I

104TH CONGRESS

1ST SESSION H. R. 2275

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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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

5 ‘‘Endangered Species Conservation and Management Act

6 of 1995’’.

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

8 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.

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.
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Sec. 305. Greater State involvement.

Sec. 306. Monitoring the status of species.

Sec. 307. Petitions to delist species.

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.

Sec. 506. Introduction of species.

Sec. 507. Conserving threatened species.

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.

TITLE VIII—FUNDING OF CONSERVATION MEASURES

Sec. 801. Authorizing increased appropriations.

Sec. 802. Funding of Federal mandates.

Sec. 803. Endangered Species and Threatened Species Conservation Trust

Fund.

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. Conforming amendment to table of contents.

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
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1 of an amendment to, or repeal of, a section or other provi2 sion, the reference shall be considered to be made to such

3 section or other provision of the Endangered Species Act

4 of 1973 (16 U.S.C. 1531 et seq.).

5 SEC. 3. FINDINGS, PURPOSES, AND POLICY OF ENDAN6 GERED SPECIES ACT OF 1973.

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

8 amended—

9 (1) by amending paragraph (1) to read as fol10 lows:

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

12 in the United States have been rendered extinct be13 cause of inadequate conservation practices and natu14 ral processes;’’; and

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

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

17 the end of paragraph (5) and inserting ‘‘; and’’, and

18 by adding at the end the following new paragraph:

19 ‘‘(6) the Nation’s economic well-being is essen20 tial to the ability to maintain a sustainable resource

21 base, therefore economic impacts and private prop22 erty owners’ rights must be considered while encour23 aging practices that protect species.’’.

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

25 (16 U.S.C. 1531 (b), (c)) are amended to read as follows:
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1 ‘‘(b) PURPOSES.—The purposes of this Act are the

2 following:

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

4 to conserve endangered species and threatened spe5 cies consistent with protection of the rights of pri6 vate property owners and ensuring economic stabil7 ity.

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

9 and management of such endangered species and

10 threatened species taking into account the economic

11 and social consequences of such program.

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

13 to achieve the purposes of the treaties and conven14 tions set forth in subsection (a) of this section.

15 ‘‘(c) POLICY.—

16 ‘‘(1) FEDERAL AUTHORITY.—It is further de17 clared to be the policy of Congress that all Federal

18 departments and agencies shall seek to conserve and

19 manage endangered species and threatened species

20 and shall, consistent with their primary missions,

21 utilize their authorities in furtherance of the pur22 poses of this Act.

23 ‘‘(2) COOPERATION WITH STATES.—It is fur24 ther declared to be the policy of Congress that Fed25 eral agencies shall cooperate with State and local
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1 agencies to resolve water resource issues in concert

2 with conservation of endangered species and consist3 ent with State and local water laws.

4 ‘‘(3) PROTECTION OF PRIVATE PROPERTY

5 RIGHTS.—It is the policy of the Federal Government

6 that agency action taken pursuant to this Act shall

7 not use or limit the use of privately owned property

8 when such action diminishes the value of such prop9 erty without payment of fair market value to the

10 owner of private property. Each Federal agency, of11 ficer, and employee shall exercise authority under

12 this Act to ensure that agency action will not violate

13 the policy established in this paragraph.’’.

14 TITLE I—PRIVATE PROPERTY

15 RIGHTS AND VOLUNTARY IN16 CENTIVES FOR PRIVATE

17 PROPERTY OWNERS

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

19 PROPERTY.

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

21 1531 et seq.) is amended by adding at the end the follow22 ing new section:

23 ‘‘SEC. 19. RIGHT TO COMPENSATION.

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

25 not take an agency action affecting privately owned prop-
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1 erty or nonfederally owned property under this Act which

2 results in diminishment of value of any portion of that

3 property by 20 percent or more unless compensation is

4 offered in accordance with this section.

5 ‘‘(b) COMPENSATION FOR USE OR LIMITATION ON

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

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

8 compensate the private property owner for the otherwise

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

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

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

12 the diminution in value of a portion of that property is

13 greater than 50 percent, at the option of the owner, the

14 agency or agencies shall buy that portion of the property

15 and shall pay fair market value based on the value of the

16 property before the use or limitation on use was imposed.

17 Compensation paid shall reflect the duration of the use

18 or limitation on use necessary to achieve the purposes of

19 this Act.

20 ‘‘(c) REQUEST OF OWNER.—An owner seeking com21 pensation under this section shall make a written request

22 for compensation to the agency implementing the agency

23 action. The request shall, at a minimum, identify the af24 fected portion of the property, the nature of the use or

25 limitation, and the amount of compensation claimed. No
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1 such request may be made later than one year after the

2 owner receives actual notice that the use of property has

3 been limited by an agency action.

4 ‘‘(d) NEGOTIATIONS.—The agency may negotiate

5 with that owner to reach agreement on the amount of the

6 compensation and the terms of any agreement for pay7 ment. If such an agreement is reached, the agency shall

8 promptly pay the owner the amount agreed upon. An

9 agreement under this section may include a transfer of

10 the title or an agreement to use the property for a limited

11 period of time.

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

13 days after the written request is made, the parties have

14 not reached an agreement on compensation, the owner

15 may elect binding arbitration or seek compensation due

16 under this section in a civil action.

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

18 arbitration shall, as nearly as practicable, be those estab19 lished under title 9, United States Code, for arbitration

20 proceedings to which that title applies. An award made

21 in such arbitration shall include a reasonable attorney’s

22 fee and other arbitration costs, including appraisal fees.

23 The agency shall promptly pay any award made to the

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

2 action against the agency pursuant to this section shall

3 be entitled to, and the agency shall be liable for, the

4 amount of compensation awarded plus reasonable attor5 ney’s fees and other litigation costs, including appraisal

6 fees. The court shall award interest on the amount of any

7 compensation from the time of the limitation.

8 ‘‘(h) SOURCE OF PAYMENTS.—Any payment made

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

10 by an owner in a civil action under this section shall, not11 withstanding any other provision of law, be made from the

12 annual appropriation of the agency that took the agency

13 action. If the agency action resulted from a requirement

14 imposed by another agency, then the agency making the

15 payment or satisfying the judgment may seek partial or

16 complete reimbursement from the appropriated funds of

17 the other agency. For this purpose the head of the agency

18 concerned may transfer or reprogram any appropriated

19 funds available to the agency. If insufficient funds exist

20 for the payment or to satisfy the judgment, it shall be

21 the duty of the head of the agency to seek the appropria22 tion of such funds for the next fiscal year.

23 ‘‘(i) AVAILABILITY OF APPROPRIATIONS.—Notwith24 standing any other provision of law, any obligation of the
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1 United States to make any payment under this section

2 shall be subject to the availability of appropriations.

3 ‘‘(j) DUTY OF NOTICE TO OWNERS.—Whenever an

4 agency takes an agency action limiting the use of private

5 property the agency shall give appropriate notice to the

6 owners of that property directly affected explaining their

7 rights under this section and the procedures for obtaining

8 any compensation that may be due to them under this sec9 tion.

10 ‘‘(k) RULES OF CONSTRUCTION.—The following rules

11 of construction shall apply to this Act:

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

13 this Act shall be construed to limit any right to com14 pensation that exists under the Constitution or

15 under other laws.

16 ‘‘(2) EXTENT OF FEDERAL AUTHORITY.—Pay17 ment of compensation under this section (other than

18 when the property is bought by the Federal Govern19 ment at the option of the owner) shall not confer

20 any rights on the Federal Government other than

21 the use or limitation on use resulting from the agen22 cy action for the duration so that the agency action

23 may achieve the species conservation purposes of

24 this Act.

25 ‘‘(l) DEFINITIONS.—For the purposes of this section:
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1 ‘‘(1) AGENCY.—The term ‘agency’ has the

2 meaning given that term in section 551 of title 5,

3 United States Code.

4 ‘‘(2) AGENCY ACTION.—The term ‘agency ac5 tion’—

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

7 meaning given that term in section 551 of title

8 5, United States Code, and

9 ‘‘(B) includes—

10 ‘‘(i) the loss of use of property to

11 avoid prosecution under section 11;

12 ‘‘(ii) a designation pursuant to section

13 9(i) of privately owned property as critical

14 habitat;

15 ‘‘(iii) the denial of a permit under sec16 tion 10 that restricts the use of private

17 property;

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

19 biological opinion under section 7 that

20 would cause an agency to restrict the use

21 of private property;

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

23 set aside property for habitat under the

24 terms of an easement or other contract;
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1 ‘‘(vi) a restriction imposed on private

2 property as part of a conservation plan

3 adopted by the Secretary under section 5;

4 ‘‘(vii) any other agency action that re5 stricts a legal right to use that property,

6 including, the right to alter habitat; and

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

8 or money, to a public authority or a pri9 vate entity as a predicate to an agency ac10 tion by the recipient that would constitute

11 a limitation if done directly by the agency.

12 ‘‘(3) FAIR MARKET VALUE.—The term ‘fair

13 market value’ means the most probable price at

14 which property would change hands, in a competitive

15 and open market under all conditions requisite to

16 fair sale, between a willing buyer and willing seller,

17 neither being under any compulsion to buy or sell

18 and both having reasonable knowledge of relevant

19 facts, prior to occurrence of the agency action.

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

21 the State’ includes the law of a political subdivision

22 of a State.

23 ‘‘(5) LIMITATION ON USE.—The term ‘limita24 tion on use’ means only a limitation on a use which
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1 is otherwise permissable under applicable State

2 property or nuisance laws.

3 ‘‘(6) PRIVATE PROPERTY, PRIVATELY OWNED

4 PROPERTY, NON-FEDERAL PROPERTY.—The term

5 ‘private property’, ‘privately owned property’, or

6 ‘non-Federal property’ means property which is

7 owned by a person other than any Federal entity of

8 government.

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

10 land, an interest in land, the right to use or receive

11 water, and any personal property that is subject to

12 use by the Federal Government or to a restriction on

13 use.’’.

14 SEC. 102. VOLUNTARY COOPERATIVE MANAGEMENT

15 AGREEMENTS.

16 (a) COOPERATIVE MANAGEMENT AGREEMENT DE17 FINED.—Section 3 (16 U.S.C. 1532) is amended—

18 (1) by redesignating paragraphs (2) through

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

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

21 (24), (25), (26), (27), and (28); and

22 (2) by adding after paragraph (5) (as redesig23 nated by paragraph (1) of this section) the following

24 new paragraph:
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1 ‘‘(6) The term ‘cooperative management agreement’

2 means a voluntary agreement entered into under section

3 6(b).’’.

4 (b) VOLUNTARY COOPERATIVE MANAGEMENT

5 AGREEMENTS.—Section 6 (16 U.S.C. 1535) is amended

6 by striking so much as precedes subsection (c) and insert7 ing the following:

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

9 ‘‘(a) GENERALLY.—In carrying out the program au10 thorized by this Act, the Secretary shall cooperate to the

11 maximum extent practicable with the States and other

12 non-Federal persons. Such cooperation shall include con13 sultation with the States and non-Federal persons con14 cerned before acquiring any land or water, or interest

15 therein, for the purpose of conserving any endangered spe16 cies or threatened species.

17 ‘‘(b) COOPERATIVE MANAGEMENT AGREEMENTS.—

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

19 into a cooperative management agreement with any

20 State or group of States, political subdivision of a

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

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

23 group of species listed as endangered species or

24 threatened species under section 4, a species or

25 group of species proposed to be listed under
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1 section 4, or species or group of species which

2 are candidates for listing; or

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

4 an area which provides habitat for a species.

5 ‘‘(2) SCOPE OF COOPERATIVE MANAGEMENT

6 AGREEMENTS.—(A) A cooperative management

7 agreement entered into under this subsection—

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

9 species or group of species on both public and

10 private lands which are under the authority,

11 control or ownership of a State or group of

12 States, political subdivision of a State, local

13 government, or non-Federal person and which

14 are affected by a listing determination, pro15 posed determination, or proposed candidacy for

16 determination; and

17 ‘‘(ii) may include the acquisition or des18 ignation of land as habitat for species.

19 ‘‘(B) A cooperative management agreement

20 may not restrict private or non-Federal property un21 less written consent to such restrictions by the non22 Federal owner is given either to the Secretary or the

23 State, political subdivision, local government, or non24 Federal person who is a party to the agreement.
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1 ‘‘(C) The Secretary may grant to a party to an

2 agreement the authority to undertake programs to

3 enhance the population or habitat of a species on

4 federally owned lands, except that such authority

5 shall not otherwise conflict with other uses of such

6 land which are approved by the Secretary or author7 ized by the Congress.

8 ‘‘(D) The Secretary is authorized, in conjunc9 tion with entering into and as a part of any agree10 ment under this section, to provide funds to carry

11 out the agreement to a non-Federal person, as pro12 vided in paragraph (11).

13 ‘‘(3) NOTIFICATION.—Not later than 30 days

14 after submission of a request to enter into a cooper15 ative management agreement, the party submitting

16 the request shall provide notice of the request to any

17 non-Federal person or Federal power marketing ad18 ministration that would be subject to the proposed

19 cooperative management agreement.

20 ‘‘(4) DEVELOPMENT OF PROPOSED AGREE21 MENT.—(A) The requesting party shall develop and

22 submit to the Secretary a proposed cooperative man23 agement agreement.

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

25 Register a notice of availability and a request for
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1 public comment on any proposed cooperative man2 agement agreement between the Secretary and any

3 governmental entity and shall hold a public hearing

4 on such a proposed cooperative management agree5 ment in each county or parish in which the proposed

6 agreement would be in effect.

7 ‘‘(C) Before entering into a cooperative man8 agement agreement with another governmental en9 tity or a non-Federal person for the management of

10 federally owned land, the Secretary shall consider

11 and weigh carefully all information received in re12 sponse to the request for comment published under

13 subparagraph (B) and testimony presented in each

14 hearing held under subparagraph (B).

15 ‘‘(5) APPROVAL OF AGREEMENT.—(A) Not

16 later than 120 days after the submission of a pro17 posed cooperative management agreement under

18 paragraph (4), the Secretary shall determine wheth19 er the proposed agreement is in accordance with this

20 subsection and will promote the conservation of the

21 species to which the proposed agreement applies.

22 ‘‘(B) The Secretary shall approve and enter

23 into a proposed cooperative management agreement,

24 if the Secretary finds that—
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1 ‘‘(i) the requesting party has sufficient au2 thority under law to implement and carry out

3 the terms of the agreement;

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

5 serves as habitat for the species or group of

6 species to which the agreement applies;

7 ‘‘(iii) the agreement adequately provides

8 for the administration and management of the

9 identified management area;

10 ‘‘(iv) the agreement promotes the conserva11 tion of the species to which the agreement ap12 plies by committing Federal or non-Federal ef13 forts to the conservation;

14 ‘‘(v) the term of the agreement is of suffi15 cient duration to accomplish the provisions of

16 the agreement; and

17 ‘‘(vi) the agreement is adequately funded

18 to carry out the agreement.

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

20 a cooperative management agreement with a govern21 mental entity, the Secretary shall publish in the

22 Federal Register a notice of availability of the terms

23 of such agreement and the response of the Secretary

24 to all information received or presented with respect

25 to the agreement pursuant to paragraph (4)(B).
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1 ‘‘(6) ENVIRONMENTAL ASSESSMENTS.—Prepa2 ration, approval, and entering into a cooperative

3 management agreement under this subsection shall

4 not be subject to section 102(2) of the National En5 vironmental Policy Act of 1969 (42 U.S.C. 4332(2)).

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

7 that is the subject of a cooperative management

8 agreement under this subsection, a party to the

9 agreement shall not be required—

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

11 any purpose, or to accept any additional restric12 tion on any parcel of land available for develop13 ment or land management under the agree14 ment, without consent of the party; or

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

16 minimize or mitigate impacts on the species in

17 addition to measures required by the agreement

18 as established.

19 ‘‘(8) EFFECT OF LISTING OF SPECIES.—A co20 operative management agreement entered into under

21 this subsection shall remain in effect and shall not

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

23 agreement does not apply is determined to be an en24 dangered species or threatened species under section

25 4.
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1 ‘‘(9) APPLICABILITY OF CERTAIN PROVI2 SIONS.—Sections 5, 7, and 9 shall not apply to those

3 activities of a party to a cooperative management

4 agreement which are conducted in accordance with

5 such agreement.

6 ‘‘(10) VIOLATIONS OF AGREEMENTS.—(A) If

7 the Secretary determines that a party to a coopera8 tive management agreement is not administering or

9 acting in accordance with the agreement, the Sec10 retary shall notify the party.

11 ‘‘(B) If a party that is notified under subpara12 graph (A) fails to take appropriate corrective action

13 within a period of time determined by the Secretary

14 to be reasonable (not to exceed 90 days after the

15 date of the notification)—

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

17 cooperative management agreement or the ap18 plicability of the agreement to the party that is

19 the subject of the notification; and

20 ‘‘(ii) beginning on the date of the rescis21 sion—

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

23 effective, or the agreement shall not be ef24 fective with respect to the party, whichever

25 is appropriate; and
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1 ‘‘(II) sections 5, 7, and 9 shall apply

2 to activities of the party.’’.

3 SEC. 103. GRANTS FOR IMPROVING AND CONSERVING

4 HABITAT FOR SPECIES.

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

6 102(b) of this Act, is amended by adding at the end of

7 subsection (b) the following new paragraph:

8 ‘‘(11) HABITAT CONSERVATION GRANTS.—(A)

9 The Secretary may, from amounts in the account es10 tablished by section 13 or from funds appropriated

11 for such purpose, provide a grant to a non-Federal

12 person (other than an officer, employee, or agent

13 (acting in an official capacity) or a department or

14 instrumentality of a State, municipality, or political

15 subdivision thereof) for the purpose of conserving,

16 preserving, or improving habitat for any species that

17 is determined under section 4 to be an endangered

18 species or a threatened species.

19 ‘‘(B) The Secretary may provide a grant under

20 this paragraph if the Secretary determines that—

21 ‘‘(i) the property for which the grant is

22 provided contains habitat that significantly con23 tributes to the protection of the population of

24 the species;
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1 ‘‘(ii) the property has been managed for

2 species protection for a period of time that has

3 been sufficient to significantly contribute to the

4 protection of the population of the species; and

5 ‘‘(iii) the management of the habitat ad6 vances the interest of species protection.

7 ‘‘(C) A grant made under this paragraph shall

8 be transferable to subsequent owners of the property

9 for which the grant is provided.’’.

10 SEC. 104. TECHNICAL ASSISTANCE PROGRAMS.

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

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

13 504(a), and 505 of this Act, is amended by adding at the

14 end the following new subsection:

15 ‘‘(m) TECHNICAL ASSISTANCE PROGRAM.—

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

17 a technical assistance program to provide technical

18 advice and assistance to non-Federal persons who

19 wish to participate in achieving the conservation ob20 jective for a species for which a conservation goal

21 has been adopted under this section. The technical

22 assistance provided shall include information on

23 habitat needs of species, optimum management of

24 habitat for species, methods for propagation of spe25 cies, feeding needs and habits, predator controls,
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1 and any other information which a non-Federal per2 son may utilize or request for the purpose of con3 serving a species determined to be an endangered

4 species or threatened species or proposed to be de5 termined as an endangered species or threatened

6 species.

7 ‘‘(2) REGULATIONS TO PROVIDE EXEMPTIONS

8 FROM SECTION 9.—The Secretary shall promulgate

9 regulations that establish exemptions from section 9

10 for any person who participates in a conservation

11 program under this subsection.’’.

