39–006 

109TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 1st Session 109–237 

THREATENED AND ENDANGERED SPECIES RECOVERY 

ACT OF 2005 

SEPTEMBER 27, 2005.—Committed to the Committee of the Whole House on the 

State of the Union and ordered to be printed 

Mr. POMBO, from the Committee on Resources, 

submitted the following 

R E P O R T 

together with 

ADDITIONAL AND DISSENTING VIEWS 

[To accompany H.R. 3824] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Resources, to whom was referred the bill 

(H.R. 3824) to amend and reauthorize the Endangered Species Act 

of 1973 to provide greater results conserving and recovering listed 

species, and for other purposes, having considered the same, report 

favorably thereon with an amendment and recommend that the bill 

as amended do pass. 

The amendment is as follows: 

Strike all after the enacting clause and insert the following: 

SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

(a) SHORT TITLE.—This Act may be cited as the ‘‘Threatened and Endangered Species Recovery Act of 2005’’. 

(b) TABLE OF CONTENTS.—The table of contents for this Act is as follows: 

Sec. 1. Short title; table of contents. 

Sec. 2. Amendment references. 

Sec. 3. Definitions. 

Sec. 4. Determinations of endangered species and threatened species. 

Sec. 5. Repeal of critical habitat requirements. 

Sec. 6. Petitions and procedures for determinations and revisions. 

Sec. 7. Reviews of listings and determinations. 

Sec. 8. Secretarial guidelines; State comments. 

Sec. 9. Recovery plans and land acquisitions. 

Sec. 10. Cooperation with States and Indian tribes. 

Sec. 11. Interagency cooperation and consultation. 

Sec. 12. Exceptions to prohibitions. 

Sec. 13. Private property conservation. 

Sec. 14. Public accessibility and accountability. 

Sec. 15. Annual cost analyses. 

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Sec. 16. Reimbursement for depredation of livestock by reintroduced species. 

Sec. 17. Authorization of appropriations. 

Sec. 18. Miscellaneous technical corrections. 

Sec. 19. Clerical amendment to table of contents. 

Sec. 20. Certain actions deemed in compliance. 

SEC. 2. AMENDMENT REFERENCES. 

Except as otherwise expressly provided, whenever in this Act an amendment or 

repeal is expressed in terms of an amendment to, or repeal of, a section or other 

provision, the reference shall be considered to be made to such section or other provision of the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.). 

SEC. 3. DEFINITIONS. 

(a) BEST AVAILABLE SCIENTIFIC DATA.—Section 3 (16 U.S.C. 1532) is amended by 

redesignating paragraphs (2) through (21) in order as paragraphs (3), (4), (5), (6), 

(7), (8), (9), (10), (11), (13), (14), (15), (16), (17), (18), (19), (20), (21), and (22), respectively, and by inserting before paragraph (3), as so redesignated, the following: 

‘‘(2)(A) The term ‘best available scientific data’ means scientific data, regardless 

of source, that are available to the Secretary at the time of a decision or action for 

which such data are required by this Act and that the Secretary determines are the 

most accurate, reliable, and relevant for use in that decision or action. 

‘‘(B) Not later than one year after the date of the enactment of the Threatened 

and Endangered Species Recovery Act of 2005, the Secretary shall issue regulations 

that establish criteria that must be met to determine which data constitute the best 

available scientific data for purposes of subparagraph (A). 

‘‘(C) If the Secretary determines that data for a decision or action do not comply 

with the criteria established by the regulations issued under subparagraph (B), do 

not comply with guidance issued under section 515 of the Treasury and General 

Government Appropriations Act, 2001 (Public Law 106–554; 114 Stat. 2763A–171) 

by the Director of the Office of Management and Budget and the Secretary, do not 

consist of any empirical data, or are found in sources that have not been subject 

to peer review in a generally acceptable manner—

‘‘(i) the Secretary shall undertake the necessary measures to assure compliance with such criteria or guidance; and 

‘‘(ii) the Secretary may—

‘‘(I) secure such empirical data; 

‘‘(II) seek appropriate peer review; and 

‘‘(III) reconsider the decision or action based on any supplemental or different data provided or any peer review conducted pursuant to this subparagraph.’’. 

(b) PERMIT OR LICENSE APPLICANT.—Section 3 (16 U.S.C. 1532) is further amended by amending paragraph (13), as so redesignated, to read as follows: 

‘‘(13) The term ‘permit or license applicant’ means, when used with respect to an 

action of a Federal agency that is subject to section 7(a) or (b), any person that has 

applied to such agency for a permit or license or for formal legal approval to perform 

an act.’’. 

(c) JEOPARDIZE THE CONTINUED EXISTENCE.—Section 3 (16 U.S.C. 1532) is further 

amended by inserting after paragraph (11) the following: 

‘‘(12) The term ‘jeopardize the continued existence’ means, with respect to an 

agency action (as that term is defined in section 7(a)(2)), that the action reasonably 

would be expected to significantly impede, directly or indirectly, the conservation in 

the long-term of the species in the wild.’’. 

(d) CONFORMING AMENDMENT.—Section 7(n) (16 U.S.C. 1536(n)) is amended by 

striking ‘‘section 3(13)’’ and inserting ‘‘section 3(14)’’. 

SEC. 4. DETERMINATIONS OF ENDANGERED SPECIES AND THREATENED SPECIES. 

(a) REQUIREMENT TO MAKE DETERMINATIONS.—Section 4 (16 U.S.C. 1533) is 

amended by striking so much as precedes subsection (a)(3) and inserting the following: 

‘‘DETERMINATION OF ENDANGERED SPECIES AND THREATENED SPECIES

‘‘SEC. 4. (a) IN GENERAL.—(1) The Secretary shall by regulation promulgated in 

accordance with subsection (b) determine whether any species is an endangered species or a threatened species because of any of the following factors: 

‘‘(A) The present or threatened destruction, modification, or curtailment of its 

habitat or range by human activities, competition from other species, drought, 

fire, or other catastrophic natural causes. 

‘‘(B) Overutilization for commercial, recreational, scientific, or educational 

purposes. 

‘‘(C) Disease or predation. 

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‘‘(D) The inadequacy of existing regulatory mechanisms, including any efforts 

identified pursuant to subsection (b)(1). 

‘‘(E) Other natural or manmade factors affecting its continued existence. 

‘‘(2) The Secretary shall use the authority provided by paragraph (1) to determine 

any distinct population of any species of vertebrate fish or wildlife to be an endangered species or a threatened species only sparingly.’’. 

(b) BASIS FOR DETERMINATION.—Section 4(b)(1)(A) (16 U.S.C. 1533(b)(1)(A)) is 

amended—

(1) by striking ‘‘best scientific and commercial data available to him’’ and inserting ‘‘best available scientific data’’; and 

(2) by inserting ‘‘Federal agency, any’’ after ‘‘being made by any’’. 

(c) LISTS.—Section 4(c)(2) (16 U.S.C. 1533(c)(2)) is amended to read as follows: 

‘‘(2)(A) The Secretary shall—

‘‘(i) conduct, at least once every 5 years, based on the information collected for the biennial reports to the Congress required by paragraph (3) 

of subsection (f), a review of all species included in a list that is published 

pursuant to paragraph (1) and that is in effect at the time of such review; 

and 

‘‘(ii) determine on the basis of such review and any other information the 

Secretary considers relevant whether any such species should—

‘‘(I) be removed from such list; 

‘‘(II) be changed in status from an endangered species to a threatened 

species; or 

‘‘(III) be changed in status from a threatened species to an endangered species. 

‘‘(B) Each determination under subparagraph (A)(ii) shall be made in accordance with subsections (a) and (b).’’. 

SEC. 5. REPEAL OF CRITICAL HABITAT REQUIREMENTS. 

(a) REPEAL OF REQUIREMENT.—Section 4(a) (16 U.S.C. 1533(a)) is amended by 

striking paragraph (3). 

(b) CONFORMING AMENDMENTS.—

(1) Section 3 (16 U.S.C. 1532), as amended by section 3 of this Act, is further 

amended by striking paragraph (6) and by redesignating paragraphs (7) through 

(22) in order as paragraphs (6) through (21). 

(2) Section 4(b) (16 U.S.C. 1533(b)), as otherwise amended by this Act, is further amended by striking paragraph (2), and by redesignating paragraphs (3) 

through (8) in order as paragraphs (2) through (7), respectively. 

(3) Section 4(b) (16 U.S.C. 1533(b)) is further amended in paragraph (2), as 

redesignated by paragraph (2) of this subsection, by striking subparagraph (D). 

(4) Section 4(b) (16 U.S.C. 1533(b)) is further amended in paragraph (4), as 

redesignated by paragraph (2) of this subsection, by striking ‘‘determination, 

designation, or revision referred to in subsection (a)(1) or (3)’’ and inserting ‘‘determination referred to in subsection (a)(1)’’. 

(5) Section 4(b) (16 U.S.C. 1533(b)) is further amended in paragraph (7), as 

redesignated by paragraph (2) of this subsection, by striking ‘‘; and if such regulation’’ and all that follows through the end of the sentence and inserting a period. 

(6) Section 4(c)(1) (16 U.S.C. 1533(c)(1)) is amended—

(A) in the second sentence—

(i) by inserting ‘‘and’’ after ‘‘if any’’; and 

(ii) by striking ‘‘, and specify any’’ and all that follows through the 

end of the sentence and inserting a period; and 

(B) in the third sentence by striking ‘‘, designations,’’. 

(7) Section 5 (16 U.S.C. 1534), as amended by section 9(a)(3) of this Act, is 

further amended in subsection (j)(2) by striking ‘‘section 4(b)(7)’’ and inserting 

‘‘section 4(b)(6)’’. 

(8) Section 6(c) (16 U.S.C. 1535(c)), as amended by section 10(1) of this Act, 

is further amended in paragraph (3) by striking ‘‘section 4(b)(3)(B)(iii)’’ each 

place it appears and inserting ‘‘section 4(b)(2)(B)(iii)’’. 

(9) Section 7 (16 U.S.C. 1536) is amended—

(A) in subsection (a)(2) in the first sentence by striking ‘‘or result in the 

destruction or adverse modification of any habitat of such species’’ and all 

that follows through the end of the sentence and inserting a period; 

(B) in subsection (a)(4) in the first sentence by striking ‘‘or result’’ and 

all that follows through the end of the sentence and inserting a period; and 

(C) in subsection (b)(3)(A) by striking ‘‘or its critical habitat’’. 

(10) Section 10(j)(2)(C)) (16 U.S.C. 1539(j)(2)(C)), as amended by section 12(c) 

of this Act, is further amended—

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(A) by striking ‘‘that—’’ and all that follows through ‘‘(i) solely’’ and inserting ‘‘that solely’’; and 

(B) by striking ‘‘; and’’ and all that follows through the end of the sentence and inserting a period. 

SEC. 6. PETITIONS AND PROCEDURES FOR DETERMINATIONS AND REVISIONS. 

(a) TREATMENT OF PETITIONS.—Section 4(b) (16 U.S.C. 1533(b)) is amended in 

paragraph (2), as redesignated by section 5(b)(2) of this Act, by adding at the end 

of subparagraph (A) the following: ‘‘The Secretary shall not make a finding that the 

petition presents substantial scientific or commercial information indicating that the 

petitioned action may be warranted unless the petitioner provides to the Secretary 

a copy of all information cited in the petition.’’. 

(b) IMPLEMENTING REGULATIONS.—

(1) PROPOSED REGULATIONS.—Section 4(b) (16 U.S.C. 1533(b)) is amended—

(A) in paragraph (4)(A), as redesignated by section 5(b)(2) of this Act—

(i) in clause (i) by striking ‘‘, and’’ and inserting a semicolon; 

(ii) in clause (ii) by striking ‘‘to the State agency in’’ and inserting 

‘‘to the Governor of, and the State agency in,’’; 

(iii) in clause (ii) by striking ‘‘such agency’’ and inserting ‘‘such Governor or agency’’; 

(iv) in clause (ii) by inserting ‘‘and’’ after the semicolon at the end; 

and 

(v) by adding at the end the following: 

‘‘(iii) maintain, and shall make available, a complete record of all information 

concerning the determination or revision in the possession of the Secretary, on 

a publicly accessible website on the Internet, including an index to such information.’’; and 

(B) by adding at the end the following: 

‘‘(8)(A) Information maintained and made available under paragraph 

(5)(A)(iii) shall include any status review, all information cited in such a status 

review, all information referred to in the proposed regulation and the preamble 

to the proposed regulation, and all information submitted to the Secretary by 

third parties. 

‘‘(B) The Secretary shall withhold from public review under paragraph 

(5)(A)(iii) any information that may be withheld under 552 of title 5, United 

States Code.’’. 

(2) FINAL REGULATIONS.—Paragraph (5) of section 4(b) (16 U.S.C. 1533(b)), as 

amended by section 5(b)(2) of this Act, is further amended—

(A) in subparagraph (A) by striking clauses (i) and (ii) and inserting the 

following: 

‘‘(i) a final regulation to implement such a determination of whether a species 

is an endangered species or a threatened species; 

‘‘(ii) notice that such one-year period is being extended under subparagraph 

(B)(i); or 

‘‘(iii) notice that the proposed regulation is being withdrawn under subparagraph (B)(ii), together with the finding on which such withdrawal is based.’’; 

(B) in subparagraph (B)(i) by striking ‘‘subparagraph (A)(i)’’ and inserting 

‘‘subparagraph (A)’’; 

(C) in subparagraph (B)(ii) by striking ‘‘subparagraph (A)(i)’’ and inserting ‘‘subparagraph (A)’’; and 

(D) by striking subparagraph (C). 

(3) EMERGENCY DETERMINATIONS.—Paragraph (6) of section 4(b) (16 U.S.C. 

1533(b)), as redesignated by section 5(b)(2) of this Act, is further amended—

(A) in the matter preceding subparagraph (A), by inserting ‘‘with respect 

to a determination of a species to be an endangered species or a threatened 

species’’ after ‘‘any regulation’’; and 

(B) in subparagraph (B), by striking ‘‘the State agency in’’ and inserting 

‘‘the Governor of, and State agency in,’’. 

SEC. 7. REVIEWS OF LISTINGS AND DETERMINATIONS. 

Section 4(c) (16 U.S.C. 1533(c)) is amended by inserting at the end the following: 

‘‘(3) Each determination under paragraph (2)(B) shall consider one of the following: 

‘‘(A) Except as provided in subparagraph (B) of this paragraph, the criteria 

in the recovery plan for the species required by section 5(c)(1)(A) or (B). 

‘‘(B) If the recovery plan is issued before the criteria required under section 

5(c)(1)(A) and (B) are established or if no recovery plan exists for the species, 

the factors for determination that a species is an endangered species or a 

threatened species set forth in subsections (a)(1) and (b)(1). 

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‘‘(C) A finding of fundamental error in the determination that the species is 

an endangered species, a threatened species, or extinct. 

‘‘(D) A determination that the species is no longer an endangered species or 

threatened species or in danger of extinction, based on an analysis of the factors 

that are the basis for listing under section 4(a)(1).’’. 

SEC. 8. SECRETARIAL GUIDELINES; STATE COMMENTS. 

Section 4 (16 U.S.C. 1533) is amended—

(1) by striking subsections (f) and (g) and redesignating subsections (h) and 

(i) as subsections (f) and (g), respectively; 

(2) in subsection (f), as redesignated by paragraph (1) of this subsection—

(A) in the heading by striking ‘‘AGENCY’’ and inserting ‘‘SECRETARIAL’’; 

(B) in the matter preceding paragraph (1), by striking ‘‘the purposes of 

this section are achieved’’ and inserting ‘‘this section is implemented’’; 

(C) by redesignating paragraph (4) as paragraph (5); 

(D) in paragraph (3) by striking ‘‘and’’ after the semicolon at the end, and 

by inserting after paragraph (3) the following: 

‘‘(4) the criteria for determining best available scientific data pursuant to section 3(2); and’’; and 

(E) in paragraph (5), as redesignated by subparagraph (C) of this paragraph, by striking ‘‘subsection (f) of this section’’ and inserting ‘‘section 5’’; 

(3) in subsection (g), as redesignated by paragraph (1) of this section—

(A) by inserting ‘‘COMMENTS.—’’ before the first sentence; 

(B) by striking ‘‘a State agency’’ the first place it appears and inserting 

‘‘a Governor, State agency, county (or equivalent jurisdiction), or unit of 

local government’’; 

(C) by striking ‘‘a State agency’’ the second place it appears and inserting 

‘‘a Governor, State agency, county (or equivalent jurisdiction), or unit of 

local government’’; 

(D) by striking ‘‘the State agency’’ and inserting ‘‘the Governor, State 

agency, county (or equivalent jurisdiction), or unit of local government, respectively’’; and 

(E) by striking ‘‘agency’s’’. 

SEC. 9. RECOVERY PLANS AND LAND ACQUISITIONS. 

(a) IN GENERAL.—Section 5 (16 U.S.C. 1534) is amended—

(1) by redesignating subsections (a) and (b) as subsections (k) and (l), respectively; 

(2) in subsection (l), as redesignated by paragraph (1) of this section, by striking ‘‘subsection (a) of this section’’ and inserting ‘‘subsection (k)’’; and 

(3) by striking so much as precedes subsection (k), as redesignated by paragraph (1) of this section, and inserting the following: 

‘‘RECOVERY PLANS AND LAND ACQUISITION

‘‘SEC. 5. (a) RECOVERY PLANS.—The Secretary shall, in accordance with this section, develop and implement a plan (in this subsection referred to as a ‘recovery 

plan’) for the species determined under section 4(a)(1) to be an endangered species 

or a threatened species, unless the Secretary finds that such a plan will not promote 

the conservation and survival of the species. 

‘‘(b) DEVELOPMENT OF RECOVERY PLANS.—(1) Subject to paragraphs (2) and (3), 

the Secretary, in developing recovery plans, shall, to the maximum extent practicable, give priority to those endangered species or threatened species, without regard to taxonomic classification, that are most likely to benefit from such plans, particularly those species that are, or may be, in conflict with construction or other development projects or other forms of economic activity. 

‘‘(2) In the case of any species determined to be an endangered species or threatened species after the date of the enactment of the Threatened and Endangered 

Species Recovery Act of 2005, the Secretary shall publish a final recovery plan for 

a species within 2 years after the date the species is listed under section 4(c). 

‘‘(3)(A) For those species that are listed under section 4(c) on the date of enactment of the Threatened and Endangered Species Recovery Act of 2005 and are described in subparagraph (B) of this paragraph, the Secretary, after providing for 

public notice and comment, shall—

‘‘(i) not later than 1 year after such date, publish in the Federal Register a 

priority ranking system for preparing or revising such recovery plans that is 

consistent with paragraph (1) and takes into consideration the scientifically 

based needs of the species; and 

‘‘(ii) not later than 18 months after such date, publish in the Federal Register 

a list of such species ranked in accordance with the priority ranking system 

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published under clause (i) for which such recovery plans will be developed or 

revised, and a tentative schedule for such development or revision. ‘‘(B) A species is described in this subparagraph if— ‘‘(i) a recovery plan for the species is not published under this Act before the 

date of enactment of the Threatened and Endangered Species Recovery Act of 

2005 and the Secretary finds such a plan would promote the conservation and 

survival of the species; or ‘‘(ii) a recovery plan for the species is published under this Act before such 

date of enactment and the Secretary finds revision of such plan is warranted. ‘‘(C)(i) The Secretary shall, to the maximum extent practicable, adhere to the list 

and tentative schedule published under subparagraph (A)(ii) in developing or revising recovery plans pursuant to this paragraph. ‘‘(ii) The Secretary shall provide the reasons for any deviation from the list and 

tentative schedule published under subparagraph (A)(ii), in each report to the Congress under subsection (e). ‘‘(4) The Secretary, using the priority ranking system required under paragraph 

(3), shall prepare or revise such plans within 10 years after the date of the enactment of the Threatened and Endangered Species Recovery Act of 2005. ‘‘(c) PLAN CONTENTS.—(1)(A) Except as provided in subparagraph (E), a recovery 

plan shall be based on the best available scientific data and shall include the following: 

‘‘(i) Objective, measurable criteria that, when met, would result in a determination, in accordance with this section, that the species to which the recovery 

plan applies be removed from the lists published under section 4(c) or be reclassified from an endangered species to a threatened species. 

‘‘(ii) A description of such site-specific or other measures that would achieve 

the criteria established under clause (i), including such intermediate measures 

as are warranted to effect progress toward achievement of the criteria. 

‘‘(iii) Estimates of the time required and the costs to carry out those measures 

described under clause (ii), including, to the extent practicable, estimated costs 

for any recommendations, by the recovery team, or by the Secretary if no recovery team is selected, that any of the areas identified under clause (iv) be acquired on a willing seller basis. 

‘‘(iv) An identification of those specific areas that are of special value to the 

conservation of the species. 

‘‘(B) Those members of any recovery team appointed pursuant to subsection (d) 

with relevant scientific expertise, or the Secretary if no recovery team is appointed, 

shall, based solely on the best available scientific data, establish the objective, measurable criteria required under subparagraph (A)(i). 

‘‘(C)(i) If the recovery team, or the Secretary if no recovery team is appointed, determines in the recovery plan that insufficient best available scientific data exist to 

determine criteria or measures under subparagraph (A) that could achieve a determination to remove the species from the lists published under section 4(c), the recovery plan shall contain interim criteria and measures that are likely to improve 

the status of the species. 

‘‘(ii) If a recovery plan does not contain the criteria and measures provided for by 

clause (i) of subparagraph (A), the recovery team for the plan, or by the Secretary 

if no recovery team is appointed, shall review the plan at intervals of no greater 

than 5 years and determine if the plan can be revised to contain the criteria and 

measures required under subparagraph (A). 

‘‘(iii) If the recovery team or the Secretary, respectively, determines under clause 

(ii) that a recovery plan can be revised to add the criteria and measures provided 

for under subparagraph (A), the recovery team or the Secretary, as applicable, shall 

revise the recovery plan to add such criteria and measures within 2 years after the 

date of the determination. 

‘‘(D) In specifying measures in a recovery plan under subparagraph (A), a recovery 

team or the Secretary, as applicable, shall—

‘‘(i) whenever possible include alternative measures; and 

‘‘(ii) in developing such alternative measures, the Secretary shall seek to identify, among such alternative measures of comparable expected efficacy, the alternative measures that are least costly. 

‘‘(E) Estimates of time and costs pursuant to subparagraph (A)(iii), and identification of the least costly alternatives pursuant to subparagraph (D)(ii), are not required to be based on the best available scientific data. 

‘‘(2) Any area that, immediately before the enactment of the Threatened and Endangered Species Recovery Act of 2005, is designated as critical habitat of an endangered species or threatened species shall be treated as an area described in subparagraph (A)(iv) until a recovery plan for the species is developed or the existing recovery plan for the species is revised pursuant to subsection (b)(3). 

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‘‘(d) RECOVERY TEAMS.—(1) The Secretary shall promulgate regulations that provide for the establishment of recovery teams for development of recovery plans 

under this section. ‘‘(2) Such regulations shall— ‘‘(A) establish criteria and the process for selecting the members of recovery 

teams, and the process for preparing recovery plans, that ensure that each 

team—

‘‘(i) is of a size and composition to enable timely completion of the recovery plan; and ‘‘(ii) includes sufficient representation from constituencies with a demonstrated direct interest in the species and its conservation or in the economic and social impacts of its conservation to ensure that the views of 

such constituencies will be considered in the development of the plan; ‘‘(B) include provisions regarding operating procedures of and recordkeeping 

by recovery teams; ‘‘(C) ensure that recovery plans are scientifically rigorous and that the evaluation of costs required by paragraphs (1)(A)(iii) and (1)(D) of subsection (c) are 

economically rigorous; and ‘‘(D) provide guidelines for circumstances in which the Secretary may determine that appointment of a recovery team is not necessary or advisable to develop a recovery plan for a specific species, including procedures to solicit public 

comment on any such determination. 

‘‘(3) The Federal Advisory Committee Act (5 App. U.S.C.) shall not apply to recovery teams appointed in accordance with regulations issued by the Secretary under 

this subsection. 

‘‘(e) REPORTS TO CONGRESS.—(1) The Secretary shall report every two years to the 

Committee on Resources of the House of Representatives and the Committee on Environment and Public Works of the Senate on the status of all domestic endangered 

species and threatened species and the status of efforts to develop and implement 

recovery plans for all domestic endangered species and threatened species. 

‘‘(2) In reporting on the status of such species since the time of its listing, the Secretary shall include—

‘‘(A) an assessment of any significant change in the well-being of each such 

species, including—

‘‘(i) changes in population, range, or threats; and 

‘‘(ii) the basis for that assessment; and 

‘‘(B) for each species, a measurement of the degree of confidence in the reported status of such species, based upon a quantifiable parameter developed 

for such purposes. 

‘‘(f) PUBLIC NOTICE AND COMMENT.—The Secretary shall, prior to final approval 

of a new or revised recovery plan, provide public notice and an opportunity for public review and comment on such plan. The Secretary shall consider all information 

presented during the public comment period prior to approval of the plan. 

‘‘(g) STATE COMMENT.—The Secretary shall, prior to final approval of a new or revised recovery plan, provide a draft of such plan and an opportunity to comment 

on such draft to the Governor of, and State agency in, any State to which such draft 

would apply. The Secretary shall include in the final recovery plan the Secretary’s 

response to the comments of the Governor and the State agency. 

‘‘(h) CONSULTATION TO ENSURE CONSISTENCY WITH DEVELOPMENT PLAN.—(1) The 

Secretary shall, prior to final approval of a new or revised recovery plan, consult 

with any pertinent State, Indian tribe, or regional or local land use agency or its 

designee. 

‘‘(2) For purposes of this Act, the term ‘Indian tribe’ means—

‘‘(A) with respect to the 48 contiguous States, any federally recognized Indian 

tribe, organized band, pueblo, or community; and 

‘‘(B) with respect to Alaska, the Metlakatla Indian Community. 

‘‘(i) USE OF PLANS.—(1) Each Federal agency shall consider any relevant best 

available scientific data contained in a recovery plan in any analysis conducted 

under section 102 of the National Environmental Policy Act of 1969 (42 U.S.C. 

4332). 

‘‘(2)(A)(i) The head of any Federal agency may enter into an agreement with the 

Secretary specifying the measures the agency will carry out to implement a recovery 

plan. 

‘‘(ii) Each such agreement shall be published in draft form with notice and an opportunity for public comment. 

‘‘(iii) Each such final agreement shall be published, with responses by the head 

of the Federal agency to any public comments submitted on the draft agreement. 

‘‘(B) Nothing in a recovery plan shall be construed to establish regulatory requirements. 

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‘‘(j) MONITORING.—(1) The Secretary shall implement a system in cooperation with 

the States to monitor effectively for not less than five years the status of all species 

that have recovered to the point at which the measures provided pursuant to this 

Act are no longer necessary and that, in accordance with this section, have been removed from the lists published under section 4(c). ‘‘(2) The Secretary shall make prompt use of the authority under section 4(b)(7) 

to prevent a significant risk to the well-being of any such recovered species.’’. (b) RECOVERY PLANS FOR SPECIES OCCUPYING MORE THAN ONE STATE.—Section 

6 (16 U.S.C. 1535) is amended by adding at the end the following: ‘‘(j) RECOVERY PLANS FOR SPECIES OCCUPYING MORE THAN ONE STATE.—Any recovery plan under section 5 for an endangered species or a threatened species that 

occupies more than one State shall identify criteria and actions pursuant to subsection (c)(1) of section 5 for each State that are necessary so that the State may 

pursue a determination that the portion of the species found in that State may be 

removed from lists published under section 4(c).’’. (c) THREATENED AND ENDANGERED SPECIES INCENTIVES PROGRAM.— (1) AGREEMENTS AUTHORIZED.—Section 5 (16 U.S.C. 1534) is further amended 

by adding at the end the following: ‘‘(m) THREATENED AND ENDANGERED SPECIES INCENTIVES PROGRAM.—(1) The Secretary may enter into species recovery agreements pursuant to paragraph (2) and 

species conservation contract agreements pursuant to paragraph (3) with persons, 

other than agencies or departments of the Federal Government or State governments, under which the Secretary is obligated, subject to the availability of appropriations, to make annual payments or provide other compensation to the persons 

to implement the agreements. 

‘‘(2)(A) The Secretary and persons who own or control the use of private land may 

enter into species recovery agreements with a term of not less than 5 years that 

meet the criteria set forth in subparagraph (B) and are in accordance with the priority established in subparagraph (C). 

‘‘(B) A species recovery agreement entered into under this paragraph by the Secretary with a person—

‘‘(i) shall require that the person shall carry out, on the land owned or controlled by the person, activities that—

‘‘(I) protect and restore habitat for covered species that are species determined to be endangered species or threatened species pursuant to section 

4(a)(1); 

‘‘(II) contribute to the conservation of one or more covered species; and 

‘‘(III) specify and implement a management plan for the covered species; 

‘‘(ii) shall specify such a management plan that includes—

‘‘(I) identification of the covered species; 

‘‘(II) a description of the land to which the agreement applies; and 

‘‘(III) a description of, and a schedule to carry out, the activities under 

clause (i); 

‘‘(iii) shall provide sufficient documentation to establish ownership or control 

by the person of the land to which the agreement applies; 

‘‘(iv) shall include the amounts of the annual payments or other compensation 

to be provided by the Secretary to the person under the agreement, and the 

terms under which such payments or compensation shall be provided; and 

‘‘(v) shall include—

‘‘(I) the duties of the person; 

‘‘(II) the duties of the Secretary; 

‘‘(III) the terms and conditions under which the person and the Secretary 

mutually agree the agreement may be modified or terminated; and 

‘‘(IV) acts or omissions by the person or the Secretary that shall be considered violations of the agreement, and procedures under which notice of 

and an opportunity to remedy any violation by the person or the Secretary 

shall be given. 

‘‘(C) In entering into species recovery agreements under this paragraph, the Secretary shall accord priority to agreements that apply to any areas that are identified 

in recovery plans pursuant to subsection (c)(1)(A)(iv). 

‘‘(3)(A) The Secretary and persons who own private land may enter into species 

conservation contract agreements with terms of 30 years, 20 years, or 10 years that 

meet the criteria set forth in subparagraph (B) and standards set forth in subparagraph (D) and are in accordance with the priorities established in subparagraph (C). 

