, or, pursuant to

5 section 5(b)(3)(C) of the Endangered Species Act of 1973,

6 a conservation objective under subsection (a) or (b), the Sec7 retary (as defined in section 3 of such Act (16 U.S.C. 1532))

8 shall review and reissue, in accordance with section 7 of

9 such Act, any written opinion of the Secretary that relates

10 to the affected species and was issued after January 1, 1995,

11 under section 7(b)(3) of such Act (16 U.S.C. 1536(b)(3))

12 (as in effect on the day before the date of enactment of this

13 Act).

14 SEC. 904. APPLICATION OF CONSERVATION PLANS FOR SIN15 GLE OR MULTIPLE SPECIES TO HABITAT CON16 SERVATION PLANS APPROVED PRIOR TO THIS

17 ACT.

18 A single or multiple species habitat conservation plan

19 developed and approved under the Endangered Species Act

20 of 1973 by the Secretary (as that term is defined in that

21 Act) before the date of the enactment of this Act and a per22 mit issued with respect to such plan shall remain in effect

23 and shall not be required to be amended if a species to

24 which the plan and permit apply is determined to be an

25 endangered species or a threatened species under section 4
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1 that Act. No further requirements shall be made by the Sec2 retary for such plan for any reason. A party who has agreed

3 prior to the effective date of this Act to manage an area

4 under a single or multiple species habitat conservation plan

5 under that Act shall demonstrate conservation of habitat,

6 but shall not be required to relate such conservation specifi7 cally to each species with status under section 4 of the En8 dangered Species Act of 1973 or to species which are can9 didates for listing under that section.

10 SEC. 905. WASHINGTON COUNTY, UTAH, DESERT TORTOISE

11 HABITAT CONSERVATION PLAN.

12 (a) IN GENERAL.—The document entitled ‘‘WASH13 INGTON COUNTY, UTAH DESERT TORTOISE INCI14 DENTAL TAKE PERMIT APPLICATION/DOCU15 MENTS’’, dated June 1995, in this section referred to as

16 the ‘‘Plan’’, is deemed to comply with all requirements ap17 plicable to conservation plans under section 10 of the En18 dangered Species Act of 1973, as amended by this Act. The

19 Secretary (as that term is defined in that Act) shall

20 promptly issue a permit under section 10(a)(1)(B) of that

21 Act for all activities covered by the Plan.

22 (b) EXCHANGES OF LANDS FOR HABITAT RESERVE.—

23 (1) IN GENERAL.—The Secretary shall take all

24 appropriate steps to acquire by exchange for Bureau

25 of Land Management lands, in accordance with the
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1 Plan, lands of equivalent value that are under State

2 or private ownership and that are offered to the Sec3 retary for such exchange by the owner of the lands.

4 Lands acquired by the Secretary under this subsection

5 shall be included in the Mojave Desert habitat reserve

6 provided for in the Plan and shall be managed in ac7 cordance with the Plan.

8 (2) VALUATION OF LANDS.—For purposes of ex9 changes of lands under this subsection, the value of

10 lands shall be determined without regard to the pres11 ence on the lands of species that are listed under sec12 tion 4(c) of the Endangered Species Act of 1973.

13 SEC. 906. TAKING OF SPECIES TO CONSERVE LISTED SPE14 CIES.

15 (a) IN GENERAL.—Notwithstanding any other provi16 sion of law (other than subsection (b)), the taking of a spe17 cies for the purpose of conserving any other species that is

18 listed under section 4 of the Endangered Species Act of

19 1973, as amended by this Act, is not prohibited by the En20 dangered Species Act of 1973 (as so amended) or any other

21 Federal law.

22 (b) LIMITATION.—Subsection (a) does not authorize

23 the taking of any species that is—
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1 (1) listed as a threatened species or endangered

2 species under the Endangered Species Act of 1973, as

3 amended by this Act;

4 (2) depleted; or

5 (3) a strategic stock.

6 (c) DEFINITIONS.—In this section:

7 (1) DEPLETED.—The term ‘‘depleted’’ means a

8 species which the Secretary (as that term is defined

9 in the Endangered Species Act of 1973, as amended

10 by this Act), determines is below its optimum sustain11 able population.