12 SEC. 105. WATER RIGHTS.

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

14 at the end the following:

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

16 construed to supersede, abrogate, or otherwise impair any

17 right or authority of a State to allocate or administer

18 quantities of water (including boundary waters). Nothing

19 in this Act shall be implemented, enforced, or construed

20 to allow any officer or agency of the United States to uti21 lize directly or indirectly the authorities established under

22 this Act to impose any requirement not imposed by the

23 State which would supersede, abrogate, condition, restrict,

24 or otherwise impair rights to the use of water resources

25 allocated under State law, interstate water compact, or
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1 Supreme Court decree, or held by the United States for

2 use by a State, its political subdivisions, or its citizens.

3 The exercise of authority pursuant to or in furtherance

4 of this Act shall not be construed to create a limitation

5 on the exercise of rights to water or constitute a cause

6 for nondelivery of water pursuant to contract or State

7 law.’’.

8 TITLE II—IMPROVING ABILITY

9 TO COMPLY WITH THE EN10 DANGERED SPECIES ACT OF

11 1973

12 SEC. 201. ENFORCEMENT PROCEDURES.

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

14 is amended—

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

16 preceding subparagraph (A) to read as follows: ‘‘(1)

17 Except as provided in paragraph (3), section

18 6(g)(2), subsections (d)(3) and (e) of section 5, sec19 tion 7(a), and section 10, with respect to any endan20 gered species of fish or wildlife listed pursuant to

21 section 4 it is unlawful for any person subject to the

22 jurisdiction of the United States to—’’;

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

24 preceding subparagraph (A) to read as follows: ‘‘(2)

25 Except as provided in section 6(g)(2), subsections
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1 (d)(3) and (e) of section 5, and section 10, with re2 spect to any endangered species of plants listed pur3 suant to section 4, it is unlawful for any person sub4 ject to the jurisdiction of the United States to—’’;

5 and

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

7 paragraph:

8 ‘‘(3) PERMITTED TAKINGS.—An activity of a

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

10 activity—

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

12 final conservation plan or conservation objec13 tive;

14 ‘‘(B) complies with the terms and condi15 tions of an incidental take permit or a coopera16 tive management agreement;

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

18 to public health or safety or a catastrophic nat19 ural event, or is mandated by any Federal,

20 State, or local government agency for public

21 health or safety purposes; or

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

23 of, the carrying out of an otherwise lawful ac24 tivity that occurs within an area of the terri25 torial sea or exclusive economic zone established
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1 by Proclamation Numbered 5030, dated March

2 10, 1983, that is not designated as critical

3 habitat under section 5(i), and the affected spe4 cies is not a species of fish.’’.

5 (b) REWARDS AND INCIDENTAL EXPENSES.—Section

6 11 (16 U.S.C. 1540) is amended—

7 (1) in subsection (d)(2) by inserting after ‘‘tem8 porary care for any’’ the following: ‘‘endangered spe9 cies or threatened species of’’;

10 (2) in subsection (e)(3) in the fourth sentence

11 by striking ‘‘Any fish, wildlife,’’ and inserting ‘‘Any

12 endangered species or threatened species of fish or

13 wildlife,’’;

14 (3) in subsection (e)(4)(A) by inserting ‘‘endan15 gered species or threatened species of’’ after ‘‘All’’;

16 (4) in subsection (e)(4)(B) by inserting ‘‘endan17 gered species or threatened speices of’’ after ‘‘im18 porting of any’’;

19 (5) in subsection (f) in the first sentence by in20 serting ‘‘endangered species or threatened species

21 of’’ after ‘‘storage of’’;

22 (6) in subsection (e) by adding at the end the

23 following new paragraph:

24 ‘‘(7) ADOPTION OF REGULATIONS.—(A) No in25 terpretation, policy, guideline, finding, or other in-
27

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1 formal determination may be relied upon by the Sec2 retary in the implementation and enforcement of

3 this Act unless such determination has been the sub4 ject of a proposed rule, subject to review by the pub5 lic and comment for a period of no less than 60

6 days. Any proposed rule under this subparagraph

7 must include—

8 ‘‘(i) a plain-language explanation of the

9 reasons for and purpose of the proposed rule;

10 ‘‘(ii) an analysis of the anticipated impact

11 of the proposed rule;

12 ‘‘(iii) an analysis showing that the restora13 tion benefit of the proposed rule outweighs any

14 negative conservation impact of that proposed

15 rule;

16 ‘‘(iv) an analysis showing that compliance

17 with the proposed rule is reasonably within the

18 means of the State or the range nation con19 cerned; and

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

21 and experts consulted in regard to the species

22 involved, and a summary of the Secretary’s

23 findings based on that review and consultation.

24 ‘‘(B) No refusal of entry, seizure of evidence, or

25 other enforcement action may take place under this
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1 Act if the action is based solely on a notification

2 under the Convention or on a resolution of the Con3 ference of the Parties to the Convention.

4 ‘‘(C) The burden is on the Secretary to show

5 that a specimen belongs to a species which is deter6 mined to be an endangered species or threatened

7 species under this Act or is included in an Appendix

8 to the Convention. The Secretary may not detain a

9 specimen for longer than 30 days for the purpose of

10 identification. If the specimen cannot be positively

11 identified within that time, then it shall be re12 leased.’’; and

13 (7) by amending subsection (g) to read as fol14 lows:

15 ‘‘(g) CITIZEN SUITS.—

16 ‘‘(1) IN GENERAL.—Except as provided in para17 graph (2), a civil suit may be commenced by any

18 person on his or her own behalf, who satisfies the

19 requirements of the Constitution and who has suf20 fered or is threatened with economic or other injury

21 resulting from the violation, regulation, application,

22 nonapplication, or failure to act—

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

24 agency or official of the United States who is

25 alleged to be in violation of any provision of this
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1 Act or regulation issued under the authority

2 thereof, if the violation poses immediate and ir3 reparable harm to a threatened species or en4 dangered species;

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

6 modify the application of, the prohibitions set

7 forth in or authorized pursuant to section

8 9(a)(1)(B) or 4(d);

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

10 modify the application of, the provisions of sec11 tion 10(a); or

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

13 alleged a failure of the Secretary to perform

14 any act or duty under section 4(d) which is not

15 discretionary with the Secretary.

16 The district courts shall have jurisdiction to enforce

17 any such provision or regulation, or to order the

18 Secretary to perform such act or duty, as the case

19 may be.

20 ‘‘(2) PREREQUISITE PROCEDURES.—(A) No ac21 tion may be commenced under paragraph (1)(A)—

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

23 the alleged violation has been given to the Sec24 retary, and to any agency or official of the

25 United States who is alleged to be in violation,
30

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1 except that a State may commence an action at

2 any time;

3 ‘‘(ii) if the Secretary has commenced ac4 tion to impose a penalty pursuant to subsection

5 (a); or

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

7 and is diligently prosecuting a criminal action

8 in a court of the United States or a State to

9 redress the alleged violation of any such provi10 sion or regulation.

11 ‘‘(B) No action may be commenced under para12 graph (1)(B) prior to 60 days after written notice

13 has been given to the Secretary setting forth the

14 reasons for applying, or modifying the application of,

15 the prohibitions with respect to the taking of a

16 threatened species.

17 ‘‘(C) No action may be commenced under para18 graph (1)(C) prior to 60 days after written notice

19 has been given to the Secretary, except that such ac20 tion may be brought immediately after such notifica21 tion in the case of an action under this subsection

22 respecting an emergency posing a significant risk to

23 the well-being of any species of fish or wildlife or

24 plants.
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1 ‘‘(3) VENUE.—Any suit under this subsection

2 may be brought in the judicial district in which the

3 violation occurs.

4 ‘‘(4) COSTS.—The court, in issuing any final

5 order in any suit brought pursuant to paragraph

6 (1), may award costs of litigation (excluding attor7 ney and expert witness fees) to any party, whenever

8 the court determines such award is appropriate.

9 ‘‘(5) INJUNCTIVE RELIEF.—The injunctive re10 lief provided by this subsection shall not restrict any

11 right which any person (or class of persons) may

12 have under any statute or common law to seek en13 forcement of any standard or limitation or to seek

14 any other relief (including relief against the Sec15 retary or a State agency).

16 ‘‘(6) INTERVENTION.—Any person may inter17 vene as a matter of right in any civil suit brought

18 under this subsection if such suit presents a reason19 able threat of economic injury to such person. Any

20 intervenor under this paragraph shall have the same

21 right to present argument and to accept or reject po22 tential settlements as do the parties to the suit.’’.

23 SEC. 202. REMOVING PUNITIVE DISINCENTIVES.

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

25 of this Act) is amended to read as follows:
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1 ‘‘(26)(A) The term ‘take’ means to harm, pur2 sue, hunt, shoot, wound, kill, trap, capture, or col3 lect, or to attempt to engage in that conduct.

4 ‘‘(B) In subparagraph (A), the term ‘harm’

5 means to take a direct action against any member

6 of an endangered species of fish or wildlife that ac7 tually injures or kills a member of the species.’’.

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

9 CONSULTATION PROCEDURES.

10 Section 10(a) (16 U.S.C. 1539(a)), as amended by

11 section 204(b) of this Act, is amended by adding at the

12 end the following new paragraph:

13 ‘‘(3) VOLUNTARY CONSULTATION.—(A) Subject

14 to such regulations as the Secretary may issue, any

15 non-Federal person may initiate consultation with

16 the Secretary on any prospective activity of the per17 son—

18 ‘‘(i) to determine if the activity is consist19 ent or inconsistent with a conservation plan or

20 conservation objective; or

21 ‘‘(ii) if the person determines that the ac22 tivity is inconsistent, to determine whether the

23 activity is likely to jeopardize the continued ex24 istence of an endangered species or a threat25 ened species, or to destroy or adversely modify
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1 the designated critical habitat of the species in

2 a manner that is likely to jeopardize the contin3 ued existence of the species.

4 ‘‘(B) The voluntary consultation process for

5 non-Federal persons authorized by subparagraph (A)

6 shall be conducted in accordance with the procedures

7 and requirements for consultation on agency actions

8 set forth in section 7, except that—

9 ‘‘(i) the period for completion of the con10 sultation shall be 90 days from the date on

11 which the consultation is initiated, or not later

12 than such other date as is mutually agreeable

13 to the Secretary and the person initiating the

14 consultation;

15 ‘‘(ii) the person initiating the consultation

16 shall not be required to prepare a biological as17 sessment or equivalent document;

18 ‘‘(iii) neither the activity for which the con19 sultation process is sought nor the consultation

20 process itself shall be deemed a Federal action

21 for the purpose of compliance with section

22 102(2) of the National Environmental Policy

23 Act of 1969 (42 U.S.C. 4332(2)) or an agency

24 action for the purpose of compliance with the

25 consultation requirement of section 7(a)(2);
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1 ‘‘(iv) the Secretary shall provide the person

2 initiating the consultation with a written opin3 ion only, unless such person requests a permit

4 referred to in paragraph (1)(B) and meets the

5 requirements of clause (v); and

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

7 be issued if the Secretary makes a finding of—

8 ‘‘(I) consistency pursuant to subpara9 graph (A)(i);

10 ‘‘(II) no jeopardy pursuant to sub11 paragraph (A)(ii); or

12 ‘‘(III) jeopardy pursuant to subpara13 graph (A)(ii), but offers a reasonable and

14 prudent alternative which the person initi15 ating the consultation accepts.’’.

16 SEC. 204. PERMITTING REQUIREMENTS FOR INCIDENTAL

17 TAKES.

18 (a) INCIDENTAL TAKE PERMIT DEFINED.—Section

19 3 (16 U.S.C. 1532) is amended by adding after paragraph

20 (14) (as added by section 301(b)(3) of this Act) the follow21 ing new paragraph:

22 ‘‘(15) The term ‘incidental take permit’ means

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

2 is amended by striking so much as precedes subsection

3 (b) and 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 sec10 tion 9 undertaken for scientific purposes or to

11 enhance the propagation or survival of the af12 fected species, including, but not limited to—

13 ‘‘(i) acts necessary for the establish14 ment and maintenance of experimental

15 populations 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,

23 acts that are consistent with the Conven24 tion and with conservation strategies
36

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1 adopted by the foreign nations responsible

2 for the conservation of the species; and

3 ‘‘(iv) acts necessary for the research

4 in and carrying out of captive propagation;

5 or

6 ‘‘(B) any taking otherwise prohibited by

7 section 9(a)(1)(B) if such taking is incidental

8 to, and not the purpose of, the carrying out of

9 an otherwise lawful activity.

10 ‘‘(2) SPECIES CONSERVATION PLANS.—(A) Ex11 cept as provided in paragraph (3), no permit may be

12 issued by the Secretary authorizing any taking re13 ferred to in paragraph (1)(B) unless the applicant

14 therefor submits to the Secretary a species conserva15 tion plan that specifies—

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

17 the likely result of the activities to be per18 mitted;

19 ‘‘(ii) what steps the applicant can reason20 ably and economically take consistent with the

21 purposes and objectives of the activity to mini22 mize such impacts, and the funding that will be

23 available to implement such steps; and
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1 ‘‘(iii) what alternative actions to such tak2 ing the applicant considered and the reasons

3 why such alternatives are not being utilized.

4 ‘‘(B) If the Secretary finds, after opportunity

5 for public comment, with respect to a permit appli6 cation and the related species conservation plan

7 that—

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

9 ‘‘(ii) the applicant will, to the extent rea10 sonable and economically practicable, minimize

11 the impacts of such taking;

12 ‘‘(iii) the applicant will ensure that ade13 quate funding for the plan will be provided;

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

15 the likelihood of the survival and conservation

16 of the species; and

17 ‘‘(v) the measures specified under subpara18 graph (A)(ii) will be met;

19 and the Secretary has received such other assur20 ances as the Secretary may require that the plan will

21 be implemented, the Secretary shall issue the permit.

22 The permit shall contain such reasonable and eco23 nomically practicable terms and conditions consist24 ent with the purposes and objectives of the activity

25 as the Secretary deems necessary or appropriate to
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1 carry out the purposes of this paragraph, including,

2 but not limited to, such reporting requirements as

3 the Secretary deems necessary for determining

4 whether such terms and conditions are being com5 plied with.

6 ‘‘(C) The Secretary may not require the appli7 cant, as a condition of processing the application or

8 issuing the permit, to expand the application to in9 clude land, an interest in land, right to use or re10 ceive water, or a proprietary water right not owned

11 by the applicant or to address a species other than

12 the species for which the application is made.

13 ‘‘(D)(i) The Secretary shall complete the proc14 essing of, and approve or deny, any application for

15 a permit under paragraph (1)(B) within 90 days of

16 the date of submission of the application or within

17 such other period of time after such date of submis18 sion to which the Secretary and the permit applicant

19 mutually agree.

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

21 conservation plan and issuance of a permit under

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

23 102(2) of the National Environmental Policy Act of

24 1969 (42 U.S.C. 4332(2)).
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1 ‘‘(E) No additional measures to minimize and

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

3 permit issued under paragraph (1)(B) shall be re4 quired of a permittee that is in compliance with the

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

6 of such a permit, under no circumstance shall a per7 mittee in compliance with the permit be required to

8 make any additional payment for any purpose, or ac9 cept any additional restriction on any parcel of land

10 available for development or land management or

11 any water or water-related right under the permit,

12 without the consent of the permittee.

13 ‘‘(F)(i) For such activities as the Secretary de14 termines will not appreciably reduce the chances of

15 survival of a species, the Secretary may issue an in16 terim permit to any applicant for a permit under

17 this section that provides evidence of appropriate in18 terim measures that—

19 ‘‘(I) will minimize impacts of any inciden20 tal taking that may be associated with the ac21 tivity proposed for permitting; and

22 ‘‘(II) are to be performed while the under23 lying permit application is being considered

24 under this section.
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1 ‘‘(ii) An interim permit issued under clause

2 (i)—

3 ‘‘(I) shall specifically state the types of ac4 tivities that are authorized to be carried out

5 under the interim permit;

6 ‘‘(II) shall not create any right to the issu7 ance of a permit under this section;

8 ‘‘(III) shall expire on the date of the grant9 ing or denial of the underlying permit applica10 tion; and

11 ‘‘(IV) may be revoked by the Secretary

12 upon failure to comply with any term of the in13 terim permit.

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

15 under this paragraph if he finds that the permittee

16 is not complying with the terms and conditions of

17 the permit.’’.

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

19 U.S.C. 1539) is amended by adding at the end the follow20 ing new subsection:

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

22 ‘‘(1) DEVELOPMENT.—The Secretary may as23 sist a non-Federal person in the development of a

24 plan, to be known as a ‘multiple species conservation

25 plan’, for the conservation of—
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1 ‘‘(A) any species with respect to which a

2 finding is made and a status review is com3 menced under section 4(b)(3)(B); and

4 ‘‘(B) any other species that—

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

6 plan; and

7 ‘‘(ii) are designated in the plan or are

8 within a taxonomic group designated in the

9 plan.

10 ‘‘(2) ISSUANCE OF PERMITS.—The Secretary

11 may issue a permit under subsection (a)(1)(B) au12 thorizing the take described in section 9(a)(1)(B) of

13 a species for which a multiple species conservation

14 plan is developed under this subsection, if the Sec15 retary, after providing opportunity for public com16 ment on the plan—

17 ‘‘(A) determines that the plan specifies the

18 information described in subsection (a)(2)(A);

19 ‘‘(B) makes the findings described in sub20 section (a)(2)(B) with respect to the permit ap21 plication and the plan; and

22 ‘‘(C) receives such assurances as the Sec23 retary may require that the plan will be imple24 mented.
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1 ‘‘(3) EFFECT OF LISTING OF SPECIES.—A mul2 tiple species conservation plan developed under this

3 subsection and a permit issued with respect to the

4 plan shall remain in effect and shall not be required

5 to be amended if a species to which the plan and

6 permit apply is determined to be an endangered spe7 cies or a threatened species under section 4.’’.

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

9 by subsection (b) of this section and sections 203 and

10 205(a) of this Act, is amended by adding at the end the

11 following new paragraph:

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

13 whether to issue a permit under subsection

14 (a)(1)(A)(iii), there shall be a rebuttable presump15 tion that the survival of a species is enhanced by the

16 ordinary benefit occurring from the taking of a spec17 imen for an inherently limited use in accordance

18 with the laws and wildlife management policies of

19 the nation in which it is found.

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

21 permit for such specimens and may not limit the

22 number of such specimens which may be imported

23 unless he makes and publishes in the Federal Reg24 ister a finding that there is substantial evidence that

25 the detriment resulting from the taking of such
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1 specimens outweighs the benefit derived, and subse2 quently promulgates regulations containing the limi3 tation.

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

5 and a complete description of the proposed regula6 tion referred to in the preceding paragraph directly

7 to the appropriate wildlife management authorities

8 of the nations from which the specimens are ex9 ported, in the language of those countries, with at

10 least 180 days allowed for review and comment. The

11 180-day period shall be counted from the date of the

12 delivery of the materials to the wildlife management

13 authority of each of the nations.

14 ‘‘(D) For the purpose of this paragraph, the

15 term ‘inherently limited use’ means scientific collec16 tion, live export for captive breeding, sport hunting,

17 and falconry.’’.

18 SEC. 205. GENERAL, RESEARCH, AND EDUCATIONAL PER19 MITS.

20 (a) IN GENERAL.—Section 10(a) (16 U.S.C.

21 1539(a)), as amended by sections 203 and 204(b) of this

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

23 paragraphs:

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

25 notice and opportunity for public hearing, the Sec-
44

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1 retary may issue a general permit under paragraph

2 (1)(B) on a county, parish, State, regional, or na3 tionwide basis for any category of activities that may

4 affect a species determined to be an endangered spe5 cies or threatened species if the Secretary deter6 mines that the activities in the category are similar

7 in nature, will cause only minimal adverse effects on

8 the species if performed separately, and will have

9 only minimal cumulative adverse effects on the spe10 cies generally. A general permit issued under this

11 paragraph shall specify the requirements and stand12 ards that apply to an activity authorized by the gen13 eral permit.