‘‘(B) A species conservation contract agreement entered into under this paragraph 

by the Secretary with a person—

‘‘(i) shall provide that the person shall, on the land owned by the person—

‘‘(I) carry out conservation practices to meet one or more of the goals set 

forth in clauses (i) through (iii) of subparagraph (C) for one or more covered 

9 

species, that are species that are determined to be endangered species or 

threatened species pursuant to section 4(a)(1), species determined to be candidate species pursuant to section 4(b)(3)(B)(iii), or species subject to comparable designations under State law; and 

‘‘(II) specify and implement a management plan for the covered species; 

‘‘(ii) shall specify such a management plan that includes—

‘‘(I) identification of the covered species; 

‘‘(II) a description in detail of the conservation practices for the covered 

species that the person shall undertake; 

‘‘(III) a description of the land to which the agreement applies; and 

‘‘(IV) a schedule of approximate deadlines, whether one-time or periodic, 

for undertaking the conservation practices described pursuant to subclause 

(II); 

‘‘(V) a description of existing or future economic activities on the land to 

which the agreement applies that are compatible with the conservation 

practices described pursuant to subclause (II) and generally with conservation of the covered species; 

‘‘(iii) shall specify the term of the agreement; and 

‘‘(iv) shall include—

‘‘(I) the duties of the person; 

‘‘(II) the duties of the Secretary; 

‘‘(III) the terms and conditions under which the person and the Secretary 

mutually agree the agreement may be modified or terminated; 

‘‘(IV) acts or omissions by the person or the Secretary that shall be considered violations of the agreement, and procedures under which notice of 

and an opportunity to remedy any violation by the person or the Secretary 

shall be given; and 

‘‘(V) terms and conditions for early termination of the agreement by the 

person before the management plan is fully implemented or termination of 

the agreement by the Secretary in the case of a violation by the person that 

is not remedied under subclause (IV), including any requirement for the 

person to refund all or part of any payments received under subparagraph 

(E) and any interest thereon. 

‘‘(C) The Secretary shall establish priorities for the selection of species conservation contract agreements, or groups of such agreements for adjacent or proximate 

lands, to be entered into under this paragraph that address the following factors: 

‘‘(i) The potential of the land to which the agreement or agreements apply to 

contribute significantly to the conservation of an endangered species or threatened species or a species with a comparable designation under State law. 

‘‘(ii) The potential of such land to contribute significantly to the improvement 

of the status of a candidate species or a species with a comparable designation 

under State law. 

‘‘(iii) The amount of acreage of such land. 

‘‘(iv) The number of covered species in the agreement or agreements. 

‘‘(v) The degree of urgency for the covered species to implement the conservation practices in the management plan or plans under the agreement or agreements. 

‘‘(vi) Land in close proximity to military test and training ranges, installations, and associated airspace that is affected by a covered species. 

‘‘(D) The Secretary shall enter into a species conservation contract agreement submitted by a person, if the Secretary finds that the person owns such land or has 

sufficient control over the use of such land to ensure implementation of the management plan under the agreement. 

‘‘(E)(i) Upon entering into a species conservation contract agreement with the Secretary pursuant to this paragraph, a person shall receive the financial assistance 

provided for in this subparagraph. 

‘‘(ii) If the person is implementing fully the agreement, the person shall receive 

from the Secretary—

‘‘(I) in the case of a 30-year agreement, an annual contract payment in an 

amount equal to 100 percent of the person’s actual costs to implement the conservation practices described in the management plan under the terms of the 

agreement; 

‘‘(II) in the case of a 20-year agreement, an annual contract payment in an 

amount equal to 80 percent of the person’s actual costs to implement the conservation practices described in the management plan under the terms of the 

agreement; and 

‘‘(III) in the case of a 10-year agreement, an annual contract payment in an 

amount equal to 60 percent of the person’s actual costs to implement the conVerDate Aug 31 2005 09:09 Sep 28, 2005 Jkt 023574 PO 00000 Frm 00009 Fmt 6659 Sfmt 6621 E:\HR\OC\HR237.XXX HR237
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servation practices described in the management plan under the terms of the 

agreement. 

‘‘(iii)(I) If the person receiving contract payments pursuant to clause (ii) receives 

any other State or Federal funds to defray the cost of any conservation practice, the 

cost of such practice shall not be eligible for such contract payments. 

‘‘(II) Contributions of agencies or organizations to any conservation practice other 

than the funds described in subclause (I) shall not be considered as costs of the person for purposes of the contract payments pursuant to clause (iii). 

‘‘(4)(A) Upon request of a person seeking to enter into an agreement pursuant to 

this subsection, the Secretary may provide to such person technical assistance in the 

preparation, and management training for the implementation, of the management 

plan for the agreement. 

‘‘(B) Any State agency, local government, nonprofit organization, or federally recognized Indian tribe may provide assistance to a person in the preparation of a 

management plan, or participate in the implementation of a management plan, including identifying and making available certified fisheries or wildlife biologists 

with expertise in the conservation of species for purposes of the preparation or review and approval of management plans for species conservation contract agreements under paragraph (3)(D)(iii). 

‘‘(5) Upon any conveyance or other transfer of interest in land that is subject to 

an agreement under this subsection—

‘‘(A) the agreement shall terminate if the agreement does not continue in effect under subparagraph (B); 

‘‘(B) the agreement shall continue in effect with respect to such land, with the 

same terms and conditions, if the person to whom the land or interest is conveyed or otherwise transferred notifies the Secretary of the person’s election to 

continue the agreement by no later than 30 days after the date of the conveyance or other transfer and the person is determined by the Secretary to qualify 

to enter into an agreement under this subsection; or 

‘‘(C) the person to whom the land or interest is conveyed or otherwise transferred may seek a new agreement under this subsection. 

‘‘(6) An agreement under this subsection may be renewed with the mutual consent 

of the Secretary and the person who entered into the agreement or to whom the 

agreement has been transferred under paragraph (5). 

‘‘(7) The Secretary shall make annual payments under this subsection as soon as 

possible after December 31 of each calendar year. 

‘‘(8) An agreement under this subsection that applies to an endangered species or 

threatened species shall, for the purpose of section 10(a)(4), be deemed to be a permit to enhance the propagation or survival of such species under section 10(a)(1), 

and a person in full compliance with the agreement shall be afforded the protection 

of section 10(a)(4). 

‘‘(9) The Secretary, or any other Federal official, may not require a person to enter 

into an agreement under this subsection as a term or condition of any right, privilege, or benefit, or of any action or refraining from any action, under this Act.’’. 

(2) Subsection (e)(2) of section 7 (16 U.S.C. 1536) (as redesignated by section 

11(d)(2) of this Act) is amended by inserting ‘‘or in an agreement under section 

5(m)’’ after ‘‘section’’. 

(d) CONFORMING AMENDMENTS.—

(1) Section 6(d)(1) (16 U.S.C. 1535(d)(1)) is amended by striking ‘‘section 4(g)’’

and inserting ‘‘section 5(j)’’. 

(2) The Marine Mammal Protection Act of 1972 is amended—

(A) in section 104(c)(4)(A)(ii) (16 U.S.C. 1374(c)(4)(A)(ii)) by striking ‘‘section 4(f)’’ and inserting ‘‘section 5’’; and 

(B) in section 115(b)(2) (16 U.S.C. 1383b(b)(2)) by striking ‘‘section 4(f) of 

the Endangered Species Act of 1973 (16 U.S.C. 1533(f))’’ and inserting ‘‘section 5 of the Endangered Species Act of 1973’’. 

SEC. 10. COOPERATION WITH STATES AND INDIAN TRIBES. 

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

(1) in subsection (c), by adding at the end the following: 

‘‘(3)(A) Any cooperative agreement entered into by the Secretary under this subsection may also provide for development of a program for conservation of species 

determined to be candidate species pursuant to section 4(b)(3)(B)(iii) or any other 

species that the State and the Secretary agree is at risk of being determined to be 

an endangered species or threatened species under section 4(a)(1) in that State. 

Upon completion of consultation on the agreement pursuant to subsection (e)(2), any 

incidental take statement issued on the agreement shall apply to any such species, 

and to the State and any landowners enrolled in any program under the agreement, 

without further consultation (except any additional consultation pursuant to subVerDate Aug 31 2005 09:09 Sep 28, 2005 Jkt 023574 PO 00000 Frm 00010 Fmt 6659 Sfmt 6621 E:\HR\OC\HR237.XXX HR237
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section (e)(2)) if the species is subsequently determined to be an endangered species 

or a threatened species and the agreement remains an adequate and active program 

for the conservation of endangered species and threatened species. ‘‘(B) Any cooperative agreement entered into by the Secretary under this subsection may also provide for monitoring or assistance in monitoring the status of 

candidate species pursuant to section 4(b)(3)(C)(iii) or recovered species pursuant to 

section 5(j). ‘‘(C) The Secretary shall periodically review each cooperative agreement under 

this subsection and seek to make changes the Secretary considers necessary for the 

conservation of endangered species and threatened species to which the agreement 

applies. ‘‘(4) Any cooperative agreement entered into by the Secretary under this subsection that provides for the enrollment of private lands or water rights in any program established by the agreement shall ensure that the decision to enroll is voluntary for each owner of such lands or water rights. ‘‘(5)(A) The Secretary may enter into a cooperative agreement under this subsection with an Indian tribe in substantially the same manner in which the Secretary may enter into a cooperative agreement with a State. ‘‘(B) For the purposes of this paragraph, the term ‘Indian tribe’ means— ‘‘(i) with respect to the 48 contiguous States, any federally recognized Indian 

tribe, organized band, pueblo, or community; and 

‘‘(ii) with respect to Alaska, the Metlakatla Indian Community.’’; 

(2) in subsection (d)(1)—

(A) by striking ‘‘pursuant to subsection (c) of this section’’; 

(B) by striking ‘‘or to assist’’ and all that follows through ‘‘section 5(j)’’

and inserting ‘‘pursuant to subsection (c)(1) and (2) or to address candidate 

species or other species at risk and recovered species pursuant to subsection 

(c)(3)’’; and 

(C) in subparagraph (F), by striking ‘‘monitoring the status of candidate 

species’’ and inserting ‘‘developing a conservation program for, or monitoring the status of, candidate species or other species determined to be at 

risk pursuant to subsection (c)(3)’’; and 

(3) in subsection (e)—

(A) by inserting ‘‘(1)’’ before the first sentence; 

(B) in paragraph (1), as designated by subparagraph (A) of this paragraph, by striking ‘‘at no greater than annual intervals’’ and inserting 

‘‘every 3 years’’; and 

(C) by adding at the end the following: 

‘‘(2) Any cooperative agreement entered into by the Secretary under subsection (c) 

shall be subject to section 7(a)(2) through (d) and regulations implementing such 

provisions only before—

‘‘(A) the Secretary enters into the agreement; and 

‘‘(B) the Secretary approves any renewal of, or amendment to, the agreement 

that—

‘‘(i) addresses species that are determined to be endangered species or 

threatened species, are not addressed in the agreement, and may be affected by the agreement; or 

‘‘(ii) new information about any species addressed in the agreement that 

the Secretary determines—

‘‘(I) constitutes the best available scientific data; and 

‘‘(II) indicates that the agreement may have adverse effects on the 

species that had not been considered previously when the agreement 

was entered into or during any revision thereof or amendment thereto. 

‘‘(3) The Secretary may suspend any cooperative agreement established pursuant 

to subsection (c), after consultation with the Governor of the affected State, if the 

Secretary finds during the periodic review required by paragraph (1) of this subsection that the agreement no longer constitutes an adequate and active program 

for the conservation of endangered species and threatened species. 

‘‘(4) The Secretary may terminate any cooperative agreement entered into by the 

Secretary under subsection (c), after consultation with the Governor of the affected 

State, if—

‘‘(A) as result of the procedures of section 7(a)(2) through (d) undertaken pursuant to paragraph (2) of this subsection, the Secretary determines that continued implementation of the cooperative agreement is likely to jeopardize the continued existence of endangered species or threatened species, and the cooperative agreement is not amended or revised to incorporate a reasonable and prudent alternative offered by the Secretary pursuant to section 7(b)(3); or 

‘‘(B) the cooperative agreement has been suspended under paragraph (3) of 

this subsection and has not been amended or revised and found by the SecVerDate Aug 31 2005 09:09 Sep 28, 2005 Jkt 023574 PO 00000 Frm 00011 Fmt 6659 Sfmt 6621 E:\HR\OC\HR237.XXX HR237
12 

retary to constitute an adequate and active program for the conservation of endangered species and threatened species within 180 days after the date of the 

suspension.’’. 

SEC. 11. INTERAGENCY COOPERATION AND CONSULTATION. 

(a) CONSULTATION REQUIREMENT.—Section 7(a) (16 U.S.C. 1536(a)) is amended—

(1) in paragraph (1) in the second sentence, by striking ‘‘endangered species’’

and all that follows through the end of the sentence and inserting ‘‘species determined to be endangered species and threatened species under section 4.’’; 

(2) in paragraph (2)—

(A) in the first sentence by striking ‘‘action’’ the first place it appears and 

all that follows through ‘‘is not’’ and inserting ‘‘agency action authorized, 

funded, or carried out by such agency is not’’; 

(B) in the first sentence by striking ‘‘, unless’’ and all that follows through 

the end of the sentence and inserting a period; 

(C) in the second sentence, by striking ‘‘best scientific and commercial 

data available’’ and inserting ‘‘best available scientific data’’; and 

(D) by inserting ‘‘(A)’’ before the first sentence, and by adding at the end 

the following: 

‘‘(B) The Secretary may identify specific agency actions or categories of agency actions that may be determined to meet the standards of this paragraph by alternative procedures to the procedures set forth in this subsection and subsections (b) 

through (d), except that subsections (b)(4) and (e) may apply only to an action that 

the Secretary finds, or concurs, does meet such standards, and the Secretary shall 

suggest, or concur in any suggested, reasonable and prudent alternatives described 

in subsection (b)(3) for any action determined not to meet such standards. Any such 

agency action or category of agency actions shall be identified, and any such alternative procedures shall be established, by regulation promulgated prior or subsequent to the date of the enactment of this Act.’’; 

(3) in paragraph (4)—

(A) by striking ‘‘listed under section 4’’ and inserting ‘‘an endangered species or a threatened species’’; and 

(B) by inserting ‘‘, under section 4’’ after ‘‘such species’’; and 

(4) by adding at the end the following: 

‘‘(5) Any Federal agency or the Secretary, in conducting any analysis pursuant to 

paragraph (2), shall consider only the effects of any agency action that are distinct 

from a baseline of all effects upon the relevant species that have occurred or are 

occurring prior to the action.’’. 

(b) OPINION OF SECRETARY.—Section 7(b) (16 U.S.C. 1536(b)) is amended—

(1) in paragraph (1)(B)(i) by inserting ‘‘permit or license’’ before ‘‘applicant’’; 

(2) in paragraph (2) by inserting ‘‘permit or license’’ before ‘‘applicant’’; 

(3) in paragraph (3)(A)—

(A) in the first sentence—

(i) by striking ‘‘Promptly after’’ and inserting ‘‘Before’’; 

(ii) by inserting ‘‘permit or license’’ before ‘‘applicant’’; and 

(iii) by inserting ‘‘proposed’’ before ‘‘written statement’’; and 

(B) by striking all after the first sentence and inserting the following: 

‘‘The Secretary shall consider any comment from the Federal agency and 

the permit or license applicant, if any, prior to issuance of the final written 

statement of the Secretary’s opinion. The Secretary shall issue the final 

written statement of the Secretary’s opinion by providing the written statement to the Federal agency and the permit or license applicant, if any, and 

publishing notice of the written statement in the Federal Register. If jeopardy is found, the Secretary shall suggest in the final written statement 

those reasonable and prudent alternatives, if any, that the Secretary believes would not violate subsection (a)(2) and can be taken by the Federal 

agency or applicant in implementing the agency action. The Secretary shall 

cooperate with the Federal agency and any permit or license applicant in 

the preparation of any suggested reasonable and prudent alternatives.’’; 

(4) in paragraph (4)—

(A) by redesignating subparagraphs (A), (B), and (C) as clauses (i), (ii), 

and (iii), respectively; 

(B) by inserting ‘‘(A)’’ after ‘‘(4)’’; 

(C) by striking ‘‘the Secretary shall provide’’ and all that follows through 

‘‘with a written statement that—’’ and inserting the following: ‘‘the Secretary shall include in the written statement under paragraph (3), a statement described in subparagraph (B) of this paragraph. 

‘‘(B) A statement described in this subparagraph—’’; and 

(5) by adding at the end the following: 

13 

‘‘(5)(A) Any terms and conditions set forth pursuant to paragraph (4)(B)(iv) shall 

be roughly proportional to the impact of the incidental taking identified pursuant 

to paragraph (4) in the written statement prepared under paragraph (3). 

‘‘(B) If various terms and conditions are available to comply with paragraph 

(4)(B)(iv), the terms and conditions set forth pursuant to that paragraph—

‘‘(i) must be capable of successful implementation; and 

‘‘(ii) must be consistent with the objectives of the Federal agency and the permit or license applicant, if any, to the greatest extent possible.’’. 

(c) BIOLOGICAL ASSESSMENTS.—Section 7(c) (16 U.S.C. 1536(c)) is amended—

(1) by striking ‘‘(1)’’; 

(2) by striking paragraph (2); 

(3) in the first sentence, by striking ‘‘which is listed’’ and all that follows 

through the end of the sentence and inserting ‘‘that is determined to be an endangered species or a threatened species, or for which such a determination is 

proposed pursuant to section 4, may be present in the area of such proposed 

action.’’; and 

(4) in the second sentence, by striking ‘‘best scientific and commercial data 

available’’ and inserting ‘‘best available scientific data’’. 

(d) ELIMINATION OF ENDANGERED SPECIES COMMITTEE PROCESS.—Section 7 (16 

U.S.C. 1536) is amended—

(1) by repealing subsections (e), (f), (g), (h), (i), (j), (k), (l), (m), and (n); 

(2) by redesignating subsections (o) and (p) as subsections (e) and (f), respectively; 

(3) in subsection (e), as redesignated by paragraph (2) of this subsection—

(A) in the heading, by striking ‘‘EXEMPTION AS PROVIDING’’; and 

(B) by striking ‘‘such section’’ and all that follows through ‘‘(2)’’ and inserting ‘‘such section,’’; and 

(4) in subsection (f), as redesignated by paragraph (2) of this subsection—

(A) in the first sentence, by striking ‘‘is authorized’’ and all that follows 

through ‘‘of this section’’ and inserting ‘‘may exempt an agency action from 

compliance with the requirements of subsections (a) through (d) of this section before the initiation of such agency action,’’; and 

(B) by striking the second sentence. 

SEC. 12. EXCEPTIONS TO PROHIBITIONS. 

(a) INCIDENTAL TAKE PERMITS.—Section 10(a)(2) (16 U.S.C. 1539(a)(2)) is amended—

(1) in subparagraph (A) by striking ‘‘and’’ after the semicolon at the end of 

clause (iii), by redesignating clause (iv) as clause (vii), and by inserting after 

clause (iii) the following: 

‘‘(iv) objective, measurable biological goals to be achieved for species covered 

by the plan and specific measures for achieving such goals consistent with the 

requirements of subparagraph (B); 

‘‘(v) measures the applicant will take to monitor impacts of the plan on covered species and the effectiveness of the plan’s measures in achieving the plan’s 

biological goals; 

‘‘(vi) adaptive management provisions necessary to respond to all reasonably 

foreseeable changes in circumstances that could appreciably reduce the likelihood of the survival and recovery of any species covered by the plan; and’’; 

(2) in subparagraph (B) by striking ‘‘and’’ after the semicolon at the end of 

clause (iv), by redesignating clause (v) as clause (vi), and by inserting after 

clause (iv) the following: 

‘‘(v) the term of the permit is reasonable, taking into consideration—

‘‘(I) the period in which the applicant can be expected to diligently complete the principal actions covered by the plan; 

‘‘(II) the extent to which the plan will enhance the conservation of covered 

species; 

‘‘(III) the adequacy of information underlying the plan; 

‘‘(IV) the length of time necessary to implement and achieve the benefits 

of the plan; and 

‘‘(V) the scope of the plan’s adaptive management strategy; and’’; and 

(3) by striking subparagraph (C) and inserting the following: 

‘‘(3) Any terms and conditions offered by the Secretary pursuant to paragraph 

(2)(B) to reduce or offset the impacts of incidental taking shall be roughly proportional to the impact of the incidental taking specified in the conservation plan pursuant to in paragraph (2)(A)(i). This paragraph shall not be construed to limit the 

authority of the Secretary to require greater than acre-for-acre mitigation where 

necessary to address the extent of such impacts. In any case in which various terms 

and conditions are available, the terms and conditions shall be capable of successful 

14 

implementation and shall be consistent with the objective of the applicant to the 

greatest extent possible. ‘‘(4)(A) If the holder of a permit issued under this subsection for other than scientific purposes is in compliance with the terms and conditions of the permit, and 

any conservation plan or agreement incorporated by reference therein, the Secretary 

may not require the holder, without the consent of the holder, to adopt any new 

minimization, mitigation, or other measure with respect to any species adequately 

covered by the permit during the term of the permit, except as provided in subparagraphs (B) and (C) to meet circumstances that have changed subsequent to the 

issuance of the permit. ‘‘(B) For any circumstance identified in the permit or incorporated document that 

has changed, the Secretary may, in the absence of consent of the permit holder, require only such additional minimization, mitigation, or other measures as are already provided in the permit or incorporated document for such changed circumstance. ‘‘(C) For any changed circumstance not identified in the permit or incorporated 

document, the Secretary may, in the absence of consent of the permit holder, require 

only such additional minimization, mitigation, or other measures to address such 

changed circumstance that do not involve the commitment of any additional land, 

water, or financial compensation not otherwise committed, or the imposition of additional restrictions on the use of any land, water or other natural resources otherwise 

available for development or use, under the original terms and conditions of the permit or incorporated document. 

‘‘(D) The Secretary shall have the burden of proof in demonstrating and documenting, with the best available scientific data, the occurrence of any changed circumstances for purposes of this paragraph. 

‘‘(E) All permits issued under this subsection on or after the date of the enactment 

of the Threatened and Endangered Species Recovery Act of 2005, other than permits 

for scientific purposes, shall contain the assurances contained in subparagraphs (B) 

through (D) of this paragraph and paragraph (5)(A) and (B). Permits issued under 

this subsection on or after March 25, 1998, and before the date of the enactment 

of the Threatened and Endangered Species Recovery Act of 2005, other than permits 

for scientific purposes, shall be governed by the applicable sections of parts 17.22(b), 

(c), and (d), and 17.32(b), (c), and (d) of title 50, Code of Federal Regulations, as 

the same exist on the date of the enactment of the Threatened and Endangered Species Act of 2005. 

‘‘(5)(A) The Secretary shall revoke a permit issued under paragraph (2) if the Secretary finds that the permittee is not complying with the terms and conditions of 

the permit. 

‘‘(B) Any permit subject to paragraph (4)(A) may be revoked due to changed circumstances only if—

‘‘(i) the Secretary determines that continuation of the activities to which the 

permit applies would be inconsistent with the criteria in paragraph (2)(B)(iv); 

‘‘(ii) the Secretary provides 60 days notice of revocation to the permittee; and 

‘‘(iii) the Secretary is unable to, and the permittee chooses not to, remedy the 

condition causing such inconsistency.’’. 

(b) EXTENSION OF PERIOD FOR PUBLIC REVIEW AND COMMENT ON APPLICATIONS.—

Section 10(c) (16 U.S.C. 1539(c)) is amended in the second sentence by striking 

‘‘thirty’’ each place it appears and inserting ‘‘45’’. 

(c) EXPERIMENTAL POPULATIONS.—Section 10(j) (16 U.S.C. 1539(j)) is amended—

(1) in paragraph (1), by striking ‘‘For purposes’’ and all that follows through 

the end of the paragraph and inserting the following: ‘‘For purposes of this subsection, the term ‘experimental population’ means any population (including any 

offspring arising therefrom) authorized by the Secretary for release under paragraph (2), but only when such population is in the area designated for it by the 

Secretary, and such area is, at the time of release, wholly separate geographically from areas occupied by nonexperimental populations of the same species. 

For purposes of this subsection, the term ‘areas occupied by nonexperimental 

populations’ means areas characterized by the sustained and predictable presence of more than negligible numbers of successfully reproducing individuals 

over a period of many years.’’; 

(2) in paragraph (2)(B), by striking ‘‘information’’ and inserting ‘‘scientific 

data’’; and 

(3) in paragraph (2)(C)(i), by striking ‘‘listed’’ and inserting ‘‘determined to be 

an endangered species or a threatened species’’. 

(d) WRITTEN DETERMINATION OF COMPLIANCE.—Section 10 (16 U.S.C. 1539) is 

amended by adding at the end the following: 

‘‘(k) WRITTEN DETERMINATION OF COMPLIANCE.—(1) A property owner (in this subsection referred to as a ‘requester’) may request the Secretary to make a written 

15 

determination that a proposed use of the owner’s property that is lawful under State 

and local law will comply with section 9(a), by submitting a written description of 

the proposed action to the Secretary by certified mail. ‘‘(2) A written description of a proposed use is deemed to be sufficient for consideration by the Secretary under paragraph (1) if the description includes— ‘‘(A) the nature, the specific location, the lawfulness under State and local 

law, and the anticipated schedule and duration of the proposed use, and a demonstration that the property owner has the means to undertake the proposed 

use; and ‘‘(B) any anticipated adverse impact to a species that is included on a list published under 4(c)(1) that the requestor reasonably expects to occur as a result 

of the proposed use. ‘‘(3) The Secretary may request and the requestor may supply any other information that either believes will assist the Secretary to make a determination under 

paragraph (1). ‘‘(4) If the Secretary does not make a determination pursuant to a request under 

this subsection because of the omission from the request of any information described in paragraph (2), the requestor may submit a subsequent request under this 

subsection for the same proposed use. ‘‘(5)(A) Subject to subparagraph (B), the Secretary shall provide to the requestor 

a written determination of whether the proposed use, as proposed by the requestor, 

will comply with section 9(a), by not later than expiration of the 180-day period beginning on the date of the submission of the request. 

‘‘(B) The Secretary may request, and the requestor may grant, a written extension 

of the period under subparagraph (A). 

‘‘(6) If the Secretary fails to provide a written determination before the expiration 

of the period under paragraph (5)(A) (or any extension thereof under paragraph 

(5)(B)), the Secretary is deemed to have determined that the proposed use complies 

with section 9(a). 

‘‘(7) This subsection shall not apply with respect to agency actions that are subject 

to consultation under section 7. 

‘‘(8) Any use or action taken by the property owner in reasonable reliance on a 

written determination of compliance under paragraph (5) or on the application of 

paragraph (6) shall not be treated as a violation of section 9(a). 

‘‘(9) Any determination of compliance under this subsection shall remain effective—

‘‘(A) in the case of a written determination provided under paragraph (5)(A), 

for the 10-year period beginning on the date the written determination is provided; or 

‘‘(B) in the case of a determination that under paragraph (6) the Secretary 

is deemed to have made, the 5-year period beginning on the first date the Secretary is deemed to have made the determination. 

‘‘(10) The Secretary may withdraw a determination of compliance under this section only if the Secretary determines that, because of unforeseen changed circumstances, the continuation of the use to which the determination applies would 

preclude conservation measures essential to the survival of any endangered species 

or threatened species. Such a withdrawal shall take effect 10 days after the date 

the Secretary provides notice of the withdrawal to the requester. 

‘‘(11) The Secretary may extend the period that applies under paragraph (5) by 

up to 180 days if seasonal considerations make a determination impossible within 

the period that would otherwise apply.’’. 

(e) NATIONAL SECURITY EXEMPTION.—Section 10 (16 U.S.C. 1539) is further 

amended by adding at the end the following: 

‘‘(l) NATIONAL SECURITY.—The President, after consultation with the appropriate 

Federal agency, may exempt any act or omission from the provisions of this Act if 

such exemption is necessary for national security.’’. 

(f) DISASTER DECLARATION AND PROTECTION.—Section 10 (16 U.S.C. 1539) is further amended by adding at the end the following: 

‘‘(m) DISASTER DECLARATION AND PROTECTION.—(1) The President may suspend 

the application of any provision of this Act in any area for which a major disaster 

is declared under the Robert T. Stafford Disaster Relief and Emergency Assistance 

Act (42 U.S.C. 5121 et seq.). 

‘‘(2) The Secretary shall, within one year after the date of the enactment of the 

Threatened and Endangered Species Recovery Act of 2005, promulgate regulations 

regarding application of this Act in the event of an emergency (including circumstances other than a major disaster referred to in paragraph (1)) involving a 

threat to human health or safety or to property, including regulations—

‘‘(A) determining what constitutes an emergency for purposes of this paragraph; and 

16 

‘‘(B) to address immediate threats through expedited consideration under or 

waiver of any provision of this Act.’’. 

SEC. 13. PRIVATE PROPERTY CONSERVATION. 

Section 13 (consisting of amendments to other laws, which have executed) is 

amended to read as follows: 

‘‘PRIVATE PROPERTY CONSERVATION

‘‘SEC. 13. (a) IN GENERAL.—The Secretary may provide conservation grants (in 

this section referred to as ‘grants’) to promote the voluntary conservation of endangered species and threatened species by owners of private property and shall provide financial conservation aid (in this section referred to as ‘aid’) to alleviate the 

burden of conservation measures imposed upon private property owners by this Act. 

The Secretary may provide technical assistance when requested to enhance the conservation effects of grants or aid. 

‘‘(b) AWARDING OF GRANTS AND AID.—Grants to promote conservation of endangered species and threatened species on private property—

‘‘(1) may not be used to fund litigation, general education, general outreach, 

lobbying, or solicitation; 

‘‘(2) may not be used to acquire leases or easements of more than 50 years 

duration or fee title to private property; 

‘‘(3) must be designed to directly contribute to the conservation of an endangered species or threatened species by increasing the species’ numbers or distribution; and 

‘‘(4) must be supported by any private property owners on whose property any 

grant funded activities are carried out. 

‘‘(c) PRIORITY.—Priority shall be accorded among grant requests in the following 

order: 

‘‘(1) Grants that promote conservation of endangered species or threatened 

species on private property while making economically beneficial and productive 

use of the private property on which the conservation activities are conducted. 

‘‘(2) Grants that develop, promote, or use techniques to increase the distribution or population of an endangered species or threatened species on private 

property. 

‘‘(3) Other grants that promote voluntary conservation of endangered species 

or threatened species on private property. 

‘‘(d) ELIGIBILITY FOR AID.—(1) The Secretary shall award aid to private property 

owners who—

‘‘(A) received a written determination under section 10(k) finding that the proposed use of private property would not comply with section 9(a); or 

‘‘(B) receive notice under section 10(k)(10) that a written determination has 

been withdrawn. 

‘‘(2) Aid shall be in an amount no less than the fair market value of the use that 

was proposed by the property owner if—

‘‘(A) the owner has foregone the proposed use; 

‘‘(B) the owner has requested financial aid—

‘‘(i) within 180 days of the Secretary’s issuance of a written determination 

that the proposed use would not comply with section 9(a); or 

‘‘(ii) within 180 days after the property owner is notified of a withdrawal 

under section 10(k)(10); and 

‘‘(C) the foregone use would be lawful under State and local law and the property owner has demonstrated that the property owner has the means to undertake the proposed use. 