12 (2) STRATEGIC STOCK.—The term ‘‘strategic

13 stock’’ means a species stock—

14 (A) for which the level of direct human15 caused mortality exceeds the potential biological

16 removal level; or

17 (B) which, based on the best available sci18 entific information, is declining and is likely to

19 be listed as a threatened species under the En20 dangered Species Act of 1973 within the foresee21 able future.

22 (3) MISCELLANEOUS TERMS.—Each of the terms

23 ‘‘Secretary’’, ‘‘species’’, and ‘‘taking’’ has the meaning

24 that term has in the Endangered Species Act of 1973,

25 as amended by this Act.
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1 SEC. 907. CONFORMING AMENDMENTS.

2 The Endangered Species Act of 1973, is amended by

3 striking the material that follows the enacting clause and

4 precedes section 2 and inserting the following:

5 ‘‘SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

6 ‘‘(a) SHORT TITLE.—This Act may be cited as the ‘En7 dangered Species Act of 1973’.

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

9 this Act is as follows:

‘‘Sec. 1. Short title; table of contents.

‘‘Sec. 2. Findings, purposes, and policy.

‘‘Sec. 3. Definitions.

‘‘Sec. 4. Determination of endangered species and threatened species.

‘‘Sec. 5. Species conservation plans.

‘‘Sec. 5A. Protection of habitat.

‘‘Sec. 6. Cooperation with non-Federal persons.

‘‘Sec. 7. Interagency cooperation.

‘‘Sec. 8. International cooperation.

‘‘Sec. 8A. Convention implementation.

‘‘Sec. 9. Prohibited acts.

‘‘Sec. 10. Exceptions.

‘‘Sec. 11. Penalties and enforcement.

‘‘Sec. 12. Endangered plants.

‘‘Sec. 13. National Endowment for Fish and Wildlife Trust Fund.

‘‘Sec. 14. Public hearings and public meetings.

‘‘Sec. 15. Authorization of appropriations.

‘‘Sec. 16. Federal cost-sharing requirements for conservation obligations.

‘‘Sec. 17. Marine Mammal Protection Act of 1972.

‘‘Sec. 18. Annual cost analysis by the Fish and Wildlife Service.

‘‘Sec. 19. Right to compensation.

‘‘Sec. 20. Recognizing net benefits to aquatic species.’’.

10 SEC. 908. APPLICATION OF PROVISIONS TO CERTIFIED AP11 PLICATORS OF REGISTERED PESTICIDES.

12 Section 1010(a) of the Act to authorize appropriations

13 to carry out the Endangered Species Act of 1973 during

14 fiscal years 1988, 1989, 1990, 1991, and 1992, and for other

15 purposes (7 U.S.C. 136a note) is amended by inserting after
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1 the first sentence the following: ‘‘Nothing in this Act or the

2 Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.)

3 shall be construed as prohibiting certified applicators, as

4 that term is defined in section 2(e) of the Federal Insecti5 cide, Fungicide, and Rodenticide Act (7 U.S.C. 136(e)), or

6 persons working under their direct supervision, from apply7 ing a registered pesticide in or around a commercial facil8 ity located within the critical habitat of a listed or endan9 gered species for the purpose of preventing, destroying, re10 pelling, or mitigating any pest, including but not limited

11 to rats, mice, ground squirrels, or other rodents that may

12 pose a threat to public health or safety; nor shall anything

13 in this Act or the Endangered Species Act of 1973 (16

14 U.S.C. 1531 et seq.) be construed as requiring or authoriz15 ing the Administrator of the Environmental Protection

16 Agency by means of pesticide labeling, regulation, or other17 wise from prohibiting certified applicators, as that term is

18 defined in section 2(e) of the Federal Insecticide, Fungicide,

19 and Rodenticide Act (7 U.S.C. 136(e)), or persons working

20 under their direct supervision, from engaging in the activi21 ties described in the foregoing clause. The term ‘commercial

22 facility’ as used in the preceding sentence means any struc23 ture or other facility that is intended for nonresidential use,

24 including but not limited to food processing plans, food

25 warehouses, grocery stores, feed lots, restaurants, and retail
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1 shopping malls. Neither this Act nor the Endangered Spe2 cies Act of 1973 (15 U.S.C. 1531 et seq.) shall place any

3 additional restrictions on the use of the United States De4 partment of Agriculture registered toxicants.’’.