14 ‘‘(B) A general permit issued under this para15 graph shall be effective for a period to be specified

16 by the Secretary, but not to exceed the 5-year period

17 that begins on the date of issuance of the permit.

18 ‘‘(C) The Secretary may revoke or modify a

19 general permit if, after providing notice and oppor20 tunity for public hearing, the Secretary determines

21 that the activities authorized by the general permit

22 have a greater than minimal adverse effect on a spe23 cies that is included in a list published under section

24 4(c)(1) or that the activities are more appropriately
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1 authorized by individual permits issued under para2 graph (1) or (3).

3 ‘‘(5) RESEARCH ON ALTERNATIVE METHODS

4 AND TECHNOLOGIES.—Priority for issuing permits

5 under paragraph (1)(A) shall be accorded to applica6 tions for permits to conduct research, captive breed7 ing, or education on alternative methods and tech8 nologies, and the comparative costs of the methods

9 and technologies, to reduce the incidental taking as

10 described in paragraph (1)(B) of an endangered spe11 cies or a threatened species for which the employ12 ment of existing methods or technologies for avoid13 ance of the incidental taking entails significant costs

14 for non-Federal persons.

15 ‘‘(6) EDUCATIONAL OR PROPAGATION PER16 MITS.—(A) A permit under paragraph (1)(A)(ii) or

17 (iv) shall be issued if—

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

19 valid license as an exhibitor under the Animal

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

21 ‘‘(II) in the case of a permit under para22 graph (1)(A)(ii), the applicant maintains a pub23 lic display or exhibition of living wildlife de24 scribed in that paragraph; and
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1 ‘‘(III) viewing of the public display or exhi2 bition is not limited or restricted other than by

3 charging an admission fee; or

4 ‘‘(ii) in the case of a permit under para5 graph (1)(A)(iv), the applicant has dem6 onstrated the ability to use propagation tech7 niques that result in increases in the popu8 lations of species held in captivity for eventual

9 release into the wild, maintenance of live speci10 mens, or falconry purposes.

11 ‘‘(B)(i) The Secretary shall issue a permit with12 in 30 days from the effective date of this subpara13 graph to any qualified organization or person who

14 has demonstrated the ability to handle or recover

15 species for a minimum of 15 years or who has at

16 least 10 permits in the aggregate issued pursuant to

17 this Act or the other laws listed in subparagraph

18 (H).

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

20 90 days of receipt of a completed application from

21 any qualified organization or person who currently

22 does not hold any permit but who has demonstrated

23 the ability to handle or recover species for a mini24 mum of 15 years of who has received at least 10

25 permits in the aggregate and who has not violated
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1 any terms or conditions of any permits previously is2 sued pursuant to this Act or the laws listed in sub3 paragraph (H).

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

5 (1)(A)(ii) shall be for a term of not less than 6

6 years.

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

8 (1)(A)(ii) shall also authorize the permittee to im9 port, export, sell, purchase, or otherwise transfer

10 possession of the affected species.

11 ‘‘(E) The Secretary shall revoke a permit re12 ferred to in paragraph (1)(A)(ii) if the Secretary de13 termines that the permittee—

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

15 subparagraph (A) and is not reasonably likely

16 to meet the requirements in the near future;

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

18 conditions of the permit; or

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

20 jeopardize the continued existence of the species

21 subject to the permit.

22 ‘‘(F) The Secretary may require an annual re23 port on the activities authorized by a general permit,

24 but may not require reports more frequently than

25 annually.
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1 ‘‘(G) A permit authorized in this paragraph

2 shall be the only permit required for the activities

3 authorized therein, and may cover activities for one

4 or more species or taxa simultaneously.

5 ‘‘(H) The authorizations for any activities per6 mitted under this paragraph or permitted by the

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

8 the Fish and Wildlife Conservation Act of 1980 (16

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

10 1981 (18 U.S.C. 42; 16 U.S.C. 3371–3378), the

11 Marine Mammal Protection Act of 1972 (16 U.S.C.

12 1361–1407), the Migratory Bird Conservation Act

13 (16 U.S.C. 715–715d), the Migratory Bird Treaty

14 Act (16 U.S.C. 703–712), or the Wild Bird Con15 servation Act of 1992 (Public Law 102–440) shall

16 be consolidated into a general permit to cover all au17 thorized activities, notwithstanding any law or regu18 lation to the contrary.’’.

19 (b) EXCEPTIONS FOR WILDLIFE BRED IN CAP20 TIVITY.—Section 10, as amended by section 204(c) of this

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

22 subsection:

23 ‘‘(l) WILDLIFE BRED IN CAPTIVITY.—For the pur24 poses of this Act or any regulation adopted pursuant to

25 this Act, the terms ‘bred in captivity’ or ‘captive-bred’,
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1 with respect to wildlife, means wildlife, including eggs,

2 born or otherwise produced in captivity from parents that

3 mated or otherwise transferred gametes in captivity if re4 production is sexual, or from parents that were in captivity

5 when development of the progeny began, if development

6 is asexual. Such progeny shall be considered domestic fish

7 or wildlife for all purposes and shall not come under the

8 provisions and prohibitions of this Act and the laws listed

9 in subsection (a)(6)(H) unless intentionally and perma10 nently released to the wild. Any person holding any fish

11 or wildlife or their progeny as described in this subsection

12 must be able to demonstrate that such fish or wildlife do,

13 in fact, qualify under the provision of this subsection, and

14 shall maintain and submit to the Secretary, on request,

15 such inventories, documentation, and records as the Sec16 retary may by regulation require as being reasonable and

17 appropriate to carry out the purposes of this subsection.

18 Such requirements shall not unnecessarily duplicate the

19 requirements of other rules and regulations promulgated

20 by the Secretary.’’.

21 SEC. 206. MAINTENANCE OF AQUATIC HABITATS FOR LIST22 ED SPECIES.

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

24 1851 et seq.) is amended by adding at the end the follow25 ing new section:
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1 ‘‘RECOGNIZING NET BENEFITS TO AQUATIC SPECIES

2 ‘‘SEC. 20. (a) ENCOURAGING NET BENEFITS.—In

3 carrying out this Act, if the number of individual members

4 of an endangered species or threatened species exiting an

5 aquatic habitat area under the control, authority or owner6 ship of a non-Federal person is equal to or greater than

7 the number of individual members of the species entering

8 such area, the Secretary shall not require, provide for, or

9 recommend the imposition of any restriction or obligation

10 on the activity of the non-Federal person in a manner

11 which would require the non-Federal person to support the

12 maintenance of any greater number of individual members

13 of the species than that which enters such aquatic habitat

14 area.

15 ‘‘(b) CONSIDERATION OF HATCHERY POPU16 LATIONS.—In calculating the number of individual mem17 bers of a species entering and exiting a specific aquatic

18 habitat area pursuant to this section, the Secretary shall

19 consider hatchery populations.

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

21 provide for, or recommend the imposition of any restric22 tion or obligation on the activity of any non-Federal per23 son in an aquatic habitat area to remedy adverse impacts

24 on a species resulting from activities of individuals other

25 than the non-Federal person.’’.
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1 SEC. 207. COMPLIANCE WITH INTERNATIONAL REQUIRE2 MENTS AND TREATIES.

3 (a) RESPECTING THE SOVEREIGNTY OF OTHER NA4 TIONS.—Section 8 (16 U.S.C. 1537) is amended by adding

5 at the end the following new subsection:

6 ‘‘(e) ENCOURAGEMENT OF FOREIGN PROGRAMS.—

7 Any action taken by the Secretary pursuant to this Act

8 in regard to a foreign species which occurs in a country

9 which is a party to the Convention—

10 ‘‘(1) shall be done in cooperation with the wild11 life conservation authorities of such country; and

12 ‘‘(2) shall not obstruct any wildlife conservation

13 program of such country unless the Secretary can

14 show, based on adequate findings supported by sub15 stantial evidence, that the country’s wildlife con16 servation program for the species in question is not

17 consistent with the Convention.’’.

18 (b) COMPLIANCE WITH THE CONVENTION.—Section

19 8A (16 U.S.C. 1537a) is amended by adding at the end

20 the following new subsections:

21 ‘‘(f) NONDUPLICATION OF FINDINGS.—The Sec22 retary, in making the findings required in paragraph 3(a)

23 of Article III of the Convention, shall limit such findings

24 to the purpose of the importation, and shall not duplicate

25 the findings required to be made by the exporting nation
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1 except for good cause based on adequate findings sup2 ported by substantial evidence.

3 ‘‘(g) RELATIONSHIP OF PROTECTIVE REGULATIONS

4 TO THE CONVENTION.—In determining the provisions of

5 protective regulations pursuant to section 4(d) of this Act

6 when such regulations relate to a foreign species—

7 ‘‘(1) the Secretary may not prohibit any act

8 that is permissible under the Convention, notwith9 standing Article XIV of the Convention;

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

11 proposal for such protective regulations in the Fed12 eral Register, transmit the full text and a complete

13 description of the proposed regulation directly to the

14 appropriate wildlife management authority of that

15 country, in the language of that country, with at

16 least 180 days allowed for review and comment, the

17 180 days shall be counted from the date of delivery

18 of the materials to the wildlife authorities of the

19 country;

20 ‘‘(3) such transmission must be accompanied

21 by—

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

23 reasons for and purpose of the proposed regula24 tion;
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1 ‘‘(B) an analysis of the anticipated bene2 ficial impact or detrimental impact of the regu3 lation on the economic, social, and cultural uti4 lization of the species, if any, and of the bene5 ficial or detrimental impact on the resource

6 management and conservation programs of that

7 country; and

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

9 and experts consulted by the Secretary in re10 gard to the species involved, and a summary of

11 the Secretary’s findings based on that review

12 and consultation;

13 ‘‘(4) the Secretary shall enter into discussions

14 with appropriate wildlife management officials of the

15 countries to which he has sent the transmission re16 ferred to in the previous paragraph, and if those of17 ficials feel that further studies of the species are in18 dicated the Secretary shall assist in finding the

19 funds for such studies and in carrying out the stud20 ies; and

21 ‘‘(5) the Secretary must obtain the written con22 currence of all the nations contacted, and if such

23 concurrence is not obtained the Secretary may not

24 issue the proposed regulation except by an order

25 submitted to and approved by the President.’’.
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1 (c) CONSERVATION OF THREATENED SPECIES.—Sec2 tion 9 (16 U.S.C. 1538), as amended by section 206 of

3 this Act, is amended by adding at the end the following

4 new subsection:

5 ‘‘(i) IMPORTATION AND EXPORTATION.—

6 ‘‘(1) LIMITATION ON IMPORTATION.—The pro7 hibition on importation in subsection (a) of this sec8 tion shall not apply to a specimen of a threatened

9 species taken for an inherently limited use in accord10 ance with the laws of a foreign nation and accom11 panied by an export permit issued by that nation or

12 an equivalent document. For the purpose of this

13 subsection, the term ‘inherently limited use’ means

14 scientific collection, live export for captive breeding,

15 sport hunting, and falconry.

16 ‘‘(2) REGULATIONS FOR SHIPPING UNDER CON17 VENTION.—(A) The Secretary shall adopt regula18 tions regarding the finding required by the Conven19 tion that live specimens exported from the United

20 States will be so prepared as to minimize the risk

21 of injury, damage to health, or cruel treatment.

22 Such regulations shall provide clear, consistent and

23 reliable guidance to exporters.

24 ‘‘(B) In any instance in which the Secretary be25 lieves that a shipment for export is not prepared in
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1 accordance with the regulations, a detailed written

2 notice of noncompliance shall be issued to the ex3 porter. The notice shall contain recommendations as

4 to how future shipments should be modified in order

5 to come into compliance with the regulations. The

6 notice shall go into effect 30 days after receipt by

7 the shipper, subject to appeal to an Administrative

8 Law Judge or a court. The filing of an appeal shall

9 toll the effectiveness of the notice. The issue of non10 compliance may be appealed as well as the issue of

11 the appropriateness of the recommendation for com12 pliance.’’.

13 SEC. 208. INCENTIVES FOR PROTECTION OF MARINE SPE14 CIES.

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

16 amended by section 205(b) of this Act, is amended by add17 ing at the end the following new subsection:

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

19 under such terms and conditions as the Secretary may

20 prescribe by regulation, any operator of a trawl vessel re21 quired to use a turtle excluder device under regulations

22 promulgated under this Act from such requirement if such

23 operator agrees to support a conservation program ap24 proved under paragraph (2) and such support is deter25 mined to be appropriate under paragraph (4).
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1 ‘‘(2) No later than 180 days after the effective date

2 of this subsection and each year thereafter, the Secretary

3 shall—

4 ‘‘(A) review all those programs intended to con5 serve the endangered species and threatened species

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

7 the Atlantic seaboard, including those programs in8 volving protection of nesting beaches in other na9 tions;

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

11 the Secretary to be of significant benefit to the re12 covery of the species of such sea turtles under this

13 subsection; and

14 ‘‘(C) publish notice of such determination in the

15 Federal Register.

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

17 trawl vessels may submit in writing a request to the Sec18 retary for an exemption under this subsection.

19 ‘‘(B) Not later than 60 days after receipt of such re20 quest the Secretary shall provide such person or group

21 written notice of the issuance or denial of such request.

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

23 offered by an operator in a written request submitted

24 under paragraph (3) is appropriate if the benefits provided

25 by such support to the recovery of such species exceed any
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1 harm to the recovery of such species incurred as a result

2 of the operator not using turtle excluder devices under an

3 exemption provided under this subsection.

4 ‘‘(5) The Secretary shall prescribe such regulations

5 as the Secretary considers necessary and appropriate to

6 carry out the purposes of this subsection.’’.

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

8 (16 U.S.C. 1536(b)) is amended by adding at the end of

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

10 to encourage the support of conservation programs ap11 proved under section 10(k),’’.

12 TITLE III—IMPROVING SCI13 ENTIFIC INTEGRITY OF LIST14 ING DECISIONS AND PROCE15 DURES

16 SEC. 301. IMPROVING THE VALIDITY AND CREDIBILITY OF

17 DECISIONS.

18 (a) BASING LISTINGS ON CREDIBLE SCIENCE.—

19 (1) LISTING DETERMINATIONS.—Subsections

20 (a) and (b) (1) and (2) of section 4 (16 U.S.C.

21 1533) are amended to read as follows:

22 ‘‘(a) GENERALLY.—The Secretary shall by regulation

23 promulgated in accordance with subsection (b) determine

24 whether any species is an endangered species or a threat25 ened species because of any of the following factors:
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1 ‘‘(1) The present or threatened loss of its habi2 tat.

3 ‘‘(2) Overutilization for commercial, rec4 reational, scientific, or educational purposes.

5 ‘‘(3) Disease or predation.

6 ‘‘(4) The inadequacy of existing Federal, State,

7 and local government regulatory mechanisms.

8 ‘‘(5) Other natural or manmade factors affect9 ing its continued existence.

10 ‘‘(b) SECRETARIAL DETERMINATIONS.—

11 ‘‘(1) BASIS FOR DETERMINATION.—(A) The

12 Secretary shall make determinations required by

13 subsection (a)(1) solely on the basis of the best sci14 entific and commercial data available to the Sec15 retary after conducting a review of the status of the

16 species and after soliciting and fully considering the

17 best scientific and commercial data available con18 cerning the status of a species from any affected

19 State or any interested non-Federal person, and tak20 ing into account those efforts being made by any

21 State, any political subdivision of a State, or any

22 non-Federal person or conservation organization, to

23 protect such species, whether by predator control,

24 protection of habitat and food supply, or other con25 servation practices, within any area under its juris-
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1 diction, or on the high seas, and shall accord greater

2 weight, consideration, and preference to empirical

3 data rather than projections or other extrapolations

4 developed through modeling.

5 ‘‘(B) In making a determination whether a spe6 cies is an endangered species or a threatened species

7 under this section, the Secretary shall fully consider

8 populations of the species that are bred through pri9 vate sector, university, and Federal, State, and local

10 government breeding programs for release in the

11 habitat of the species. In the case of fish species, the

12 bred populations referred to in the preceding sen13 tence shall include hatchery populations.

14 ‘‘(2) CONSIDERATION OF STATE RECOMMENDA15 TIONS.—In making a determination pursuant to

16 paragraph (1), the Secretary shall give consideration

17 to species which have been identified as in danger of

18 extinction, or likely to become so within the foresee19 able future, by any State agency that is responsible

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

21 (2) LISTING FOREIGN SPECIES.—Section 4(b)

22 (16 U.S.C. 1533(b)), as amended by subsection (f)

23 of this section, is amended by adding at the end the

24 following new paragraph:
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1 ‘‘(10) FOREIGN SPECIES.—(A) In determining

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

3 endangered species or a threatened species, the Sec4 retary shall not determine that a species that is list5 ed under the Convention is endangered or threat6 ened unless he makes an adequate finding, sup7 ported by substantial evidence, that the Convention

8 does not provide adequate regulation.

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

10 proposal in the Federal Register to determine that

11 a foreign species is endangered or threatened, trans12 mit the full text and a complete description of the

13 proposed listing directly to the appropriate wildlife

14 management authority of that nation, in the lan15 guage of that nation, with at least 180 days allowed

16 for review and comment. The 180 days shall be

17 counted from the date of delivery of the materials

18 supporting the proposed listing to the wildlife au19 thorities of the country.

20 ‘‘(C) Such transmission must be accompanied

21 by—

22 ‘‘(i) a plain-language explanation of the ob23 jective criteria for and purpose of the proposed

24 listing;
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1 ‘‘(ii) an analysis of the anticipated bene2 ficial impact or detrimental impact of the list3 ing on the economic, social, and cultural utiliza4 tion of the species, if any, and of the beneficial

5 or detrimental impact on the resource manage6 ment and conservation programs of that nation;

7 and

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

9 and experts consulted by the Secretary in re10 gard to the species involved, and a summary of

11 the Secretary’s findings based on that review

12 and consultation.

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

14 with the appropriate wildlife management officials of

15 the nations to which he has sent the transmission

16 referred to in subparagraph (C). If those officials

17 feel that further studies of the species are indicated,

18 the Secretary shall assist in finding the funds for

19 such studies and in carrying out the studies.

20 ‘‘(E) The Secretary must obtain the written

21 concurrence of all the nations contacted. If such con22 currence is not obtained, the Secretary may not

23 issue the proposed regulation except by an order

24 submitted to and approved by the President.’’.
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1 (b) DEFINITIONS.—Section 3 (16 U.S.C. 1532) is

2 amended—

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

4 new paragraph:

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

6 data available’ means factual information, including

7 but not limited to peer reviewed scientific informa8 tion obtainable from any source, including govern9 mental and nongovernmental sources, which has

10 been to the maximum extent feasible verified by field

11 testing.’’;

12 (2) by adding after paragraph (7) (as redesig13 nated by section 102(a)(1) of this Act) the following

14 new paragraphs:

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

16 interest’ means a distinct population of a vertebrate

17 species that is not otherwise an endangered species

18 or threatened species in the United States, Canada,

19 or Mexico, but which because of its value to the Na20 tion as a whole has been designated by Congress as

21 needing protection under this Act.