‘‘(e) DISTRIBUTION OF GRANTS AND AID.—(1) The Secretary shall pay eligible aid—

‘‘(A) within 180 days after receipt of a request for aid unless there are unresolved questions regarding the documentation of the foregone proposed use or 

unresolved questions regarding the fair market value; or 

‘‘(B) at the resolution of any questions concerning the documentation of the 

foregone use established under subsection (f) or the fair market value established under subsection (g). 

‘‘(2) All grants provided under this section shall be paid on the last day of the 

fiscal year. Aid shall be paid based on the date of the initial request. 

‘‘(f) DOCUMENTATION OF THE FOREGONE USE.—Within 30 days of the request for 

aid, the Secretary shall enter into negotiations with the property owner regarding 

the documentation of the foregone proposed use through such mechanisms such as 

contract terms, lease terms, deed restrictions, easement terms, or transfer of title. 

If the Secretary and the property owner are unable to reach an agreement, then, 

within 60 days of the request for aid, the Secretary shall determine how the propVerDate Aug 31 2005 09:09 Sep 28, 2005 Jkt 023574 PO 00000 Frm 00016 Fmt 6659 Sfmt 6621 E:\HR\OC\HR237.XXX HR237
17 

erty owner’s foregone use shall be documented with the least impact on the ownership interests of the property owner necessary to document the foregone use. 

‘‘(g) FAIR MARKET VALUE.—For purposes of this section, the fair market value of 

the foregone use of the affected portion of the private property, including business 

losses, is what a willing buyer would pay to a willing seller in an open market. Fair 

market value shall take into account the likelihood that the foregone use would be 

approved under State and local law. The fair market value shall be determined 

within 180 days of the documentation of the foregone use. The fair market value 

shall be determined jointly by 2 licensed independent appraisers, one selected by the 

Secretary and one selected by the property owner. If the 2 appraisers fail to agree 

on fair market value, the Secretary and the property owner shall jointly select a 

third licensed appraiser whose appraisal within an additional 90 days shall be binding on the Secretary and the private property owner. Within one year after the date 

of enactment of the Threatened and Endangered Species Recovery Act of 2005, the 

Secretary shall promulgate regulations regarding selection of the jointly selected appraisers under this subsection. 

‘‘(h) LIMITATION ON AID AVAILABILITY.—Any person receiving aid under this section may not receive additional aid under this section for the same foregone use of 

the same property and for the same period of time. 

‘‘(i) ANNUAL REPORTING.—The Secretary shall by January 15 of each year provide 

a report of all aid and grants awarded under this section to the Committee on Resources of the House of Representatives and the Environment and Public Works 

Committee of the Senate and make such report electronically available to the general public on the website required under section 14.’’. 

SEC. 14. PUBLIC ACCESSIBILITY AND ACCOUNTABILITY. 

Section 14 (relating to repeals of other laws, which have executed) is amended to 

read as follows: 

‘‘PUBLIC ACCESSIBILITY AND ACCOUNTABILITY

‘‘SEC. 14. The Secretary shall make available on a publicly accessible website on 

the Internet—

‘‘(1) each list published under section 4(c)(1); 

‘‘(2) all final and proposed regulations and determinations under section 4; 

‘‘(3) the results of all 5-year reviews conducted under section 4(c)(2)(A); 

‘‘(4) all draft and final recovery plans issued under section 5(a), and all final 

recovery plans issued and in effect under section 4(f)(1) of this Act as in effect 

immediately before the enactment of the Threatened and Endangered Species 

Recovery Act of 2005; 

‘‘(5) all reports required under sections 5(e) and 16, and all reports required 

under sections 4(f)(3) and 18 of this Act as in effect immediately before the enactment of the Threatened and Endangered Species Recovery Act of 2005; and 

‘‘(6) data contained in the reports referred to in paragraph (5) of this section, 

and that were produced after the date of enactment of the Threatened and Endangered Species Recovery Act of 2005, in the form of databases that may be 

searched by the variables included in the reports.’’. 

SEC. 15. ANNUAL COST ANALYSES. 

(a) ANNUAL COST ANALYSES.—Section 18 (16 U.S.C. 1544) is amended to read as 

follows: 

‘‘ANNUAL COST ANALYSIS BY UNITED STATES FISH AND WILDLIFE SERVICE

‘‘SEC. 18. (a) IN GENERAL.—On or before January 15 of each year, the Secretary 

shall submit to the Congress an annual report covering the preceding fiscal year 

that contains an accounting of all reasonably identifiable expenditures made primarily for the conservation of species included on lists published and in effect under 

section 4(c). 

‘‘(b) SPECIFICATION OF EXPENDITURES.—Each report under this section shall specify—

‘‘(1) expenditures of Federal funds on a species-by-species basis, and expenditures of Federal funds that are not attributable to a specific species; 

‘‘(2) expenditures by States for the fiscal year covered by the report on a species-by-species basis, and expenditures by States that are not attributable to a 

specific species; and 

‘‘(3) based on data submitted pursuant to subsection (c), expenditures voluntarily reported by local governmental entities on a species-by-species basis, and 

such expenditures that are not attributable to a specific species. 

18 

‘‘(c) ENCOURAGEMENT OF VOLUNTARY SUBMISSION OF DATA BY LOCAL GOVERNMENTS.—The Secretary shall provide a means by which local governmental entities 

may—

‘‘(1) voluntarily submit electronic data regarding their expenditures for conservation of species listed under section 4(c); and 

‘‘(2) attest to the accuracy of such data.’’. 

(b) ELIGIBILITY OF STATES FOR FINANCIAL ASSISTANCE.—Section 6(d) (16 U.S.C. 

1535(d)) is amended by adding at the end the following: 

‘‘(3) A State shall not be eligible for financial assistance under this section for a 

fiscal year unless the State has provided to the Secretary for the preceding fiscal 

year information regarding the expenditures referred to in section 16(b)(2).’’. 

SEC. 16. REIMBURSEMENT FOR DEPREDATION OF LIVESTOCK BY REINTRODUCED SPECIES. 

The Endangered Species Act of 1973 is further amended—

(1) by striking sections 15 and 16; 

(2) by redesignating sections 17 and 18 as sections 15 and 16, respectively; 

and 

(3) by adding after section 16, as so redesignated, the following: 

‘‘REIMBURSEMENT FOR DEPREDATION OF LIVESTOCK BY REINTRODUCED SPECIES

‘‘SEC. 17. (a) IN GENERAL.—The Secretary of the Interior, acting through the Director of the United States Fish and Wildlife Service, may reimburse the owner of 

livestock for any loss of livestock resulting from depredation by any population of 

a species if the population is listed under section 4(c) and includes or derives from 

members of the species that were reintroduced into the wild. 

‘‘(b) ELIGIBILITY FOR AND AMOUNT.—Eligibility for, and the amount of, reimbursement under this section shall not be conditioned on the presentation of the body of 

any animal for which reimbursement is sought. 

‘‘(c) LIMITATION ON REQUIREMENT TO PRESENT BODY.—The Secretary may not require the owner of livestock to present the body of individual livestock as a condition 

of payment of reimbursement under this section. 

‘‘(d) USE OF DONATIONS.—The Secretary may accept and use donations of funds 

to pay reimbursement under this section. 

‘‘(e) AVAILABILITY OF APPROPRIATIONS.—The requirement to pay reimbursement 

under this section is subject to the availability of funds for such payments.’’. 

SEC. 17. AUTHORIZATION OF APPROPRIATIONS. 

(a) AUTHORIZATION.—The Endangered Species Act of 1973 is further amended by 

adding at the end the following: 

‘‘AUTHORIZATION OF APPROPRIATIONS

‘‘SEC. 18. (a) IN GENERAL.—There are authorized to be appropriated to carry out 

this Act, other than section 8A(e)—

‘‘(1) to the Secretary of the Interior to carry out functions and responsibilities 

of the Department of the Interior under this Act, such sums as are necessary 

for fiscal years 2006 through 2010; and 

‘‘(2) to the Secretary of Agriculture to carry out functions and responsibilities 

of the Department of the Interior with respect to the enforcement of this Act 

and the convention which pertain the importation of plants, such sums as are 

necessary for fiscal year 2006 through 2010. 

‘‘(b) CONVENTION IMPLEMENTATION.—There is authorized to be appropriated to the 

Secretary of the Interior to carry out section 8A(e) such sums as are necessary for 

fiscal years 2006 through 2010.’’. 

(b) CONFORMING AMENDMENT.—Section 8(a) (16 U.S.C. 1537(a)) is amended by 

striking ‘‘section 15’’ and inserting ‘‘section 18’’. 

SEC. 18. MISCELLANEOUS TECHNICAL CORRECTIONS. 

(a) INTERNATIONAL COOPERATION.—Section 8 (16 U.S.C. 1537) is amended—

(1) in subsection (a) in the first sentence by striking ‘‘any endangered species 

or threatened species listed’’ and inserting ‘‘any species determined to be an endangered species or a threatened species’’; and 

(2) in subsection (b) in paragraph (1), by striking ‘‘endangered species and 

threatened species listed’’ and inserting ‘‘species determined to be endangered 

species and threatened species’’. 

(b) MANAGEMENT AUTHORITY AND SCIENTIFIC AUTHORITY.—Section 8A (16 U.S.C. 

1537a)) is amended—

(1) in subsection (a), by striking ‘‘of the Interior (hereinafter in this section 

referred to as the ‘Secretary’)’’; 

19 

(2) in subsection (d), by striking ‘‘Merchant Marine and Fisheries’’ and inserting ‘‘Resources’’; and 

(3) in subsection (e)— (A) in paragraph (1), by striking ‘‘of the Interior (hereinafter in this subsection referred to as the ‘Secretary’)’’; and 

(B) by striking paragraph (3) and redesignating paragraph (4) as paragraph (3). 

(c) PROHIBITED ACTS.—Section 9 (16 U.S.C. 1538) is amended— (1) in subsection (a)— (A) in paragraph (1), in the matter preceding subparagraph (A), by striking ‘‘of this Act, with respect to any endangered species of fish or wildlife 

listed pursuant to section 4 of this Act’’ and inserting ‘‘, with respect to any 

species of fish or wildlife determined to be an endangered species under section 4’’; 

(B) in paragraph (1)(G), by striking ‘‘threatened species of fish or wildlife 

listed pursuant to section 4 of this Act’’ and inserting ‘‘species of fish or 

wildlife determined to be a threatened species under section 4’’; 

(C) in paragraph (2), in the matter preceding subparagraph (A) by striking ‘‘of this Act, with respect to any endangered species of plants listed pursuant to section 4 of this Act’’ and inserting ‘‘, with respect to any species 

of plants determined to be an endangered species under section 4’’; and 

(D) in paragraph (2)(E), by striking ‘‘listed pursuant to section 4 of this 

Act’’ and inserting ‘‘determined to be a threatened species under section 4’’; 

(2) in subsection (b)—

(A) by striking ‘‘(1)’’ before ‘‘SPECIES’’ and inserting ‘‘(1)’’ before the first 

sentence; 

(B) in paragraph (1), in the first sentence, by striking ‘‘adding such’’ and 

all that follows through ‘‘: Provided, That’’ and inserting ‘‘determining such 

fish or wildlife species to be an endangered species or a threatened species 

under section 4, if’’; and 

(C) in paragraph (1), in the second sentence, by striking ‘‘adding such’’

and all that follows through ‘‘this Act’’ and inserting ‘‘determining such fish 

or wildlife species to be an endangered species or a threatened species 

under section 4’’; 

(3) in subsection (c)(2)(A), by striking ‘‘an endangered species listed’’ and inserting ‘‘a species determined to be an endangered species’’; 

(4) in subsection (d)(1)(A), by striking clause (i) and inserting the following: 

‘‘(i) are not determined to be endangered species or threatened species under 

section 4, and’’; 

(5) in subsection (e), by striking clause (1) and inserting the following: ‘‘(1) 

are not determined to be endangered species or threatened species under section 4, and’’; and 

(6) in subsection (f)—

(A) in paragraph (1), in the first sentence, by striking clause (A) and inserting the following: ‘‘(A) are not determined to be endangered species or 

threatened species under section 4, and’’; and 

(B) by striking ‘‘Secretary of the Interior’’ each place it appears and inserting ‘‘Secretary’’. 

(d) HARDSHIP EXEMPTIONS.—Section 10(b) (16 U.S.C. 1539(b)) is amended—

(1) in paragraph (1)—

(A) by striking ‘‘an endangered species’’ and all that follows through ‘‘section 4 of this Act’’ and inserting ‘‘an endangered species or a threatened 

species and the subsequent determination that the species is an endangered 

species or a threatened species under section 4’’; 

(B) by striking ‘‘section 9(a) of this Act’’ and inserting ‘‘section 9(a)’’; and 

(C) by striking ‘‘fish or wildlife listed by the Secretary as endangered’’

and inserting ‘‘fish or wildlife determined to be an endangered species or 

threatened species by the Secretary’’; and 

(2) in paragraph (2)—

(A) by inserting ‘‘or a threatened species’’ after ‘‘endangered species’’ each 

place it appears; and 

(B) in subparagraph (B), by striking ‘‘listed species’’ and inserting ‘‘endangered species or threatened species’’. 

(e) PERMIT AND EXEMPTION POLICY.—Section 10(d) (16 U.S.C. 1539(d)) is amended—

(1) by inserting ‘‘or threatened species’’ after ‘‘endangered species’’; and 

(2) by striking ‘‘of this Act’’. 

(f) PRE-ACT PARTS AND SCRIMSHAW.—Section 10(f) (16 U.S.C. 1539(f)) is amended—

20 

(1) by inserting after ‘‘(f)’’ the following: ‘‘PRE-ACT PARTS AND SCRIMSHAW.— ’’; and 

(2) in paragraph (2), by striking ‘‘of this Act’’ each place it appears. 

(g) BURDEN OF PROOF IN SEEKING EXEMPTION OR PERMIT.—Section 10(g) (16 

U.S.C. 1539(g)) is amended by inserting after ‘‘(g)’’ the following: ‘‘BURDEN OF PROOF

IN SEEKING EXEMPTION OR PERMIT.—’’. (h) ANTIQUE ARTICLES.—Section 10(h)(1)(B) (16 U.S.C. 1539(h)(1)(B)) is amended 

by striking ‘‘endangered species or threatened species listed’’ and inserting ‘‘species 

determined to be an endangered species or a threatened species’’. (i) PENALTIES AND ENFORCEMENT.—Section 11 (16 U.S.C. 1540) is amended in 

subsection (e)(3), in the second sentence, by striking ‘‘Such persons’’ and inserting ‘‘Such a person’’. (j) SUBSTITUTION OF GENDER-NEUTRAL REFERENCES.— (1) ‘‘SECRETARY’’ FOR ‘‘HE’’.—The following provisions are amended by striking ‘‘he’’ each place it appears and inserting ‘‘the Secretary’’: (A) Paragraph (4)(C) of section 4(b), as redesignated by section 5(b)(2) of 

this Act. 

(B) Paragraph (5)(B)(ii) of section 4(b), as redesignated by section 5(b)(2) 

of this Act. 

(C) Section 4(b)(7) (16 U.S.C. 1533(b)(7)), in the matter following subparagraph (B). 

(D) Section 6 (16 U.S.C. 1535). 

(E) Section 8(d) (16 U.S.C. 1537(d)). 

(F) Section 9(f) (16 U.S.C. 1538(f)). 

(G) Section 10(a) (16 U.S.C. 1539(a)). 

(H) Section 10(b)(3) (16 U.S.C. 1539(b)(3)). 

(I) Section 10(d) (16 U.S.C. 1539(d)). 

(J) Section 10(e)(4) (16 U.S.C. 1539(e)(4)). 

(K) Section 10(f)(4), (5), and (8)(B) (16 U.S.C. 1599(f)(4), (5), (8)(B)). 

(L) Section 11(e)(5) (16 U.S.C. 1540(e)(5)). 

(2) ‘‘PRESIDENT’’ FOR ‘‘HE’’.—Section 8(a) (16 U.S.C. 1537(a)) is amended in the 

second sentence by striking ‘‘he’’ and inserting ‘‘the President’’. 

(3) ‘‘SECRETARY OF THE INTERIOR’’ FOR ‘‘HE’’.—Section 8(b)(3) (16 U.S.C. 

1537(b)(3)) is amended by striking ‘‘he’’ and inserting ‘‘the Secretary of the Interior’’. 

(4) ‘‘PERSON’’ FOR ‘‘HE’’.—The following provisions are amended by striking 

‘‘he’’ each place it appears and inserting ‘‘the person’’: 

(A) Section 10(f)(3) (16 U.S.C. 1539(f)(3)). 

(B) Section 11(e)(3) (16 U.S.C. 1540(e)(3)). 

(5) ‘‘DEFENDANT’’ FOR ‘‘HE’’.—The following provisions are amended by striking 

‘‘he’’ each place it appears and inserting ‘‘the defendant’’. 

(A) Section 11(a)(3) (16 U.S.C. 1540(a)(3)). 

(B) Section 11(b)(3) (16 U.S.C. 1540(b)(3)). 

(6) REFERENCES TO ‘‘HIM’’.—

(A) Section 4(c)(1) (16 U.S.C. 1533(c)(1)) is amended by striking ‘‘him or 

the Secretary of Commerce’’ each place it appears and inserting ‘‘the Secretary’’. 

(B) Paragraph (6) of section 4(b) (16 U.S.C. 1533(b)), as redesignated by 

section 5(b)(2) of this Act, is further amended in the matter following subparagraph (B) by striking ‘‘him’’ and inserting ‘‘the Secretary’’. 

(C) Section 5(k)(2), as redesignated by section 9(a)(1) of this Act, is 

amended by striking ‘‘him’’ and inserting ‘‘the Secretary’’. 

(D) Section 7(a)(1) (16 U.S.C. 1536(a)(1)) is amended in the first sentence 

by striking ‘‘him’’ and inserting ‘‘the Secretary’’. 

(E) Section 8A(c)(2) (16 U.S.C. 1537a(c)(2)) is amended by striking ‘‘him’’

and inserting ‘‘the Secretary’’. 

(F) Section 9(d)(2)(A) (16 U.S.C. 1538(d)(2)(A)) is amended by striking 

‘‘him’’ each place it appears and inserting ‘‘such person’’. 

(G) Section 10(b)(1) (16 U.S.C. 1539(b)(1)) is amended by striking ‘‘him’’

and inserting ‘‘the Secretary’’. 

(7) REFERENCES TO ‘‘HIMSELF OR HERSELF’’.—Section 11 (16 U.S.C. 1540) is 

amended in subsections (a)(3) and (b)(3) by striking ‘‘himself or herself’’ each 

place it appears and inserting ‘‘the defendant’’. 

(8) REFERENCES TO ‘‘HIS’’.—

(A) Section 4(g)(1), as redesignated by section 8(1) of this Act, is amended 

by striking ‘‘his’’ and inserting ‘‘the’’. 

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

(i) in subsection (d)(2) in the matter following clause (ii) by striking 

‘‘his’’ and inserting ‘‘the Secretary’s’’; and 

21 

(ii) in subsection (e)(1), as designated by section 10(3)(A) of this Act, 

by striking ‘‘his periodic review’’ and inserting ‘‘periodic review by the 

Secretary’’. 

(C) Section 7(a)(3) (16 U.S.C. 1536(a)(3)) is amended by striking ‘‘his’’ and 

inserting ‘‘the applicant’s’’. 

(D) Section 8(c)(1) (16 U.S.C. 1537(c)(1)) is amended by striking ‘‘his’’ and 

inserting ‘‘the Secretary’s’’. 

(E) Section 9 (16 U.S.C. 1538) is amended in subsection (d)(2)(B) and subsection (f) by striking ‘‘his’’ each place it appears and inserting ‘‘such person’s’’. 

(F) Section 10(b)(3) (16 U.S.C. 1539(b)(3)) is amended by striking ‘‘his’’

and inserting ‘‘the Secretary’s’’. 

(G) Section 10(d) (16 U.S.C. 1539(d)) is amended by striking ‘‘his’’ and inserting ‘‘the’’. 

(H) Section 11 (16 U.S.C. 1540) is amended—

(i) in subsection (a)(1) by striking ‘‘his’’ and inserting ‘‘the Secretary’s’’; 

(ii) in subsections (a)(3) and (b)(3) by striking ‘‘his or her’’ each place 

it appears and inserting ‘‘the defendant’s’’; 

(iii) in subsection (d) by striking ‘‘his’’ and inserting ‘‘the officer’s or 

employee’s’’; 

(iv) in subsection (e)(3) in the second sentence by striking ‘‘his’’ and 

inserting ‘‘the person’s’’; and 

(v) in subsection (g)(1) by striking ‘‘his’’ and inserting ‘‘the person’s’’. 

SEC. 19. CLERICAL AMENDMENT TO TABLE OF CONTENTS. 

The table of contents in the first section is amended—

(1) by striking the item relating to section 5 and inserting the following: 

‘‘Sec. 5. Recovery plans and land acquisition.’’

(2) by striking the items relating to sections 13 through 17 and inserting the 

following: 

‘‘Sec. 13. Private property conservation. 

‘‘Sec. 14. Public accessibility and accountability. 

‘‘Sec. 15. Marine Mammal Protection Act of 1972. 

‘‘Sec. 16. Annual cost analysis by United States Fish and Wildlife Service. 

‘‘Sec. 17. Reimbursement for depredation of livestock by reintroduced species. 

‘‘Sec. 18. Authorization of appropriations.’’. 

SEC. 20. CERTAIN ACTIONS DEEMED IN COMPLIANCE. 

(a) ACTIONS DEEMED IN COMPLIANCE.—During the period beginning on the date 

of the enactment of this Act and ending on the date described in subsection (b), any 

action that is taken by a Federal agency, State agency, or other person and that 

complies with the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136 

et seq.) is deemed to comply with sections 7(a)(2) and 9(a)(1)(B) of the Endangered 

Species Act of 1973 (16 U.S.C. 1536(a)(2), 1538(a)(1)(B)) (as amended by this Act) 

and regulations issued under section 4(d) of such Act (16 U.S.C. 1533(d)). 

(b) TERMINATION DATE.—The date referred to in subsection (a) is the earlier of—

(1) the date that is 5 years after the date of the enactment of this Act; and 

(2) the date of the completion of any procedure required under subpart D of 

part 402 of title 50, Code of Federal Regulations, with respect to the action referred to in subsection (a). 

(c) LIMITATION ON APPLICATION.—This section shall not affect any procedure pursuant to part 402 of title 50, Code of Federal Regulations, that is required by any 

court order issued before the date of the enactment of this Act. 

PURPOSE OF THE BILL

The purpose of H.R. 3824 is to amend and reauthorize the Endangered Species Act of 1973 to provide greater results conserving 

and recovering listed species, and for other purposes. 

BACKGROUND AND NEED FOR LEGISLATION

Prior to 1966, authority for wildlife protection rested primarily 

with the States, except where the wildlife was highly migratory or 

where wildlife was taken in violation of State or federal law or was 

transported across State boundaries. In response to a concern that 

various species had become or were in danger of becoming extinct, 

22 

the federal government began to enact legislation protecting endangered and threatened fish, wildlife and plants. Congress’ efforts 

culminated in 1973 with the passage of the Endangered Species 

Act of 1973 (ESA, Public Law 93–205, 16 U.S.C. 1531 et seq.) which 

has become our Nation’s strictest and most stringent environmental law. In conjunction with the Convention on International 

Trade in Endangered Species of Wild Flora and Fauna, the ESA 

embodies a rigid and comprehensive approach to species protection 

in the United States and throughout the world. 

The ESA was passed by Congress with the intent to protect and 

preserve species that have been identified as threatened or endangered. Over the past 32 years more than 1800 species have been 

listed for protection. Under the ESA, the Secretary of the Department of the Interior, though the U.S. Fish and Wildlife Service, has 

responsibility for plants, wildlife and inland fishes. The Secretary 

of Commerce through the National Marine Fisheries Service, is responsible for implementing the ESA with respect to ocean-going 

fish and marine animals. In addition, the Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) 

oversees the import and export of endangered species from foreign 

countries through the Nation’s ports. 

Once a species is listed as endangered or threatened, ESA section 

4 requires the relevant Secretary to declare ‘‘critical habitat’’ for an 

endangered species which limits uses of the declared lands or waters. Different protection standards can be issued for threatened 

species. Section 6 of the ESA authorizes the Secretary to enter into 

cooperative or management agreements with States for conservation of listed species. Under ESA section 7, federal agencies whose 

actions (including actions authorized, funded or directly carried out 

by the agency) are ‘‘likely to jeopardize the continued existence’’ of 

an endangered or threatened species must consult with the Secretary. After the consultation, the Secretary is to issue a written 

‘‘jeopardy opinion’’ detailing how the proposed agency action affects 

the species or its critical habitat, and the Secretary may suggest 

reasonable alternatives to the proposed action which will not jeopardize the species or its habitat. The Secretary may also conclude 

that the agency action does not violate the ESA or results only in 

‘‘ incidental take’’ of the species. Section 9 of the ESA prohibits various actions regarding the species, including the ‘‘take’’ of a species, 

which includes harassment, harm, pursuit, capture or killing. Section 7 also establishes the Endangered Species Committee to resolve conflicts in the administration of and grant exemptions from 

ESA. Under ESA section 10, the Secretary may permit any act that 

would otherwise violate ESA section 9 for scientific purposes or if 

the ‘‘taking’’ of the species is incidental to and not the purpose of 

an otherwise lawful activity. 

The ESA has been marked by conflict, litigation and cumbersome 

processes and failed to produce the goal all Americans share, recovering and endangered species. According to the U.S. Fish and Wildlife Service, only 10 (or less than 1%) of the roughly 1300 domestic 

species listed as endangered or threatened have been recovered in 

the ESA’s 34-year history. What is the status of the remaining listed species? According to the Fish and Wildlife Service data: 39 percent of the ESA’s listed species are classified as being in ‘‘unknown’’ status, which could include extinction; 21 percent are clasVerDate Aug 31 2005 09:09 Sep 28, 2005 Jkt 023574 PO 00000 Frm 00022 Fmt 6659 Sfmt 6602 E:\HR\OC\HR237.XXX HR237
23 

1 In fairness, this number includes the species in the ‘‘unknown’’ category because of the inability to gauge their status. 

sified as ‘‘declining;’’ 3 percent are classified as ‘‘believed to be extinct,’’ though they remain on the list; 30 percent are classified as 

‘‘stable,’’ though for many species in this category, this classification is a result of corrections to original data error, rather than actual accomplishments of the ESA; and only 6 percent are classified 

by the Fish and Wildlife Service as ‘‘improving.’’ Moreover, according to official Fish and Wildlife Service data, 77 percent of all the 

listed species have only achieved somewhere between zero and one 

quarter of their recovery goals.1 These are not the statistics of a 

successful law after more than three decades of implementation. 

H.R. 3824, the Threatened and Endangered Species Recovery Act 

of 2005 (TESRA), will place a new emphasis on conservation and 

recovery, eliminates the dysfunctional critical habitat provisions 

that the last two Administrations have recognized as ineffective for 

conservation, removes the conservation burden that has been unfairly imposed on private property owners and reestablishes a 

meaningful distinction between endangered and threatened species. 

It also provides for more transparency in the ESA program, accountability, and stronger scientific safeguards, improves numerous 

aspects of the consultation program and provides incentives and 

larger roles for States, local governments and Indian tribes. 

Among TESRA’s provisions are those aimed at fostering recovery 

of endangered species, drawing not only on those who have knowledge and skills essential to guide effective conservation efforts but 

also those who have property or livelihoods affected by species—

where any successful program must be made to work—to foster collaborative rather than confrontational recovery programs. 

TESRA provides new tools like Threatened and Endangered Species Incentives Program to enlist private property owners as allies 

in species conservation. The bill provides landowners who participate in Habitat Conservation Plans assurances against surprises. 

TESRA requires the Secretary of the Interior to provide a clear answer for landowners whether a proposed property use would violate 

the ESA. In those cases where there is a conflict, TESRA provides 

for conservation aid that reduces the burden of regulation on property owners when use of their private property has been restricted 

for conservation, thus ensuring that individual property owners are 

not forced to shoulder the financial burden of conserving endangered and threatened species for all Americans. 

Section 4(d) of the ESA authorizes the Secretaries of the Interior 

and Commerce ‘‘by regulation’’ to apply to ‘‘any threatened species’’

any of the prohibitions (most notably the ‘‘take’’ prohibition) that 

section 9 of the ESA establishes for endangered species. The fundamental purpose of this provision is to allow each Secretary to tailor 

prohibitions for any less imperiled threatened species that the ESA 

automatically applies to all of the more imperiled endangered species. While the Secretary of Commerce has interpreted this language to mean that he or she is to issue individual rules tailoring 

whatever prohibitions are needed to each specific threatened species, the Secretary of the Interior has issued a blanket rule that applies all of the ESA section 9 prohibitions automatically to virtually 

24 

all of the threatened species whenever they have been or will be 

listed. 

Section 8 of TESRA, as introduced, would have directed the Secretaries to take the approach followed by the Secretary of Commerce. The provision would have required that the underlying intent of ESA section 4(d)—to require the tailoring of, and application to, threatened species on a species-specific basis any of the 

general statutory prohibitions for endangered species—be accomplished by the elimination of the Secretary of the Interior’s blanket 

applicability approach and the application of any ESA section 9 

prohibitions to any threatened species by the issuance of individual 

rules for particular threatened species (or groups of threatened species whose specific threats or biological conditions are sufficiently 

similar to warrant application of identical prohibitions). An amendment striking TESRA section 8 was adopted when members of the 

Committee pointed out that the problem that section addressed 

was created by a single U.S. Fish and Wildlife Service rule which 

could be remedied by rulemaking without statutory change. The 

amendment striking section 8 was agreed to on that basis. The 

Committee expects and directs the Secretary of the Interior to conduct promptly a rulemaking to reconsider and eliminate or restructure the U.S. Fish and Wildlife Service rule—50 CFR 17.31(a)—in 

light of this report and legislative history. 