22 ‘‘(8a) The term ‘foreign species’ means a spe23 cies naturally occurring outside the territory of the

24 United States, but does not include any marine spe25 cies, any species having a significant population oc-
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1 curring in the wild within the United States, or any

2 migratory species whose migration route includes

3 United States territory.’’;

4 (3) by adding after paragraph (13) (as redesig5 nated by section 102(a)(1) of this Act) the following

6 new paragraph:

7 ‘‘(14) The term ‘imminent threat to the exist8 ence of’, with respect to a species, means, as deter9 mined by the Secretary under section 4(b)(7) or the

10 President under section 5(e)(2) solely on the basis of

11 the best scientific and commercial data available,

12 that there is a significant likelihood that the species

13 will become extinct, or will be placed on an irrevers14 ible course to extinction, during the 2-year period

15 beginning on the date of the determination that the

16 species is an endangered species or a threatened spe17 cies, unless the species is accorded fully the protec18 tion available under this Act during such period.’’;

19 (4) by amending paragraph (22) (as redesig20 nated by section 102(a)(1) of this Act) to read as

21 follows:

22 ‘‘(22) The term ‘Secretary’ means, except as

23 otherwise herein provided, the Secretary of the Inte24 rior, except that with respect to the enforcement of

25 the provisions of this Act and the Convention which
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1 pertain to the importation or exportation of terres2 trial plants, the term also means the Secretary of

3 Agriculture.’’; and

4 (5) by amending paragraph (23) (as redesig5 nated by section 102(a)(1) of this Act) to read as

6 follows:

7 ‘‘(23) The term ‘species’ includes any sub8 species of fish or wildlife or plants, and any distinct

9 population of national interest of any species or ver10 tebrate fish or wildlife which interbreeds when ma11 ture.’’.

12 (c) SOLICITING SCIENTIFIC INFORMATION.—Section

13 4(b)(3) (16 U.S.C. 1533(b)(3)), as amended by sections

14 303(a), 304(a), 305(a), and 306 of this Act, is amended

15 by adding at the end the following new subparagraph:

16 ‘‘(F) Before any further action is taken in ac17 cordance with this paragraph, the Secretary shall

18 publish in the Federal Register a solicitation for fur19 ther information regarding the status of a species

20 which is the subject of a proposed rule to list the

21 species as an endangered species or threatened spe22 cies, including current population, populations

23 trends, current habitat, Federal conservation lands

24 which could provide habitat for the species, food

25 sources, predators, breeding habits, captive breeding
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1 efforts, commercial, nonprofit, avocational, or vol2 untary conservation activities, or other pertinent in3 formation which may assist in making a determina4 tion under this section. The solicitation shall give a

5 time limit within which to submit the information

6 which shall be not less than 180 days. The time

7 limit shall be extended for an additional 180 days at

8 the request of any person who submits a request for

9 such extension along with the reasons therefor. The

10 Secretary in making the determination required in

11 this subsection, shall give equal weight to the infor12 mation submitted in accordance with this para13 graph.’’.

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

15 U.S.C. 1533(b)(7)) is amended—

16 (1) by striking the matter preceding subpara17 graph (A) and inserting the following:

18 ‘‘(7) EMERGENCY REGULATIONS.—Neither

19 paragraph (4), (5), or (6) of this subsection nor sec20 tion 553 of title 5, United States Code, shall apply

21 to any regulation issued by the Secretary in regard

22 to any emergency posing an imminent threat to the

23 existence of any species of fish or wildlife or plants,

24 but only if—’’; and
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1 (2) by adding at the end the following new sen2 tence: ‘‘The Secretary may not delegate the final de3 cision to issue an emergency regulation under this

4 paragraph.’’.

5 (e) USING BEST DATA.—Section 4(b)(8) (16 U.S.C.

6 1533(b)(8)) is amended by striking ‘‘the data’’ and insert7 ing ‘‘the best scientific and commercial data’’.

8 (f) IDENTIFYING DATA USED FOR DECISIONS.—Sec9 tion 4(b) (16 U.S.C. 1533(b)) is amended by adding at

10 the end the following new paragraph:

11 ‘‘(9) PUBLICATION IN FEDERAL REGISTER.—

12 (A) The Secretary shall identify and publish in the

13 Federal Register with each proposed rule under

14 paragraph (1) or section 5(i) a description of—

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

16 making the determination under the subsection

17 to which the proposed rule relates and that

18 have yet to be collected or field verified;

19 ‘‘(ii) data that are necessary to make de20 terminations and that can be collected prior to

21 any determination; and

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

23 scientific validity of the determination, and each

24 deadline for collecting these data.
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1 ‘‘(B) In making a determination pursuant to

2 paragraph (1) or section 5(i), the Secretary shall

3 collect and consider the data identified and described

4 pursuant to subparagraph (A)(ii).

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

6 the Federal Register with each final rule promul7 gated under paragraph (1) or section 5(i)—

8 ‘‘(i) a description of any data that have

9 not been collected and considered in the deter10 mination to which the rule relates and that are

11 necessary to ensure the continued scientific va12 lidity of the determination; and

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

14 shall collect and consider the data in accordance

15 with subparagraph (D).

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

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

18 Secretary shall—

19 ‘‘(i) collect the data referred to in each

20 paragraph;

21 ‘‘(ii) provide an opportunity for public re22 view and comment on the data;

23 ‘‘(iii) consider the data after the review

24 and comment; and
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1 ‘‘(iv) publish in the Federal Register the

2 results of that consideration and a description

3 of and schedule for any actions warranted by

4 the data.’’.

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

6 as amended by section 302 of this Act, is amended by add7 ing at the end the following new subsection:

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

9 determination with regard to whether a species is a threat10 ened species or endangered species shall be subject to a

11 de novo judicial review with the court determining whether

12 the decision is supported by a preponderance of the evi13 dence.’’.

14 SEC. 302. PEER REVIEW.

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

16 after subsection (h), as redesignated by section 507(b)(2)

17 of this Act, the following new subsection:

18 ‘‘(i) PEER REVIEW REQUIREMENT.—

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

20 ‘‘(A) The term ‘action’ means—

21 ‘‘(i) the determination that a species

22 is an endangered species or a threatened

23 species under subsection (a);

24 ‘‘(ii) the determination under sub25 section (a) that an endangered species or
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1 a threatened species be removed from any

2 list published under subsection (c)(1);

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

4 the designation, of critical habitat for an

5 endangered species or a threatened species

6 under section 5(i); and

7 ‘‘(iv) the determination that a pro8 posed action is likely to jeopardize the con9 tinued existence of a listed species and the

10 proposal of any reasonable and prudent al11 ternatives by the Secretary under section

12 7(b)(3).

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

14 an individual with expertise in the biological

15 sciences—

16 ‘‘(i) who is by virtue of advanced edu17 cation, training, or avocational, academic,

18 commercial, research, or other experience

19 competent to review the adequacy of any

20 scientific methodology supporting the ac21 tion, the validity of any conclusions drawn

22 from the supporting data, and the com23 petency of the individual who conducted

24 the research or prepared the data;
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1 ‘‘(ii) who is not otherwise employed by

2 or under contract to the Secretary of the

3 Interior; and

4 ‘‘(iii) who has not participated in the

5 listing decision.

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

7 provide a substantial list of individuals who on a vol8 untary basis are available to participate in peer re9 view actions, the Secretary shall, through the Fed10 eral Register, through scientific and commercial

11 journals, and through the National Academy of

12 Sciences and other such institutions, seek nomina13 tions of persons who agree to peer review action

14 upon appointment by the Secretary.

15 ‘‘(3) APPOINTMENT OF PEER REVIEWERS.—Be16 fore any action shall become final, the Secretary

17 shall appoint, from among the list prepared in ac18 cordance with paragraph (2), not more than 2 quali19 fied individuals who shall review, and report to the

20 Secretary on, the scientific information and analyses

21 on which the proposed action is based. The Governor

22 of each State in which the species is located that is

23 the subject of the proposal, may appoint up to 2

24 qualified individuals to conduct peer review of the

25 action. If any individual declines the appointment,
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1 the Secretary or the Governor shall appoint another

2 individual to conduct the peer review.

3 ‘‘(4) DATA PROVIDED TO PEER REVIEWER.—

4 The Secretary shall make available to each person

5 conducting peer review all scientific information

6 available regarding the species which is the subject

7 of the peer review. The Secretary shall not indicate

8 to a peer reviewer the name of any person that sub9 mitted a petition for listing or delisting that is re10 viewed by the reviewer.

11 ‘‘(5) OPINION OF PEER REVIEWERS.—The peer

12 reviewer shall give his or her opinion with regard to

13 any technical or scientific deficiencies in the pro14 posal, whether the methodology and analysis sup15 porting the petition conform to the standards of the

16 academic and scientific community, and whether the

17 proposal is supported by sufficient credible evidence.

18 ‘‘(6) PUBLICATION OF PEER REVIEW RE19 PORT.—The Secretary shall publish with any final

20 regulation implementing an action a summary of the

21 report of the peer review panel noting points of dis22 agreement between peer reviewers, if any, and the

23 response of the Secretary to the report.’’.
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1 SEC. 303. MAKING DATA PUBLIC.

2 (a) PUBLIC DATA.—Section 4(b)(3) (16 U.S.C.

3 1533(b)(3)), as amended by sections 304(a), 305(a), and

4 306 of this Act, is amended by adding at the end the fol5 lowing new subparagraph:

6 ‘‘(E)(i) All data or information considered by

7 the Secretary in making the determination to list as

8 provided in this section, shall be considered public

9 information and shall be subject to section 552 of

10 title 5, United States Code (commonly referred to as

11 the ‘Freedom of Information Act’) unless the Sec12 retary, for good cause, determines that the informa13 tion must be kept confidential. The burden shall be

14 on the Secretary to prove that such information

15 shall be confidential and such decision shall be

16 reviewable by a district court of competent jurisdic17 tion, which shall review the decision in chambers.

18 Good cause can include that the information is of a

19 proprietary nature or that release of the location of

20 the species may endanger the species further.

21 ‘‘(ii) The Secretary shall minimize releasing the

22 identification of particular private property as habi23 tat for a species which is determined to be an endan24 gered species or threatened species or proposed to be

25 determined to be an endangered species or threat26 ened species, unless the Secretary first notifies the
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1 owner thereof and receives his or her consent, or the

2 information is otherwise public information.’’.

3 (b) PUBLIC HEARINGS.—Section 4(b) (16 U.S.C.

4 1533(b)) is amended—

5 (1) in paragraph (5) (as amended by section

6 305(b) of this Act) by adding at the end the follow7 ing new subparagraph:

8 ‘‘(E) promptly hold at least 1 hearing in each

9 State in which the species proposed for determina10 tion as an endangered species or a threatened spe11 cies is believed to occur, and in a location that is as

12 close as possible to the center of the habitat of such

13 species in such State.’’; and

14 (2) in paragraph (6) by amending all that pre15 cedes subparagraph (B) to read as follows:

16 ‘‘(6) PUBLICATION OF DETERMINATION.—(A)

17 Within the one-year period beginning on the date on

18 which general notice is published in accordance with

19 paragraph (5)(A)(i) regarding a proposed regulation,

20 the Secretary shall publish in the Federal Register,

21 if a determination as to whether a species is an en22 dangered species or a threatened species is involved,

23 either—

24 ‘‘(i) a final regulation to implement such

25 determination,
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1 ‘‘(ii) a final regulation to implement such

2 revision or a finding that such revision should

3 not be made,

4 ‘‘(iii) notice that such one-year period is

5 being extended under subparagraph (B)(i), or

6 ‘‘(iv) notice that the proposed regulation is

7 being withdrawn under subparagraph (B)(ii),

8 together with the finding on which such with9 drawal is based.’’.

10 (c) NOTICE OF HEARINGS.—Section 14 is amended

11 to read as follows:

12 ‘‘SEC. 14. NOTICE OF HEARINGS.

13 ‘‘Except as otherwise provided by this Act, the Sec14 retary shall provide notice of any hearing or other public

15 meeting at which public comment is accepted under this

16 Act by publication in the Federal Register and in a news17 paper of general circulation in the location of the hearing

18 or meeting at least 30 days prior to the hearing or meet19 ing.’’.

20 SEC. 304. IMPROVING THE PETITION AND DESIGNATION

21 PROCESSES.

22 (a) PETITIONS TO LIST.—Section 4(b)(3) (16 U.S.C.

23 1533(b)(3)) is amended to read as follows:

24 ‘‘(3) PETITIONS.—(A) A petition submitted to

25 the Secretary asserting that a species is a threat-
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1 ened species or endangered species and requesting

2 that the Secretary make a determination to that ef3 fect shall contain at a minimum the following:

4 ‘‘(i) Information on the current population

5 and range of the species.

6 ‘‘(ii) Any information on efforts to field

7 test the population estimates on the species.

8 ‘‘(iii) If literature from scientific or other

9 journals, dissertations or other such scientific

10 writings of another person are submitted, they

11 must be accompanied by an affidavit that the

12 literature or writings have been peer reviewed

13 along with the names of the persons performing

14 the peer review.

15 ‘‘(iv) The qualifications of any person as16 serting expertise on the species or status of the

17 species.

18 ‘‘(v) Information about the demonstrated

19 habitat needs of the species, along with the

20 known occupied habitat of the species.

21 ‘‘(vi) Known causes of the species decline.

22 ‘‘(B) Petitions to add a species to, or to remove

23 a species from, either of the lists published under

24 subsection (c)(1) shall be submitted in accordance

25 with section 553(e) of title 5, United States Code.
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1 The Secretary may commence a review of the status

2 of the species concerned consistent with the prior3 ities set by the Secretary for the listing of species.

4 The Secretary shall promptly publish any finding

5 made under this subparagraph in the Federal Reg6 ister.’’.

7 (b) CONFORMING AMENDMENTS.—Section 4(g), as

8 redesignated by section 507(b)(2), is amended—

9 (1) by striking paragraph (2); and

10 (2) by redesignating paragraphs (3) and (4) in

11 order as paragraphs (2) and (3).

12 SEC. 305. GREATER STATE INVOLVEMENT.

13 (a) STATE CONSULTATION ON PETITIONS.—Section

14 4(b)(3) (16 U.S.C. 1533(b)(3)), as amended by section

15 304(a) of this Act, is amended by adding after subpara16 graph (B) the following subparagraph:

17 ‘‘(C) At the time the review provided in sub18 paragraph (B) is commenced—

19 ‘‘(i) the Secretary shall contact the Gov20 ernor of each State in which the proposed spe21 cies is located and shall solicit from the Gov22 ernor information about the action requested in

23 the petition in that State necessary to render a

24 decision and shall solicit the advice of the Gov25 ernor on whether the status of species merits
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1 the action petitioned for, and if the Governor

2 advises that the petition action is not warranted

3 and thereafter the Secretary proceeds with the

4 action, the Secretary shall have the burden of

5 showing that the information submitted by the

6 Governor is incorrect and that the action is

7 warranted; and

8 ‘‘(ii) the Secretary shall, to the maximum

9 extent feasible, require by field testing, the ver10 ification of the information presented regarding

11 the status of the species.’’.

12 (b) REGULATIONS TO IMPLEMENT DETERMINA13 TIONS.—Section 4(b)(5) (16 U.S.C. 1533(b)(5)) is

14 amended to read as follows:

15 ‘‘(5) NOTICE REQUIRED.—With respect to any

16 regulation proposed by the Secretary to implement a

17 determination referred to in subsection (a)(1) of this

18 section, the Secretary shall—

19 ‘‘(A) not less than 90 days before the ef20 fective date of the regulation—

21 ‘‘(i) publish a general notice and the

22 complete text of the proposed regulation in

23 the Federal Register, and

24 ‘‘(ii) give actual notice of the proposed

25 regulation (including the complete text of
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1 the regulation) to the Governor of each

2 State in which the species is believed to

3 occur, and to each county, or equivalent ju4 risdiction in which the species is believed

5 to occur, and consult with such agency,

6 and each such jurisdiction, thereon;

7 ‘‘(B) in cooperation with the Secretary of

8 State, give notice of the proposed regulation to

9 each foreign nation in which the species is be10 lieved to occur or whose citizens harvest the

11 species on the high seas, and consult with such

12 nation thereon;

13 ‘‘(C) give notice of the proposed regulation

14 to any person who requests such notice, any

15 person who has submitted additional data, each

16 State and local government within which the

17 species is believed to occur or which is likely to

18 experience any effects of any measures to pro19 tect the species under this Act, and such profes20 sional scientific organizations as the Secretary

21 deems appropriate; and

22 ‘‘(D) publish a summary of the proposed

23 regulation in a newspaper of general circulation

24 in each area of the United States in which the

25 species is believed to occur.’’.
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1 (c) STATE CONSULTATION ON FINAL DETERMINA2 TION.—Section 4(h), as redesignated by section 507(b)(2)

3 of this Act, is amended to read as follows:

4 ‘‘(h) SUBMISSION TO STATE AGENCY OF JUSTIFICA5 TION FOR REGULATIONS INCONSISTENT WITH STATE

6 AGENCY’S COMMENTS OR PETITION.—If, in the case of

7 any regulation proposed by the Secretary under the au8 thority of this section, a State agency which consulted with

9 the Secretary in accordance with subsection (b)(5)(A)(ii)

10 of this section files comments disagreeing with all or part

11 of the proposed regulation, the Secretary shall not issue

12 a final regulation which is in conflict with such comments

13 until the Secretary further consults with the President, or

14 if the Secretary fails to adopt a regulation pursuant to

15 an action petitioned by a State agency under subsection

16 (b)(3) of this section, the Secretary shall submit to the

17 State agency a written justification for the failure of the

18 Secretary to adopt regulations consistent with the agen19 cy’s comments or petition.’’.

20 SEC. 306. MONITORING THE STATUS OF SPECIES.

21 Section 4(b)(3) (16 U.S.C. 1533(b)(3)), as amended

22 by sections 304(a) and 305(a) of this Act, is amended by

23 adding after subparagraph (C) the following subpara24 graph:
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1 ‘‘(D) The Secretary shall implement a system

2 to monitor effectively the status of all species with

3 respect to which a finding is made that the peti4 tioned action is warranted but precluded by propos5 als to determine whether any species is an endan6 gered species or a threatened species and progress is

7 being made to add qualified species to the list pub8 lished under subsection (c) and to remove from lists

9 published under that subsection species for which

10 protection of this Act is no longer necessary, and

11 shall make prompt use of the authority under para12 graph (7) to prevent a significant risk to the well

13 being of any such species.’’.

14 SEC. 307. PETITIONS TO DELIST SPECIES.

15 Section 4(b)(3) (16 U.S.C. 1533(b)(3)), as amended

16 by sections 301(a) and (c), 303(a), 304(a), 305(a), and

17 306 of this Act, is further amended by adding at the end

18 the following new subparagraphs:

19 ‘‘(G) Any person may submit to the Secretary

20 a petition to revise a previous determination by the

21 Secretary under this Act that a species is an endan22 gered species or threatened species and to remove

23 the species from a list published under subsection

24 (c), on the basis that—
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1 ‘‘(i) new data or a reinterpretation of prior

2 data indicates that the previous determination

3 was in error;

4 ‘‘(ii) the species is extinct; or

5 ‘‘(iii) the population level target established

6 for the species in a conservation plan under sec7 tion 5(c)(3)(C)(vii) has been achieved.

8 ‘‘(H) Not later than 90 days after receiving a

9 petition under subparagraph (D) for a species, the

10 Secretary shall publish—

11 ‘‘(i) a proposed regulation to revise a pre12 vious determination for the species and to re13 move the species from a list published under

14 subsection (c) on a basis set forth in subpara15 graph (G); or

16 ‘‘(ii) a finding that such a basis for the ac17 tion requested by the petition does not exist.’’.

18 TITLE IV—RECOGNIZING OTHER

19 FEDERAL ACTION, LAWS, AND

20 MISSIONS

21 SEC. 401. BALANCE ESA WITH OTHER LAWS AND MISSIONS.

22 (a) FEDERAL AGENCY ACTIONS.—Section 7 (16

23 U.S.C. 1536) is amended by amending the matter preced24 ing subsection (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 (e), and (i), all other Federal agencies shall, consist10 ent with their primary missions and in consultation

11 with and with the assistance of the Secretary, utilize

12 their authorities in furtherance of the purposes of

13 this Act by carrying out programs for the conserva14 tion of endangered species and threatened species

15 listed pursuant to section 4.

16 ‘‘(2) PROGRAMS ADMINISTERED BY OTHER

17 AGENCIES.—Except as provided in section 5(d) and

18 (e), each Federal agency shall ensure that any action

19 authorized, funded, or carried out by such agency

20 (hereinafter in this section referred to as an ‘agency

21 action’) is not likely to jeopardize the continued ex22 istence of any endangered species or threatened spe23 cies or destroy or adversely modify any habitat that

24 is designated by the Secretary as critical habitat of

25 the species in a manner that is likely to jeopardize

26 the continued existence of the species. In the case of
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1 any agency action that the agency has determined is

2 subject to this paragraph and that is likely to sig3 nificantly and adversely affect an endangered species

4 or a threatened species, the Federal agency shall ful5 fill the requirements of this paragraph in consulta6 tion with and with the assistance of the Secretary.

7 As provided in section 5(d)(2), each Federal agency

8 may initiate consultation with the Secretary to re9 ceive guidance from the Secretary on the consistency

10 of its action with the conservation objective or con11 servation plan for such species developed pursuant

12 to section 5, with an incidental take permit for such

13 species issued pursuant to section 10(a), or with a

14 cooperative management agreement concerning such

15 species executed pursuant to section 6(b). In fulfill16 ing the requirements of this paragraph each agency

17 shall use the best available scientific and commercial

18 data, shall consider expert opinion and any reason19 able and prudent alternatives developed under sub20 section (b)(3)(A), and shall render the decision of

21 the agency in a manner consistent with the obliga22 tions and responsibilities of the agency under each

23 applicable law and treaty.

24 ‘‘(3) INVOLVEMENT OF APPLICANTS FOR FED25 ERAL APPROVALS.—Subject to such guidelines as
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1 the Secretary may establish, a Federal agency shall

2 consult with the Secretary on any prospective agency

3 action at the request of, with the involvement of,

4 and in cooperation with, the prospective permit or li5 cense applicant if the applicant has reason to believe

6 that an endangered species or a threatened species

7 may be present in the area affected by his project,

8 that the project is inconsistent with the conservation

9 objective or plan for such species developed pursuant

10 to section 5, an incidental take permit for such spe11 cies issued pursuant to section 10(a), or a coopera12 tive management agreement for such species exe13 cuted pursuant to section 6(b), and that implemen14 tation of such action will likely affect such species.

15 ‘‘(4) CONFERRING ON CANDIDATE SPECIES.—

16 Each Federal agency shall confer with the Secretary

17 on any agency action which is likely to jeopardize

18 the continued existence of any species proposed to be

19 listed under section 4 or to destroy or adversely

20 modify any habitat that is proposed to be designated

21 by the Secretary as critical habitat of such a species

22 in a manner that is likely to jeopardize the contin23 ued existence of the species. This paragraph does

24 not require a limitation on the commitment of re25 sources as described in subsection (d).
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1 ‘‘(5) LIMITATIONS ON MODIFICATIONS TO LAND

2 MANAGEMENT.—Notwithstanding any other provi3 sion of this Act, the authority in this Act shall not

4 be construed to authorize or form the basis for any

5 Federal agency to modify a land management plan,

6 policy, standard, or guideline or water allocation

7 plan unless a determination has been made under

8 section 4 that a species is threatened or endangered.

9 Notwithstanding any other law or regulation, man10 agement plans, practices, policies, projects, or guide11 lines, including management plans which, as of Oc12 tober 1, 1995, are subject to modification pending

13 completion of a final environmental impact state14 ment, shall not be amended for the purpose of main15 taining viable populations of native and desired non16 native species unless it is determined under this Act

17 that current practices are likely to jeopardize the

18 continued existence of the species.’’.

19 (b) RESOLVING CONFLICTS BETWEEN FEDERAL

20 AGENCIES.—Section 7(a), as amended by subsection (a)

21 of this section and section 402 of this Act, is amended

22 by adding at the end the following new paragraphs:

23 ‘‘(8) RELATIONSHIP TO DUTIES UNDER OTHER

24 LAWS.—(A) The responsibilities of a Federal agency

25 under this section shall not supersede and shall be
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1 implemented in a manner consistent with duties as2 signed to the Federal agency by any other laws or

3 by any treaties.

4 ‘‘(B)(i) If a Federal agency determines that the

5 responsibilities and duties described in subparagraph

6 (A) are in irreconcilable conflict, the action agency

7 shall request the President to resolve the conflict.

8 ‘‘(ii) In determining a resolution to such a con9 flict, the President shall consider and choose the

10 course of action that best meets the public interest

11 and, to the extent possible, balances pursuit of the

12 conservation objective or the purposes of the con13 servation plan with economic and social needs and

14 pursuit of the purposes of the other laws or treaties.

15 The authority assigned to the President by this sub16 paragraph may not be delegated to a member of the

17 executive branch who has not been confirmed by the

18 Senate.

19 ‘‘(9) MODIFICATION OF PROJECTS AND FACILI20 TIES.—Any consultation and conferencing required

21 under paragraphs (2) and (4) for an agency action

22 that consists solely of a modification of a Federal,

23 State, local government, or private project or facility

24 shall be limited to the consideration of the effects
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1 that result from the modification that comprises the

2 agency action.’’.

3 (c) PROCEDURES FOR CONSULTATION.—Section 7(b)

4 (16 U.S.C. 1536(b)) is amended by striking so much as

5 precedes paragraph (3)(B) and inserting the following:

6 ‘‘(b) OPINION OF SECRETARY.—

7 ‘‘(1) PERIODS WITHIN WHICH CONSULTATION

8 MUST BE COMPLETED.—(A) Consultation under sub9 section (a)(2) with respect to any agency action shall

10 be concluded within the 90-day period beginning on

11 the date on which initiated by the Federal agency.

12 The period may be extended by not more than 45

13 days by the Secretary or head of the Federal agency

14 by publication of notice in the Federal Register that

15 sets forth the reasons for the extension. Consultation

16 on an agency action involving a permit or license ap17 plicant shall be concluded not later than the earlier

18 of—

19 ‘‘(i) 1 year after the date of submission of

20 the application to the Federal agency; or

21 ‘‘(ii) the end of the period established

22 under subparagraph (B).

23 ‘‘(B) Subject to subparagraph (A), in the case

24 of an agency action involving a permit or license ap25 plicant, the Secretary and the Federal agency may
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1 not mutually agree to conclude consultation within a

2 period exceeding 90 days unless the Secretary, be3 fore the close of the 90th day referred to in subpara4 graph (A)—

5 ‘‘(i) if the consultation period proposed to

6 be agreed to will end before the 150th day after

7 the date on which consultation was initiated,

8 submits to the applicant a written statement

9 setting forth—

10 ‘‘(I) the reasons why a longer period

11 is required,

12 ‘‘(II) the information that is required

13 to complete the consultation, and

14 ‘‘(III) the estimated date on which

15 consultation will be completed; or

16 ‘‘(ii) if the consultation period proposed to

17 be agreed to will end on or after the 150th day

18 but before the 210th day after the date on

19 which consultation was initiated, obtains the

20 consent of the applicant to such period.

21 ‘‘(C) If consultation is not concluded and the

22 written statement of the Secretary required under

23 paragraph (3)(A) is not provided to the Federal

24 agency by the applicable deadline established under

25 this paragraph, the requirements of subsection
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1 (a)(2) shall be deemed met and the Federal agency

2 may proceed with the agency action.

3 ‘‘(D) A permit or license applicant shall be enti4 tled to participate fully in any consultation or con5 ferencing under this section with respect to any

6 agency action required for the granting of an au7 thorization or provision of funding to the applicant.

8 ‘‘(2) PROCEDURE FOR APPLICANT CONSULTA9 TION.—Consultation under subsection (a)(3) shall be

10 concluded within such period as is agreeable to the

11 Secretary, the Federal agency, and the applicant

12 concerned.

13 ‘‘(3) WRITTEN OPINION OF SECRETARY.—(A)(i)

14 Promptly after conclusion of consultation under

15 paragraph (2) or (3) of subsection (a), the Secretary

16 shall provide to the Federal agency and the appli17 cant, if any, a written statement setting forth the

18 Secretary’s opinion, and a summary of the informa19 tion on which the opinion is based, detailing whether

20 the agency action is consistent with the conservation

21 objective or plan developed pursuant to section 5, an

22 incidental taking permit issued pursuant to section

23 10(a), or a cooperative management agreement exe24 cuted pursuant to section 6(b). If the Secretary de25 termines that the action is likely to jeopardize the
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1 continued existence of the species as described in

2 subsection (a), the Secretary shall suggest reason3 able and prudent alternatives (considering any rea4 sonable and prudent alternatives undertaken by

5 other Federal agencies) that are consistent with sub6 section (a)(2) and that impose the least social and

7 economic costs.

8 ‘‘(ii) Unless required by law other than sub9 sections (a) through (d), the Secretary, in any opin10 ion or statement concerning an agency action made

11 under this subsection (including any reasonable and

12 prudent alternative suggested under clause (i) or

13 any reasonable and prudent measure specified under

14 clause (ii) of paragraph (4)), and the head of the

15 Federal agency proposing the agency action, may

16 not require, provide for, or recommend the imposi17 tion of any restriction or obligation on the activity

18 of any person that is not authorized, funded, carried

19 out, or otherwise subject to regulation by the Fed20 eral agency. Nothing in this clause prevents the Sec21 retary from pursuing any appropriate remedy under

22 section 11 for any activity prohibited by section 4(d)

23 or 9.

24 ‘‘(iii) The Secretary shall not require a reason25 able and prudent alternative that may or will result
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1 in a significant adverse impact upon waterfowl popu2 lations, waterfowl habitat management, or waterfowl

3 hunting opportunities in a significant waterfowl

4 breeding, staging, or wintering habitat area. In this

5 clause, the term ‘significant adverse impact’ means

6 any actions, proposed or in effect, which individually

7 or cumulatively are likely to reduce the carrying ca8 pacity of habitat for waterfowl by 10 percent or

9 more of its current capability, as determined on a

10 local, regional, statewide or national basis. In this

11 clause, the term ‘significant waterfowl breeding,

12 staging, or wintering habitat areas’ means those pri13 vate or public lands managed primarily for, or pro14 viding, waterfowl breeding, staging or wintering

15 habitat including seasonal/permanent marsh lands or

16 land under rice cultivation for three out of the past

17 five years.

18 ‘‘(iv) Notwithstanding any other provision of

19 law, if the Secretary renders an opinion or suggests

20 any reasonable and prudent alternative which has

21 general application to a group of individuals con22 ducting a commercial operation, the Secretary may

23 not promulgate an emergency rule without providing

24 at least 30 days for public comment on the emer25 gency rule.
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1 (d) ACTIVITIES PRIOR TO COMPLETION OF CON2 SULTATION.—Section 7(d) (16 U.S.C. 1536(d)) is amend3 ed to read as follows:

4 ‘‘(d) LIMITATION ON COMMITMENT OF RE5 SOURCES.—

6 ‘‘(1) IN GENERAL.—Except as provided in para7 graph (2), after initiation of consultation required

8 under subsection (a)(2), the Federal agency and the

9 permit or license applicant shall not make any irre10 versible or irretrievable commitment of resources

11 with respect to the agency action which has the ef12 fect of foreclosing the formulation or implementation

13 of any reasonable and prudent alternative measures

14 which would not violate subsection (a)(2).

15 ‘‘(2) RELATIONSHIP TO LAND MANAGEMENT

16 PLANNING REQUIREMENTS.—If the listing of a spe17 cies, or other procedure or decision related to a spe18 cies listed under section 4(c)(1), requires consulta19 tion under subsection (a)(2) on a land use plan or

20 land or resource management plan (or an amend21 ment to or revision of the plan) prepared under sec22 tion 202 of the Federal Land Policy and Manage23 ment Act of 1976 (43 U.S.C. 1712) or section 6 of

24 the Forest and Rangeland Renewable Resources

25 Planning Act of 1974 (16 U.S.C. 1604), the land
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1 management agency implementing the plan may au2 thorize, fund, or carry out an agency action that is

3 consistent with the plan prior to the completion of

4 the consultation, if, under the procedures established

5 by this section, the head of the land management

6 agency responsible for the action determines or has

7 determined that the action—

8 ‘‘(A) is not likely to significantly and ad9 versely affect the species; or

10 ‘‘(B) is likely to significantly and adversely

11 affect the species, and the Secretary issues an

12 opinion on the action that finds that the ac13 tion—

14 ‘‘(i) is not likely to jeopardize the con15 tinued existence of the species; or

16 ‘‘(ii) is likely to jeopardize the contin17 ued existence of the species, and the agen18 cy agrees to a reasonable and prudent al19 ternative.’’.

20 (e) DEFINITIONS.—Section 3 (16 U.S.C. 1532) is

21 amended—

22 (1) by adding after paragraph (15) (as added

23 by section 204(a) of this Act) the following new

24 paragraph:
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1 ‘‘(16) The term ‘likely to jeopardize the contin2 ued existence of ’, with respect to an action or activ3 ity affecting an endangered species or a threatened

4 species, means an action or activity that significantly

5 diminishes the likelihood of the survival of the spe6 cies by significantly reducing the numbers or dis7 tribution of the entire species.’’;

8 (2) by amending paragraph (18) (as redesig9 nated by section 102(a)(1) of this Act) to read as

10 follows:

11 ‘‘(18) The term ‘permit or license applicant’

12 means, with respect to the consultation procedures

13 established by section 7, any person that requires

14 authorization or funding from a Federal agency as

15 a 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

20 activity.’’; 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 exist15 ence of the species.’’.

16 SEC. 402. EXEMPTIONS FROM CONSULTATION AND CON17 FERENCING.

18 Section 7(a), as amended by section 401(a) of this

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

20 paragraphs:

21 ‘‘(6) ACTIONS EXEMPT FROM CONSULTATION

22 AND CONFERENCING.—Consultation and conferenc23 ing under paragraphs (2) and (4) shall not be re24 quired for any agency action that—
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1 ‘‘(A) is consistent with the provisions of a

2 final conservation plan under section 5(c)(5) or

3 a conservation objective described in section

4 5(b)(3);

5 ‘‘(B) is consistent with a cooperative man6 agement agreement or an incidental taking per7 mit;

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

9 to public health or safety or a catastrophic nat10 ural event or compliance with Federal, State, or

11 local safety or public health requirements;

12 ‘‘(D) consists of routine operation, mainte13 nance, rehabilitation, repair, or replacement to

14 a Federal or non-Federal project or facility, in15 cluding operation of a project or facility in ac16 cordance with a previously issued Federal li17 cense, permit, or other authorization; or

18 ‘‘(E) permits activities that occur on pri19 vate land.

20 ‘‘(7) ACTIONS NOT PROHIBITED.—An agency

21 action shall not constitute a taking of a species pro22 hibited by this Act or any regulation issued under

23 this Act if the action is consistent with—

24 ‘‘(A) the actions provided for in a final

25 conservation plan under section 5(c)(5) or a
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1 conservation objective described in section

2 5(b)(3); or

3 ‘‘(B) a cooperative management agreement

4 or an incidental take permit.’’.

5 SEC. 403. ELIMINATING THE EXEMPTION COMMITTEE (GOD

6 COMMITTEE).

7 (a) CONFORMING AMENDMENTS.—Section 7(c) (16

8 U.S.C. 1536(c)) is amended—

9 (1) in the first full sentence by striking ‘‘(1) To

10 facilitate’’ and inserting ‘‘To facilitate’’; and

11 (2) by striking paragraph (2).

12 (b) PRESIDENTIAL EXEMPTIONS.—Section 7(e) (16

13 U.S.C. 1536(e)) is amended to read as follows:

14 ‘‘(e) EXEMPTIONS.—Notwithstanding any other pro15 vision of this Act—

16 ‘‘(1) the Secretary shall grant an exemption

17 from this Act for any activity if the Secretary of De18 fense determines that the exemption of the activity

19 is necessary for reasons of national security; and

20 ‘‘(2) the President may grant an exemption

21 from this Act for any area that the President has

22 declared to be a major disaster area under The Rob23 ert T. Stafford Disaster Relief and Emergency As24 sistance Act (42 U.S.C. 5121 et seq.) for any project

25 for the repair or replacement of a public facility sub-
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1 stantially as the facility existed prior to the disaster

2 under section 405 or 406 of that Act (42 U.S.C.

3 5171 and 5172), if the President determines that

4 the project—

5 ‘‘(A) is necessary to prevent the recurrence

6 of such a natural disaster and to reduce the po7 tential loss of human life; and

8 ‘‘(B) involves an emergency situation that

9 does not allow the procedures of this Act (other

10 than this subsection) to apply.’’.

11 (c) REPEAL.—Subsections (f) through (p) of section

12 7 (16 U.S.C. 1536(f)–(p)) are repealed.

13 TITLE V—BETTER MANAGEMENT

14 AND CONSERVATION OF LIST15 ED SPECIES

16 SEC. 501. SETTING CONSERVATION OBJECTIVES.

17 Section 5 (16 U.S.C. 1534) is redesignated as section

18 5A, and the following new section is added after section

19 4:

20 ‘‘SEC. 5. SPECIES CONSERVATION PLANS.

21 ‘‘(a) IN GENERAL.—Except as provided in subsection

22 (b)(3)(C), the Secretary shall publish a conservation objec23 tive and a conservation plan for each species determined

24 to be an endangered species or a threatened species pursu25 ant to section 4.
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1 ‘‘(b) DEVELOPMENT OF CONSERVATION OBJEC2 TIVE.—

3 ‘‘(1) ASSESSMENT AND PLANNING TEAM.—Not

4 later than 30 days after the listing determination,

5 the Secretary shall appoint an assessment and plan6 ning team which shall not be subject to the Federal

7 Advisory Committee Act (5 U.S.C. App.) and shall

8 consist of—

9 ‘‘(A) experts in biology or pertinent sci10 entific fields, economics, property law and regu11 lation, and other appropriate disciplines from

12 the Department of the Secretary, other Federal

13 agencies, and the private sector;

14 ‘‘(B) a representative nominated by the

15 Governor of each affected State;

16 ‘‘(C) representatives nominated by each af17 fected local government, if the local government

18 agrees to the appointment of a representative;

19 and

20 ‘‘(D) representatives of persons who may

21 be directly, economically impacted by the con22 servation plan.

23 ‘‘(2) ASSESSMENTS.—Not later than 180 days

24 after the listing determination, the assessment and

25 planning team shall report to the Secretary the as-
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1 sessment of the following biological, economic, and

2 intergovernmental factors with respect to the listed

3 species:

4 ‘‘(A) The team shall assess—

5 ‘‘(i) the biological considerations nec6 essary to carry out this Act;

7 ‘‘(ii) the biological significance of the

8 species;

9 ‘‘(iii) the geographic range and occu10 pied habitat of the species, and the type

11 and amounts of habitat needed, at a mini12 mum, to maintain the existence of the spe13 cies and, at a maximum, to secure recovery

14 of the species;

15 ‘‘(iv) the current population, and the

16 population trend, of the species;

17 ‘‘(v) the technical practicality of re18 covering the species;

19 ‘‘(vi) the potential management meas20 ures capable of recovering, or reducing the

21 risks to survival of, the species, including

22 the contribution of existing or potential

23 captive breeding programs for the species,

24 predator control, enhancement of food

25 sources, supplemental feeding, and other
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1 methods which enhance the survival of the

2 young of the species; and

3 ‘‘(vii) where appropriate, the demon4 strable commercial or medicinal value of

5 the species.