COMMITTEE ACTION

Committee on Resources Chairman Richard Pombo (R–CA) introduced H.R. 3824 on September 19, 2005, along with Congressman 

Dennis Cardoza (D–CA), Congressman Joe Baca (D–CA), Congressman Marion Berry (D–AR), Congressman Henry E. Brown, Jr. (R– SC), Congressman Jim Costa (D–CA), Congresswoman Barbara 

Cubin (R–WY), Congressman Jim Gibbons (R–NV), Congressman 

Sam Graves (R–MO), Congresswoman Cathy McMorris (R–WA), 

Congressman George Radanovich (R–CA), Congressman Mike Ross 

(D–AR), Congressman Bennie G. Thompson (D–MS), Congressman 

Greg Walden (R–OR), Congressman Chris Cannon (R–UT), Delegate Madeleine Bordallo (D–GU), Congressman Ken Calvert (R– CA), Congresswoman Thelma Drake (R–VA), Congressman Rick 

Renzi (R–AZ), Congressman Don Young (R–AK), Congressman 

Louie Gohmert (R–TX), Congressman Henry Bonilla (R–TX), Congressman Tom G. Tancredo (R–CO), Congressman Dan Boren (D– OK), Congressman K. Michael Conaway (R–TX), Congressman 

Randy Neugebauer (R–TX), Congressman Daniel E. Lungren (R–

CA), Congresswoman Marsha Blackburn (R–TN), Congressman 

C.L. ‘‘Butch’’ Otter (R–ID), Congressman Mac Thornberry (R–TX), 

Congressman John T. Doolittle (R–CA), Congressman Collin C. Peterson (D–MN), Congressman John B. Shadegg (R–AZ), Congressman Dennis R. Rehberg (R–MT), Congressman Geoff Davis (R–KY), 

Congressman Ron Lewis (R–KY), Congressman John J. Duncan, Jr. 

(R–TN), Congressman John Sullivan (R–OK), Congressman Michael K. Simpson (R–ID), Congressman Randy ‘‘Duke’’

Cunningham (R–CA), Congressman Duncan Hunter (R–CA), Congressman Devin Nunes (R–CA), Congressman William M. Thomas 

(R–CA), Congressman Steve King (R–IA), Congressman Darrell E. 

Issa (R–CA), Congressman Bobby Jindal (R–LA), Congressman 

John E. Peterson (R–PA), Congressman Sanford D. Bishop, Jr. (D–

25 

GA), Resident Commissioner Luis G. Fortun ̃ o (R–PR), Congressman J.D. Hayworth (R–AZ), Congressman Stevan Pearce (R–NM), 

Congresswoman Marilyn N. Musgrave (R–CO), Congressman Jeff 

Flake (R–AZ), Congressman Howard P. ‘‘Buck’’ McKeon (R–CA), 

Delegate Eni F. H. Faleomavaega (D–AS), Congressman Charlie 

Melancon (D–LA), Congressman Mark E. Souder (R–IN), Congressman Jack Kingston (R–GA), Congresswoman Jo Ann Emerson (R– MO), Congressman Dave Weldon (R–FL), Congressman Kevin 

Brady (R–TX), Congressman Frank D. Lucas (R–OK), Congresswoman Virginia Foxx (R–NC), Congressman John Kline (R–MN), 

Congressman David Scott (D–GA), Congressman Dana Rohrabacher (R–CA), Congressman Bill Shuster (R–PA), Congressman 

Gary Miller (R–CA), Congressman Michael T. McCaul (R–TX), Congressman Wally Herger (R–CA), Congressman Mark R. Kennedy 

(R–MN), Congressman Charlie Norwood (R–GA), Congressman William L. Jenkins (R–TN), Congressman Don Sherwood (R–PA), Congressman Trent Franks (R–AZ), Congressman John Boozman (R– AZ), Congressman Tom Cole (R–OK), Congressman Charles W. ‘‘Chip’’ Pickering (R–MS), Congressman Joe Barton (R–TX), Congressman Solomon P. Ortiz (D–TX), Congressman Spencer Bachus 

(R–AL), Congressman Chet Edwards (D–TX), Congressman Artur 

Davis (D–AL), Congressman Jim Ryun (R–KS), Congressman Richard H. Baker (R–LA), Mike Rogers (R–AL), Terry Everett (R–AL), 

Congressman Jo Bonner (R–AL), Congressman Phil Gingrey (R– GA), Congressman Robert B. Aderholt (R–AL), Congressman 

Lamar Smith (R–TX), Congressman Mike McIntyre (D–NC), Congressman Robert E. ‘‘Bud’’ Cramer (D–AL), Congressman Rube ́n 

Hinojosa (D–TX), Congressman Tom Osborne (R–NE), Congresswoman Ginny Brown-Waite (R–FL), Congresswoman Eddie Bernice 

Johnson (D–TX), and Congresswoman Sheila Jackson-Lee (D–TX) 

(as of the preparation of this report). 

The bill was referred to the Committee on Resources. On September 21, 2005, the Committee held a hearing on the bill. On September 22, 2005, the Committee met to mark up the bill. The following amendments were offered: 

Resources Committee Chairman Richard Pombo (R–CA) offered 

an en bloc set of technical amendments to sections 10 and 13 of the 

bill. They were adopted by voice vote. 

Congressman Tom Udall (D–NM) offered an amendment to strike 

the definition of ‘‘best available scientific data’’ from section 3 of 

the ESA. The amendment failed by voice vote. 

Congressman Greg Walden (R–OR) offered and withdrew an 

amendment regarding the application of ‘‘jeopardize the continued 

existence.’’

Congresswoman Stephanie Herseth (D–SD) offered and withdrew 

an amendment regarding peer review. 

Congressman Peter DeFazio (D–OR) offered an amendment to 

strike the determination of distinct population of vertebrate fish or 

wildlife only sparingly. The amendment failed by voice vote. 

Congressman Jay Inslee (D–WA) offered an amendment to deem 

a species as endangered or threatened if the Secretary of the Interior fails to make a determination within 180 days of the species 

being proposed. The amendment failed by voice vote. 

Congressman John E. Peterson (R–PA) offered and withdrew an 

amendment which required the Secretary of the Interior to prepare 

26 

an analysis of the economic impact, the impact on national security 

and other relevant impact of a determination that a species is endangered or threatened. 

Congressman Jim Saxton (R–NJ) offered an amendment to strike 

section 5 of the bill (Repeal of Critical Habitat Requirements). The 

amendment failed by voice vote. 

Congressman Jim Saxton offered and withdrew an amendment 

to strike the repeal of the critical habitat requirements under section 4 of the ESA and insert instead provisions on protection of 

critical habitat and survival habitat. 

Congressman Mark Udall (D–CO) offered an amendment to 

strike section 8 (Protective Regulations). The amendment was 

adopted by voice vote. 

Congressman Jim Costa (D–CA) offered an amendment to section 

9 of the bill to include counties along with Governors and State 

agencies in commenting on regulations issued by the Secretary of 

the Interior under section 4 of the ESA. Chairman Pombo offered 

an amendment to the Costa amendment to include units of local 

government. The Pombo amendment to the Costa amendment was 

adopted by unanimous consent. The Costa amendment, as amended, was adopted by voice vote. 

Congressman Jim Saxton offered an amendment to strike the recovery plan process in section 10 of the bill and replace it with a 

different process. Chairman Richard Pombo offered an amendment 

to the Saxton amendment to strike all the text but the requirement 

that recovery plans be prepared or revised within 10 years of the 

date of enactment of TESRA. The Pombo amendment to the Saxton 

amendment was agreed to by unanimous consent. The Saxton 

amendment, as amended, by adopted by voice vote. 

Congressman Edward Markey (D–MA) offered an amendment to 

strike the language in section 10 of the bill regarding the regulatory nature of recovery plans. The amendment failed by voice 

vote. 

Congressman Greg Walden offered and withdrew an amendment 

to allow the modification of specific measures in an agreement between the Secretary of the Interior and a federal agency after considering the direct, indirect and cumulative costs and benefits resulting from the implementation of a recovery plan. 

Congressman Jim Costa offered an amendment to section 10 of 

the bill to require the Secretary of the Interior to consult with any 

pertinent State, regional or local land use agency before approving 

a new or revised recovery plan. Chairman Pombo offered an 

amendment to also include the designee of a local land use agency. 

This amendment was adopted by unanimous consent. Congressman 

Rick Renzi (R–AZ) offered an amendment to the Costa amendment 

to include Indian tribes and to provide a definition of Indian tribes. 

This amendment was adopted by unanimous consent. The Costa 

amendment, as amended, was adopted by voice vote. 

Congressman Rick Renzi offered an amendment to allow the Secretary of the Interior to enter into cooperative agreements with Indian tribes under section 11 of the bill. The amendment was adopted by voice vote. 

Congressman Raul Grijalva (D–AZ) offered an amendment to 

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27 

quirement under section 7(a)(2) of the ESA. The amendment failed 

by a roll call vote of 12 to 21, as follows: 

28 


Insert graphic folio 28 HR237.001
29 

Congressman Ken Calvert (R–CA) offered and withdrew an 

amendment which exempted from the ESA section 7(a) requirements certain agency action that may affect a species for which a 

permit has been issued under section 10 of the ESA if the action 

implements or is consistent with any conservation plan or agreement incorporated by reference in the permit. 

Congressman Dennis Cardoza (D–CA) offered an amendment to 

change from 90 to 180 days the length of time the Secretary of the 

Interior has to respond to a request for a written determination of 

compliance with section 9(a) of the ESA. The amendment also provided a sunset for the written determination and allowed the Secretary to withdraw the determination under certain circumstances. 

The amendment was adopted by voice vote. 

Chairman Pombo offered an amendment to clarify that the request for a written determination of compliance must apply to a 

proposed use which is lawful under State and local law. The 

amendment also required the requestor to send the request by certified mail, that the request must describe the lawfulness of the 

proposed action under State and local law, as well as demonstrate 

that the property owner has the means to undertake the use, and 

the request must describe the anticipated adverse impact to a species. The amendment also allows the Secretary of the Interior to request more information regarding the determination and allows the 

requestor to supply such additional information. The amendment 

was adopted by voice vote. 

Congressman Jim Gibbons (R–NV) offered an amendment to 

allow the President, after consulting with the appropriate federal 

agency, to exempt any act or omission from the provisions of the 

ESA if the exemption is necessary for national security. The 

amendment was adopted by voice vote. 

Congressman Jeff Flake (R–AZ) offered and withdrew an amendment regarding an exemption from liability for take of listed aquatic species. 

Congressman Bobby Jindal (R–LA) offered an amendment to authorize the President to suspend the application of the ESA in a 

declared disaster area and directed the Secretary of the Interior to 

issue regulations regarding the application of the ESA in the event 

of an emergency involving a threat to human health or safety or 

to property. The amendment was adopted by voice vote. 

Congressman Neil Abercrombie (D–HI) offered an amendment 

providing a definition of ‘‘experimental population.’’ The amendment was adopted by voice vote. 

Chairman Richard Pombo offered an amendment to section 14 of 

the bill to clarify the provisions regarding the distribution of aid, 

including the legality of the foregone use which would be subject 

to aid, the timing of the aid, the documentation and calculation of 

fair market value of the foregone use, and the availability of aid. 

The amendment was adopted by voice vote. 

Congressman Jay Inslee offered an amendment to require that 

before any aid can be granted under section 14 of the bill, the property owner would also have to demonstrate that the application of 

ESA section 9(a) to prohibit the foregone use constitutes a taking 

of privately owned land for which the payment of compensation is 

required by the 5th Amendment of the U.S. Constitution. The 

amendment failed on a roll call vote of 10 to 27, as follows: 

30 


Insert graphic folio 30 HR237.002
31 

Congressman Stevan Pearce (R–NM) offered an amendment regarding the reimbursement for depredation of livestock by reintroduced species. The amendment was adopted by voice vote. 

Congressman Greg Walden offered an amendment which deemed 

certain actions in compliance with other laws to also be in compliance with section 7(a)(2) and section 9(a)(1)(B) of the ESA for a period of time. The amendment was adopted by a roll call vote of 26 

to 11, as follows: 

32 


Insert graphic folio 32 HR237.003
33 

No additional amendments were offered and H.R. 3824, as 

amended, was ordered favorably reported to the House of Representatives by a roll call vote of 26 to 12, as follows: 

34 


Insert graphic folio 34 HR237.004
35 

SECTION-BY-SECTION ANALYSIS

Section 1. Short title; Table of contents 

Section 1 provides a short title for the bill—‘‘The Threatened and 

Endangered Species Recovery Act of 2005’’—and a table of contents. 

Section 2. Amendment references 

Section 2 clarifies that, unless otherwise noted, all amendments 

are to the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.). 

Section 3. Definitions 

TESRA section 3 establishes a new definition for the ESA and 

directs the Secretaries of the Interior and Commerce to provide 

guidance and direction on the development and use of scientific 

data. The fundamental goal of adding this definition is to ensure 

that sound and defensible science is used in all relevant decisions 

including: a proposed listing or delisting of an endangered or 

threatened species; a proposal to reclassify a species from threatened to endangered or vice versa; the development of a recovery 

plan for an endangered or threatened species; and a biological opinion on a federal agency action. 

Each agency follows a regulatory process to list species as threatened or endangered and to conserve or recover a species. Currently, 

the ESA requires ‘‘the best scientific and commercial data available’’ for listings and other actions. However, this term is not defined, and there are no objective standards to ensure a uniformly 

high quality of scientific data. Further, many question the cost, 

magnitude and validity of the ESA’s requirements and implementation since the ESA has produced very limited recovery results. 

This has led to concerns about the adequacy of science supporting 

implementation of actions under the ESA. To address these issues, 

this definition is established and the Secretaries are to set standards for the ‘‘best available scientific data’’ that are used to take 

actions under the ESA. 

TESRA section 3 also provides a new definition of ‘‘permit or license applicant’’ to replace the old definition that was tied to the 

now-repealed Endangered Species Committee exemption process. A 

permit or license applicant under ESA section 7 is a person who 

has applied to a federal agency for a permit or license or for another type of formal legal approval to perform an act, such as a bidder on a federal contract. 

TESRA section 3 also defines the term ‘‘jeopardize the continued 

existence’’ of an endangered species or threatened species. The 

term is used in ESA section 7, under which federal agencies must 

insure their actions are not likely to jeopardize the continued existence of an endangered or threatened species. Under this definition, 

the agency action must reasonably be expected to significantly impede, directly or indirectly, the conservation of the species in the 

long-term. This definition strengthens the current jeopardy standard by adding to the jeopardy analysis consideration of ‘‘conservation,’’ defined in the ESA as the use of all methods and procedures 

to restore a species to the point where the protections of the ESA 

are no longer necessary. A significant impediment to conservation 

is one that, by itself, makes the future use of such methods and 

36 

procedures unlikely to be successful, thus jeopardizing the continued existence of the species and risking its extinction. Before an 

impediment can be considered ‘‘significant,’’ there must be sufficient scientific basis in existence at the time of the consultation, 

such as a recovery plan if one has been prepared under TESRA, to 

conclude that the conservation is possible. As provided by the definitions of ‘‘endangered species’’ and ‘‘threatened species’’ in the current ESA, a significant impediment must be likely to frustrate, directly or indirectly, conservation throughout all or a significant portion of the species’ range, not just in one region or locality, although for some species an action occurring only in one such area 

could indirectly have significant effects in a broader area. In addition to being significant, the harmful effects of the agency action 

must persist over the long term, which may vary from species to 

species. A short-term impediment to conservation, no matter how 

significant, that has no lasting long-term effects would not support 

a jeopardy finding under the definition. To find jeopardy, it would 

be necessary to demonstrate that the effects would be likely to create a significant long-term threat to the ability to successfully conserve the species. Finally, this definition would consider only the 

conservation of the species in the wild, not taking into account, for 

example, captive-breeding programs or the maintenance of members of the endangered species or threatened species in zoos, aquaria, or other refuges. 

This term, as it appears in section 7 of the current ESA, is not 

defined, and has been implemented by the Secretary through regulatory provisions. The term is also accompanied by a second standard in section 7 of the current ESA for evaluating federal actions 

destruction or adverse modification of critical habitat. Although the 

greatest threat to endangered and threatened species is habitat 

loss, and protection of habitat is a key concern of the ESA, the 

legal concept of critical habitat in the ESA has proven to be poorly 

understood, controversial and difficult to implement, with both the 

Clinton and Bush Administrations speaking out forcefully as to its 

cost in time and money and relative ineffectiveness as a conservation tool. Litigation over the concept’s meaning and application in 

ESA section 7 has also increased dramatically, shifting valuable 

conservation resources away from on-the-ground restoration to 

often ineffective process costs. Reflecting these realities, the concept of critical habitat and the second standard in ESA section 7 

that incorporates it have been dropped. To assure that ESA section 

7 continues to give broad protection for species and habitats, the 

new jeopardy definition has been added so that, when a future 

agency action is evaluated for risk of jeopardizing the continued existence of a species, consideration is given to preserving the potential for species’ conservation and not just the effect on the species’

survival. Habitat will continue to be a central focus of the analysis 

under ESA section 7 since ultimate conservation of so many endangered and threatened species is habitat-dependent. Moreover, the 

amendments contained in TESRA to strengthen the recovery planning process increase the focus on habitat, since recovery plans will 

be required to include the identification of habitat that is of special 

value to the conservation of the species. This will able the recovery 

plan to serve a role formerly played by critical habitat to inform 

the public of the importance of key habitat areas. Additionally, reVerDate Aug 31 2005 09:09 Sep 28, 2005 Jkt 023574 PO 00000 Frm 00036 Fmt 6659 Sfmt 6602 E:\HR\OC\HR237.XXX HR237
37 

covery teams can develop plans that incentivize conservation on 

privately owned lands that have been subject to sound land management practices that have benefitted species but were never acknowledged under the current regulatory-based critical habitat system. Recovery plans can be given the force and effect of law if 

adopted through other existing authorities, and federal agencies 

may enter into implementation agreements with the Secretary to 

enforce recovery plan provisions. In any event the recovery plan 

should inform all discretionary decision-making under the ESA 

even where the obligations of the affected agencies or parties differ 

from the standards of a recovery plan. The Secretary’s regulations 

will have to be updated to implement the new jeopardy definition 

in the wide range of circumstances that exist among endangered 

and threatened species. 

Section 4. Determinations of endangered species and threatened species 

TESRA section 4 provides that the ‘‘Secretary shall use the authority * * * to determine any distinct population of any species of 

vertebrate fish or wildlife to be an endangered species or a threatened species only sparingly.’’ The Senate Report on the 1979 ESA 

Amendments recognized the ‘‘great potential for abuse’’ in providing an ability to extend the ESA’s protections to a ‘‘distinct population,’’ and directed that this authority be used only ‘‘sparingly.’’ S. Rep. No. 96–151 at 7 (1979). TESRA elevates that legislative intent to a statutory directive. 

The Committee has done so because, despite the intent in the 

U.S. Fish and Wildlife Service’s 1996 DPS Policy to designate distinct populations only ‘‘sparingly’’ (61 Fed. Reg. 4722–25 (Feb. 7, 

1996)), in practice the ‘‘Services have concluded that potential populations qualify as a distinct population over 80 percent of the 

time.’’ Geoffroy and Doyle, Listing Distinct Population Segments of 

Endangered Species: Has It Gone Too Far?, Natural Resources & 

Env’t 82, 84 (ABA Fall 2001). The Secretaries need clear direction 

and authority to limit the number of ‘‘distinct populations’’ that are 

found and listed. The historic overuse of that authority is diverting 

limited resources from more important ESA goals, is trivializing 

the ESA by protecting less-significant units, and is needlessly increasing the conflicts between the ESA and desired human land 

uses. 

Section 4 of TESRA provides that in evaluating the adequacy of 

existing regulatory mechanisms in making a decision whether to 

list a species as threatened or endangered, the Secretary shall consider ongoing conservation efforts described in ESA subsection 4, 

and provides that such efforts include those by federal agencies as 

well as States, local governments and foreign nations. The amendment made by this subsection clarifies that the ESA subsection 

4(b)(1) factors should be considered as part of the ESA subsection 

4(a)(1) analysis rather than separately after consideration of the 

ESA section 4(a)(1) factors. 

Section 5. Repeal of critical habitat requirements 

This section repeals the critical habitat provision contained in 

the current ESA. TESRA eliminates critical habitat because, according to successive Democratic and Republican administrations, 

38 

the provisions cause nothing but litigation and waste resources. 

The official position of the U.S. Fish and Wildlife Service is: ‘‘In 30 years of implementing the ESA, the Service has found 

that the designation of statutory critical habitat provides little additional protection to most listed species, while consuming significant amounts of conservation resources. The Service’s present system for designating critical habitat is driven by litigation rather 

than biology, limits our ability to fully evaluate the science involved, consumes enormous agency resources, and imposes huge social and economic costs. The consequences of the critical habitat 

litigation activity is that limited listing funds are used to defend 

active lawsuits and to comply with the growing number of adverse 

court orders. As a result, the Service’s own proposals to undertake 

conservation actions based on biological priorities are significantly 

delayed.’’ In TESRA, habitat of special value to the conservation of a species is identified and included in recovery plans and given priority 

in recovery contracts. Any proposal that would initiate a review of 

an action’s effect on habitat will be reviewed under TESRA’s recovery habitat, as required under the ESA section 7 consultation process. This process is described in greater detail under section 9 of 

the bill. 

Section 6. Petitions and procedures for determinations and revisions 

The Secretary’s determination that a petition to list a species as 

endangered or threatened may be warranted can only be made if 

the petitioner has provided the Secretary with all information cited 

in the petition. TESRA section 6 also modifies the notice provisions 

to provide that the Governor, as well as the appropriate State 

agency, receives notice of a proposed listing determination or revision. 

This section further provides that: (1) a complete record of all information concerning the proposed listing determination or revision 

must be made available on a publicly available website; (2) the 

posted information must include any status review and information, information referred to in the proposed regulation, and all information submitted by third parties; and (3) the Secretary must 

withhold any document consistent with the requirements of section 

552 of the Administrative Procedure Act. 

The section also provides that any withdrawal of a proposed listing determination or revision must be accompanied by written findings explaining such withdrawal, and clarifies that the emergency 

provisions set forth in ESA section 4 only apply to listing determinations and requires that the Governor as well as any affected 

State agencies be given notice. The posted information must include any status review and information, information referred to in 

the proposed regulation, and all information submitted by third 

parties. The Secretary must withhold any document consistent 

with the requirements of section 552 of the Administrative Procedure Act. 

Section 7. Reviews of listings and determinations 

This section provides that status reviews that propose a change 

in the species status must have taken into consideration either: (1) 

the objective, measurable criteria identified in the recovery plan 

39 

which, if met, would result in a downlisting or delisting decision; 

(2) for species with no recovery plan or established downlisting or 

delisting criteria, the listing determination factors under ESA section 4(a); (3) a finding of a fundamental error in the initial determination; or (4) a determination that the species is no longer an 

endangered or threatened species or in danger of extinction based 

on an analysis of the listing factors under ESA section 4(a). 

Section 8. Secretarial guidelines; State comments 

The ESA has had a more far reaching impact than anticipated 

when signed into law in 1973. It has become clear that the impacts 

and benefits are not just at a State level, but actually have trickled 

down to the local government level. In response to growing concerns by county, local and other equivalent governments on the 

need for greater opportunity to comment on the actions of the federal government as it manages threatened and endangered species, 

the Committee has extended the authority to these groups. The 

Committee has done this in TESRA by adding Governors, counties 

or units of local governments to the provisions of section 4 of the 

ESA. 

Section 9. Recovery plans and land acquisitions 

Subsections (a) and (b) of section 9 of TESRA expand upon and 

strengthen the ESA’s provisions concerning recovery plans. In 

keeping with the more detailed coverage of the recovery planning 

process, section 10 of TESRA moves the recovery plan provisions 

from section 4 of the ESA, which focuses on listing and delisting 

of endangered species and threatened species, to a more prominent 

position at the beginning of ESA section 5. In effect, existing ESA 

section 4(f) would become ESA subsections 5(a) through (j). 

Among the most significant changes that section 9 of TESRA 

would make to the current ESA recovery planning provisions are 

the following: 

Section 9 would require that, for any species determined to be 

endangered species or threatened species after TESRA’s enactment, 

the recovery plan must be prepared within two years after the final 

determination rule. 

Section 9 would require that recovery plans be based on ‘‘best 

available scientific data.’’ The current ESA requires use of such 

data in listing species and in consultations on federal agency actions, but omits the requirement for recovery plans. Given the 

greater attention paid to recovery plans in TESRA, such plans 

should also be governed by the same data standard as applies to 

species’ listings and agency action consultations. 

Section 9 also specifies in more detail requirements for the contents of recovery plans. The plans must contain objective measurable criteria that, when met, would allow a determination to delist 

the covered endangered species or threatened species or to downlist 

an endangered species to a threatened species. Measurable criteria 

are important because they set the goals for all other plan elements. Moreover, if and when such criteria are met, they should 

automatically trigger a downlisting or delisting rulemaking. Currently it is difficult to determine in many recovery plans what constitutes conditions that would warrant delisting or downlisting, or, 

when the plans do contain measurable criteria and they are met 

40 

or exceeded, the Secretaries fail to take any delisting or 

downlisting action. 

The plans must also contain a description of site-specific or other 

measures that would achieve the criteria, including intermediate 

measures. Again, it is difficult to locate any discussion of practical 

measures in many existing recovery plans. Perhaps because they 

are often prepared by recovery teams dominated by academics, 

many of those plans emphasize research, some to the exclusion of 

any practical measures. 

TESRA would also require that recovery plans contain estimates 

of the time and cost of the plans’ recommended measures. Too 

many current plans do not provide realistic assessments of the time 

needed to undertake specific measures; some fail even to suggest 

when such measures should be initiated, thus encouraging either 

a rush to do everything at once or delay everything to the later 

years of the plans’ terms. Many existing recovery plans also provide ample evidence that those who prepared them gave insufficient thought to the cost of proposed measures. The new requirements for time and cost estimates should remedy these problems 

and make recovery plans far more useful and realistic documents. 

Finally, the recovery plans should identify areas of special value 

for conservation. This requirement for plan contents ensures that 

attention will continue to be paid to the covered species’ habitat 

needs, even with the deletion of the current ESA’s critical habitat 

provisions. These lands are not to be identified for the regulatory 

purposes that accompanied critical habitat. Rather their identification should inform, but not dictate, other decisions under the ESA. 

It is also hoped that these lands are given the highest priority in 

the implementation of any landowner incentive programs, including those authorized under the ESA currently, those authorized in 

this bill, and any that may be authorized in the future. The lands 

to be identified in any recovery plan should be those that are required to meet the delisting or downlisting criteria, and secure the 

delisting or downlisting determination, contained in the same plan. 

Section 9 also has additional provisions refining these required 

plan contents. For example, it allows the establishment of ‘‘interim 

criteria’’ intended to improve the status of the covered species 

where insufficient best scientific data exist to permit a determination of the criteria necessary for delisting or downlisting. TESRA 

requires reviews at least every five years of plans containing interim criteria to ascertain whether full delisting or downlisting criteria can be established. Prompt revision of any plan is required if 

the data are found to be available. For species that occupy more 

than one State, the recovery plans are to contain criteria that, 

when met, would allow delisting or downlisting of the portion of the 

species in each of the States. Related to the cost concerns, the bill 

requires the recovery plans to include, whenever possible, alternative measures and the identification of the least costly measure 

among alternative measures of comparable efficacy. The plan is 

also to contain the estimate of the cost of acquisition on a willing 

seller basis of any of the identified special value lands. As a transition matter, any critical habitat designated prior to the bill’s enactment would be treated as special value land until the relevant recovery plans are drafted or revised. 

41 

2 ‘‘[T]he practical effect of the Plaintiffs’ position would be to elevate the * * * Recovery Plan 

into a document with the force of law. We cannot take such an approach. Section [4(f)] makes 

it plain that recovery plans are for guidance only.’’

Another significant change would be the detail TESRA section 9 

would add to the recovery team concept. It requires the promulgation of regulations to contain criteria for establishing recovery 

teams to prepare recovery plans that are diverse (including representatives of constituencies that would be affected favorably by 

the plans’ goals of, and contents to effect delisting or downlisting, 

and constituencies that could be economically or socially impacted 

by implementation of those goals and contents) and can achieve 

timely completion of the plans. Broadening the teams’ membership 

will ensure those most directly affected by the plans have a voice 

in their preparation. They may also supply new insights, particularly concerning land and water management constraints and opportunities. These additional insights will be particularly valuable 

in devising the recommended measures. Although TESRA provides 

that only scientific members of the recovery teams are to establish 

the delisting or downlisting criteria, any of the broader constituencies can select scientists as their representatives who would participate in the criteria-setting process. The recovery team regulations also are required to ensure that the plans are scientifically 

rigorous and, where costs analyses are required, economically rigorous. Finally, those regulations are to provide guidelines as to 

when the appointment of recovery teams is unnecessary. 

TESRA section 9 also adds language that will make the Secretaries’ biennial report to Congress more informative and a better 

gauge of performance under the ESA. Moreover, new provisions attempt to make the planning process be more transparent and open 

by providing for review and comment by the affected States, Indian 

tribes, regional or local land use agencies, and the public. 

The new recovery plan provisions in section 9(a) of TESRA also 

makes explicit what is implicit in the current ESA section 4(f) recovery plan language—the intended effect of the recovery plan. The 

paragraph is also fully consistent with long-held federal judicial 

precedent interpreting that intended effect. Consistent with Fund 

for Animals v. Rice, 85 F.3d 534, 547 (11th Cir. 1996),2 TESRA 

states that the recovery plan does not impose any regulatory requirements on federal agencies and nonfederal persons. As stated 

elsewhere in this report, recovery plans are intended to inform, but 

not dictate, relevant decision making under the ESA. That recovery 

plans do not have the force and effect of law not only is the law, 

given the absence of any direction to the contrary in the current 

recovery plan language in current section 4 of the ESA and the 

consistent interpretations by all Administrations and by the courts, 

but also is a matter of practical necessity. As a practical matter, 

the recovery plan cannot have such force and effect because it is 

prepared on the basis of statutory standards (both those in the current ESA section 4 and in the new section 5 language of TESRA) 

that are more stringent than the statutory standards for most 

other decisions under the ESA, e.g., consultation on federal agency 

actions under ESA section 7 and approval of incidental take permits and safe harbor agreements under ESA section 10. 

The Committee did adopt an amendment that eliminated a 

phrase which stated recovery plans can have no ‘‘effect other than 

42 

as non-binding guidance.’’ In point of fact, they can have binding 

effect if a federal agency decides to adopt all or part of any specific 

plans (and the adoption of those provisions does not have the effect 

of exceeding the limits of authority provided by the ESA to impose 

the restrictions that may be contained in those provisions, particularly on non-federal entities or landowners) or if the nonfederal entities or landowners voluntarily choose to adopt such provisions in 

cooperative agreements, habitat conservation plans, safe harbor 

agreements, etc. After such adoption, the conservation plan provisions would then become binding either under the ESA or under 

contract law. 