6 ‘‘(B) The team shall assess the direct, indi7 rect, and cumulative economic and social im8 pacts on the public and private sectors, includ9 ing local governments, that may result from the

10 listing determination and any potential manage11 ment measures identified under subparagraph

12 (A)(vi), including impacts on the cost of govern13 mental actions, tax and other revenues, employ14 ment, the use and value of property, other so15 cial, cultural, and community values, and an as16 sessment of any commercial activity which

17 could potentially result in a net benefit to the

18 conservation of the species.

19 ‘‘(C) The team shall assess the impacts on

20 State and local land use laws, conservation

21 measures, and water allocation policies that

22 may result from the listing determination and

23 from the potential management measures iden24 tified under subparagraph (A)(vi).
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1 ‘‘(3) SECRETARIAL REVIEW OF ASSESSMENTS

2 AND ESTABLISHMENT OF CONSERVATION OBJEC3 TIVE.—(A) Not later than 210 days after a listing

4 determination, the Secretary shall review the report

5 of the assessment and planning team prepared pur6 suant to paragraph (2), establish a conservation ob7 jective for the species, and publish in the Federal

8 Register the conservation objective, along with a

9 statement of findings on which the conservation ob10 jective was established.

11 ‘‘(B) The conservation objective may be, in the

12 discretion of the Secretary—

13 ‘‘(i) recovery of the listed species;

14 ‘‘(ii) such level of conservation of the spe15 cies which the Secretary determines practicable

16 and reasonable to the extent that the benefits

17 of the potential conservation measures outweigh

18 the economic and social costs of such measures,

19 including but not limited to maintenance of ex20 isting population levels;

21 ‘‘(iii) no Federal action other than enforce22 ment against any person whose activity violates

23 the prohibitions specified in section 9(a), in24 cluding any activity that results in a taking of

25 the species, unless the taking is incidental to,
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1 and not the purpose of, the carrying out of an

2 otherwise lawful activity; or

3 ‘‘(iv) such other objective as the Secretary

4 may determine that does not provide a lesser

5 level of protection than the level described in

6 clause (iii).

7 ‘‘(C) If the conservation objective established by

8 the Secretary is the objective provided in subpara9 graph (B)(iii), the Secretary shall not develop a con10 servation plan for the affected species under sub11 section (c).’’.

12 SEC. 502. PREPARING A CONSERVATION PLAN.

13 (a) IN GENERAL.—Section 5 (16 U.S.C. 1534), as

14 added by section 501 of this Act, is amended by adding

15 at the end the following new subsections:

16 ‘‘(c) DEVELOPMENT OF CONSERVATION PLAN.—

17 ‘‘(1) PRIORITIES.—In the development and im18 plementation of a conservation plan under this sub19 section, the Secretary shall accord priority to—

20 ‘‘(A) the development of an integrated plan

21 for 2 or more endangered species or threatened

22 species that are likely to benefit from an inte23 grated conservation plan;

24 ‘‘(B) the geographic areas where conflicts

25 between the conservation of the affected species
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1 and development projects or other forms of eco2 nomic activity exist or are likely to exist;

3 ‘‘(C) protection of the listed species on

4 units of the National Biological Diversity Re5 serve as provided in section 5A(a);

6 ‘‘(D) the implementation of conservation

7 measures that have the least economic and so8 cial costs;

9 ‘‘(E) nonregulatory, incentive-based con10 servation measures and commercial activities

11 that provide a net benefit to the conservation of

12 the species; and

13 ‘‘(F) plans in which States or private orga14 nizations or persons are the primary

15 implementors.

16 ‘‘(2) PUBLICATION OF DRAFT PLAN.—Not later

17 than 12 months after the date of a determination

18 that a species is an endangered species or a threat19 ened species, the assessment and planning team for

20 the species shall publish a draft conservation plan

21 for the species which is based on the assessments

22 made pursuant to subsection (b)(2) and designed to

23 achieve the conservation objective established pursu24 ant to subsection (b)(3).
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1 ‘‘(3) CONTENTS OF DRAFT PLAN.—Each draft

2 conservation plan shall contain—

3 ‘‘(A) recommendations for Federal agency

4 compliance with section 7(a)(1) and 7(a)(2);

5 ‘‘(B) recommendations for avoiding a tak6 ing of a listed species prohibited under section

7 9(a)(1) and a list of specific activities that

8 would constitute a take under section 9;

9 ‘‘(C) alternative strategies to achieve the

10 conservation objective for the listed species

11 which range from a strategy requiring the least

12 possible Federal management to achieve the

13 conservation objective to a strategy involving

14 more intensive Federal management to achieve

15 the objective, each of which contains—

16 ‘‘(i) an estimate of the risks to the

17 survival and recovery of the species that

18 the alternative would entail;

19 ‘‘(ii) a description of any site-specific

20 management measures recommended for

21 the alternative;

22 ‘‘(iii) an analysis of the relationship of

23 any habitat of the species proposed for

24 designation as critical habitat to the rec25 ommended management measures;
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1 ‘‘(iv) a description of the direct, indi2 rect, and cumulative economic and social

3 impacts on the public and private sectors

4 including impacts on employment, the cost

5 of government actions, tax and other reve6 nues, the use and value of property, and

7 other social, cultural, and community val8 ues;

9 ‘‘(v) a description of any captive

10 breeding program recommended for the al11 ternative;

12 ‘‘(vi) an analysis of whether the alter13 native would include any release of an ex14 perimental population outside the current

15 range of the species and an identification

16 of candidate geographic areas for the re17 lease;

18 ‘‘(vii) objective and measurable cri19 teria, including a population level target,

20 that, if met, would result in a determina21 tion under section 4 that the species is no

22 longer an endangered species or threatened

23 species;

24 ‘‘(viii) estimates of the time and costs

25 required to carry out the management
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1 measures, including any intermediate

2 steps; and

3 ‘‘(ix) a description of the role of each

4 affected State, if any, in achieving the con5 servation objective.

6 ‘‘(4) PLAN PREPARATION PROCEDURES.—(A)

7 The Secretary shall consult with the Governor of

8 each State in which the affected species is located

9 during the preparation of each draft and final con10 servation plan. Each plan shall provide for equitable

11 treatment of affected States and other non-Federal

12 persons.

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

14 Register and a newspaper of general circulation in

15 each affected county and parish a notice of the avail16 ability and a summary of, and a request for the sub17 mission of comments on, each draft conservation

18 plan.

19 ‘‘(C) The Secretary shall hold at least 1 hearing

20 on each draft conservation plan in each State to

21 which the plan would apply in a location that is as

22 close as possible to the center of the habitat of the

23 affected species in such State.

24 ‘‘(D) Prior to any decision to adopt a final con25 servation plan, the Secretary shall consider and
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1 weigh carefully all information presented during

2 each hearing held under subparagraph (C) or re3 ceived in response to a request for comments pub4 lished under subparagraph (B).

5 ‘‘(5) PUBLICATION OF FINAL PLAN.—Not later

6 than 18 months from the date of a determination

7 that a species is an endangered species or a threat8 ened species, the Secretary shall publish in the Fed9 eral Register a notice of the availability, and a sum10 mary, of a final conservation plan for the species.

11 The notice shall include a detailed description of—

12 ‘‘(A) the reasons for the selection of the

13 final conservation plan;

14 ‘‘(B) the reasons for not selecting each of

15 the other alternatives included in the draft con16 servation plan, including, if any alternative is

17 selected other than the alternative that would

18 impose the least total costs on the public and

19 private sectors, the reasons for such selection;

20 ‘‘(C) the effect of the priorities specified in

21 paragraph (1) on the selection; and

22 ‘‘(D) the response of the Secretary to the

23 information referred to in paragraph (4).

24 ‘‘(6) PARTICIPATION BY OTHER PERSONS.—In

25 developing and implementing conservation plans, the
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1 Secretary may use the services of appropriate public

2 and private agencies and institutions and other

3 qualified persons.

4 ‘‘(7) PLAN REVISION OR AMENDMENT.—Any re5 vision of or amendment to a conservation plan shall

6 be made in accordance with the procedures and re7 quirements of subsection (b) and this subsection, ex8 cept that the Secretary by regulation may provide

9 for other procedures and requirements for any

10 amendment that does not increase the direct or indi11 rect cost of implementation of the plan or enlarge

12 the area to which the plan applies.

13 ‘‘(d) NO FURTHER PROCEDURES OR REQUIREMENTS

14 FOR ACTIONS CONSISTENT WITH THE CONSERVATION

15 PLAN.—If a conservation plan is prepared under sub16 section (c) or if a conservation objective is established

17 under subsection (b)(3)(C)—

18 ‘‘(1) any Federal agency that determines that

19 the actions of the agency are consistent with the

20 provisions of the conservation plan or conservation

21 objective shall be considered to comply with section

22 7(a)(1) for the affected species;

23 ‘‘(2) any agency action that the Federal agency

24 determines is consistent with the provisions of the

25 conservation plan or conservation objective shall not
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1 be subject to section 7(a)(2) for the affected species,

2 except that a Federal agency may initiate consulta3 tion under section 7(a)(2) if the agency desires guid4 ance from the Secretary on the consistency of the

5 action of the agency with the conservation plan or

6 conservation objective; and

7 ‘‘(3) any action of any person that is consistent

8 with the provisions of the conservation plan or con9 servation objective shall not constitute a violation

10 concerning the affected species of any applicable

11 prohibition under section 9(a), except that a non12 Federal person may initiate consultation under sec13 tion 10(a)(2)—

14 ‘‘(A) if the person desires guidance from

15 the Secretary on the consistency of the action

16 with the plan or objective; or

17 ‘‘(B) in order to determine whether to

18 apply for a permit under section 10 for any ac19 tion that is inconsistent with the plan or objec20 tive.’’.

21 (b) CONSERVATION OBJECTIVE AND CONSERVATION

22 RULE DEFINED.—Section 3(4) (16 U.S.C. 1532), as re23 designated by section 102(a) of this Act, is amended to

24 read as follows:
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1 ‘‘(4) The terms ‘conservation objective’ and

2 ‘conservation plan’ (except when modified by ‘non3 Federal’) mean a conservation objective and a con4 servation plan, respectively, developed under section

5 5.’’.

6 SEC. 503. INTERIM MEASURES.

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

8 of this Act and as amended by section 502 of this Act,

9 is amended by adding at the end the following new sub10 sections:

11 ‘‘(e) MANAGEMENT PRIOR TO PUBLICATION OF CON12 SERVATION PLAN.—

13 ‘‘(1) IN GENERAL.—After a listing determina14 tion and before the publication of a final conserva15 tion plan, or, if no plan is required pursuant to sub16 section (b)(3)(C), a conservation objective, for the

17 species—

18 ‘‘(A) the prohibitions of section 9(a) shall

19 apply to any person, except in the case of a tak20 ing of a member of the species that is incidental

21 to, and not the purpose of, the carrying out of

22 an otherwise lawful activity which incidental

23 taking activity may include but is not limited to

24 the routine operation, maintenance, rehabilita25 tion, replacement, or repair of any structure,
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1 building, road, dam, airport, or any irrigation

2 or other facility which is in operation prior to

3 the publication of the determination under sec4 tion 4(b)(6); and

5 ‘‘(B) no Federal agency shall be required

6 to comply with section 7(a)(1) and no consulta7 tion shall be required on any agency action

8 under section 7(a)(2).

9 ‘‘(2) EMERGENCY RULEMAKING PROTEC10 TIONS.—Notwithstanding paragraph (1), sections

11 7(a) and 9(a) shall apply fully to the listed species

12 during a period in which an emergency rulemaking

13 is in effect pursuant to section 4(b)(7) or if the

14 President declares, and advises the Secretary, that

15 there exists an imminent threat to the existence of

16 the species. Such declaration of the President ex17 pires upon the deadline for publication of a final

18 conservation plan for the species pursuant to sub19 section (c)(5) or the publication of a conservation

20 objective for the species provided in subsection

21 (b)(3) or if no conservation plan is required pursu22 ant to subsection (b)(3)(C).

23 ‘‘(f) SUSPENSION OF CONSERVATION PLAN OR OB24 JECTIVE.—If the Secretary issues an incidental take per25 mit or enters into a cooperative management agreement
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1 under section 6, the Secretary, by publication of notice

2 in the Federal Register, shall suspend the conservation ob3 jective or conservation plan with respect to the geographic

4 area or action applicable to the species to which the permit

5 or agreement applies.

6 ‘‘(g) NONDELEGATION OF DUTIES.—The Secretary

7 may not delegate the authority to make the final decision

8 to select a conservation objective, issue a conservation

9 plan, or designate critical habitat under this section.

10 ‘‘(h) REVIEW OF CONSERVATION PLANS.—

11 ‘‘(1) DEADLINES.—The Secretary shall review

12 each conservation plan and the conservation objec13 tive on which it is based before the end of the 5-year

14 period that begins on the date of publication of the

15 conservation plan, and before the end of each 5-

16 year period thereafter.

17 ‘‘(2) REVISIONS.—The Secretary shall revise a

18 conservation plan or the conservation objective on

19 which it is based if the Secretary determines—

20 ‘‘(A) through a 5-year review under para21 graph (1), that the conservation plan or con22 servation objective does not meet the require23 ments of this section; or

24 ‘‘(B) at any time—
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1 ‘‘(i) that funding is not available for

2 the implementation of a specific conserva3 tion measure that is integral to the con4 servation plan or that a more cost-effective

5 alternative exists for a specific conserva6 tion measure that is integral to the con7 servation plan; or

8 ‘‘(ii) on the basis of scientific or com9 mercial data that were not available during

10 the development of the conservation objec11 tive or conservation plan, that the con12 servation objective is not achievable or the

13 conservation plan will not achieve the con14 servation objective.

15 ‘‘(3) NO REOPENING OF CONSULTATIONS.—

16 Section 7 consultations shall not be reopened as a

17 result of modifications to a conservation plan under

18 paragraph (2).’’.

19 SEC. 504. CRITICAL HABITAT FOR SPECIES.

20 (a) CRITICAL HABITAT DESIGNATION.—Section 5, as

21 added by section 501 of this Act and as amended by sec22 tions 502 and 503 of this Act, is amended by adding at

23 the end the following new subsections:

24 ‘‘(i) CRITICAL HABITAT DESIGNATION.—
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1 ‘‘(1) DESIGNATION.—The Secretary may, by

2 regulation and to the extent prudent and determina3 ble—

4 ‘‘(A) designate critical habitat of a species

5 determined to be an endangered species or

6 threatened species that meets the requirements

7 of paragraph (3) utilizing the National

8 Biodiversity Reserve established under section

9 5A(a) as a first priority; and

10 ‘‘(B) revise a critical habitat designation

11 on determining that the critical habitat does

12 not meet the requirements of paragraph (3).

13 Designation of critical habitat shall not result in re14 opening or reinitiation of consultations on Federal

15 actions pursuant to section 7.

16 ‘‘(2) DEADLINES FOR DESIGNATION.—Any pro17 posed regulation and any final regulation to des18 ignate critical habitat shall be published not later

19 than 12 months and 18 months, respectively, after

20 the date on which the affected species is determined

21 to be an endangered species or a threatened species.

22 ‘‘(3) BASIS FOR DESIGNATION.—The designa23 tion of critical habitat, and any revision of the des24 ignation, shall be made on the basis of the best

25 available scientific and commercial data after taking
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1 into consideration the economic impact, and any

2 other relevant impact, of designating any particular

3 area as critical habitat and of the determination that

4 the affected species is an endangered species or

5 threatened species. The Secretary shall exclude any

6 area from critical habitat—

7 ‘‘(A) which does not meet the definition of

8 critical habitat set forth in section 3(7);

9 ‘‘(B) which is not necessary to achieve the

10 conservation objective for the affected species

11 established pursuant to subsection (b);

12 ‘‘(C) for which the Secretary determines

13 that the benefits of the exclusion of the area

14 from designation as critical habitat outweigh

15 the benefits of designation, unless the Secretary

16 determines, on the basis of the best available

17 scientific and commercial data, that the failure

18 to designate the area as critical habitat will re19 sult in the extinction of the affected species; or

20 ‘‘(D) in the case of property owned by a

21 non-Federal person, where the owner thereof

22 has not given written consent to the designation

23 or has not been compensated as provided in sec24 tion 19.
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1 ‘‘(4) PROCEDURE FOR DESIGNATION.—In the

2 Federal Register notice containing the proposed reg3 ulation to designate critical habitat, the Secretary

4 shall describe the economic impacts and other rel5 evant impacts that are to be considered, and the

6 benefits that are to be weighed, under paragraph (3)

7 in designating an area as critical habitat, along with

8 maps showing the location of the area to be des9 ignated as critical habitat. The Secretary shall sub10 mit the description, and the documentation support11 ing the description, to the Bureau of Labor Statis12 tics of the Department of Labor. The Commissioner

13 of Labor Statistics shall submit written comments

14 during the comment period on the proposed regula15 tion. The Secretary shall hold at least one public

16 hearing in each State on the proposed rule in which

17 critical habitat is designated for a species. In issuing

18 any final regulation designating critical habitat, the

19 Secretary shall respond separately and fully to each

20 comment.

21 ‘‘(5) JUDICIAL REVIEW OF CRITICAL HABITAT

22 DESIGNATION.—The decision whether to designate

23 critical habitat shall be subject to a de novo judicial

24 review with the court determining whether the deci-
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1 sion is supported by a preponderance of the evi2 dence.

3 ‘‘(j) JUDICIAL REVIEW OF CONSERVATION OBJEC4 TIVE OR PLAN.—The standard for judicial review of any

5 decision of the Secretary, or a Federal agency pursuant

6 to this section shall be whether the decision is arbitrary,

7 capricious, an abuse of discretion, or otherwise not in ac8 cordance with law.

9 ‘‘(k) CONSERVATION PLANS FOR FOREIGN SPE10 CIES.—In developing conservation objectives and con11 servation plans under this section, the Secretary shall, in

12 regard to foreign species—

13 ‘‘(1) act consistently with the Convention; and

14 ‘‘(2) cooperate and support the conservation

15 strategy adopted for that species by any foreign na16 tion in which the species occurs.’’.

17 (b) CONFORMING AMENDMENTS.—Section 4(b)(6)

18 (16 U.S.C. 1533(b)(6)) is amended—

19 (1) in subparagraph (B)(i) by striking ‘‘or revi20 sion concerned’’;

21 (2) in subparagraph (B)(iii) by striking ‘‘or re22 vision concerned, a finding that the revision should

23 not be made,’’; and

24 (3) by striking subparagraph (C).
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1 (c) CONFORMING AMENDMENT.—Section 4(b)(8) (16

2 U.S.C. 1533(b)(8)) is amended by striking ‘‘regulation’’

3 the third time it appears and all that follows through the

4 end of the paragraph and inserting ‘‘regulation.’’.

5 (d) DEFINITION OF CRITICAL HABITAT.—Section

6 3(7), as redesignated by section 102(a) of this Act, is

7 amended to read as follows:

8 ‘‘(7)(A) The term ‘critical habitat’ for an en9 dangered species or a threatened species means the

10 specific areas which are within the geographic area

11 found to be occupied by a species at the time the

12 species is determined to be an endangered species or

13 a threatened species in accordance with section 4

14 and which contain such physical or biological fea15 tures as—

16 ‘‘(i) are essential to the persistence of the

17 species over the 50-year period beginning on the

18 date the regulation designating the critical

19 habitat, or any revision of the regulation, is

20 promulgated; and

21 ‘‘(ii) require special management consider22 ations or protection.

23 ‘‘(B) Except in those circumstances determined

24 by the Secretary, critical habitat shall not include
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1 the entire geographical area occupied by the threat2 ened species or endangered species.’’.