TESRA section 9 also explicitly allows a federal agency to agree 

to undertake particular identified measures in any specific recovery 

plan through an agreement with the Secretary of the Interior 

and/or the Secretary of Commerce. Each agreement is to be focused 

on particular measures in a specific recovery plan. This provision 

requires that any recovery plan-specific agreement be made subject 

to public review and comment, and that the Federal agency responds to the public comment. Moreover, the Committee does not 

intend that any agreement waive, alter, or encumber any public 

participation, administrative appeal, or due process requirements 

contained in the laws and implementing regulations that authorize 

and govern agency activities covered by the agreement. 

Finally, TESRA section 9 provides for the development of priorities and a schedule for development of recovery plans for species 

listed prior to the bill’s enactment that do not yet have such plans. 

The two landowner incentives programs included in the section 

9 of TESRA are intended to provide alternative mechanisms to 

those contained in current programs for landowners to secure immunity from liability under the ESA while providing additional 

habitat and protection for endangered and threatened species on 

nonfederal lands. Currently there are several incentive programs 

(e.g. the habitat conservation planning and incidental take permitting process under ESA section 10) that are explicitly authorized, 

and several more incentive programs (e.g. safe harbor agreements 

and candidate conservation agreements) that are not authorized by 

the ESA. There are also landowner incentive programs under other 

statutes, e.g. the Forest Legacy Program. The programs established 

in this bill are not intended to be additive. They, instead, are expected to provide a wider array of alternatives for landowners who 

would otherwise have made use of the existing programs. The new 

programs simply provide standards and procedures that landowners already inclined to enter a landowner incentive program 

may find better tailored to their needs. 

Section 10. Cooperation with States and Indian tribes 

These provisions strengthening ESA section 6 State cooperative 

agreements are responsive to the repeated requests of the States, 

particularly the Western Governors’ Association, to be accorded the 

opportunity to participate more actively and fully in species conservation efforts. The States’ participation is critical because they 

know their residents’ needs better (and the residents know the 

States better) than the Secretaries of the Interior and Commerce, 

and, consequently, the States are likely to be far more effective in 

enlisting landowners in the cause of species’ conservation. 

43 

A number of States, with active encouragement of the Secretary 

of the Interior, are seeking to make greater use of the cooperative 

agreement provisions of ESA section 6. In the past many States 

chose to prepare and submit bare-bones cooperative agreements applicable to all listed species within their borders. The principal purpose of such agreements was to secure Federal funding. Recently 

several States have prepared or are in the process of preparing cooperative agreements for particular species that are far more detailed, containing very specific land and water management guidance and requirements to protect those species. Often these species-specific agreements provide for the voluntary enrollment of 

landowners, who are then bound to the agreements’ terms by contract. The advantage to enrollment is that the landowners secure 

the protection of the incidental take statement that the Secretaries 

may issue after consulting under ESA section 7 on approval of the 

relevant agreement. The broader agreements come under the provision of ESA section 6 concerning agreements ‘‘to conserve resident 

species * * * determined by the State agency or the Secretary to 

be endangered or threatened.’’ The species-specific agreements 

come under the provision of ESA section 6 concerning agreements 

that contain ‘‘plans’’ which address resident endangered or threatened species’’ which the Secretary or the State agency agree are 

most urgently in need of conservation programs. These agreements 

not only secure the enlistment of States and landowners in the efforts to conserve listed species, but also reduce the strain on the 

species conservation resources available to the Secretaries and Federal land management agencies. 

Section 10 of TESRA strengthens and broadens the ESA’s section 

6 conservation agreement authority in several ways. First, it encourages agreements to address candidate species by providing that 

the incidental take statement will cover those species if and when 

they are listed. Second, it amends the Federal funding provision to 

authorize the Secretary to provide financial assistance for agreements that establish conservation programs for the protection of, 

and are not just limited to monitoring, candidate species, as well 

as other species at risk and species that are determined by the Secretary to be recovered species and no longer subject to the constraints of the ESA. 

Third, TESRA section 10 eliminates a significant barrier to the 

completion and implementation of these agreements. ESA section 

6 currently requires that these agreements be reviewed annually. 

As each annual review could be considered a Federal agency action, 

the agreements, the States, and the Secretaries could become 

mired in an increasingly larger number of annual consultations, 

particularly if section 10’s intended effect of stimulating the States 

to produce multiple cooperative agreements is effective. TESRA 

section 10 addresses this problem by changing the annual reviews 

to triennial reviews, and specifying the circumstances in which additional consultations must occur on agreements after the initial 

consultations on the agreements’ approvals. Those circumstances 

are, in brief, whenever the Secretaries determine, during the reviews or on obtaining new information, that the agreements may 

be having any ‘‘adverse effects’’ on the covered species that had not 

been considered previously or whenever either Secretary approves 

44 

the renewal or amendment of an agreement that covers or affects 

newly listed species. 

Fourth, TESRA section 10 contains a provision that clarifies that 

any cooperative agreements that call for the enrollment of lands or 

water rights in the agreements’ conservation programs may not require enrollment and must ensure that any enrollment is voluntary. 

Fifth, TESRA section 10 adds provisions to ESA section 6 that 

specify procedures for suspension and termination of cooperative 

agreements, including procedures for curing deficiencies. The current ESA section 6 is silent as to how the Secretaries may address 

cooperative agreements that no longer meet the requirements of 

ESA section 6 or are found in consultations to likely jeopardize the 

covered species’ existence. 

Finally, the Committee adopted an amendment to accord to Indian tribes the same authority to enter into cooperative agreements 

that ESA section 6 now provides to the States. Indian tribes with 

the capacity and desire to prepare species conservation programs 

should be encouraged to do so. This amendment would provide 

such encouragement. 

Section 11. Interagency cooperation and consultation 

This section of TESRA adds to the current ESA section 7 language which authorizes the Secretary to adopt by regulations alternative procedures to those described in other provisions of ESA section 7 to implement ESA section 7’s jeopardy standard for Federal 

agency actions. The paragraph has a number of safeguards to ensure that the regulations cannot alter the jeopardy standard, and 

that they will require virtually equivalent procedures to those in 

the current ESA provisions for agency actions which are likely to 

adversely affect listed species. 

In effect, the Secretaries have already exercised this authority in 

the regulations they adopted in 1986 (50 CFR Part 402). Under 

those regulations, over the last two decades countless Federal 

agency actions have been allowed to proceed without any ‘‘consultations’’ by the Federal action agencies with the Secretaries, and 

without the preparation of any biological ‘‘opinion[s]’’ by the Secretaries on those actions, using the procedures in the regulations for 

‘‘informal consultation.’’ Yet, since 1979, ESA section 7(a)(2) has referred to ‘‘consultation’’ on ‘‘any [agency] action,’’ ESA section 

7(b)(1) has set deadlines for concluding ‘‘consultation’’ on ‘‘any 

agency action,’’ and ESA section 7(b)(3) has required the preparation by the ‘‘Secretary’’ of a written biological ‘‘opinion’’ ‘‘after conclusion of consultation under’’ ESA section 7(a)(2), which is not prepared in an informal consultation. 

The 1986 rules have allowed such informal consultation with the 

Secretaries for all agency actions that the Federal action agencies 

(e.g., Corps of Engineers, Bureau of Land Management, Bureau of 

Reclamation, and Department of Transportation) determine are not 

likely to adversely affect listed species, with only a brief written 

concurrence from the Secretary rather than a biological opinion. 

Moreover, those same regulations have excused any communication 

by an action agency with the Secretary for ‘‘no effect’’ agency actions. The 1986 regulations also authorize the further adoption of 

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45 

tion’’ procedures for categories of Federal agency actions (50 CFR 

402.04), which the Secretary has done twice. 

The new language added to section 7 puts into the ESA both authority to adopt alternative ‘‘consultation’’ procedures which the 

Secretary exercised in promulgating in the 1986 regulations for informal consultation, and authority to devise additional alternative 

‘‘consultation’’ procedures tailored to particular agencies or agency 

actions as exercised twice previously. This new language would 

constrain these alternative procedures authorities in several ways. 

First, it does not alter the ESA section 7 substantive jeopardy 

standard for agency actions. Second, it allows the adoption of alternative ‘‘consultation’’ procedures only by notice-and-comment rulemaking, and only by the Secretaries who have the duty to protect 

listed species, not the Federal agencies proposing the agency actions. Third, it maintains all the key requirements of the current 

ESA section 7 statutory procedural steps for agency actions that 

may adversely affect listed species. 

Under the current statutory procedures, the only way that a Federal action agency (and any applicant for a Federal permit, license, 

funding, etc.) can obtain immunity from adverse effects to a listed 

species caused by an agency action is to obtain an incidental take 

statement from the Secretary under ESA section 7(b), after consultation with the Secretary under ESA section 7(a) and preparation by the Secretary of a biological opinion under ESA section 7(b). 

Under the new paragraph, if any agency action has the likelihood 

of adversely affecting a species, the agency (and the applicant) will 

still have to seek consultation with the Secretary, and the Secretary’s preparation or concurrence in a biological opinion, to obtain the protection of the issuance of an incidental take statement. 

Also, under current ESA law, if the agency action’s adverse effects 

are significant enough to fail to meet the ESA section 7(a) jeopardy 

standard, the Federal action agency (and applicant) for all intents 

and purposes only can proceed, and only can secure an incidental 

take statement, if it engages in consultation with and obtains a biological opinion from the Secretary, and agrees to undertake a ‘‘reasonable and prudent alternative’’ to the action suggested by the 

Secretary under ESA section 7(b). Under this new language, the 

same steps—consultation, biological opinion, Secretarial suggestion 

of or concurrence in a reasonable and prudent alternative—would 

have to occur and could not be avoided by any alternative procedure established under the new language. 

Section 11 of TESRA adds a new provision to ESA section 7(a) 

providing that any analysis under ESA section 7(a) shall consider 

only the effects of the proposed agency action under review that are 

distinct from the baseline of effects on the relevant species that 

have occurred or are continuing to occur as a result of past human 

activities or natural events. The ESA section 7(a) analysis is to determine the incremental effects of a proposed Federal agency action. Federal actions such as the ongoing operation of existing facilities cannot be expected to compensate for past activities or 

events in many cases occurring long before the ESA was originally 

enacted. Thus, this section provides that a jeopardy finding under 

ESA section 7(a) as amended would have to be based only on the 

incremental effects of the proposed action and not on pre-existing 

conditions. 

46 

TESRA would establish a requirement in new ESA section 7(b) 

that any terms and conditions in the Secretary’s written statement 

following consultation must be ‘‘roughly proportional’’ to the extent 

that the land use activity results in incidental take of a species. 

Similarly, under new ESA section 10(a)(3), terms and conditions in 

a ESA section 10 incidental take permit and habitat conservation 

plan must be ‘‘roughly proportional’’ to developmental impacts on 

listed wildlife. This ‘‘roughly proportional’’ language clarifies the intent of the two provisions to provide for mitigation of project or development impacts. Indeed, the ‘‘roughly proportional’’ language is 

modeled after similar language contained in the rigorous State of 

California Endangered Species Act (Cal. Fish & Game Code 2052.1, 

1081(b)). 

The ‘‘rough proportionality’’ language is also intended to codify 

the principle from Dolan v. City of Tigard, 512 U.S. 374, 391 

(1994), in which the Supreme Court recently recognized that ‘‘the 

government may not require a person to give up a constitutional 

right—here the right to receive just compensation when property is 

taken for a public use—in exchange for a discretionary benefit conferred by the government where the benefit has little or no relationship to the property.’’ Lingle v. Chevron, U.S.A., 125 S.Ct. 

2074, 2087 (2005) (citing Dolan, 512 U.S. at 385). 

Dolan stands for the proposition that government can only demand conditions on land use activity that are tailored to address 

the particular impacts that will accrue from the project under review. As the Court stated, ‘‘no precise mathematical calculation is 

required, but the [government] must make some sort of individualized determination that the required dedication is related both in 

nature and extent to the impact of the proposed development.’’ Id. 

at 391. Under Dolan, it is the government’s burden to prove ‘‘rough 

proportionality’’ between species impacts and the proposed development. Accordingly, for purposes of TESRA, the Secretary must 

quantify his or her findings for ESA sections 7 and 10 terms and 

conditions as much as possible. The Secretary cannot rely on conclusory statements regarding hypothetical impacts of a project as 

justification to impose excessive conditions on private land use activities to address the incidental take of species. In short, the government must develop a sufficient administrative record to justify 

terms and conditions under the ‘‘rough proportionality’’ standard. 

Section 12. Exceptions to prohibitions 

In adding paragraph (4)(E) to ESA section 10(a), it is the intent 

of the Committee to confirm the validity of the ‘‘No Surprises’’ and 

Permit Revocation regulations that have governed ESA section 

10(a) permits for the last seven years, and to require the inclusion 

of ‘‘No Surprises’’ and Permit Revocation assurances in future permits. To this end, new ESA section 10(a)(4)(A) through (E) enacts 

‘‘No Surprises’’ and Permit Revocation assurances and requires 

that these assurances be included in all future ESA section 10(a) 

permits, except permits issued for scientific purposes. For ESA section 10(a) permits issued before the date of enactment, new ESA 

section 10(a)(4)(E) makes clear that the existing ‘‘No Surprises’’

and Permit Revocation regulations, codified in 50 CFR Parts 17.22 

and 17.32, constitute the governing law pursuant to which existing 

permits will be implemented and enforced. 

47 

Under TESRA, the habitat conservation plan content (HCP) requirements—the biological goals, monitoring, and adaptive management provisions—are NOT new, but are taken from an existing 

policy implemented in 2000. All three elements of HCPs were established in 65 Fed. Reg. 35242–35257 (June 1, 2000) (‘‘Notice of 

Availability of a Final Addendum to the Handbook for Habitat Conservation Planning and Incidental Take Permitting’’). These new 

statutory requirements are not intended to go beyond the existing 

notice provisions and therefore are not more stringent. 

TESRA also amends the ESA section 10(j) provisions to advance 

recovery while respecting property rights and other local concerns. 

Such solutions have been worked out under the existing law, which 

allows rules for introduced species to be tailored to local conditions, 

and the committee intends to facilitate more such solutions. The 

Committee finds that application of section 10(j) of the ESA can 

provide clear benefits to endangered species as demonstrated by 

the California condor recovery in northern Arizona and southern 

Utah where recovery actions have involved and are supported by 

States, Tribes, local communities, and private landowners. The 

Committee desires to clarify and improve this provision. 

Application of section 10(j) of the ESA requires the Secretary to 

make two determinations before establishing an experimental population. Those are: (1) that doing so will ‘‘further the conservation’’ of the species; and (2) that there are no naturally occurring populations of the same species in the area where the experimental population is to be established. A point of confusion has been the 

meaning of ‘‘population’’ when considering appropriateness for establishment an experimental population. The Committee believes 

that periodic sightings and even occasional breeding are insufficient to be considered a natural population, and that such sightings 

are no bar to the establishment of an experimental population. 

Consequently, TESRA revises ESA subsection 10(j)(1) to clarify 

this point of confusion and potential controversy by describing the 

term ‘‘areas occupied by nonexperimental populations’’ as ‘‘areas 

characterized by the sustained and predictable presence of more 

than negligible numbers of successfully reproducing individuals 

over a period of many years.’’ Endangered and threatened species 

conservation will benefit as this clarification will firmly establish 

those circumstances where the section 10(j) provision may be used 

and reduce the potential for conflict which has often resulted in 

litigation. 

TESRA also provides for a written determination of compliance 

provision that would become subsection 10(k) in the ESA. This provision affords a property owner the means of receiving a final agency determination whether a proposed property use would be in violation of the ESA section 9(a) prohibitions. The most important of 

these prohibitions is that against the ‘‘take’’ of a species. As defined 

in the ESA, ‘‘take’’ includes the elements ‘‘harm, harass, pursue, 

hunt, shoot, wound, kill, trap, capture or collect’’ with regard to an 

endangered species or, by prohibitions promulgated in regulations, 

of a threatened species. While most of the actions that constitute 

a take require a direct relation between the person committing the 

take and the species the elements ‘‘harm’’ and ‘‘harass’’ may provide for a proximate relationship. Babbitt v. Sweet Home Chapter 

of Communities for a Great Oregon, 515 U.S. 687, 713–714, 115 

48 

S.Ct. 2407,2420–2421 (1995). Consequently, a use that a reasonable person might conclude as not violating this prohibition may do 

so. 

TESRA’s provision that provides for a written determination affords landowners certainty regarding a proposed use of their property and, in the case the Secretary determines that the use would 

not comply with the current ESA’s prohibitions against take of a 

listed species, it provides for a written determination that may 

serve as the basis for a request for conservation aid to offset the 

burden of conservation measures imposed upon the property owner. 

The newly created section 10(k) provides that a property owner 

who desires a determination by the Secretary whether a proposed 

use would violate the ESA’s section 9(a) prohibitions may request, 

by certified mail, such a determination provided that the property 

owner describe: (1) the nature, location, anticipated schedule and 

duration of the proposed action; (2) lawfulness under State and 

local law; (3) the property owner’s means to carry out the proposed 

use; and (4) anticipated adverse impacts to a listed species is expected to occur. Under section 10(k)(3) the Secretary may request 

and the property may provide any other information either believes 

will aid the Secretary in making a determination. Section 10(k)(4) 

provides that the Secretary may make no determination if the 

property owner requesting the determination failed to include information required under section 10(k)(2) and allows, in such a circumstance, that the property owner may resubmit the request. 

Provided with the information under section 10(k)(2), the Secretary must, pursuant to section 10(k)(5), provide a written determination within 180 days unless a written extension is granted by 

the requesting party. The Secretary may extend the deadline by 

180 days if the Secretary determines that he or she cannot make 

a determination because of seasonal considerations which would include such considerations as migration patterns and dormancy. If 

the Secretary fails to issue a determination within the required 

window, pursuant to section 10(k)(6), the proposed use is deemed 

to be in compliance with ESA section 9(a). 

Subsection 10(k)(8) provides that uses of the property or other 

actions taken in reasonable reliance upon a written determination 

which finds the use would not violate ESA section 9(a) prohibitions 

or that are deemed to comply with section 9(a) based upon the Secretary’s failure to respond are not subject to liability for violations 

of ESA section 9. Subsection 10(k)(9) limits the time period a landowner can rely on the Secretary’s determination or failure to respond to ten and five years respectively. The Committee intends 

that reasonable reliance tests allows for variation of the proposed 

use when it is undertaken by the property owner so long as the nature of the use is essentially of the same scope, scale and area as 

the proposed use. 

Under subsection 10(k)(10) the Secretary may withdraw a determination of compliance if, as a result of unforeseen circumstances, 

the continuation of the use would preclude conservation measures 

essential to the survival of an endangered or threatened species. 

This provision accounts for the possibility a species was newly discovered to be in the area affected by the use or a species that 

would be affected by the use is added to the endangered species 

list. Such withdrawals become effective ten days after a property 

49 

owner has been notified of the withdrawal and make the property 

owner eligible for aid equivalent to the fair market value of the 

foregone use. 

Pursuant to section 10(k)(7), property use that is subject to consultation under ESA section 7 consultation cannot be the subject 

of a request for a written determination of compliance as the ESA 

provides an assessment of the effect of an agency action on listed 

species under ESA section 7’s consultation provisions. 

TESRA provides reasonable requirements to prevent abuse of 

this determination authority. For example, a property owner requesting a determination must include basic information about the 

proposed use such as the use’s consistency with State and local 

law, the property owner’s means to undertake the proposed use 

and any reasonably anticipated adverse impacts to a species included on the lists published under the current ESA section 4(c). 

Given that this section is provided in large part to reduce conservation burdens imposed on private property owners, the Committee 

does not intend for these requirements to impose yet another burden on private property owners. Accordingly, TESRA neither imposes any requirement on nor provides any authority for the Secretary to require a property owner to obtain and provide completed 

State and local permits or approval from any other governmental 

agency to be eligible for a written determination. Similarly, TESRA 

imposes no requirement on the property owner nor provides the 

Secretary with authority to require that detailed or extensive financial, design or other such information be provided by a property 

owner to demonstrate the means to undertake the proposed use. 

Likewise, in assessing ‘‘anticipated adverse impacts’’ TESRA does 

not require nor provides the Secretary with authority to require the 

property owner to provide detailed studies, analyses or surveys. 

Rather, the intent of these provisions is to require a good faith effort on behalf of the property owner to provide the Secretary with 

relevant information to make a determination. 

Finally, because this provision is intended to assist property 

owners who, in many instances, may not even know of the existence of an endangered or threatened species in the vicinity or that 

their particular activity (e.g., farming, forestry, home building) may 

impact an endangered or threatened species, the failure of any 

property owner to request a written determination under this subsection should not count against the owner in any legal proceeding 

or permit process. 

Section 13. Private property conservation 

Section 13 of TESRA would replace section 13 of the ESA which 

consists of amendments to other laws that have been executed. Section 13 provides two additional mechanisms to the ESA, conservation grants and conservation aid. This section affirms that the 

Committee places the conservation of endangered and threatened 

species among the highest of priorities and that TESRA evidences 

the Committee’s recognition that the burden of carrying the costs 

of a conservation program that is intended to benefit all should not 

be borne by the few. The conservation aid provisions are at the 

heart of improvements the Committee considers essential to modernize and update the ESA. It is designed to compensate private 

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50 

denced by a written determination that the owner’s proposed use 

of the property would violate the ESA prohibitions at section 9(a) 

(or a withdrawal of a written determination of compliance). Providing such a mechanism not only reflects the societal commitment 

to conservation of endangered and threatened species but also reduces the unintended and counterproductive consequence of devaluing private property through regulations. Without such a provision, the actual effects of a law designed to conserve endangered 

and threatened species can be the destruction of habitat or the species itself compelled by the potential threat to the value of private 

property. 

Under new ESA section 13, the Secretary may issue conservation 

grants to promote conservation of endangered species and threatened species on private property. This authority is intended to complement other tools at the Secretary’s disposal under the ESA and 

that would be provided by TESRA. Subsection (b) provides basic restrictions on grants prohibiting their use to fund litigation, general 

education, general outreach, lobbying or solicitation. It also prohibits use of grants for land acquisition or leases or easements of 

more than 50 years and requires that any grant activities carried 

out on private property are supported by the property owner. Subsection (c) establishes a priority ranking to guide the Secretary’s 

decision to award grants, giving top priority to grants that promote 

conservation of endangered species or threatened species on private 

property while making economically beneficial and productive use 

of the property. The Committee’s intent is for grants provided 

under this section of TESRA to be directed to producing tangible 

and direct conservation benefits for endangered and threatened 

species but to also allow the Secretary room for ingenuity and creativity in forming partnerships with private landowners and others. 

Subsection (d) establishes the eligibility requirements for conservation aid that the Secretary provides under TESRA. To be eligible, property owners who received a written determination indicating the proposed use would violate ESA section 9(a) or had written determination of compliance withdrawn under section 10(k) 

must request aid with 180 days. Additionally, the property owner 

must have foregone the proposed use or, in the case of a withdrawn 

written determination, terminate activities that would fall under 

the withdrawn compliance determination when such withdrawal 

became effective. Further, the proposed use, as in the case of request for a written determination, must be one the property owner 

has the means to carry out and the use must be one that would 

be lawful under State and local law. These later requirements reiterate requirements that property owners need to meet to receive a 

written determination under section 10(k), and the Committee’s intent is identical to their applicability under that provision. 

Subsection (f) establishes the means of documenting the foregone 

use, or, alternatively, the mechanism by which the Secretary shall 

acquire an interest in the property. The provision provides that the 

Secretary shall enter into negotiations with the property owner regarding the possible means of documenting the use which may include contracts, leases, easements or acquisition or transfer of title. 

If the agreement is not reached within 60 days of the request for 

aid, then the Secretary must select the means by which foregone 

51 

use will be documented, selecting the means ‘‘with the least impact 

of the ownership interests of the property owner necessary to document the use.’’ The Committee clearly intends and interprets this 

provision as forbidding the Secretary, after failing to reach agreement with the property owner on a means of documentation from 

determining that title transfer will be used as the means of documenting the foregone use. Transfer of title is excluded as a means 

of documenting the foregone use as it would have the greatest impact on the ownership interests of the property owner. While the 

Committee is unaware of instances in which the application of section 9(a) prohibitions has resulted in removal of all uses of a property, the option of transfer of title is provided during the initial 30 

day negotiation period. In conjunction with the baseline that the 

aid provided by the Secretary be ‘‘not less than the fair market 

value’’ of the foregone use, this provision allows, with the property 

owner’s agreement, acquisition of a larger interest in the property 

than would otherwise occur with aid equivalent to the fair market 

value of the use of the affected portion of the property which has 

been foregone. 

Subsection (g) establishes that fair market value of the foregone 

use means what a willing buyer would pay to a willing seller in the 

open market for the affected property interest, here the foregone 

use that is documented under paragraph (f). See e.g. U.S. v. Miller, 

317 U.S. 369, 374 (1943) (‘‘market value is what a willing buyer 

would pay in cash to a willing seller.’’) Fair market value should 

take into account reasonably potential uses of the affected property, 

taking into account the likelihood and difficulty of obtaining permits for any particular use. Thus, section 13 further states that 

‘‘Fair market value shall take into account the likelihood that the 

foregone use would be approved under State and local law.’’ Fair 

market value should also not be affected by the influence of the 

ESA itself. The Supreme Court has held that under the ‘‘scope of 

the project rule,’’ determinations of fair market value usually do 

not take into account impacts on value caused by the government 

action that gives rise to the government’s liability in the first place. 

See e.g. Almota Farmers Elevator & Warehouse Co. v. U. S., 409 

U.S. 470, 478 (1973) (‘‘It [government] may not take advantage of 

any depreciation in the property taken that is attributable to the 

project itself.’’). Thus, the Committee does not intend that a reduced ability to use the property because of the direct or indirect 

influence of the ESA should affect the determination of fair market 

value. 

To establish fair market value, after the means of documentation 

of the foregone use has been determined, the Secretary and the 

property owner are to jointly select two licensed independent appraisers. If these appraisers are unable to reach resolution as to a 

fair market value of the foregone use within 180 days, a third appraiser is jointly selected by the property owner and the Secretary, 

who establishes the fair market value within an additional 90 days. 

This is binding on the Secretary and the property owner. 

Subsection (e) establishes a schedule by which the Secretary is 

to provide aid and grants provided under this section. The Secretary is to provide aid within 180 days of the request for aid if 

there are not unresolved issues regarding the fair market value or 

at the resolution of any issues regarding fair market value which 

52 

shall be accomplished in no more than 360 days from the date of 

the request. Aid is paid in order of the date of request. Grants are 

to be paid on the last day of the fiscal year. 

Subsection (h) provides a provision to guard against abuse of the 

section by prohibiting a person from receiving aid for the same forgone use, on the same property for the same period of time, more 

than once. 

Under subsection (i) annual reports are to be submitted on January 15 to the Committee on Resources of the House of Representatives and the Environment and Public Works Committee of the 

Senate for all aid and grants paid by the Secretary during the previous year. 

Section 14. Public accessibility and accountability 

TESRA’s section 14 add a new requirement to the ESA that the 

Secretary maintain a publicly accessible website that includes: (1) 

endangered and threatened species lists; (2) all final and proposed 

endangered and threatened species regulations issued under ESA 

section 4; (3) draft and final recovery plans; (4) the results of five 

year status reviews; and (5) all reports and supporting data to Congress required under what would be ESA section 5 and the annual 

cost analyses under ESA section 18. Much of this information is 

provided now by the U.S. Fish and Wildlife Service on its Threatened and Endangered Species Database System. This provision 

codifies this as a requirement for the Secretary and specifies the 

information to be contained. Given the increased emphasis within 

TESRA on recovery plans and the important role of the five-year 

review provision requiring these materials to be easily accessible to 

the public, this provision is viewed as essential by the Committee. 

In providing these requirements within TESRA the Committee’s intent is not merely that these documents be eventually made available on the website, but that preparation of these documents 

should be done with the intent that they become immediately available in electronic format as soon as they are complete and finalized. Further, the Committee expects that the requirements of this 

section and TESRA’s amendments to ESA section 4(b) requiring 

the Secretary to make ‘‘available a complete record of all information concerning the determination or revision’’ would be addressed 

in an integrated manner with this section’s requirements. 

TESRA section 14 provides a new requirement to include on the 

publicly accessible website a database that may be searched by the 

variables contained within the reports to Congress on the status of 

domestic endangered and threatened species and efforts to develop 

and implement recovery plans for these species which are required 

by TESRA’s amendment to section 5 of the ESA and the annual 

cost analyses prepared under TESRA’s section 16. Both of these reports are, with similar parameters, required under current law and 

that information would be required to be included in the database 

as well. This provision would merge the largest available data 

sources on the conservation effects of and costs of implementing the 

ESA into one location, providing the public with a greater understanding of this conservation program. 

53 

Section 15. Annual cost analyses 

TESRA section 15 modifies the reporting under the current ESA 

section 18 in several ways to provide consistent and more comprehensive reporting of costs associated with implementing the 

ESA. The existing law requires the reporting of expenditures that 

are primarily for the conservation of an endangered or threatened 

species on a species by species basis. In practice, many costs related to endangered and threatened species cannot be easily segregated on a species by species basis as conservation measures may 

benefit more than one species. Under this section, federal and State 

costs that are not attributable to a specific species are to be reported. Although not currently required by law, such reporting has 

been implemented in recent years as ‘‘other ESA’’ expenditures. 

Codifying this practice as a requirement will ensure that more 

comprehensive cost data is provided and that reporting is systematic from year to year. 

The Committee intends for this report to provide as comprehensive a picture of ESA expenditures as possible so that the societal 

commitment to endangered and threatened species conservation 

can be more accurately tracked. Consistent with this, the Committee expects the reporting by federal agencies, such as the Forest 

Service and the Bureau of Land Management, to include foregone 

revenue as the Bonneville Power Administration has been consistently reporting. 

TESRA also provides for a requirement to establish a prerequisite for eligibility for financial assistance under ESA section 

6. Under this provision a State must report its expenditures on endangered and threatened species, including those expenditures that 

are not attributable to a specific species for the previous year, to 

be eligible for section 6 funding in the following year. The intent 

of this provision is, again, to provide as comprehensive a picture of 

ESA expenditures as possible. The Committee interprets this provision as requiring not only the reporting of costs borne by State fish 

and wildlife agencies or departments of natural resources but also 

those costs borne by other State agencies such as transportation 

departments. 

TESRA also requires the Secretary to provide a means where 

units of local government may, voluntarily, report and certify the 

accuracy of costs attributable to the conservation of endangered 

and threatened species. This provision as well reflects the Committee’s intent to provide as comprehensive a picture of ESA costs as 

possible and the Committee’s recognition that many of the costs associated with the ESA are borne by local government. The Committee expects that in providing the means to electronically report 

and certify the accuracy of these expenditures, the Secretary is to 

make the system user friendly so that local governments are not 

discouraged by an additional burden. 