3 SEC. 505. RECOGNITION OF CAPTIVE PROPAGATION AS

4 MEANS OF RECOVERY.

5 Section 5, as added by section 501 of this Act and

6 as amended by sections 502, 503, and 504 of this Act,

7 is amended by adding at the end the following new sub8 section:

9 ‘‘(l) RECOGNITION OF CAPTIVE PROPAGATION AS

10 MEANS OF CONSERVATION.—

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

12 the Secretary shall recognize to the maximum extent

13 practicable, and may utilize, captive propagation as

14 a means of protecting or conserving an endangered

15 species or a threatened species.

16 ‘‘(2) CAPTIVE PROPAGATION GRANTS.—The

17 Secretary may, subject to appropriations therefor,

18 provide annual grants to non-Federal persons to

19 fund captive propagation programs for the purpose

20 of protecting or conserving any species that is deter21 mined under section 4 to be an endangered species

22 or a threatened species, if the Secretary determines

23 that such a program contributes to enhancement of

24 the population of the species.’’.
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1 SEC. 506. INTRODUCTION OF SPECIES.

2 Section 10(j) (16 U.S.C. 1539(j)) is amended—

3 (1) by amending paragraph (2)(B) to read as

4 follows:

5 ‘‘(B) Before authorizing the release of any

6 population under subparagraph (A), the Sec7 retary shall by regulation identify the popu8 lation and the precise boundaries of the geo9 graphic area for the release and determine, on

10 the basis of the best available information,

11 whether the release is in the public interest,

12 whether or not such population is essential to

13 the continued existence of an endangered spe14 cies or a threatened species.’’;

15 (2) in paragraph (2)(C)—

16 (A) in clause (i) by striking ‘‘and’’ after

17 the semicolon; and

18 (B) by striking clause (ii) and inserting the

19 following:

20 ‘‘(ii) for the purposes of sections 4(d)

21 and 9(a)(1)(B), any member of an experi22 mental population found outside the geo23 graphic area in which the population is re24 leased shall not be treated as a threatened

25 species if the member poses a threat to the

26 welfare of the public; and
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1 ‘‘(iii) critical habitat shall not be des2 ignated under this Act for any experi3 mental population determined under sub4 paragraph (B) to be not essential to the

5 continued existence of a species.’’;

6 (3) by redesignating paragraph (3) as para7 graph (4); and

8 (4) by inserting after paragraph (2) the follow9 ing new paragraph:

10 ‘‘(3) REQUIREMENTS FOR RELEASES.—In au11 thorizing the release of a population under para12 graph (2), the Secretary shall require that—

13 ‘‘(A) to the maximum extent practicable,

14 the release occurs only in a unit of the National

15 Park System or the National Wildlife Refuge

16 System;

17 ‘‘(B) a release outside a unit occurs only in

18 an area that has been identified as a candidate

19 site for release of the population in a conserva20 tion plan for the species;

21 ‘‘(C) in the case of a release outside a unit,

22 measures to protect the safety and welfare of

23 the public and domestic animals and the fund24 ing for the measures are identified in the regu-
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1 lations authorizing the release and are imple2 mented;

3 ‘‘(D) the regulations authorizing the re4 lease identify precisely the geographic area for

5 the release;

6 ‘‘(E) a release on non-Federal land occurs

7 only with the written consent of the owner of

8 the land; and

9 ‘‘(F) the regulations authorizing the re10 lease include measurable reintroduction goals to

11 restore viable populations only within the spe12 cific geographic area identified for release in

13 the regulations.’’.

14 SEC. 507. CONSERVING THREATENED SPECIES.

15 (a) REGULATIONS.—Section 4(d) (16 U.S.C.

16 1533(d)) is amended to read as follows:

17 ‘‘(d) REGULATIONS TO PROTECT THREATENED SPE18 CIES.—Whenever any species is listed as a threatened spe19 cies pursuant to subsection (c), the Secretary shall issue,

20 concurrently with the regulation that provides for the list21 ing of the species, such regulations as the Secretary deems

22 necessary and advisable to provide for the conservation of

23 such species. Such regulations may apply to the threat24 ened species one or more of the prohibitions under section

25 9(a)(1), in the case of fish and wildlife, or section 9(a)(2)
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1 in the case of plants, with respect to endangered species.

2 The prohibition applied to the threatened species shall ad3 dress the specific circumstances of such species and may

4 not be as restrictive as such prohibition for endangered

5 species. With respect to the taking of resident species of

6 fish or wildlife, such regulations shall apply in any State

7 which has entered into a cooperative agreement pursuant

8 to section 6(c) only to the extent that such regulations

9 have also been adopted by such State.’’.

10 (b) CONFORMING AMENDMENTS.—Section 4 (16

11 U.S.C. 1533) is amended—

12 (1) by striking subsection (f); and

13 (2) by redesignating subsections (g), (h), and

14 (i) in order as subsections (f), (g), and (h).

15 (c) CONSERVATION GUIDELINES.—Section 4 is

16 amended in subsection (g), as redesignated by subsection

17 (b)(2) of this section, by amending paragraph (3), as re18 designated by section 304(b)(2) of this Act, to read as

19 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 TITLE VI—HABITAT

4 PROTECTIONS

5 SEC. 601. FEDERAL BIOLOGICAL DIVERSITY RESERVE.

6 Section 5A, as redesignated by section 501 of this

7 Act, is amended to read as follows:

8 ‘‘SEC. 5A. PROTECTION OF HABITAT.

9 ‘‘(a) ESTABLISHMENT OF NATIONAL BIOLOGICAL

10 DIVERSITY RESERVE.—

11 ‘‘(1) IN GENERAL.—There is hereby established

12 a National Biological Diversity Reserve (hereinafter

13 in this Act referred to as the ‘Reserve’). The Reserve

14 shall be composed of units of Federal and State

15 lands designated in accordance with paragraph (2)

16 and managed in accordance with paragraph (3).

17 ‘‘(2) DESIGNATION OF RESERVE UNITS.—(A)

18 Not later than 18 months after the date of enact19 ment of the Endangered Species Conservation and

20 Management Act of 1995, the Secretary of the Inte21 rior and the Secretary of Agriculture shall designate

22 to the Reserve by regulation those units of the na23 tional conservation systems which are within the ju24 risdiction of the Secretary concerned and which the

25 Secretary determines would contribute to the protec-
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1 tion, maintenance, and enhancement of biological di2 versity in accordance with the provisions of this Act.

3 The term ‘national conservation systems’ means

4 wholly federally owned lands within the National

5 Park System, the National Wildlife Refuge System,

6 or the National Wilderness Preservation System,

7 and wild segments of rivers within the National Wild

8 and Scenic Rivers System.

9 ‘‘(B) The Secretary of the Interior shall—

10 ‘‘(i) designate to the Reserve by regulation

11 a unit of State-owned lands if such unit is nom12 inated for designation by the Governor of the

13 State and is managed under State law in ac14 cordance with paragraph (3);

15 ‘‘(ii) designate to the Reserve by regulation

16 privately owned land that is nominated for des17 ignation by the owner of the land, and shall re18 move such land from the Reserve if the owner

19 requests removal;

20 ‘‘(iii) remove from the Reserve by regula21 tion any unit designated pursuant to clause (i)

22 which the Secretary finds is not managed under

23 State law in accordance with paragraph (3);

24 and
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1 ‘‘(iv) remove from the Reserve any State2 owned lands at the request of the Governor of

3 that State.

4 ‘‘(C) Designation of a Reserve unit shall not af5 fect any valid existing permit, right, right-of-way,

6 access, interest in land, right to use or receive water,

7 or property right.

8 ‘‘(3) MANAGEMENT OF THE RESERVE.—(A)

9 Each unit of the Reserve shall have as an objective

10 for the management thereof the preservation, main11 tenance, and enhancement of biological diversity.

12 Such objective shall be supplementary to any other

13 objective established for such unit by or pursuant to

14 any provision of law applicable to such unit. Each

15 such unit shall be managed in accordance with such

16 objective to the extent that such objective is not in17 consistent with the purpose for which the unit was

18 established, other provisions of law applicable to

19 such unit, and the activities which occur on such

20 unit.

21 ‘‘(B) The manager of each Reserve unit should

22 consistent with paragraph (4) utilize his authority to

23 use active management and recovery measures, in24 cluding those specified in section 5(b)(2)(A)(vi), and
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1 shall conduct a survey to determine the populations

2 of species within the Reserve.

3 ‘‘(C) Nothing in this Act shall—

4 ‘‘(i) alter, establish, or affect the respective

5 rights of the United States, the States, or any

6 person with respect to any water or water-relat7 ed right; or

8 ‘‘(ii) affect the laws, rules, and regulations

9 pertaining to hunting, fishing, and other lawful

10 wildlife harvest under existing State and Fed11 eral laws and Indian treaties.

12 ‘‘(D) Within 1 year of the designation of a unit

13 to the Reserve, the manager of such unit shall com14 plete, and the Secretary concerned shall make avail15 able to the public by notice in the Federal Register,

16 an inventory of the species composing the biological

17 diversity within such unit.

18 ‘‘(4) OTHER FEDERAL LANDS.—Nothing in this

19 Act shall be construed as limiting the authority of

20 the Secretary of the Interior or the Secretary of Ag21 riculture to take such actions as are necessary and

22 authorized by other law to protect, maintain, and

23 enhance biological diversity on other Federal lands

24 not designated to the Reserve except that, before

25 taking any such action, the Secretary concerned
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1 shall make a finding based on the best available sci2 entific and commercial data, that the biological di3 versity for which such action is proposed is not pro4 tected, maintained, or enhanced in whole or substan5 tial part on any unit of the Reserve. Such finding

6 shall be published, along with the reasons therefor in

7 the Federal Register.’’.

8 SEC. 602. LAND ACQUISITION.

9 Section 5A, as redesignated by section 501 of this

10 Act and as amended by section 601 of this Act, is amend11 ed by adding at the end the following new subsection:

12 ‘‘(b) LAND ACQUISITION.—

13 ‘‘(1) PROGRAM.—The Secretary, and the Sec14 retary of Agriculture with respect to the National

15 Forest System, shall establish and implement a pro16 gram to conserve fish, wildlife, and plants, including

17 those which are determined to be endangered species

18 or threatened species pursuant to section 4. To

19 carry out such a program, the appropriate Sec20 retary—

21 ‘‘(A) shall utilize the land acquisition and

22 other authority under the Fish and Wildlife Act

23 of 1956 (16 U.S.C. 742a et seq.), the Fish and

24 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

7 shall be in addition to any other land acquisi8 tion authority vested in that Secretary.

9 ‘‘(2) AVAILABILITY OF FUNDS FOR ACQUISI10 TION OF LANDS, WATER, ETC.—Funds made avail11 able pursuant to the Land and Water Conservation

12 Fund Act of 1965 (16 U.S.C. 4601–4 et seq.) may

13 be used for the purpose of acquiring or leasing

14 lands, waters, or interests therein under subsection

15 (a) of this section.’’.

16 SEC. 603. PROPERTY EXCHANGES.

17 Section 5A, as redesignated by section 501 of this

18 Act and as amended by sections 601 and 602 of this Act,

19 is 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

24 Secretary of Agriculture shall encourage exchanges

25 of lands, waters, or interests in land or water within
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1 the jurisdiction of each Secretary (other than units

2 of the National Park System and units of the Na3 tional Wilderness Preservation System) for lands,

4 waters, or interests in land or water that are not in

5 Federal ownership 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.

11 ‘‘(3) ENVIRONMENTAL ASSESSMENT.—An envi12 ronmental assessment shall be the only document

13 under section 102(2) of the National Environmental

14 Policy Act of 1976 (16 U.S.C. 4332(2)) that shall

15 be prepared with respect to any exchange under this

16 subsection.

17 ‘‘(4) EXPEDITIOUS EXCHANGE DECISIONS.—An

18 exchange under this subsection shall be processed as

19 expeditiously as practicable. The Secretary of the In20 terior or the Secretary of Agriculture shall periodi21 cally provide information to the non-Federal land22 owner on the status of the exchange.

23 ‘‘(5) APPLICABLE LAW.—The Secretary of the

24 Interior and the Secretary of Agriculture shall proc25 ess exchanges under this subsection in accordance
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1 with applicable laws that are consistent with this

2 subsection.

3 ‘‘(d) VALUATION.—Any land, water, or interest in

4 land or water to be acquired by the Secretary or the Sec5 retary of Agriculture by purchase, exchange, donation, or

6 otherwise under this section shall be valued as if the land,

7 water, or interest in land or water were not subject to any

8 restriction on use under this Act imposed after the date

9 of acquisition by the current owner of the land, water, or

10 interest in land or water.

11 ‘‘(e) ll.—For any land or water acquired by the

12 Secretary or the Secretary of Agriculture by purchase, ex13 change, lease, donation or otherwise under this section,

14 the Secretary or Secretary of Agriculture shall ensure that

15 such purchase, exchange, lease, donation, or other transfer

16 shall not supersede, abrogate, or otherwise impair existing

17 easements, rights-of-way, fencing, water sources, water de18 livery lines or ditches, and current uses of adjacent land.’’.

19 TITLE VII—STATE AUTHORITY

20 TO PROTECT ENDANGERED

21 AND THREATENED SPECIES

22 SEC. 701. STATE AUTHORITY.

23 (a) IN GENERAL.—Section 6 (16 U.S.C. 1535) is

24 amended by striking subsection (c) and all that follows

25 through subsection (f) and inserting the following:
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1 ‘‘(c) STATE AUTHORITY TO PROTECT ENDANGERED

2 AND THREATENED SPECIES.—

3 ‘‘(1) DELEGATION OF AUTHORITY.—In further4 ance of the purposes of this Act, the Secretary may

5 delegate to a State which establishes and maintains

6 an adequate program for the conservation of endan7 gered species and threatened species the authority

8 contained in this Act with respect to species of fish,

9 wildlife, and plants that are residents in the State.

10 Within 120 days after the Secretary receives a cer11 tified copy of such a proposed State program, the

12 Secretary shall make a determination whether such

13 program will be adequate to provide protections to

14 endangered species and threatened species in such

15 State. In order for a State program to be deter16 mined to be an adequate program for the conserva17 tion of endangered species and threatened species,

18 the Secretary must find that under the State pro19 gram—

20 ‘‘(A)(i) authority resides in the State agen21 cy to conserve resident species of fish or wildlife

22 determined by the State agency or the Sec23 retary to be endangered species or threatened

24 species;
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1 ‘‘(ii) the State agency has established ac2 ceptable conservation programs, consistent with

3 the purposes and policies of this Act, for all

4 resident species of fish or wildlife in the State

5 which are deemed by the Secretary to be endan6 gered species or threatened species or for those

7 species or taxonomic groups of species which

8 the State proposes to cover under its program,

9 and has furnished a copy of such plan and pro10 gram together with all pertinent details, infor11 mation, requested to the Secretary;

12 ‘‘(iii) the State agency is authorized to

13 conduct investigations to determine the status

14 and requirements for survival of resident spe15 cies of fish and wildlife;

16 ‘‘(iv) an agency of the State is authorized

17 to establish programs, including the acquisition

18 of land or aquatic habitat or interests therein,

19 for the conservation of resident endangered spe20 cies or threatened species of fish or wildlife;

21 ‘‘(v) provision is made for public participa22 tion in designating resident species of fish or

23 wildlife as endangered species or threatened

24 species; and
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1 ‘‘(vi) the State agency has initiated or en2 couraged voluntary or incentive based programs

3 to further the conservation objectives for the

4 species; or

5 ‘‘(B)(i) the requirements set forth in

6 clauses (iii), (iv), and (v) of subparagraph (A)

7 are complied with, and

8 ‘‘(ii) plans are included under which imme9 diate attention will be given to those resident

10 species of fish and wildlife which are deter11 mined by the Secretary or the State agency to

12 be endangered species or threatened species and

13 which the Secretary and the State agency agree

14 are most urgently in need of conservation pro15 grams.

16 ‘‘(2) PROHIBITIONS NOT AFFECTED.—A delega17 tion to a State whose program is deemed adequate

18 pursuant to paragraph (1) shall not affect the appli19 cability of prohibitions set forth in or authorized

20 pursuant to section 4(d) or section 9(a)(1) with re21 spect to the taking of any resident endangered spe22 cies or threatened species in the State.

23 ‘‘(d) ALLOCATION OF FUNDS.—

24 ‘‘(1) FINANCIAL ASSISTANCE.—The Secretary

25 may provide financial assistance to any State,
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1 through its respective State agency, which has re2 ceived delegation pursuant to subsection (c) of this

3 section to assist in development of programs for the

4 conservation of endangered species and threatened

5 species or to assist in monitoring the status of can6 didate species pursuant to subparagraph (C) of sec7 tion 4(b)(3) and recovered species pursuant to sec8 tion 4(f). The Secretary shall allocate each annual

9 appropriation made in accordance with subsection (i)

10 to such States based on consideration of—

11 ‘‘(A) the international commitments of the

12 United States to protect endangered species or

13 threatened species;

14 ‘‘(B) the readiness of a State to proceed

15 with a conservation program consistent with the

16 objectives and purposes of this Act;

17 ‘‘(C) the number of endangered species

18 and threatened species within a State;

19 ‘‘(D) the potential for restoring endan20 gered species and threatened species within a

21 State;

22 ‘‘(E) the relative urgency to initiate a pro23 gram to restore and protect an endangered spe24 cies or threatened species in terms of survival

25 of the species;
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1 ‘‘(F) the importance of monitoring the sta2 tus of candidate species within a State to pre3 vent a significant risk to the well-being of any

4 such species; and

5 ‘‘(G) the importance of monitoring the sta6 tus of recovered species within a State to assure

7 that such species do not return to the point at

8 which the measures provided pursuant to this

9 Act are again necessary.

10 So much of the annual appropriation made in ac11 cordance with subsection (i) allocated for obligation

12 to any State for any fiscal year as remains unobli13 gated at the close thereof may be made available to

14 that State until the close of the succeeding fiscal

15 year. Any amount allocated to any State which is

16 unobligated at the end of the period during which it

17 is available for expenditure may be made available

18 for expenditure by the Secretary in conducting pro19 grams under this section.

20 ‘‘(2) CONTENTS OF DELEGATION AGREE21 MENT.—Such delegation shall provide for—

22 ‘‘(A) the actions to be taken by the Sec23 retary and the States;
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1 ‘‘(B) the benefits that are expected to be

2 derived in connection with the conservation of

3 endangered species or threatened species;

4 ‘‘(C) the estimated cost of these actions;

5 and

6 ‘‘(D) the share of such costs to be borne

7 by the Federal Government and by the States;

8 except that—

9 ‘‘(i) the Federal share of such pro10 gram costs shall not exceed 75 percent of

11 the estimated program cost stated in the

12 agreement; and

13 ‘‘(ii) the Federal share may be in14 creased to 90 percent whenever two or

15 more States having a common interest in

16 one or more endangered species or threat17 ened species, the conservation of which

18 may be enhanced by cooperation of such

19 States, enter jointly into an agreement

20 with the Secretary.

21 The Secretary may, in the Secretary’s discretion,

22 and under such rules and regulations as he may pre23 scribe, advance funds to the State for financing the

24 United States pro rata share agreed upon in the co25 operative agreement. For the purposes of this sec-
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1 tion, the non-Federal share may, in the discretion of

2 the Secretary, be in the form of money or real prop3 erty, the value of which will be determined by the

4 Secretary, whose decision shall be final.

5 ‘‘(3) COMPLIANCE WITH PROCEDURES.—In im6 plementing this Act under authority delegated to a

7 State by the Secretary, the State shall comply with

8 all requirements, prohibitions, and procedures set

9 forth by this Act.

10 ‘‘(e) REVIEW OF STATE PROGRAMS.—Any action

11 taken by the Secretary under this section shall be subject

12 to his periodic review at no greater than intervals of 5

13 years.