Section 16. Reimbursement for depredation of livestock by reintroduced species 

This section authorizes the Secretary, through the Director of the 

U.S. Fish and Wildlife Service, to reimburse the owner of livestock 

for any loss of such livestock resulting from depredation by any 

population of a species listed under the ESA and includes or derives from members of the species that were reintroduced into the 

54 

wild. Eligibility under this section is not conditioned on the presentation of the body of any animal for which reimbursement is 

sought. The Secretary is authorized to accept and use donations of 

funds to pay reimbursement under this section. 

Section 17. Authorization of appropriations 

This section authorizes such sums as are necessary for Fiscal 

Year 2006 to 2010 for the Secretary of the Interior. It also authorizes sums as necessary for Fiscal Year 2006 and 2010 for the Secretary of Agriculture to carry out functions and responsibility of the 

Department of the Interior with respect to the enforcement of the 

ESA and the convention which pertains to the importation of 

plants. 

Section 18. Miscellaneous technical corrections 

This section makes miscellaneous corrections to other portions of 

the ESA to correct cross references and to conform the text with 

the amendments made by earlier portions of the bill, as well as to 

provide gender neutral references within the text of the ESA. 

Section 19. Clerical amendment to table of contents 

This section makes a technical change to conform the table of 

contents of the ESA to changes made in earlier portions of this bill. 

Section 20. Certain actions deemed in compliance 

Section 20 of TESRA addresses a significant action taken by the 

Secretaries and the Environmental Protection Agency to remedy 

the alleged failure of the government (and, as a consequence, manufacturers, and farmers, utilities, mosquito control districts, and 

other applicators of pesticides) for over three decades to comply 

with ESA section 7(a)(2) in the registration and use of pesticides 

under the Federal Insecticide, Fungicide and Rodenticide Act 

(FIFRA, 7 U.S.C. 136–136y). ESA section 7(a)(2) requires federal 

agencies to consider, and consult with the Secretaries on the effects 

of federal agency actions on endangered or threatened species. On 

August 5, 2004 (69 Fed. Reg. 47732–47762), following coordination 

with the Environmental Protection Agency and the U.S. Department of Agriculture, the Secretaries published a joint rule (50 CFR 

Part 402, Subpart D) establishing procedures to ensure ESA section 7(a)(2) compliance for regulatory actions under FIFRA. 

Critics have alleged that the FIFRA pesticide registration program has never complied with the requirements of the ESA, and 

that no Administration since the ESA’s enactment in 1973 has developed a program to ensure compliance. Congress addressed this 

problem as early as 1988 when it enacted section 1010 in the 1988 

ESA Amendments Act, which directed all involved federal agencies 

to design a FIFRA/ESA compliance program to ‘‘minimize the impacts to persons engaged in agricultural food and fiber commodity 

production.’’ Public Law 100–478, section 1010(b), 102 Stat. 2313–

14 (1988), 7 U.S.C. 136a note. The alleged continued absence of a 

comprehensive ESA compliance program for FIFRA actions has 

prompted significant litigation over the last three years. On January 30, 2004, the Secretaries proposed a rule that would establish 

the comprehensive ESA compliance program for FIFRA actions. In 

a bipartisan letter sent to the Secretary of the Interior on June 25, 

55 

2004, 92 members of the House of Representatives praised the decision to establish a compliance program and urged prompt publication of a final rule, which occurred less than a month and a half 

later. 

The August 5, 2004, rule which established specific procedures to 

ensure that FIFRA actions comply with the ESA section 7 consultation requirements was promulgated under the authority of the Secretaries’ 1986 general consultation regulations. The 1986 regulations authorized the development of alternative rules focused on 

certain federal agency actions that may benefit from ESA implementation procedures specifically tailored to those actions. The new 

2004 rule constitutes such a focused regulation for ESA compliance 

on FIFRA actions, consistent with the 1988 ESA Amendments Act. 

However, the procedures mandated in the ESA compliance program established by the new rule will take some time to complete 

for all registered pesticide products (675 primary products) and all 

listed species. 

Section 20 of TESRA was adopted by the Committee to give the 

affected agencies breathing room to properly implement the new 

rule. It states that, for a specific period of time, satisfaction of 

FIFRA’s rigorous requirements for collection and submission of scientific data and scientific review of ecological risks (including effects on wildlife and ESA listed species) will constitute, for registration and use of any particular pesticide, compliance with the 

ESA’s consultation and ‘‘take’’ avoidance requirements. So as to ensure expeditious proceedings under the new rule’s ESA compliance 

program, the amendment is effective only for a period of five years 

or until the pesticide undergoes those proceedings, whichever is 

earlier. Moreover, TESRA’s section 20 states that it may not affect 

any court order or settlement. The Committee expects that all of 

the currently filed litigation should be settled or concluded before 

enactment of TESRA; indeed, half of the cases filed to date have 

already been settled or concluded (and orders issued). This section 

20 will ensure that use of pesticides critical for control of pests, disease vectors, and destructive invasive plants and animals, and for 

protection of food and fiber production, will not be terminated or 

compromised, and that manufacturers, and farmers, utilities, mosquito control districts, and other users will not be at risk of violating one environmental law (ESA) while complying with another 

(FIFRA) during implementation of the 2004 rule adopted to remedy 

the alleged three-decade-long non-compliance by federal agencies. 

COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS

Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of rule XIII 

of the Rules of the House of Representatives, the Committee on Resources’ oversight findings and recommendations are reflected in 

the body of this report. 

CONSTITUTIONAL AUTHORITY STATEMENT

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

grants Congress the authority to enact this bill. 

56 

COMPLIANCE WITH HOUSE RULE XIII 

1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the Rules of 

the House of Representatives requires an estimate and a comparison by the Committee of the costs which would be incurred in carrying out this bill. However, clause 3(d)(3)(B) of that Rule provides 

that this requirement does not apply when the Committee has included in its report a timely submitted cost estimate of the bill prepared by the Director of the Congressional Budget Office under section 402 of the Congressional Budget Act of 1974. 

2. Congressional Budget Act. As required by clause 3(c)(2) of rule 

XIII of the Rules of the House of Representatives and section 

308(a) of the Congressional Budget Act of 1974, this bill does not 

contain any new budget authority, credit authority, or an increase 

or decrease in revenues or tax expenditures. According to the Congressional Budget Office, enactment of this bill could total less 

than $10 million over the 2006–2010 time period in direct spending. 

3. General Performance Goals and Objectives. As required by 

clause 3(c)(4) of rule XIII, the general performance goal or objective 

of this bill is to amend and reauthorize the Endangered Species Act 

of 1973 to provide greater results conserving and recovering listed 

species, and for other purposes. 

4. Congressional Budget Office Cost Estimate. Under clause 

3(c)(3) of rule XIII of the Rules of the House of Representatives and 

section 403 of the Congressional Budget Act of 1974, the Committee has received the following cost estimate for this bill from the 

Director of the Congressional Budget Office: 

H.R. 3824—Threatened and Endangered Species Recovery Act of 

2005 

Summary: H.R. 3824 would amend the Endangered Species Act 

(ESA) and authorize appropriations to the Department of the Interior (DOI) and the Department of Agriculture of whatever amounts 

are necessary to carry out the act through 2010. The bill also would 

create new financial assistance programs and provide statutory authority for certain other grants and cooperative agreements administered by DOI. The legislation also would increase direct spending 

by requiring the Secretary of the Interior to pay aid to private 

landowners who are prohibited from using their property under 

certain circumstances. 

CBO estimates that the U.S. Fish and Wildlife Service (USFWS) 

and the Animal and Plant Health Inspection Service (APHIS) 

would spend a total of about $2.7 billion over the 2006–2010 period 

to carry out and enforce the ESA as amended by this legislation, 

assuming appropriation of the necessary amounts. (That total includes spending from funds already appropriated for 2006 and 

prior years.) 

The cost of providing payment of aid to certain land owners is 

uncertain and would depend on how the legislation would be interpreted by the Administration, private property owners, and the 

courts. While CBO cannot predict the impact of the aid requirement on the total costs of carrying out the ESA over time, we estimate that federal payments over the 2006–2010 period would likely 

total less than $10 million because of likely delays in resolving conVerDate Aug 31 2005 09:09 Sep 28, 2005 Jkt 023574 PO 00000 Frm 00056 Fmt 6659 Sfmt 6602 E:\HR\OC\HR237.XXX HR237
57 

flicting interpretations of the law, implementing the necessary administrative mechanisms, and processing requests. The costs of 

those payments the program has been fully implemented could be 

much more significant-despite the likely small size of individual 

payments—because the volume of requests could be very large at 

first. After 2010, we expect that such payments would probably average less than $20 million a year—though annual amounts would 

likely vary significantly from year to year. 

H.R. 3824 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act (UMRA), 

and would impose no significant additional costs on state, local, or 

tribal governments. Some provisions in this bill would give state or 

local governments a greater role in carrying out the Endangered 

Species Act. Any costs they might incur in response would be incurred voluntarily. 

Estimated Cost to the Federal Government: The estimated discretionary budgetary effects of implementing H.R. 3824 are summarized in the following table. The costs of this legislation fall 

within budget function 300 (natural resources and environment). 

By fiscal year, in millions of dollars— 

2005 2006 2007 2008 2009 2010 

SPENDING SUBJECT TO APPROPRIATION 

ESA Spending Under Current Law: 

Budget Authority 1, 2 .................................................................................... 358 379 0 0 0 0 

Estimated Outlays ....................................................................................... 340 350 200 100 0 0 

Proposed Changes: 

Estimated Authorization Level ..................................................................... 0 118 614 630 649 668 

Estimated Outlays ....................................................................................... 0 91 354 453 528 600 

ESA Spending Under H.R. 3765: 

Specified Authorization Level 1 .................................................................... 358 497 614 630 649 668 

Estimated Authorization Level ..................................................................... 340 441 554 553 528 600 

CHANGES IN DIRECT SPENDING 

Estimated Budget Authority ................................................................................. 0 0 0 0 1 5 

Estimated Outlays ................................................................................................ 0 0 0 0 1 5 

1 The 2005 and 2006 levels are the amounts appropriated for USFWS and APHIS activities authorized by this bill. 

2 Excludes grants to states from the Cooperative Endangered Species Fund because the authority to provide such assistance does not expire 

under existing law. 

Amounts in the table include only the costs of ESA activities carried out by the USFWS and APHIS. H.R. 3824 would not authorize 

appropriations for ESA programs carried out by the National Oceanic and Atmospheric Administration, which is responsible for protecting threatened or endangered marine species. Also, the activities of other DOI agencies such as the Bureau of Land Management and the Bureau of Reclamation (both of which incur significant costs to protect endangered and threatened species on lands 

under their jurisdiction) and the costs of other federal agencies who 

must comply with the ESA are not included in this estimate. 

Basis of estimate: For purposes of this estimate, CBO has assumed that H.R. 3824 will be enacted during fiscal year 2006 and 

that the entire amounts estimated to be necessary to carry out the 

bill will be appropriated for each of fiscal years 2006 through 2010. 

This estimate is based on information provided by the Office of 

Management and Budget, the Department of the Interior, nonprofit 

organizations, and various state agencies. Outlays for administrative activities have been estimated on the basis of historical spending patterns for ongoing ESA programs. Spending rates for new asVerDate Aug 31 2005 09:09 Sep 28, 2005 Jkt 023574 PO 00000 Frm 00057 Fmt 6659 Sfmt 6602 E:\HR\OC\HR237.XXX HR237
58 

sistance programs under the bill reflect expected delays because of 

the time that would be required to promulgate new regulations and 

develop administrative procedures. 

Spending subject to appropriation 

The Congress appropriated $358 million for 2005 and $379 million for 2006 to carry out ESA activities. CBO estimates that, 

under H.R. 3824, discretionary funding could rise to more than 

$600 million a year. 

Administrative Costs. Although authorizations for funding under 

the ESA expired in 1992, Congress has continued to provide funds 

each year for programs carried out under the act. For fiscal year 

2005, the Congress provided $234 million for traditional ESA activities and programs carried out by the USFWS. 

CBO estimates that the USFWS would need additional funding 

of $118 million in fiscal year 2006 and a total of $2.6 billion over 

the 2006–2010 period to carry out its responsibilities as the primary agency charged with implementing the ESA (as amended by 

H.R. 3824). In total, this estimated funding level is more than double the agency’s ESA operating budget in recent years. The higher 

estimated authorization levels reflect the costs of developing and 

administering new financial assistance programs, modifying 

USFWS regulatory procedures to incorporate amendments made by 

the bill, and meeting new planning deadlines. We estimate that 

funding for APHIS, which helps to enforce the act, would continue 

at its existing level of roughly $7 million a year. 

The estimated authorization levels for the USFWS include: 

• About $240 million a year to carry out traditional FWS 

regulatory programs to identify, evaluate, and protect threatened or endangered species, develop and implement habitat 

conservation plans and species recovery plans, and consult 

with other federal agencies that carry out, authorize, or fund 

projects that may affect protected species; 

• $6 million annually for the implementation of the Convention on International Trade in Endangered Species (CITES); 

• About $115 million a year to implement changes to existing ESA programs required by the bill, including costs to incorporate new definitions to be used in USFWS regulatory procedures, expedite the development of recovery plans to reflect 

new deadlines, and establish new financial assistance programs mandated by sections 9 and 13 of the bill; 

• $2 million in each of fiscal years 2006 and 2007 to create 

and maintain an online database of ESA information as required by section 14; 

• Between $5 million and $10 million annually to process requests made by property owners under sections 12 and 13 of 

the bill. Under section 12, persons whose land may be home to 

a protected species could request the Secretary of the Interior 

to provide a written determination that a proposed use of that 

property would comply with the ESA. The Secretary would 

have 180 days to make a determination unless an extension is 

negotiated; failure to do so would be deemed to be an approval 

of the proposed use. Section 13 would allow property owners to 

apply for aid to compensate them for the loss of property value 

59 

if they receive a written determination from the Secretary that 

a proposed land use would not comply with the ESA; and • $1 million a year to compensate landowners for livestock 

killed by protected species that have been reintroduced to the 

wild as part of a recovery plan. 

Discretionary Grants, Cooperative Agreements, and Other Assistance. H.R. 3824 would authorize the USFWS to provide nonfederal 

entities with several forms of financial assistance, subject to the 

availability of appropriated funds. The assistance programs authorized by the bill would provide annual payments to states, local governments, nonprofit organizations, and private landowners who assume conservation and planning responsibilities under the ESA. 

The bill also would expand the purposes for which state grants 

from the Cooperative Endangered Species Fund (CESF) may be 

used. 

CBO estimates that the USFWS would need $240 million annually to fully fund and administer the grant programs and cooperative agreements envisioned by the bill, or about $140 million more 

than the amounts appropriated for similar programs for fiscal year 

2006. 

Direct spending 

Section 13 of the bill would provide an administrative procedure 

for providing payment of aid to landowners whose use of their 

property has been restricted by ESA regulatory decisions. CBO expects that enacting this provision would result in new direct spending, but the level of such spending is uncertain. This provision 

would direct the Secretary of the Interior to make a one-time payment to any landowner who requests aid within 180 days of receiving a written determination under section 12 of the bill that a proposed use of the landowner’s property would not comply with the 

ESA (or that a prior, favorable determination has been withdrawn). 

The amount of any payment would be equal to the fair market 

value of the forgone use of the affected portion of the property, as 

determined by an independent appraisal and taking into account 

whether or not the proposed use would have been allowed under 

state and local law. The Secretary would be required to pay the 

landowner within 180 days of receiving the request or within 180 

days of resolving any valuation disputes or other conflicts. Such 

mandatory payments would increase direct spending costs. 

CBO estimates that such costs would likely be small over the 

next five years—probably less than $10 million. 

This provision would make it much easier (and cheaper) for private landowners to seek and obtain compensation from the federal 

government by allowing them to request such aid directly from the 

Secretary rather than filing a lawsuit against the United States (as 

they must under current law). 

In addition to providing an alternative to litigation, the bill 

would change current law in two important ways that could affect 

how property owners seek, and how the government pays, compensation. First, the bill would delineate specific standards, definitions, and valuation procedures to be used in determining when 

and what the government is obligated to pay when its actions 

under the ESA prohibit the use of private property. Second, the 

procedure created by section 12 of the bill (to allow property ownVerDate Aug 31 2005 09:09 Sep 28, 2005 Jkt 023574 PO 00000 Frm 00059 Fmt 6659 Sfmt 6602 E:\HR\OC\HR237.XXX HR237
60 

ers to obtain written determinations permitting or rejecting a proposed use of their property) would provide these owners with a definitive agency action that would constitute the basis of a claim for 

compensation if they still choose to sue. 

Compensation Under Current Law. Under existing law, persons 

who wish to seek compensation for property that they believe has 

been adversely affected by a government action (including administration of the ESA) usually must do so through litigation—generally in the United States Court of Claims. 

The process is time-consuming and expensive. In order for a 

property owner to sue for compensation, he or she must first overcome the costly administrative hurdle of seeking and being denied 

an incidental take statement or obtaining some other regulatory 

determination from the government. Property owners who pursue 

such claims can wait years before their cases are heard. Decisions 

unfavorable to the government have been rare in the past because 

of the high loss thresholds and other valuation hurdles that the 

landowner must overcome before the courts will award compensation, and the government often appeals such awards. Because the 

costs of obtaining the necessary permit denial and associated legal 

costs are greater than most property owners can afford, relatively 

few compensation claims are brought against the United States (although there has been a steady increase in the past decade). Those 

cases that are brought typically involve relatively large claims 

($100,000 to more than $100 million) and are usually brought by 

corporations or other large property owners. Such claims can require more than a decade to resolve. Smaller claims are rarely pursued because small landowners are unable to obtain the necessary 

permit denials or other agency decisions, cannot afford to sue the 

government, or would not expect to receive enough compensation to 

justify the substantial expense of attorneys and scientific experts. 

Compensation Under H.R. 3824. The creation of an administrative forum would make it much easier for private property owners 

to seek reimbursement when they are prohibited from using their 

property as a result of ESA regulations. Although the number of 

administrative claims could be quite large at first, CBO expects 

that relatively few or no payments would be made over the next 

several years because of the time required to implement the necessary procedures and make other case-by-case determinations. For 

example, no request could be processed under section 13 until the 

landowner receives a written determination against his or her proposed use under section 12, and CBO expects that it would take 

the USFWS one or two years to establish the administrative mechanisms needed to implement section 12 and begin processing the 

first requests for written determinations. Only then would landowners who receive notice that their proposed use is prohibited be 

able to request aid under section 13. Such landowners would likely 

face similar delays at this stage of the process, especially in the 

early years of the program, while the agency determines the property interest affected by its earlier decision and the fair market 

value of that interest. 

Once the aid program has been fully implemented, total payments to landowners would almost certainly be greater than the 

costs of compensating individuals who bring suit under existing 

law (particularly since there are so few such claims at present). 

61 

CBO expects that most aid payments eventually made by the government would be relatively small (often as little as a few thousand 

dollars) because the vast majority of aid requests would likely involve small parcels of land or some minor fraction (‘‘affected portion’’) of larger tracts. However, the agency may face a large volume of requests, at least initially, because the availability of an administrative process would make it economically feasible for small 

landowners who often cannot afford to sue the government under 

existing legal avenues to seek compensation. 

We expect that it would be difficult for landowners to receive aid for larger claims above $1 million under the section 13 process because most larger land-use projects would be ineligible to receive 

written determinations under section 12. 

After 2010, CBO estimates that payments would average less than $20 million a year. Such payments could vary significantly 

from year to year. 

CBO expects that civil litigation would increase as a result of 

H.R. 3824, at least in the short run, because many requests for aid 

would likely involve conflicting interpretations of the statute that 

could require the courts to resolve. Moreover, we expect that smaller landowners who choose to sue the government rather than apply 

for aid under section 13 would find it easier to do so because they 

would be able to use the written determination prohibiting their 

proposed use as a basis for their claims. CBO cannot predict the 

outcomes of any lawsuits that might be brought as a result. Even 

if the government would ultimately lose more lawsuits as a result 

of the legislation, additional compensation costs would probably be 

minimal in the 2006–2010 period because claims would take several years to resolve. We expect that the effect on the number of 

larger claims would be less significant for the same reasons that 

we expect larger requests for aid to be unsuccessful. 

Intergovernmental and private-sector impact: H.R. 3824 contains 

no intergovernmental or private-sector mandates as defined in 

UMRA, and would impose no significant additional costs on State, 

local, or tribal governments. Some provisions in this bill would give 

state and local governments a greater role in carrying out the ESA. 

Any costs they might incur in response would be incurred voluntarily. 

Estimate prepared by: Federal Costs: Deborah Reis. Impact on 

State, Local, and Tribal Governments: Marjorie Miller. Impact on 

the Private Sector: Selena Caldera. 

Estimate approved by: Peter H. Fontaine, Deputy Assistant Director for Budget Analysis. 

COMPLIANCE WITH PUBLIC LAW 104–4 

This bill contains no unfunded mandates. 

PREEMPTION OF STATE, LOCAL OR TRIBAL LAW

This bill is not intended to preempt any State, local or tribal law. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (existing law proposed to be omitVerDate Aug 31 2005 09:09 Sep 28, 2005 Jkt 023574 PO 00000 Frm 00061 Fmt 6659 Sfmt 6602 E:\HR\OC\HR237.XXX HR237
62 

ted is enclosed in black brackets, new matter is printed in italic, 

existing law in which no change is proposed is shown in roman): 

ENDANGERED SPECIES ACT OF 1973 

Be it enacted by the Senate and House of Representatives of the 

United States of America in Congress assembled, That this Act may 

be cited as the ‘‘Endangered Species Act of 1973’’. 

TABLE OF CONTENTS 

Sec. 2. Findings, purposes, and policy. 

* * * * * * * 

øSec. 5. Land acquisition.¿ 

Sec. 5. Recovery plans and land acquisition. 

* * * * * * * 

øSec. 13. Conforming amendments. 

øSec. 14. Repealer. 

øSec. 15. Authorization of appropriations. 

øSec. 16. Effective date. 

øSec. 17. Marine Mammal Protection Act of 1972.¿ 

Sec. 13. Private property conservation. 

Sec. 14. Public accessibility and accountability. 

Sec. 15. Marine Mammal Protection Act of 1972. 

Sec. 16. Annual cost analysis by United States Fish and Wildlife Service. 

Sec. 17. Reimbursement for depredation of livestock by reintroduced species. 

Sec. 18. Authorization of appropriations. 

* * * * * * * 

DEFINITIONS

SEC. 3. For the purposes of this Act—

(1) * * * 

(2)(A) The term ‘‘best available scientific data’’ means scientific 

data, regardless of source, that are available to the Secretary at the 

time of a decision or action for which such data are required by this 

Act and that the Secretary determines are the most accurate, reliable, and relevant for use in that decision or action. 

(B) Not later than one year after the date of the enactment of the 

Threatened and Endangered Species Recovery Act of 2005, the Secretary shall issue regulations that establish criteria that must be 

met to determine which data constitute the best available scientific 

data for purposes of subparagraph (A). 

(C) If the Secretary determines that data for a decision or action 

do not comply with the criteria established by the regulations issued 

under subparagraph (B), do not comply with guidance issued under 

section 515 of the Treasury and General Government Appropriations 

Act, 2001 (Public Law 106–554; 114 Stat. 2763A–171) by the Director of the Office of Management and Budget and the Secretary, do 

not consist of any empirical data, or are found in sources that have 

not been subject to peer review in a generally acceptable manner—

(i) the Secretary shall undertake the necessary measures to 

assure compliance with such criteria or guidance; and 

(ii) the Secretary may—

(I) secure such empirical data; 

(II) seek appropriate peer review; and 

63 

(III) reconsider the decision or action based on any supplemental or different data provided or any peer review 

conducted pursuant to this subparagraph. 

ø(2)¿ (3) The term ‘‘commercial activity’’ means all activities of 

industry and trade, including, but not limited to, the buying or selling of commodities and activities conducted for the purpose of facilitating such buying and selling: Provided, however, That it does 

not include exhibitions of commodities by museums or similar cultural or historical organizations. 

ø(3)¿ (4) The terms ‘‘conserve,’’ ‘‘conserving,’’ and ‘‘conservation’’

mean to use and the use of all methods and procedures which are 

necessary to bring any endangered species or threatened species to 

the point at which the measures provided pursuant to this Act are 

no longer necessary. Such methods and procedures include, but are 

not limited to, all activities associated with scientific resources 

management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may 

include regulated taking. 

ø(4)¿ (5) The term ‘‘Convention’’ means the Convention on International Trade in Endangered Species of Wild Fauna and Flora, 

signed on March 3, 1973, and the appendices thereto. 

ø(5)(A) The term ‘‘critical habitat’’ for a threatened or endangered 

species means— ø(i) the specific areas within the geographical area occupied 

by the species, at the time it is listed in accordance with the 

provisions of section 4 of this Act, on which are found those 

physical or biological features (I) essential to the conservation 

of the species and (II) which may require special management 

considerations or protection; and 

ø(ii) specific areas outside the geographical area occupied by 

the species at the time it is listed in accordance with the provisions of section 4 of this Act, upon a determination by the Secretary that such areas are essential for the conservation of the 

species. 

ø(B) Critical habitat may be established for those species now 

listed as threatened or endangered species for which no critical 

habitat has heretofore been established as set forth in subparagraph (A) of this paragraph. 

ø(C) Except in those circumstances determined by the Secretary, 

critical habitat shall not include the entire geographical area which 

can be occupied by the threatened or endangered species.¿ 

* * * * * * * 

(11) The term ‘‘jeopardize the continued existence’’ means, with respect to an agency action (as that term is defined in section 7(a)(2)), 

that the action reasonably would be expected to significantly impede, directly or indirectly, the conservation in the long-term of the 

species in the wild. 

ø(12) The term ‘‘permit or license applicant’’ means, when used 

with respect to an action of a Federal agency for which exemption 

is sought under section 7, any person whose application to such 

agency for a permit or license has been denied primarily because 

of the application of section 7(a) to such agency action.¿ 

64 

(12) The term ‘‘permit or license applicant’’ means, when used 

with respect to an action of a Federal agency that is subject to section 7(a) or (b), any person that has applied to such agency for a 

permit or license or for formal legal approval to perform an act. 

* * * * * * * 

øDETERMINATION OF ENDANGERED SPECIES AND THREATENED

SPECIES

øSEC. 4. (a) GENERAL.—(1) The Secretary shall by regulation promulgated in accordance with subsection (b) determine whether any 

species is an endangered species or a threatened species because of 

any of the following factors: 

ø(A) the present or threatened destruction, modification, or 

curtailment of its habitat or range; 

ø(B) overutilization for commercial, recreational, scientific, or 

educational purposes; 

ø(C) disease or predation; 

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

ø(E) other natural or manmade factors affecting its continued existence. 

ø(2) With respect to any species over which program responsibilities have been vested in the Secretary of Commerce pursuant to 

Reorganization Plan Numbered 4 of 1970— ø(A) in any case in which the Secretary of Commerce determines that such species should— ø(i) be listed as an endangered species or a threatened 

species, or 

ø(ii) be changed in status from a threatened species to 

an endangered species, he shall so inform the Secretary of 

the Interior, who shall list such species in accordance with 

this section; 

ø(B) in any case in which the Secretary of Commerce determines that such species should—

ø(i) be removed from any list published pursuant to subsection (c) of this section, or 

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

a threatened species, he shall recommend such action to 

the Secretary of the Interior, and the Secretary of the Interior, if he concurs in the recommendation, shall implement 

such action; and 

ø(C) the Secretary of the Interior may not list or remove 

from any list any such species, and may not change the status 

of any such species which are listed, without a prior favorable 

determination made pursuant to this section by the Secretary 

of Commerce. 

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

with subsection (b) and to the maximum extent prudent and determinable—

ø(i) shall, concurrently with making a determination under 

paragraph (1) that a species is an endangered species or a 

threatened species, designate any habitat of such species which 

is then considered to be critical habitat; and 

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

such designation. 

65 

ø(B)(i) The Secretary shall not designate as critical habitat any 

lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to 

an integrated natural resources management plan prepared under 

section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species 

for which critical habitat is proposed for designation. 

ø(ii) Nothing in this paragraph affects the requirement to consult 

under section 7(a)(2) with respect to an agency action (as that term 

is defined in that section). 

ø(iii) Nothing in this paragraph affects the obligation of the Department of Defense to comply with section 9, including the prohibition preventing extinction and taking of endangered species and 

threatened species.¿ 

DETERMINATION OF ENDANGERED SPECIES AND THREATENED SPECIES

SEC. 4. (a) IN GENERAL.—(1) The Secretary shall by regulation 

promulgated in accordance with subsection (b) determine whether 

any species is an endangered species or a threatened species because 

of any of the following factors: 

(A) The present or threatened destruction, modification, or 

curtailment of its habitat or range by human activities, competition from other species, drought, fire, or other catastrophic 

natural causes. 

(B) Overutilization for commercial, recreational, scientific, or 

educational purposes. 

(C) Disease or predation. 

(D) The inadequacy of existing regulatory mechanisms, including any efforts identified pursuant to subsection (b)(1). 

(E) Other natural or manmade factors affecting its continued 

existence. 

(2) The Secretary shall use the authority provided by paragraph 

(1) to determine any distinct population of any species of vertebrate 

fish or wildlife to be an endangered species or a threatened species 

only sparingly. 

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

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

basis of the øbest scientific and commercial data available to him¿ 

best available scientific data after conducting a review of the status 

of the species and after taking into account those efforts, if any, 

being made by any Federal agency, any State or foreign nation, or 

any political subdivision of a State or foreign nation, to protect 

such species, whether by predator control, protection of habitat and 

food supply, or other conservation practices, within any area under 

its jurisdiction, or on the high seas. 

ø(2) The Secretary shall designate critical habitat, and make revisions thereto, under subsection (a)(3) on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat. 

The Secretary may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits 

of specifying such area as part of the critical habitat, unless he determines, based on the best scientific and commercial data availVerDate Aug 31 2005 09:09 Sep 28, 2005 Jkt 023574 PO 00000 Frm 00065 Fmt 6659 Sfmt 6601 E:\HR\OC\HR237.XXX HR237
66 

able, that the failure to designate such area as critical habitat will 

result in the extinction of the species concerned.¿ 

ø(3)¿ (2)(A) To the maximum extent practicable, within 90 days 

after receiving the petition of an interested person under section 

553(e) of title 5, United States Code, to add a species to, or to remove a species from, either of the lists published under subsection 

(c), the Secretary shall make a finding as to whether the petition 

presents substantial scientific or commercial information indicating 

that the petitioned action may be warranted. If such a petition is 

found to present such information, the Secretary shall promptly 

commence a review of the status of the species concerned. The Secretary shall promptly publish each finding made under this subparagraph in the Federal Register. The Secretary shall not make a 

finding that the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted unless the petitioner provides to the Secretary a copy of all 

information cited in the petition. 

* * * * * * * 

ø(D)(i) To the maximum extent practicable, within 90 days after 

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

of title 5, United States Code, to revise a critical habitat designation, the Secretary shall make a finding as to whether the petition 

presents substantial scientific information indicating that the revision may be warranted. The Secretary shall promptly publish such 

finding in the Federal Register. 

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

under clause (i) to present substantial information indicating that 

the requested revision may be warranted, the Secretary shall determine how he intends to proceed with the requested revision, and 

shall promptly publish notice of such intention in the Federal Register.¿ 

ø(4)¿ (3) Except as provided in paragraphs (5) and (6) of this subsection, the provisions of section 553 of title 5, United States Code 

(relating to rulemaking procedures), shall apply to any regulation 

promulgated to carry out the purposes of this Act. 

ø(5)¿ (4) With respect to any regulation proposed by the Secretary to implement a ødetermination, designation, or revision referred to in subsection (a)(1) or (3)¿ determination referred to in 

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

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

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

proposed regulation in the Federal Registerø, and¿; 

(ii) give actual notice of the proposed regulation (including the complete text of the regulation) øto the State agency in¿ to the Governor of, and the State agency in, each 

State in which the species is believed to occur, and to each 

county or equivalent jurisdiction in which the species is believed to occur, and invite the comment of øsuch agency¿ 

such Governor or agency, and each such jurisdiction, thereon; and 

(iii) maintain, and shall make available, a complete 

record of all information concerning the determination or 

revision in the possession of the Secretary, on a publicly acVerDate Aug 31 2005 09:09 Sep 28, 2005 Jkt 023574 PO 00000 Frm 00066 Fmt 6659 Sfmt 9001 E:\HR\OC\HR237.XXX HR237
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cessible website on the Internet, including an index to such 

information. 

(B) insofar as practical, and in cooperation with the Secretary of State, give notice of the proposed regulation to each 

foreign nation in which the species is believed to occur or 

whose citizens harvest the species on the high seas, and invite 

the comment of such nation thereon; 

(C) give notice of the proposed regulation to such professional scientific organizations as øhe¿ the Secretary deems appropriate; 

* * * * * * * 

ø(6)¿ (5)(A) Within the one-year period beginning on the date on 

which general notice is published in accordance with paragraph 

(5)(A)(i) regarding a proposed regulation, the Secretary shall publish in the Federal Register— ø(i) if a determination as to whether a species is an endangered species or a threatened species, or a revision of critical 

habitat, is involved, either— ø(I) a final regulation to implement such determination, 

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

finding that such revision should not be made, 

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

under subparagraph (B)(i), or 

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

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

habitat is involved, either— ø(I) a final regulation to implement such designation, or 

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

under such subparagraph.¿ 

(i) a final regulation to implement such a determination of 

whether a species is an endangered species or a threatened species; 

(ii) notice that such one-year period is being extended under 

subparagraph (B)(i); or 

(iii) notice that the proposed regulation is being withdrawn 

under subparagraph (B)(ii), together with the finding on which 

such withdrawal is based. 

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

referred to in øsubparagraph (A)(i)¿ subparagraph (A) that there is 

substantial disagreement regarding the sufficiency or accuracy of 

the available data relevant to the determination or revision concerned, the Secretary may extend the one-year period specified in 

subparagraph (A) for not more than six months for purposes of soliciting additional data. 

(ii) If a proposed regulation referred to in øsubparagraph (A)(i)¿ 

subparagraph (A) is not promulgated as a final regulation within 

such one-year period (or longer period if extension under clause (i) 

applies) because the Secretary finds that there is not sufficient evidence to justify the action proposed by the regulation, the Secretary 

shall immediately withdraw the regulation. The finding on which 

a withdrawal is based shall be subject to judicial review. The Secretary may not propose a regulation that has previously been withVerDate Aug 31 2005 09:09 Sep 28, 2005 Jkt 023574 PO 00000 Frm 00067 Fmt 6659 Sfmt 6601 E:\HR\OC\HR237.XXX HR237
68 

drawn under this clause unless øhe¿ the Secretary determines that 

sufficient new information is available to warrant such proposal. 

* * * * * * * 

ø(C) A final regulation designating critical habitat of an endangered species or a threatened species shall be published concurrently with the final regulation implementing the determination 

that such species is endangered or threatened, unless the Secretary 

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

regulation implementing such determination be promptly published; or 

ø(ii) critical habitat of such species is not then determinable, 

in which case the Secretary, with respect to the proposed regulation to designate such habitat, may extend the one-year period specified in subparagraph (A) by not more than one additional year, but not later than the close of such additional year 

the Secretary must publish a final regulation, based on such 

data as may be available at that time, designating, to the maximum extent prudent, such habitat.¿ 

ø(7)¿ (6) Neither paragraph (4), (5), or (6) of this subsection nor 

section 553 of title 5, United States Code, shall apply to any regulation with respect to a determination of a species to be an endangered species or a threatened species issued by the Secretary in regard to any emergency posing a significant risk to the well-being 

of any species of fish and wildlife or plants, but only if— (A) at the time of publication of the regulation in the Federal 

Register the Secretary publishes therein detailed reasons why 

such regulation is necessary; and 

(B) in the case such regulation applies to resident species of 

fish or wildlife, or plants, the Secretary gives actual notice of 

such regulation to øthe State agency in¿ the Governor of, and 

State agency in, each State in which such species is believed 

to occur. 

Such regulation shall, at the discretion of the Secretary, take effect 

immediately upon the publication of the regulation in the Federal 

Register. Any regulation promulgated under the authority of this 

paragraph shall cease to have force and effect at the close of the 

240-day period following the date of publication unless, during such 

240-day period, the rulemaking procedures which would apply to 

such regulation without regard to this paragraph are complied 

with. If at any time after issuing an emergency regulation the Secretary determines, on the basis of the best appropriate data available to øhim¿ the Secretary, that substantial evidence does not 

exist to warrant such regulation, øhe¿ the Secretary shall withdraw 

it. 

ø(8)¿ (7) The publication in the Federal Register of any proposed 

or final regulation which is necessary or appropriate to carry out 

the purposes of this Act shall include a summary by the Secretary 

of the data on which such regulation is based and shall show the 

relationship of such data to such regulationø; and if such regulation designates or revises critical habitat, such summary shall, to 

the maximum extent practicable, also include a brief description 

and evaluation of those activities (whether public or private) which, 

in the opinion of the Secretary, if undertaken may adversely modify 

such habitat, or may be affected by such designation.¿. 

69 

(8)(A) Information maintained and made available under paragraph (5)(A)(iii) shall include any status review, all information 

cited in such a status review, all information referred to in the proposed regulation and the preamble to the proposed regulation, and 

all information submitted to the Secretary by third parties. 

(B) The Secretary shall withhold from public review under 

paragraph (5)(A)(iii) any information that may be withheld 

under 552 of title 5, United States Code. 

(c) LISTS.—(1) The Secretary of the Interior shall publish in the 

Federal Register a list of all species determined by øhim or the 

Secretary of Commerce¿ the Secretary to be endangered species and 

a list of all species determined by øhim or the Secretary of Commerce¿ the Secretary to be threatened species. Each list shall refer 

to the species contained therein by scientific and common name or 

names, if any and, specify with respect to such species over what 

portion of its range it is endangered or threatenedø, and specify 

any critical habitat within such range.¿. The Secretary shall from 

time to time revise each list published under the authority of this 

subsection to reflect recent determinationsø, designations,¿ and revisions made in accordance with subsections (a) and (b). 

ø(2) The Secretary shall— ø(A) conduct, at least once every five years, a review of all 

species included in a list which is published pursuant to paragraph (1) and which is in effect at the time of such review; and 

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

species should— ø(i) be removed from such list; 

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

a threatened species; or 

ø(iii) be changed in status from a threatened species to 

an endangered species. 

Each determination under subparagraph (B) shall be made in accordance with the provisions of subsection (a) and (b).¿ 

(2)(A) The Secretary shall—

(i) conduct, at least once every 5 years, based on the information collected for the biennial reports to the Congress 

required by paragraph (3) of subsection (f), a review of all 

species included in a list that is published pursuant to 

paragraph (1) and that is in effect at the time of such review; and 

(ii) determine on the basis of such review and any other 

information the Secretary considers relevant whether any 

such species should—

(I) be removed from such list; 

(II) be changed in status from an endangered species 

to a threatened species; or 

(III) be changed in status from a threatened species 

to an endangered species. 

(B) Each determination under subparagraph (A)(ii) shall be 

made in accordance with subsections (a) and (b). 

(3) Each determination under paragraph (2)(B) shall consider one 

of the following: 

(A) Except as provided in subparagraph (B) of this paragraph, the criteria in the recovery plan for the species required 

by section 5(c)(1)(A) or (B). 

70 

(B) If the recovery plan is issued before the criteria required 

under section 5(c)(1)(A) and (B) are established or if no recovery 

plan exists for the species, the factors for determination that a 

species is an endangered species or a threatened species set 

forth in subsections (a)(1) and (b)(1). 

(C) A finding of fundamental error in the determination that 

the species is an endangered species, a threatened species, or extinct. 

(D) A determination that the species is no longer an endangered species or threatened species or in danger of extinction, 

based on an analysis of the factors that are the basis for listing 

under section 4(a)(1). 

(d) PROTECTIVE REGULATIONS.—Whenever any species is listed as 

a threatened species pursuant to subsection (c) of this section, the 

Secretary shall issue such regulations as he deems necessary and 

advisable to provide for the conservation of such species. The Secretary may by regulation prohibit with respect to any threatened 

species any act prohibited under section 9(a)(1), in the case of fish 

or wildlife, or section 9(a)(2) in the case of plants, with respect to 

endangered species; except that with respect to the taking of resident species of fish or wildlife, such, regulations shall apply in any 

State which has entered into a cooperative agreement pursuant to 

section 6(c) of this Act only to the extent that such regulations 

have also been adopted by such State. 

ø(f)(1) RECOVERY PLANS.—The Secretary shall develop and implement plans (hereinafter in this subsection referred to as ‘‘recovery 

plans’’) for the conservation and survival of endangered species and 

threatened species listed pursuant to this section, unless he finds 

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

The Secretary, in developing and implementing recovery plans, 

shall, to the maximum extent practicable— ø(A) give priority to those endangered species or threatened 

species, without regard to taxonomic classification, that are 

most likely to benefit from such plans, particularly those species that are, or may be, in conflict with construction or other 

development projects or other forms of economic activity; 

ø(B) incorporate in each plan—

ø(i) a description of such site-specific management actions as may be necessary to achieve the plan’s goal for the 

conservation and survival of the species; 

ø(ii) objective, measurable criteria which, when met, 

would result in a determination, in accordance with the 

provisions of this section, that the species be removed from 

the list; and 

ø(iii) estimates of the time required and the cost to carry 

out those measures needed to achieve the plan’s goal and 

to achieve intermediate steps toward that goal. 

ø(2) The Secretary, in developing and implementing recovery 

plans, may procure the services of appropriate public and private 

agencies and institutions and other qualified persons. Recovery 

teams appointed pursuant to this subsection shall not be subject to 

the Federal Advisory Committee Act. 

ø(3) The Secretary shall report every two years to the Committee 

on Environment and Public Works of the Senate and the Committee on Merchant Marine and Fisheries of the House of RepVerDate Aug 31 2005 09:09 Sep 28, 2005 Jkt 023574 PO 00000 Frm 00070 Fmt 6659 Sfmt 6601 E:\HR\OC\HR237.XXX HR237
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resentatives on the status of efforts to develop and implement recovery plans for all species listed pursuant to this section and on 

the status of all species for which such plans have been developed. 

ø(4) The Secretary shall, prior to final approval of a new or revised recovery plan, provide public notice and an opportunity for 

public review and comment on such plan. The Secretary shall consider all information presented during the public comment period 

prior to approval of the plan. 

ø(5) Each Federal agency shall, prior to implementation of a new 

or revised recovery plan, consider all information presented during 

the public comment period under paragraph (4). 

ø(g) MONITORING.—(1) The Secretary shall implement a system 

in cooperation with the States to monitor effectively for not less 

than five years the status of all species which have recovered to the 

point at which the measures provided pursuant to this Act are no 

longer necessary and which, in accordance with the provisions of 

this section, have been removed from either of the lists published 

under subsection (c). 

ø(2) The Secretary shall make prompt use of the authority under 

paragraph 7 of subsection (b) of this section to prevent a significant 

risk to the well being of any such recovered species.¿ 

ø(h) AGENCY¿ (f) SECRETARIAL GUIDELINES.—The Secretary shall 

establish, and publish in the Federal Register, agency guidelines to 

insure that øthe purposes of this section are achieved¿ this section 

is implemented efficiently and effectively. Such guidelines shall include, but are not limited to— (1) procedures for recording the receipt and the disposition of 

petitions submitted under subsection (b)(3) of this section; 

(2) criteria for making the findings required under such subsection with respect to petitions; 

(3) a ranking system to assist in the identification of species 

that should receive priority review under subsection (a)(1) of 

the section; øand¿ 

(4) the criteria for determining best available scientific data 

pursuant to section 3(2); and 

ø(4)¿ (5) a system for developing and implementing, on a priority basis, recovery plans under øsubsection (f) of this section¿ 

section 5. 

The Secretary shall provide to the public notice of, and opportunity 

to submit written comments on, any guideline (including any 

amendment thereto) proposed to be established under this subsection. 

ø(i)¿ (g) COMMENTS.—If, in the case of any regulation proposed 

by the Secretary under the authority of this section, øa State agency¿ a Governor, State agency, county (or equivalent jurisdiction), or 

unit of local government to which notice thereof was given in accordance with subsection (b)(5)(A)(ii) files comments disagreeing 

with all or part of the proposed regulation, and the Secretary 

issues a final regulation which is in conflict with such comments, 

or if the Secretary fails to adopt a regulation pursuant to an action 

petitioned by øa State agency¿ a Governor, State agency, county (or 

equivalent jurisdiction), or unit of local government under subsection (b)(3), the Secretary shall submit to øthe State agency¿ the 

Governor, State agency, county (or equivalent jurisdiction), or unit 

of local government, respectively a written justification for øhis¿ the 

72 

failure to adopt regulations consistent with the øagency’s¿ comments or petition. 

øLAND ACQUISITION

øSEC. 5.¿ 

RECOVERY PLANS AND LAND ACQUISITION

SEC. 5. (a) RECOVERY PLANS.—The Secretary shall, in accordance 

with this section, develop and implement a plan (in this subsection 

referred to as a ‘‘recovery plan’’) for the species determined under 

section 4(a)(1) to be an endangered species or a threatened species, 

unless the Secretary finds that such a plan will not promote the conservation and survival of the species. 

(b) DEVELOPMENT OF RECOVERY PLANS.—(1) Subject to paragraphs (2) and (3), the Secretary, in developing recovery plans, 

shall, to the maximum extent practicable, give priority to those endangered species or threatened species, without regard to taxonomic 

classification, that are most likely to benefit from such plans, particularly those species that are, or may be, in conflict with construction or other development projects or other forms of economic activity. 

(2) In the case of any species determined to be an endangered species or threatened species after the date of the enactment of the 

Threatened and Endangered Species Recovery Act of 2005, the Secretary shall publish a final recovery plan for a species within 2 

years after the date the species is listed under section 4(c). 

(3)(A) For those species that are listed under section 4(c) on the 

date of enactment of the Threatened and Endangered Species Recovery Act of 2005 and are described in subparagraph (B) of this paragraph, the Secretary, after providing for public notice and comment, 

shall—

(i) not later than 1 year after such date, publish in the Federal Register a priority ranking system for preparing or revising 

such recovery plans that is consistent with paragraph (1) and 

takes into consideration the scientifically based needs of the species; and 

(ii) not later than 18 months after such date, publish in the 

Federal Register a list of such species ranked in accordance 

with the priority ranking system published under clause (i) for 

which such recovery plans will be developed or revised, and a 

tentative schedule for such development or revision. 

(B) A species is described in this subparagraph if—

(i) a recovery plan for the species is not published under this 

Act before the date of enactment of the Threatened and Endangered Species Recovery Act of 2005 and the Secretary finds such 

a plan would promote the conservation and survival of the species; or 

(ii) a recovery plan for the species is published under this Act 

before such date of enactment and the Secretary finds revision 

of such plan is warranted. 

(C)(i) The Secretary shall, to the maximum extent practicable, adhere to the list and tentative schedule published under subparagraph (A)(ii) in developing or revising recovery plans pursuant to 

this paragraph. 

73 

(ii) The Secretary shall provide the reasons for any deviation from 

the list and tentative schedule published under subparagraph 

(A)(ii), in each report to the Congress under subsection (e). 

(4) The Secretary, using the priority ranking system required 

under paragraph (3), shall prepare or revise such plans within 10 

years after the date of the enactment of the Threatened and Endangered Species Recovery Act of 2005. 

(c) PLAN CONTENTS.—(1)(A) Except as provided in subparagraph 

(E), a recovery plan shall be based on the best available scientific 

data and shall include the following: 

(i) Objective, measurable criteria that, when met, would result in a determination, in accordance with this section, that 

the species to which the recovery plan applies be removed from 

the lists published under section 4(c) or be reclassified from an 

endangered species to a threatened species. 

(ii) A description of such site-specific or other measures that 

would achieve the criteria established under clause (i), including such intermediate measures as are warranted to effect 

progress toward achievement of the criteria. 

(iii) Estimates of the time required and the costs to carry out 

those measures described under clause (ii), including, to the extent practicable, estimated costs for any recommendations, by 

the recovery team, or by the Secretary if no recovery team is selected, that any of the areas identified under clause (iv) be acquired on a willing seller basis. 

(iv) An identification of those specific areas that are of special 

value to the conservation of the species. 

(B) Those members of any recovery team appointed pursuant to 

subsection (d) with relevant scientific expertise, or the Secretary if 

no recovery team is appointed, shall, based solely on the best available scientific data, establish the objective, measurable criteria required under subparagraph (A)(i). 

(C)(i) If the recovery team, or the Secretary if no recovery team is 

appointed, determines in the recovery plan that insufficient best 

available scientific data exist to determine criteria or measures 

under subparagraph (A) that could achieve a determination to remove the species from the lists published under section 4(c), the recovery plan shall contain interim criteria and measures that are 

likely to improve the status of the species. 

(ii) If a recovery plan does not contain the criteria and measures 

provided for by clause (i) of subparagraph (A), the recovery team for 

the plan, or by the Secretary if no recovery team is appointed, shall 

review the plan at intervals of no greater than 5 years and determine if the plan can be revised to contain the criteria and measures 

required under subparagraph (A). 

(iii) If the recovery team or the Secretary, respectively, determines 

under clause (ii) that a recovery plan can be revised to add the criteria and measures provided for under subparagraph (A), the recovery team or the Secretary, as applicable, shall revise the recovery 

plan to add such criteria and measures within 2 years after the date 

of the determination. 

(D) In specifying measures in a recovery plan under subparagraph (A), a recovery team or the Secretary, as applicable, shall—

(i) whenever possible include alternative measures; and 

74 

(ii) in developing such alternative measures, the Secretary 

shall seek to identify, among such alternative measures of comparable expected efficacy, the alternative measures that are 

least costly. 

(E) Estimates of time and costs pursuant to subparagraph (A)(iii), 

and identification of the least costly alternatives pursuant to subparagraph (D)(ii), are not required to be based on the best available 

scientific data. 

(2) Any area that, immediately before the enactment of the Threatened and Endangered Species Recovery Act of 2005, is designated 

as critical habitat of an endangered species or threatened species 

shall be treated as an area described in subparagraph (A)(iv) until 

a recovery plan for the species is developed or the existing recovery 

plan for the species is revised pursuant to subsection (b)(3). 

(d) RECOVERY TEAMS.—(1) The Secretary shall promulgate regulations that provide for the establishment of recovery teams for development of recovery plans under this section. 

(2) Such regulations shall—

(A) establish criteria and the process for selecting the members of recovery teams, and the process for preparing recovery 

plans, that ensure that each team—

(i) is of a size and composition to enable timely completion of the recovery plan; and 

(ii) includes sufficient representation from constituencies 

with a demonstrated direct interest in the species and its 

conservation or in the economic and social impacts of its 

conservation to ensure that the views of such constituencies 

will be considered in the development of the plan; 

(B) include provisions regarding operating procedures of and 

recordkeeping by recovery teams; 

(C) ensure that recovery plans are scientifically rigorous and 

that the evaluation of costs required by paragraphs (1)(A)(iii) 

and (1)(D) of subsection (c) are economically rigorous; and 

(D) provide guidelines for circumstances in which the Secretary may determine that appointment of a recovery team is 

not necessary or advisable to develop a recovery plan for a specific species, including procedures to solicit public comment on 

any such determination. 

(3) The Federal Advisory Committee Act (5 App. U.S.C.) shall not 

apply to recovery teams appointed in accordance with regulations 

issued by the Secretary under this subsection. 

(e) REPORTS TO CONGRESS.—(1) The Secretary shall report every 

two years to the Committee on Resources of the House of Representatives and the Committee on Environment and Public Works of the 

Senate on the status of all domestic endangered species and threatened species and the status of efforts to develop and implement recovery plans for all domestic endangered species and threatened 

species. 

(2) In reporting on the status of such species since the time of its 

listing, the Secretary shall include—

(A) an assessment of any significant change in the well-being 

of each such species, including—

(i) changes in population, range, or threats; and 

(ii) the basis for that assessment; and 

75 

(B) for each species, a measurement of the degree of confidence in the reported status of such species, based upon a 

quantifiable parameter developed for such purposes. 

(f) PUBLIC NOTICE AND COMMENT.—The Secretary shall, prior to 

final approval of a new or revised recovery plan, provide public notice and an opportunity for public review and comment on such 

plan. The Secretary shall consider all information presented during 

the public comment period prior to approval of the plan. 

(g) STATE COMMENT.—The Secretary shall, prior to final approval 

of a new or revised recovery plan, provide a draft of such plan and 

an opportunity to comment on such draft to the Governor of, and 

State agency in, any State to which such draft would apply. The 

Secretary shall include in the final recovery plan the Secretary’s response to the comments of the Governor and the State agency. 

(h) CONSULTATION TO ENSURE CONSISTENCY WITH DEVELOPMENT

PLAN.—(1) The Secretary shall, prior to final approval of a new or 

revised recovery plan, consult with any pertinent State, Indian tribe, 

or regional or local land use agency or its designee. 

(2) For purposes of this Act, the term ‘‘Indian tribe’’ means—

(A) with respect to the 48 contiguous States, any federally recognized Indian tribe, organized band, pueblo, or community; and 

(B) with respect to Alaska, the Metlakatla Indian Community. 

(i) USE OF PLANS.—(1) Each Federal agency shall consider any 

relevant best available scientific data contained in a recovery plan 

in any analysis conducted under section 102 of the National Environmental Policy Act of 1969 (42 U.S.C. 4332). 

(2)(A)(i) The head of any Federal agency may enter into an agreement with the Secretary specifying the measures the agency will 

carry out to implement a recovery plan. 

(ii) Each such agreement shall be published in draft form with 

notice and an opportunity for public comment. 

(iii) Each such final agreement shall be published, with responses 

by the head of the Federal agency to any public comments submitted 

on the draft agreement. 

(B) Nothing in a recovery plan shall be construed to establish regulatory requirements. 

(j) MONITORING.—(1) The Secretary shall implement a system in 

cooperation with the States to monitor effectively for not less than 

five years the status of all species that have recovered to the point 

at which the measures provided pursuant to this Act are no longer 

necessary and that, in accordance with this section, have been removed from the lists published under section 4(c). 

(2) The Secretary shall make prompt use of the authority under 

section 4(b)(6) to prevent a significant risk to the well-being of any 

such recovered species. 

ø(a)¿ (k) PROGRAM.—The Secretary, and the Secretary of Agriculture with respect to the National Forest System, shall establish 

and implement a program to conserve fish, wildlife, and plants, including those which are listed as endangered species or threatened 

species pursuant to section 4 of this Act. To carry out such a program, the appropriate Secretary— (1) shall utilize the land acquisition and other authority 

under the Fish and Wildlife Act of 1956, as amended, the Fish 

and Wildlife Coordination Act, as amended, and the Migratory 

Bird Conservation Act, as appropriate; and 

76 

(2) is authorized to acquire by purchase, donation, or otherwise, lands, waters, or interest therein, and such authority 

shall be in addition to any other land acquisition vested in 

øhim¿ the Secretary. ø(b)¿ (l) ACQUISITIONS.—Funds made available pursuant to the 

Land and Water Conservation Fund Act of 1965, as amended, may 

be used for the purpose of acquiring lands, waters, or interests 

therein under øsubsection (a) of this section¿ subsection (k). (m) THREATENED AND ENDANGERED SPECIES INCENTIVES PRO- GRAM.—(1) The Secretary may enter into species recovery agreements pursuant to paragraph (2) and species conservation contract 

agreements pursuant to paragraph (3) with persons, other than 

agencies or departments of the Federal Government or State governments, under which the Secretary is obligated, subject to the availability of appropriations, to make annual payments or provide other 

compensation to the persons to implement the agreements. 

(2)(A) The Secretary and persons who own or control the use of 

private land may enter into species recovery agreements with a term 

of not less than 5 years that meet the criteria set forth in subparagraph (B) and are in accordance with the priority established in 

subparagraph (C). 

(B) A species recovery agreement entered into under this paragraph by the Secretary with a person— (i) shall require that the person shall carry out, on the land 

owned or controlled by the person, activities that— (I) protect and restore habitat for covered species that are 

species determined to be endangered species or threatened 

species pursuant to section 4(a)(1); 

(II) contribute to the conservation of one or more covered 

species; and 

(III) specify and implement a management plan for the 

covered species; 

(ii) shall specify such a management plan that includes— (I) identification of the covered species; 

(II) a description of the land to which the agreement applies; and 

(III) a description of, and a schedule to carry out, the activities under clause (i); 

(iii) shall provide sufficient documentation to establish ownership or control by the person of the land to which the agreement applies; 

(iv) shall include the amounts of the annual payments or 

other compensation to be provided by the Secretary to the person under the agreement, and the terms under which such payments or compensation shall be provided; and 

(v) shall include—

(I) the duties of the person; 

(II) the duties of the Secretary; 

(III) the terms and conditions under which the person 

and the Secretary mutually agree the agreement may be 

modified or terminated; and 

(IV) acts or omissions by the person or the Secretary that 

shall be considered violations of the agreement, and procedures under which notice of and an opportunity to remedy 

any violation by the person or the Secretary shall be given. 

77 

(C) In entering into species recovery agreements under this paragraph, the Secretary shall accord priority to agreements that apply 

to any areas that are identified in recovery plans pursuant to subsection (c)(1)(A)(iv). 

(3)(A) The Secretary and persons who own private land may enter 

into species conservation contract agreements with terms of 30 

years, 20 years, or 10 years that meet the criteria set forth in subparagraph (B) and standards set forth in subparagraph (D) and are 

in accordance with the priorities established in subparagraph (C). 

(B) A species conservation contract agreement entered into under 

this paragraph by the Secretary with a person—

(i) shall provide that the person shall, on the land owned by 

the person—

(I) carry out conservation practices to meet one or more 

of the goals set forth in clauses (i) through (iii) of subparagraph (C) for one or more covered species, that are species 

that are determined to be endangered species or threatened 

species pursuant to section 4(a)(1), species determined to be 

candidate species pursuant to section 4(b)(3)(B)(iii), or species subject to comparable designations under State law; 

and 

(II) specify and implement a management plan for the 

covered species; 

(ii) shall specify such a management plan that includes—

(I) identification of the covered species; 

(II) a description in detail of the conservation practices 

for the covered species that the person shall undertake; 

(III) a description of the land to which the agreement applies; and 

(IV) a schedule of approximate deadlines, whether onetime or periodic, for undertaking the conservation practices 

described pursuant to subclause (II); 

(V) a description of existing or future economic activities 

on the land to which the agreement applies that are compatible with the conservation practices described pursuant 

to subclause (II) and generally with conservation of the covered species; 

(iii) shall specify the term of the agreement; and 

(iv) shall include—

(I) the duties of the person; 

(II) the duties of the Secretary; 

(III) the terms and conditions under which the person 

and the Secretary mutually agree the agreement may be 

modified or terminated; 

(IV) acts or omissions by the person or the Secretary that 

shall be considered violations of the agreement, and procedures under which notice of and an opportunity to remedy 

any violation by the person or the Secretary shall be given; 

and 

(V) terms and conditions for early termination of the 

agreement by the person before the management plan is 

fully implemented or termination of the agreement by the 

Secretary in the case of a violation by the person that is not 

remedied under subclause (IV), including any requirement 

78 

for the person to refund all or part of any payments received under subparagraph (E) and any interest thereon. 

(C) The Secretary shall establish priorities for the selection of species conservation contract agreements, or groups of such agreements 

for adjacent or proximate lands, to be entered into under this paragraph that address the following factors: 

(i) The potential of the land to which the agreement or agreements apply to contribute significantly to the conservation of an 

endangered species or threatened species or a species with a 

comparable designation under State law. 

(ii) The potential of such land to contribute significantly to 

the improvement of the status of a candidate species or a species 

with a comparable designation under State law. 

(iii) The amount of acreage of such land. 

(iv) The number of covered species in the agreement or agreements. 

(v) The degree of urgency for the covered species to implement 

the conservation practices in the management plan or plans 

under the agreement or agreements. 

(vi) Land in close proximity to military test and training 

ranges, installations, and associated airspace that is affected by 

a covered species. 

(D) The Secretary shall enter into a species conservation contract 

agreement submitted by a person, if the Secretary finds that the person owns such land or has sufficient control over the use of such 

land to ensure implementation of the management plan under the 

agreement. 

(E)(i) Upon entering into a species conservation contract agreement with the Secretary pursuant to this paragraph, a person shall 

receive the financial assistance provided for in this subparagraph. 

(ii) If the person is implementing fully the agreement, the person 

shall receive from the Secretary— (I) in the case of a 30-year agreement, an annual contract 

payment in an amount equal to 100 percent of the person’s actual costs to implement the conservation practices described in 

the management plan under the terms of the agreement; 

(II) in the case of a 20-year agreement, an annual contract 

payment in an amount equal to 80 percent of the person’s actual costs to implement the conservation practices described in 

the management plan under the terms of the agreement; and 

(III) in the case of a 10-year agreement, an annual contract 

payment in an amount equal to 60 percent of the person’s actual costs to implement the conservation practices described in 

the management plan under the terms of the agreement. 

(iii)(I) If the person receiving contract payments pursuant to 

clause (ii) receives any other State or Federal funds to defray the 

cost of any conservation practice, the cost of such practice shall not 

be eligible for such contract payments. 