14 ‘‘(f) CONFLICTS BETWEEN FEDERAL AND STATE

15 LAWS.—Any State law or regulation which applies with

16 respect to the importation or exportation of, or interstate

17 or foreign commerce in, endangered species or threatened

18 species is void to the extent that it may effectively—

19 ‘‘(1) permit what is prohibited by this Act or by

20 any regulation which implements this Act, or

21 ‘‘(2) prohibit what is authorized pursuant to an

22 exemption or permit provided for in this Act or in

23 any regulation which implements this Act. This Act

24 shall not otherwise be construed to void any State

25 law or regulation which is intended to conserve mi-
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1 gratory, resident, or introduced fish or wildlife, or to

2 permit or prohibit sale of such fish or wildlife. Any

3 State law or regulation respecting the taking of an

4 endangered species or threatened species may be

5 more restrictive than the exemptions or permits pro6 vided for in this Act or in any regulation which im7 plements 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 SEC. 702. STATE PROGRAMS AFFECTED BY THE CONVEN13 TION.

14 Section 8A (16 U.S.C. 1537a), as amended by section

15 207(b) of this Act, is amended by adding at the end the

16 following new subsection:

17 ‘‘(h) ISSUANCE OF PERMITS FOR EXPORT.—

18 ‘‘(1) COMPLIANCE WITH STATE RECOMMENDA19 TION.—In any instance in which a State has a pro20 gram for management of a native species which is

21 the subject of a request for an export permit under

22 the Convention, the Secretary shall act in accord23 ance with the recommendation of the State unless

24 the Secretary makes a finding and publishes a notice
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1 in the Federal Register that scientific evidence justi2 fies a conclusion contrary to the advice of the State.

3 ‘‘(2) APPEAL.—The State which is the subject

4 to such a finding, or any person in that State di5 rectly affected because of inability to obtain a per6 mit, may appeal the finding to an Administrative

7 Law Judge or a court. The burden shall be on the

8 Secretary to show that the evidence supports a find9 ing contrary to the recommendation of the State.’’.

10 TITLE VIII—FUNDING OF

11 CONSERVATION MEASURES

12 SEC. 801. AUTHORIZING INCREASED APPROPRIATIONS.

13 Section 15 (16 U.S.C. 1542) is amended to read as

14 follows:

15 ‘‘SEC. 15. AUTHORIZATION OF APPROPRIATIONS.

16 ‘‘(a) IN GENERAL.—In addition to the amounts au17 thorized to be appropriated under section 6(i) and sub18 sections (b) through (e), there are authorized to be appro19 priated—

20 ‘‘(1) to the Department of the Interior to carry

21 out the duties of the Secretary of the Interior under

22 this Act $110,000,000 for fiscal year 1996,

23 $120,000,000 for fiscal year 1997, $130,000,000 for

24 fiscal year 1998, $140,000,000 for fiscal year 1999,
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1 $150,000,000 for fiscal year 2000, and

2 $160,000,000 for fiscal year 2001;

3 ‘‘(2) to the Department of Commerce to carry

4 out the duties of the Secretary of Commerce under

5 this Act $15,000,000 for fiscal year 1996,

6 $20,000,000 for fiscal year 1997, $25,000,000 for

7 fiscal year 1998, $30,000,000 for fiscal year 1999,

8 $35,000,000 for fiscal year 2000, and $40,000,000

9 for fiscal year 2001; and

10 ‘‘(3) to the Department of Agriculture to carry

11 out the duties of the Secretary of Agriculture under

12 this Act $4,000,000 for each of fiscal years 1996

13 through 2001.

14 ‘‘(b) COOPERATIVE MANAGEMENT AGREEMENTS.—

15 There are authorized to be appropriated to the Depart16 ment of the Interior to carry out section 6(b),

17 $20,000,000 for each of fiscal years 1996 through 2001,

18 to remain available until expended.

19 ‘‘(c) CONVENTION IMPLEMENTATION.—There are au20 thorized to be appropriated to the Department of the Inte21 rior to carry out section 8A(e) $1,000,000 for each of fis22 cal years 1996 through 2001, to remain available until ex23 pended.

24 ‘‘(d) NON-FEDERAL CONSERVATION PLANNING.—

25 There are authorized to be appropriated to the Depart-
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1 ment of the Interior to carry out section 10(a)(2)(F)

2 $20,000,000 for each of fiscal years 1996 through 2001,

3 to remain available until expended.

4 ‘‘(e) HABITAT CONSERVATION GRANTS.—There are

5 authorized to be appropriated to the Department of the

6 Interior to provide habitat conservation grants under sec7 tion 6(b)(14) $20,000,000 for each of fiscal years 1996

8 though 2001, to remain available until expended.’’.

9 SEC. 802. FUNDING OF FEDERAL MANDATES.

10 Section 16 is amended to read as follows:

11 ‘‘SEC. 16. FEDERAL COST-SHARING REQUIREMENTS FOR

12 CONSERVATION OBLIGATIONS.

13 ‘‘(a) DIRECT COSTS DEFINED.—In this section, the

14 term ‘direct costs’ means—

15 ‘‘(1) expenditures on labor, material, facilities,

16 utilities, equipment, supplies and other resources

17 which are necessary to undertake a specific con18 servation measure;

19 ‘‘(2) increased purchase power costs and lost

20 revenues caused by changes in the operation of a hy21 dropower system from which the non-Federal person

22 or Federal power marketing administration markets

23 power to meet a specific conservation measure; and
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1 ‘‘(3) other reimbursable costs specifically identi2 fied by the Secretary as directly related to the per3 formance of a specific conservation measure.

4 ‘‘(b) COST-SHARING.—

5 ‘‘(1) CONSERVATION PLANS.—For any non6 Federal person or Federal power marketing adminis7 tration, the Secretary shall pay 50 percent of any di8 rect costs that result from the compliance by the

9 person or administration mandated by a conserva10 tion plan issued under section 5 or any conservation

11 measure that provides protection to a listed species

12 under a plan developed under the Pacific Northwest

13 Electric Power Planning and Conservation Act (16

14 U.S.C. 839 et seq.) including a plan that provides

15 protection to a larger population unit of the same

16 listed species.

17 ‘‘(2) CONSULTATION REQUIREMENTS.—For any

18 non-Federal person or Federal power marketing ad19 ministration, the Secretary shall pay 50 percent of

20 direct costs that result solely from requirements im21 posed by the Secretary on the person or marketing

22 administration under section 7.

23 ‘‘(3) INCIDENTAL TAKE PERMITS.—For any

24 non-Federal person issued an incidental take permit

25 under section 10, the Secretary shall pay to such
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1 person 50 percent of the direct costs of preparing

2 the application for the permit and implementing the

3 terms and conditions of the permit.

4 ‘‘(4) COOPERATIVE MANAGEMENT AGREE5 MENTS.—The Secretary shall pay 50 percent of the

6 direct costs of preparing and implementing the

7 terms and conditions of a cooperative management

8 agreement incurred by a party to the agreement and

9 any costs incurred by any other non-Federal person

10 or Federal power marketing administration subject

11 to the terms of such agreement.

12 ‘‘(c) METHOD OF COST-SHARING.—

13 ‘‘(1) IN GENERAL.—Except as provided in para14 graph (2), the Secretary may make a contribution

15 required under subsection (b) by—

16 ‘‘(A) providing a habitat reserve grant

17 under section 6(b)(14);

18 ‘‘(B) acquiring, from or for the party to

19 the cost-share, land or an interest in land as

20 provided in section 5A; or

21 ‘‘(C) providing appropriated funds.

22 ‘‘(2) COST-SHARE PAYMENT FOR FEDERAL

23 POWER MARKETING ADMINISTRATIONS AND OTHER

24 STATE OR LOCAL GOVERNMENTAL ENTITIES.—The

25 Secretary shall make a contribution under sub-
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1 section (b) to a Federal power marketing adminis2 tration or any other State or local governmental en3 tity by providing appropriated funds directly to the

4 administration or governmental entity.

5 ‘‘(3) APPROPRIATED FUNDS.—To the maximum

6 extent practicable, any appropriated funds paid by

7 the Secretary under paragraphs (1) and (2) shall be

8 paid directly (in lieu of reimbursement) to the party,

9 person, or administration.

10 ‘‘(4) LOANS.—The Secretary may not consider

11 a loan to the party to the cost-share as a contribu12 tion or portion of a contribution under subsection

13 (b).

14 ‘‘(5) RECOVERED COSTS.—The Secretary may

15 not claim as a portion of the Federal share under

16 subsection (b) any costs to the Federal Government

17 that are recovered through rates for the sale or

18 transmission of power or water.

19 ‘‘(6) EFFECT OF FEDERAL NONPAYMENT.—If

20 the Secretary fails to make the contribution required

21 under subsection (b), the application of the applica22 ble provision of the conservation plan, requirement

23 under section 7, term under the incidental take per24 mit, or provision of the cooperative management

25 agreement shall be suspended until such time as the
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1 full contribution is made. If the suspended provision

2 or requirement includes a conservation easement or

3 other instrument restricting title to the property of

4 the non-Federal person, nonpayment of the full con5 tribution shall result in the nullification of the pre6 viously granted restriction on title.

7 ‘‘(7) IN-KIND CONTRIBUTIONS.—A non-Federal

8 person or Federal power marketing administration

9 may include in-kind contributions in calculating the

10 appropriate share of the costs of the person or ad11 ministration under this section.

12 ‘‘(8) COSTS PAID BY THE SECRETARY.—Com13 pensation from the Federal Government under sec14 tion 19 may not cover costs incurred by a non-Fed15 eral person that were otherwise paid by the Sec16 retary under subsection (b).

17 ‘‘(d) EXISTING COST-SHARING AGREEMENTS.—Any

18 cost-sharing agreement with a non-Federal person pro19 vided in any recovery plan or other agreement in existence

20 prior to the date of enactment of this subsection shall re21 main in effect unless the non-Federal person requests that

22 the cost-sharing percentage be reconsidered.

23 ‘‘(e) ADJUSTMENTS TO COST-SHARING PERCENT24 AGE.—At the request of the non-Federal person, the Sec-
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1 retary may adjust the percentage of the Federal contribu2 tion to a higher share.’’.

3 SEC. 803. ENDANGERED SPECIES AND THREATENED SPE4 CIES CONSERVATION TRUST FUND.

5 Section 13 is amended to read as follows:

6 ‘‘SEC. 13. ENDANGERED SPECIES AND THREATENED SPE7 CIES CONSERVATION TRUST FUND.

8 ‘‘(a) ESTABLISHMENT.—There is established in the

9 general fund of the Treasury a separate account which

10 shall be known as the ‘Endangered Species and Threat11 ened Species Conservation Trust Fund’ (in this section re12 ferred to as the ‘Fund’).

13 ‘‘(b) CONTENTS.—The Fund shall consist of the fol14 lowing:

15 ‘‘(1) Amounts received as gifts, bequests, and

16 devises under subsection (d).

17 ‘‘(2) Other amounts appropriated to or other18 wise deposited in the Fund.

19 ‘‘(c) USE.—Amounts in the fund shall be available

20 to the Secretary, subject to appropriations, for the follow21 ing:

22 ‘‘(1) Payment of compensation under section

23 19.

24 ‘‘(2) Habitat conservation grants under section

25 6(b)(11).
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1 ‘‘(3) Payment of cost sharing under section 16.

2 ‘‘(d) GIFTS, BEQUESTS, AND DEVISES.—

3 ‘‘(1) IN GENERAL.—The Secretary may accept,

4 use, and dispose of gifts, bequests, or devises of

5 services or property, both real and personal, for the

6 purpose of carrying out this Act.

7 ‘‘(2) DEPOSIT INTO FUND.—Gifts, bequests, or

8 devises of money, and proceeds from sales of other

9 property received as gifts, bequests, or devises, shall

10 be deposited in the Fund and shall be available for

11 disbursement upon order of the Secretary.

12 ‘‘(3) TREATMENT.—For purposes of Federal in13 come, estate, and gift taxes, property accepted under

14 this subsection shall be considered as a gift, bequest,

15 or devise to the United States.’’.

16 TITLE IX—MISCELLANEOUS

17 PROVISIONS

18 SEC. 901. AMENDMENTS TO DEFINITIONS.

19 Section 3 (16 U.S.C. 1532) is amended—

20 (1) by adding after paragraph (16) (as added

21 by section 401(e)(1) of this Act) the following new

22 paragraph:

23 ‘‘(17) The term ‘non-Federal person’ means a

24 person other than an officer, employee, agent, de25 partment, or instrumentality of the Federal Govern-
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1 ment or a foreign government, acting in the official

2 capacity of the person.’’; and

3 (2) by amending paragraph (3) (as redesig4 nated by section 102(a)(1) of this Act) to read as

5 follows:

6 ‘‘(3) The term ‘commercial activity’ means all

7 activities of industry and trade, including, but not

8 limited to, the buying or selling of commodities and

9 activities conducted for the purpose of facilitating

10 such buying and selling, except that it does not in11 clude exhibition of commodities or species by exhibi12 tors licensed under the Animal Welfare Act (7

13 U.S.C. 2131 et seq.), museums, or similar cultural

14 or historical organizations.’’.

15 SEC. 902. REVIEW OF SPECIES OF NATIONAL INTEREST.

16 No later than 60 days after the date of the enactment

17 of this Act, the Secretary (as that term is defined in sec18 tion 3 of the Endangered Species Act of 1973, as amended

19 by this Act) shall identify those species which are listed

20 under section 4 of that Act as a result of being determined

21 to be a population segment. No later than one year after

22 the date of the enactment of this Act, the Secretary shall

23 review and determine whether or not it is in the national

24 interest to continue to list each such population segment.

25 Those population segments which the Secretary rec-
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1 ommends for continued listing in the national interest

2 shall be submitted to the Congress for approval. Any pop3 ulation segment which is not determined to be in the na4 tional interest shall be delisted within 60 days after that

5 determination.

6 SEC. 903. PREPARATION OF CONSERVATION PLANS FOR

7 SPECIES LISTED BEFORE ENACTMENT OF

8 THIS ACT.

9 (a) LISTED SPECIES WITHOUT RECOVERY PLANS.—

10 (1) PRIORITY FOR DEVELOPMENT OF CON11 SERVATION PLANS.—Not later than 30 days after

12 the date of enactment of this Act, the Secretary (as

13 defined in section 3 of the Endangered Species Act

14 of 1973, as amended by this Act) shall publish a list

15 of all species that were determined to be endangered

16 species or threatened species under section 4 of the

17 Act (16 U.S.C. 1533) for which no final recovery

18 plans were issued under section 4(f) of the Act (16

19 U.S.C. 1533(f)) (as in effect on the day before the

20 date of enactment of this Act) divided equally into

21 three tiers of priority for preparation of conservation

22 objectives and conservation plans therefor pursuant

23 to section 5 of the Act. Any species which is listed

24 as an endangered species or threatened species in
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1 more than one State shall be placed in the first tier

2 of priority.

3 (2) SCHEDULE FOR ADOPTION OF PLANS.—The

4 Secretary shall publish pursuant to section 5 of the

5 Endangered Species Act of 1973 a conservation ob6 jective, draft conservation plan, and final conserva7 tion plan (except when a conservation objective is

8 published pursuant to section 5(b)(3)(C) of such

9 Act) for each species within each tier of priority

10 identified pursuant to paragraph (1) within the fol11 lowing periods after the date of enactment of this

12 Act:

13 (A) Conservation objective: First tier, 120

14 days; second tier, 12 months; and third tier, 24

15 months.

16 (B) Draft conservation plan: First tier, 6

17 months; second tier, 18 months; and third tier,

18 30 months.

19 (C) Final conservation plan: First tier, 12

20 months; second tier, 24 months; and third tier,

21 36 months.

22 (b) LISTED SPECIES WITH RECOVERY PLANS.—

23 (1) PRIORITY FOR REVISION OF EXISTING

24 PLANS.—Except as provided in paragraph (3), a

25 final recovery plan issued under section 4(f) of the
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1 Endangered Species Act of 1973 (16 U.S.C.

2 1533(f)) (as in effect on the day before the date of

3 enactment of this Act) shall continue in effect until

4 the expiration of the deadline for revision thereof es5 tablished under this paragraph. Within 90 days after

6 the date of enactment of this Act, the Secretary

7 shall publish a list of all species that were deter8 mined to be endangered species or threatened spe9 cies under section 4 of such Act (16 U.S.C. 1533)

10 and for which final recovery plans were issued under

11 section 4(f) of such Act (16 U.S.C. 1533(f)) (as in

12 effect on the day before the date of enactment of

13 this Act) divided equally into three tiers of priority

14 for preparation of conservation objectives pursuant

15 to section 5(b) of such Act and revisions of the re16 covery plans consistent with the requirements for

17 conservation plans set forth in section 5(c) of such

18 Act. Any species which is listed as an endangered

19 species or threatened species in more than one State

20 shall be placed in the first tier of priority.

21 (2) SCHEDULE FOR REVISION OF PLANS.—The

22 Secretary shall publish pursuant to section 5 of the

23 Endangered Species Act of 1973 a conservation ob24 jective, draft revision of the existing recovery plan,

25 and final revision of the existing recovery plan (ex-
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1 cept when a conservation objective is published pur2 suant to section 5(b)(3)(C) of such Act) for each

3 species within each tier of priority identified pursu4 ant to paragraph (1) within the following periods

5 after the date of enactment of this Act:

6 (A) Conservation objective: First tier, 180

7 days; second tier, 18 months; and third tier, 30

8 months.

9 (B) Draft revised recovery plan: First tier,

10 12 months; second tier, 24 months; and third

11 tier, 36 months.

12 (C) Final revised recovery plan: First tier,

13 18 months; second tier, 30 months; and third

14 tier, 42 months.

15 (3) SPECIES FOR WHICH NO CONSERVATION

16 PLAN IS REQUIRED.—If the Secretary publishes a

17 conservation objective for which no conservation plan

18 is required pursuant to section 5(b)(3)(C) of the En19 dangered Species Act of 1973 for any species subject

20 to this subsection, the final recovery plan applicable

21 to the species shall be rescinded.

22 (c) PROHIBITION ON ADDITIONAL REQUIRE23 MENTS.—The Secretary or any other Federal agency may

24 not require any increase in any measurable criterion con25 tained in, or any site specific management action in addi-
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1 tion to those provided in, a final recovery plan issued

2 under section 4(f) of the Endangered Species Act of 1973

3 (16 U.S.C. 1533(f)) (as in effect on the day before the

4 date of enactment of this Act) until such time as a con5 servation plan, or, pursuant to section 5(b)(3)(C) of such

6 Act, a conservation objective, has been published under

7 section 5 of such Act.

8 (d) EXISTING BIOLOGICAL OPINIONS.—In conjunc9 tion with the issuance of a conservation plan, or, pursuant

10 to section 5(b)(3)(C) of the Endangered Species Act of

11 1973, a conservation objective under subsection (a) or (b),

12 the Secretary (as defined in section 3 of such Act (16

13 U.S.C. 1532)) shall review and reissue, in accordance with

14 section 7 of such Act, any written opinion of the Secretary

15 that relates to the affected species and was issued after

16 January 1, 1995, under section 7(b)(3) of such Act (16

17 U.S.C. 1536(b)(3)) (as in effect on the day before the date

18 of enactment of this Act).

19 SEC. 904. CONFORMING AMENDMENT TO TABLE OF CON20 TENTS.

21 The table of contents at the end of the first section

22 is amended to read as follows:

23 ‘‘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.
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‘‘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. Endangered Species and Threatened Species Conservation Trust

Fund.

‘‘Sec. 14. Notice of hearings.

‘‘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.’’.

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