(II) Contributions of agencies or organizations to any conservation 

practice other than the funds described in subclause (I) shall not be 

considered as costs of the person for purposes of the contract payments pursuant to clause (iii). 

(4)(A) Upon request of a person seeking to enter into an agreement 

pursuant to this subsection, the Secretary may provide to such person technical assistance in the preparation, and management trainVerDate Aug 31 2005 09:09 Sep 28, 2005 Jkt 023574 PO 00000 Frm 00078 Fmt 6659 Sfmt 6603 E:\HR\OC\HR237.XXX HR237
79 

ing for the implementation, of the management plan for the agreement. 

(B) Any State agency, local government, nonprofit organization, or 

federally recognized Indian tribe may provide assistance to a person 

in the preparation of a management plan, or participate in the implementation of a management plan, including identifying and 

making available certified fisheries or wildlife biologists with expertise in the conservation of species for purposes of the preparation or 

review and approval of management plans for species conservation 

contract agreements under paragraph (3)(D)(iii). 

(5) Upon any conveyance or other transfer of interest in land that 

is subject to an agreement under this subsection— (A) the agreement shall terminate if the agreement does not 

continue in effect under subparagraph (B); 

(B) the agreement shall continue in effect with respect to such 

land, with the same terms and conditions, if the person to 

whom the land or interest is conveyed or otherwise transferred 

notifies the Secretary of the person’s election to continue the 

agreement by no later than 30 days after the date of the conveyance or other transfer and the person is determined by the Secretary to qualify to enter into an agreement under this subsection; or 

(C) the person to whom the land or interest is conveyed or 

otherwise transferred may seek a new agreement under this 

subsection. 

(6) An agreement under this subsection may be renewed with the 

mutual consent of the Secretary and the person who entered into the 

agreement or to whom the agreement has been transferred under 

paragraph (5). 

(7) The Secretary shall make annual payments under this subsection as soon as possible after December 31 of each calendar year. 

(8) An agreement under this subsection that applies to an endangered species or threatened species shall, for the purpose of section 

10(a)(4), be deemed to be a permit to enhance the propagation or 

survival of such species under section 10(a)(1), and a person in full 

compliance with the agreement shall be afforded the protection of 

section 10(a)(4). 

(9) The Secretary, or any other Federal official, may not require 

a person to enter into an agreement under this subsection as a term 

or condition of any right, privilege, or benefit, or of any action or 

refraining from any action, under this Act. 

COOPERATION WITH THE STATES

SEC. 6. (a) * * * 

* * * * * * * 

(c)(1) COOPERATIVE AGREEMENTS.—In furtherance of the purposes of this Act, the Secretary is authorized to enter into a cooperative agreement in accordance with this section with any State 

which establishes and maintains an adequate and active program 

for the conservation of endangered species and threatened species. 

Within one hundred and twenty days after the Secretary receives 

a certified copy of such a proposed State program, øhe¿ the Secretary shall make a determination whether such program is in accordance with this Act. Unless øhe¿ the Secretary determines, purVerDate Aug 31 2005 09:09 Sep 28, 2005 Jkt 023574 PO 00000 Frm 00079 Fmt 6659 Sfmt 6601 E:\HR\OC\HR237.XXX HR237
80 

suant to this paragraph, that the State program is not in accordance with this Act, øhe¿ the Secretary shall enter into a cooperative 

agreement with the State for the purpose of assisting in implementation of the State program. In order for a State program to be 

deemed an adequate and active program for the conservation of endangered species and threatened species, the Secretary must find, 

and annually thereafter reconfirm such finding, that under the 

State program— (A) * * * 

* * * * * * * 

(2) In furtherance of the purposes of this Act, the Secretary is authorized to enter into a cooperative agreement in accordance with 

this section with any State which establishes and maintains an 

adequate and active program for the conservation of endangered 

species and threatened species of plants. Within one hundred and 

twenty days after the Secretary receives a certified copy of such a 

proposed State program, øhe¿ the Secretary shall make a determination whether such program is in accordance with this Act. Unless øhe¿ the Secretary determines, pursuant to this paragraph, 

that the State program is not in accordance with this Act, øhe¿ the 

Secretary shall enter into a cooperative agreement with the State 

for the purpose of assisting in implementation of the State program. In order for a State program to be deemed an adequate and 

active program for the conservation of endangered species of plants 

and threatened species of plants, the Secretary must find, and annually thereafter reconfirm such findings, that under the State program—

(A) * * * 

* * * * * * * 

(3)(A) Any cooperative agreement entered into by the Secretary 

under this subsection may also provide for development of a program for conservation of species determined to be candidate species 

pursuant to section 4(b)(2)(B)(iii) or any other species that the State 

and the Secretary agree is at risk of being determined to be an endangered species or threatened species under section 4(a)(1) in that 

State. Upon completion of consultation on the agreement pursuant 

to subsection (e)(2), any incidental take statement issued on the 

agreement shall apply to any such species, and to the State and any 

landowners enrolled in any program under the agreement, without 

further consultation (except any additional consultation pursuant to 

subsection (e)(2)) if the species is subsequently determined to be an 

endangered species or a threatened species and the agreement remains an adequate and active program for the conservation of endangered species and threatened species. 

(B) Any cooperative agreement entered into by the Secretary under 

this subsection may also provide for monitoring or assistance in 

monitoring the status of candidate species pursuant to section 

4(b)(3)(C)(iii) or recovered species pursuant to section 5(j). 

(C) The Secretary shall periodically review each cooperative agreement under this subsection and seek to make changes the Secretary 

considers necessary for the conservation of endangered species and 

threatened species to which the agreement applies. 

(4) Any cooperative agreement entered into by the Secretary under 

this subsection that provides for the enrollment of private lands or 

81 

water rights in any program established by the agreement shall ensure that the decision to enroll is voluntary for each owner of such 

lands or water rights. 

(5)(A) The Secretary may enter into a cooperative agreement 

under this subsection with an Indian tribe in substantially the same 

manner in which the Secretary may enter into a cooperative agreement with a State. 

(B) For the purposes of this paragraph, the term ‘‘Indian tribe’’ means—

(i) with respect to the 48 contiguous States, any federally recognized Indian tribe, organized band, pueblo, or community; 

and 

(ii) with respect to Alaska, the Metlakatla Indian Community. 

(d) ALLOCATION OF FUNDS.—(1) The Secretary is authorized to 

provide financial assistance to any State, through its respective 

State agency, which has entered into a cooperative agreement 

øpursuant to subsection (c) of this section¿ to assist in development 

of programs for the conservation of endangered and threatened species or to assist in monitoring the status of candidate species pursuant to subparagraph (C) of section 4(b)(3) and recovered species 

pursuant to øsection 4(g)¿ section 5(j). The Secretary shall allocate 

each annual appropriation made in accordance with the provisions 

of subsection (i) of this section to such States based on consideration of—

(A) * * * 

* * * * * * * 

(F) the importance of ømonitoring the status of candidate 

species¿ developing a conservation program for, or monitoring 

the status of, candidate species or other species determined to 

be at risk pursuant to subsection (c)(3) within a State to prevent a significant risk to the well being of any such species; 

and 

* * * * * * * 

(2) Such cooperative agreements shall provide for (A) the actions 

to be taken by the Secretary and the States; (B) the benefits that 

are expected to be derived in connection with the conservation of 

endangered or threatened species; (C) the estimated cost of these 

actions; and (D) the share of such costs to be bore by the Federal 

Government and by the States; except that—

(i) * * * 

The Secretary may, in øhis¿ the Secretary’s discretion, and under 

such rules and regulations as øhe¿ the Secretary may prescribe, advance funds to the State for financing the United States pro rata 

share agreed upon in the cooperative agreement. For the purposes 

of this section, the non-Federal share may, in the discretion of the 

Secretary, be in the form of money or real property, the value of 

which will be determined by the Secretary whose decision shall be 

final. 

(3) A State shall not be eligible for financial assistance under this 

section for a fiscal year unless the State has provided to the Secretary for the preceding fiscal year information regarding the expenditures referred to in section 16(b)(2). 

(e) REVIEW OF STATE PROGRAMS.—(1) Any action taken by the 

Secretary under this section shall be subject to øhis periodic review 

82 

at no greater than annual intervals¿ periodic review by the Secretary every 3 years. (2) Any cooperative agreement entered into by the Secretary under 

subsection (c) shall be subject to section 7(a)(2) through (d) and regulations implementing such provisions only before— (A) the Secretary enters into the agreement; and 

(B) the Secretary approves any renewal of, or amendment to, 

the agreement that— (i) addresses species that are determined to be endangered species or threatened species, are not addressed in the 

agreement, and may be affected by the agreement; or 

(ii) new information about any species addressed in the 

agreement that the Secretary determines— (I) constitutes the best available scientific data; and 

(II) indicates that the agreement may have adverse 

effects on the species that had not been considered previously when the agreement was entered into or during 

any revision thereof or amendment thereto. 

(3) The Secretary may suspend any cooperative agreement established pursuant to subsection (c), after consultation with the Governor of the affected State, if the Secretary finds during the periodic 

review required by paragraph (1) of this subsection that the agreement no longer constitutes an adequate and active program for the 

conservation of endangered species and threatened species. 

(4) The Secretary may terminate any cooperative agreement entered into by the Secretary under subsection (c), after consultation 

with the Governor of the affected State, if— (A) as result of the procedures of section 7(a)(2) through (d) 

undertaken pursuant to paragraph (2) of this subsection, the 

Secretary determines that continued implementation of the cooperative agreement is likely to jeopardize the continued existence of endangered species or threatened species, and the cooperative agreement is not amended or revised to incorporate a 

reasonable and prudent alternative offered by the Secretary 

pursuant to section 7(b)(3); or 

(B) the cooperative agreement has been suspended under 

paragraph (3) of this subsection and has not been amended or 

revised and found by the Secretary to constitute an adequate 

and active program for the conservation of endangered species 

and threatened species within 180 days after the date of the 

suspension. 

* * * * * * * 

(g) TRANSITION.—(1) * * * 

(2) The prohibitions set forth in or authorized pursuant to sections 4(d) and 9(a)(1)(B) of this Act shall not apply with respect to 

the taking of any resident endangered species or threatened species 

(other than species listed in Appendix I to the Convention or otherwise specifically covered by any other treaty or Federal law) within 

any State— (A) * * * 

(B) except for any time within the establishment period 

when—

(i) * * * 

(ii) the Secretary applies such prohibition after øhe¿ the 

Secretary finds, and publishes his finding, that an emerVerDate Aug 31 2005 09:09 Sep 28, 2005 Jkt 023574 PO 00000 Frm 00082 Fmt 6659 Sfmt 6601 E:\HR\OC\HR237.XXX HR237
83 

gency exists posing a significant risk to the well-being of 

such species and that the prohibition must be applied to 

protect such species. The Secretary’s finding and publication may be made without regard to the public hearing or 

comment provisions of section 553 of title 5, United States 

Code, or any other provision of this Act; but such prohibition shall expire 90 days after the date of its imposition 

unless the Secretary further extends such prohibition by 

publishing notice and a statement of justification of such 

extension. 

* * * * * * * 

(j) RECOVERY PLANS FOR SPECIES OCCUPYING MORE THAN ONE

STATE.—Any recovery plan under section 5 for an endangered species or a threatened species that occupies more than one State shall 

identify criteria and actions pursuant to subsection (c)(1) of section 

5 for each State that are necessary so that the State may pursue a 

determination that the portion of the species found in that State 

may be removed from lists published under section 4(c). 

* * * * * * * 

INTERAGENCY COOPERATION

SEC. 7. (a) FEDERAL AGENCY ACTIONS AND CONSULTATIONS.—(1) 

The Secretary shall review other programs administered by øhim¿ 

the Secretary and utilize such programs in furtherance of the purposes of this Act. All other Federal agencies shall, in consultation 

with and with the assistance of the Secretary, utilize their authorities in furtherance of the purposes of this Act by carrying out programs for the conservation of øendangered species and threatened 

species listed pursuant to section 4 of this Act.¿ species determined 

to be endangered species and threatened species under section 4. 

(2)(A) Each Federal agency shall, in consultation with and with 

the assistance of the Secretary, insure that any øaction authorized, 

funded, or carried out by such agency (hereinafter in this section 

referred to as an ‘‘agency action’’) is not¿ agency action authorized, 

funded, or carried out by such agency is not likely to jeopardize the 

continued existence of any endangered species or threatened species øor result in the destruction or adverse modification of habitat 

of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical, unless 

such agency has been granted an exemption for such action by the 

Committee pursuant to subsection (h) of this section¿. In fulfilling 

the requirements of this paragraph each agency shall use the øbest 

scientific and commercial data available¿ best available scientific 

data. 

(B) The Secretary may identify specific agency actions or categories of agency actions that may be determined to meet the standards of this paragraph by alternative procedures to the procedures 

set forth in this subsection and subsections (b) through (d), except 

that subsections (b)(4) and (e) may apply only to an action that the 

Secretary finds, or concurs, does meet such standards, and the Secretary shall suggest, or concur in any suggested, reasonable and 

prudent alternatives described in subsection (b)(3) for any action determined not to meet such standards. Any such agency action or category of agency actions shall be identified, and any such alternative 

84 

procedures shall be established, by regulation promulgated prior or 

subsequent to the date of the enactment of this Act. 

(3) Subject to such guidelines as the Secretary may establish, a 

Federal agency shall consult with the Secretary on any prospective 

agency action at the request of, and in cooperation with, the prospective permit or license applicant if the applicant has reason to 

believe that an endangered species or a threatened species may be 

present in the area affected by øhis¿ the applicant’s project and 

that implementation of such action will likely affect such species. 

(4) Each Federal agency shall confer with the Secretary on any 

agency action which is likely to jeopardize the continued existence 

of any species proposed to be ølisted under section 4 or result in 

the destruction or adverse modification of critical habitat proposed 

to be designated for such species¿, under section 4 an endangered 

species or a threatened species. This paragraph does not require a 

limitation on the commitment of resources as described in subsection (d). 

(5) Any Federal agency or the Secretary, in conducting any analysis pursuant to paragraph (2), shall consider only the effects of any 

agency action that are distinct from a baseline of all effects upon 

the relevant species that have occurred or are occurring prior to the 

action. 

(b) OPINION OF SECRETARY.—(1)(A) * * * 

(B) In the case of an agency action involving a permit or license 

applicant, the Secretary and the Federal agency may not mutually 

agree to conclude consultation within a period exceeding 90 days 

unless the Secretary, before the close of the 90th day referred to 

in subparagraph (A)— (i) if the consultation period proposed to be agreed to will 

end before the 150th day after the date on which consultation 

was initiated, submits to the permit or license applicant a written statement setting forth— (I) * * * 

* * * * * * * 

(2) Consultation under subsection (a)(3) shall be concluded within 

such period as is agreeable to the Secretary, the Federal agency, 

and the permit or license applicant concerned. 

(3)(A) øPromptly after¿ Before conclusion of consultation under 

paragraph (2) or (3) of subsection (a), the Secretary shall provide 

to the Federal agency and the permit or license applicant, if any, 

a proposed written statement setting forth the Secretary’s opinion, 

and a summary of the information on which the opinion is based, 

detailing how the agency action affects the species øor its critical 

habitat¿. øIf jeopardy or adverse modification is found, the Secretary shall suggest those reasonable and prudent alternatives 

which he believes would not violate subsection (a)(2) and can be 

taken by the Federal agency or applicant in implementing the 

agency action.¿ The Secretary shall consider any comment from the 

Federal agency and the permit or license applicant, if any, prior to 

issuance of the final written statement of the Secretary’s opinion. 

The Secretary shall issue the final written statement of the Secretary’s opinion by providing the written statement to the Federal 

agency and the permit or license applicant, if any, and publishing 

notice of the written statement in the Federal Register. If jeopardy 

is found, the Secretary shall suggest in the final written statement 

85 

those reasonable and prudent alternatives, if any, that the Secretary 

believes would not violate subsection (a)(2) and can be taken by the 

Federal agency or applicant in implementing the agency action. The 

Secretary shall cooperate with the Federal agency and any permit 

or license applicant in the preparation of any suggested reasonable 

and prudent alternatives. 

* * * * * * * 

(4)(A) If after consultation under subsection (a)(2) of this section, 

the Secretary concludes that— ø(A)¿ (i) the agency action will not violate such subsection, 

or offers reasonable and prudent alternatives which the Secretary believes would not violate such subsection; 

ø(B)¿ (ii) the taking of an endangered species or a threatened species incidental to the agency action will not violate 

such subsection; and 

ø(C)¿ (iii) if an endangered species or threatened species of 

a marine mammal is involved, the taking is authorized pursuant to section 101(a)(5) of the Marine Mammal Protection Act 

of 1972; 

øthe Secretary shall provide the Federal agency and the applicant 

concerned, if any, with a written statement that—¿ the Secretary 

shall include in the written statement under paragraph (3), a statement described in subparagraph (B) of this paragraph. 

(B) A statement described in this subparagraph— (i) * * * 

* * * * * * * 

(5)(A) Any terms and conditions set forth pursuant to paragraph 

(4)(B)(iv) shall be roughly proportional to the impact of the incidental taking identified pursuant to paragraph (4) in the written 

statement prepared under paragraph (3). 

(B) If various terms and conditions are available to comply with 

paragraph (4)(B)(iv), the terms and conditions set forth pursuant to 

that paragraph—

(i) must be capable of successful implementation; and 

(ii) must be consistent with the objectives of the Federal agency and the permit or license applicant, if any, to the greatest extent possible. 

(c) BIOLOGICAL ASSESSMENT.—ø(1)¿ To facilitate compliance with 

the requirements of subsection (a)(2) each Federal agency shall, 

with respect to any agency action of such agency for which no contract for construction has been entered into and for which no construction has begun on the date of enactment of the Endangered 

Species Act Amendments of 1978, request of the Secretary information whether any species øwhich is listed or proposed to be listed 

may be present in the area of such proposed action.¿ that is determined to be an endangered species or a threatened species, or for 

which such a determination is proposed pursuant to section 4, may 

be present in the area of such proposed action. If the Secretary advises, based on the øbest scientific and commercial data available¿ 

best available scientific data, that such species may be present, 

such agency shall conduct a biological assessment for the purpose 

of identifying any endangered species or threatened species which 

is likely to be affected by such action. Such assessment shall be 

completed within 180 days after the date on which initiated (or 

86 

within such other period as in mutually agreed to by the Secretary 

and such agency, except that if a permit or license applicant is involved, the 180-day period may not be extended unless such agency 

provides the applicant, before the close of such period, with a written statement setting forth the estimated length of the proposed 

extension and the reasons therefor) and, before any contract for 

construction is entered into and before construction is begun with 

respect to such action. Such assessment may be undertaken as part 

of a Federal agency’s compliance with the requirements of section 

102 of the National Environmental Policy Act of 1969 (42 U.S.C. 

4332). 

ø(2) Any person who may wish to apply for an exemption under 

subsection (g) of this section for that action may conduct a biological assessment to identify any endangered species or threatened 

species which is likely to be affected by such action. Any such biological assessment must, however, be conducted in cooperation with 

the Secretary and under the supervision of the appropriate Federal 

agency.¿ 

* * * * * * * 

ø(e)(1) ESTABLISHMENT OF COMMITTEE.—There is established a 

committee to be known as the Endangered Species Committee 

(hereinafter in this section referred to as the ‘‘Committee’’). 

ø(2) The Committee shall review any application submitted to it 

pursuant to this section and determine in accordance with subsection (h) of this section whether or not to grant an exemption 

from the requirements of subsection (a)(2) of this action for the action set forth in such application. 

ø(3) The Committee shall be composed of seven members as follows: 

ø(A) The Secretary of Agriculture. 

ø(B) The Secretary of the Army. 

ø(C) The Chairman of the Council of Economic Advisors. 

ø(D) The Administrator of the Environmental Protection 

Agency. Agency. 

ø(E) The Secretary of the Interior. 

ø(F) The Administrator of the National Oceanic and Atmospheric Administration. 

ø(G) The President, after consideration of any recommendations received pursuant to subsection (g)(2)(B) shall appoint 

one individual from each affected State, as determined by the 

Secretary, to be a member of the Committee for the consideration of the application for exemption for an agency action with 

respect to which such recommendations are made, not later 

than 30 days after an application is submitted pursuant to this 

section. 

ø(4)(A) Members of the Committee shall receive no additional 

pay on account of their service on the Committee. 

ø(B) While away from their homes or regular places of business 

in the performance of services for the Committee, members of the 

Committee shall be allowed travel expenses, including per diem in 

lieu of subsistence, in the same manner as persons employed intermittently in the Government service are allowed expenses under 

section 5703 of title 5 of the United States Code 

ø(5)(A) Five members of the Committee or their representatives 

shall constitute a quorum for the transaction of any function of the 

87 

Committee, except that, in no case shall any representative be considered in determining the existence of a quorum for the transaction of any function of the Committee if that function involves a 

vote by the Committee on any matter before the Committee. 

ø(B) The Secretary of the Interior shall be the Chairman of the 

Committee. 

ø(C) The Committee shall meet at the call of the Chairman or 

five of its members. 

ø(D) All meetings and records of the Committee shall be open to 

the public. 

ø(6) Upon request of the Committee, the head of any Federal 

agency is authorized to detail, on a nonreimbursable basis, any of 

the personnel of such agency to the Committee to assist it in carrying out its duties under this section. 

ø(7)(A) The Committee may for the purpose of carrying out its 

duties under this section hold such hearings, sit and act at such 

times and places, take such testimony, and receive such evidence, 

as the Committee deems advisable. 

ø(B) When so authorized by the Committee, any member or 

agent of the Committee may take any action which the Committee 

is authorized to take by this paragraph. 

ø(C) Subject to the Privacy Act, the Committee may secure directly from any Federal agency information necessary to enable it 

to carry out its duties under this section. Upon request of the 

Chairman of the Committee, the head of such Federal agency shall 

furnish such information to the Committee. 

ø(D) The Committee may use the United States mails in the 

same manner and upon the same conditions as a Federal agency. 

ø(E) The Administrator of General Services shall provide to the 

Committee on a reimbursable basis such administrative support 

services as the Committee may request. 

ø(8) In carrying out its duties under this section, the Committee 

may promulgate and amend such rules, regulations, and procedures, and issue and amend such orders as it deems necessary. 

ø(9) For the purpose of obtaining information necessary for the 

consideration of an application for an exemption under this section 

the Committee may issue subpoenas for the attendance and testimony of witnesses and the production of relevant papers, books, 

and documents. 

ø(10) In no case shall any representative, including a representative of a member designated pursuant to paragraph (3)(G) of this 

subsection, be eligible to cast a vote on behalf of any member. 

ø(f) REGULATIONS.—Not later than 90 days after the date of enactment of the Endangered Species Act Amendments of 1978, the 

Secretary shall promulgate regulations which set forth the form 

and manner in which applications for exemption shall be submitted 

to the Secretary and the information to be contained in such applications. Such regulations shall require that information submitted 

in an application by the head of any Federal agency with respect 

to any agency action include but not be limited to—

ø(1) a description of the consultation process carried out pursuant to subsection (a)(2) of this section between the head of 

the Federal agency and the Secretary; and 

88 

ø(2) a statement describing why such action cannot be altered or modified to conform with the requirements of subsection (a)(2) of this section. 

ø(g) APPLICATION FOR EXEMPTION AND REPORT TO THE COM- MITTEE.—(1) A Federal agency, the Governor of the State in which 

an agency action will occur, if any, or a permit or license applicant 

may apply to the Secretary for an exemption for an agency action 

of such agency if, after consultation under subsection (a)(2), the 

Secretary’s opinion under subsection (b) indicates that the agency 

action would violate subsection (a)(2). An application for an exemption shall be considered initially by the Secretary in the manner 

provided for in this subsection, and shall be considered by the Committee for a final determination under subsection (h) after a report 

is made pursuant to paragraph (5). The applicant for an exemption 

shall be referred to as the ‘‘exemption applicant’’ in this section. 

ø(2)(A) An exemption applicant shall submit a written application to the Secretary, in a form prescribed under subsection (f), not 

later than 90 days after the completion of the consultation process; 

except that, in the case of any agency action involving a permit or 

license applicant, such application shall be submitted not later 

than 90 days after the date on which the Federal agency concerned 

takes final agency action with respect to the issuance of the permit 

or license. For purposes of the preceding sentence, the term ‘‘final 

agency action’’ means (i) a disposition by an agency with respect to 

the issuance of a permit or license that is subject to administrative 

review, whether or not such disposition is subject to judicial review; 

or (ii) if administrative review is sought with respect to such disposition, the decision resulting after such review. Such application 

shall set forth the reasons why the exemption applicant considers 

that the agency action meets the requirements for an exemption 

under this subsection. 

ø(B) Upon receipt of an application for exemption for an agency 

action under paragraph (1), the Secretary shall promptly (i) notify 

the Governor of each affected State, if any, as determined by the 

Secretary, and request the Governors so notified to recommend individuals to be appointed to the Endangered Species Committee for 

consideration of such application; and (ii) publish notice of receipt 

of the application in the Federal Register, including a summary of 

the information contained in the application and a description of 

the agency action with respect to which the application for exemption has been filed. 

ø(3) The Secretary shall within 20 days after the receipt of an 

application for exemption, or within such other period of time as 

is mutually agreeable to the exemption applicant and the Secretary—

ø(A) determine that the Federal agency concerned and the 

exemption applicant have—

ø(i) carried out the consultation responsibilities described in subsection (a) in good faith and made a reasonable and responsible effort to develop and fairly consider 

modifications or reasonable and prudent alternatives to 

the proposed agency action which would not violate subsection (a)(2); 

ø(ii) conducted any biological assessment required by 

subsection (c); and 

89 

ø(iii) to the extent determinable within the time provided herein, refrained from making any irreversible or irretrievable commitment of resources prohibited by subsection (d); or 

ø(B) deny the application for exemption because the Federal 

agency concerned or the exemption applicant have not met the 

requirements set forth in subparagraph (A)(i), (ii), and (iii). 

The denial of an application under subparagraph (B) shall be considered final agency action for purposes of chapter 7 of title 5, 

United States Code. 

ø(4) If the Secretary determines that the Federal agency concerned and the exemption applicant have met the requirements set 

forth in paragraph (3)(A) (i), (ii) and (iii) he shall, in consultation 

with the Members of the Committee, hold a hearing on the application for exemption in accordance with sections 554, 555, and 556 

(other than subsection (b) (1) and (2) thereof) of title 5, United 

States Code, and prepare the report to be submitted pursuant to 

paragraph (5). 

ø(5) Within 140 days after making the determinations under 

paragraph (3) or within such other period of time as is mutually 

agreeable to the exemption applicant and the Secretary, the Secretary shall submit to the Committee a report discussing— ø(A) the availability and reasonable and prudent alternatives 

to the agency action, and the nature and extent of the benefits 

of the agency action and of alternative courses of action consistent with conserving the species or the critical habitat; 

ø(B) a summary of the evidence concerning whether or not 

the agency action is in the public interest and is of national or 

regional significance; 

ø(C) appropriate reasonable mitigation and enhancement 

measures which should be considered by the Committee; and 

ø(D) whether the Federal agency concerned and the exemption applicant refrained from making any irreversible or irretrievable commitment of resources prohibited by subsection (d). 

ø(6) To the extent practicable within the time required for action 

under subsection (g) of this section, and except to the extent inconsistent with the requirements of this section, the consideration of 

any application for an exemption under this section and the conduct of any hearing under this subsection shall be in accordance 

with sections 554, 555, and 556 (other than subsection (b)(3) of section 556) of title 5, United States Code. 

ø(7) Upon request of the Secretary, the head of any Federal agency is authorized to detail, on a nonreimbursable basis, any of the 

personnel of such agency to the Secretary to assist him in carrying 

out his duties under this section. 

ø(8) All meetings and records resulting from activities pursuant 

to this subsection shall be open to the public. 

ø(h) EXEMPTION.—(1) The Committee shall make a final determination whether or not to grant an exemption within 30 days 

after receiving the report of the Secretary pursuant to subsection 

(g)(5). The Committee shall grant an exemption from the requirements of subsection (a)(2) for an agency action if, by a vote of not 

less than five of its members voting in person—

ø(A) it determines on the record, based on the report of the 

Secretary, the record of the hearing held under subsection 

90 

(g)(4), and on such other testimony or evidence as it may receive, that—

ø(i) there are no reasonable and prudent alternatives to 

the agency action; 

ø(ii) the benefits of such action clearly outweigh the benefits of alternative courses of action consistent with conserving the species or its critical habitat, and such action 

is in the public interest; 

ø(iii) the action is of regional or national significance; 

and 

ø(iv) neither the Federal agency concerned nor the exemption applicant made any irreversible or irretrievable 

commitment of resources prohibited by subsection (d); and 

ø(B) it establishes such reasonable mitigation and enhancement measures, including, but not limited to, live propagation, 

transplantation, and habitat acquisition and improvement, as 

are necessary and appropriate to minimize the adverse effects 

of the agency action upon the endangered species, threatened 

species, or critical habitat concerned. 

Any final determination by Committee under this subsection shall 

be considered final agency action for purposes of chapter 7 of title 

5 of the United States Code. 

ø(2)(A) Except as provided in subparagraph (B), an exemption for 

an agency action granted under paragraph (1) shall constitute a 

permanent exemption with respect to all endangered or threatened 

species for the purposes of completing such agency action—

ø(i) regardless whether the species was identified in the biological assessment; and 

ø(ii) only if a biological assessment has been conducted 

under subsection (c) with respect to such agency action. 

ø(B) An exemption shall be permanent under subparagraph (A) 

unless—

ø(i) the Secretary finds, based on the best scientific and commercial data available, that such exemption would result in 

the extinction of a species that was not the subject of consultation under subsection (a)(2) or was not identified in any biological assessment conducted under subsection (c), and 

ø(ii) the Committee determines within 60 days after the date 

of the Secretary’s finding that the exemption should not be permanent. 

If the Secretary makes a finding described in clause (i), the Committee shall meet with respect to the matter within 30 days after 

the date of the finding. 

ø(i) REVIEW BY SECRETARY OF STATE.—Notwithstanding any 

other provision of this Act, the Committee shall be prohibited from 

considering for exemption any application made to it, if the Secretary of State, after a review of the proposed agency action and 

its potential implications, and after hearing, certifies, in writing, to 

the Committee within 60 days of any application made under this 

section that the granting of any such exemption and the carrying 

out of such action would be in violation of an international treaty 

obligation or other international obligation of the United States. 

The Secretary of State shall, at the time of such certification, publish a copy thereof in the Federal Register. 

91 

ø(j) Notwithstanding any other provision of this Act, the Committee shall grant an exemption for any agency action if the Secretary of Defense finds that such exemption is necessary for reasons of national security. 

ø(k) SPECIAL PROVISIONS.—An exemption decision by the Committee under this section shall not be a major Federal action for 

purposes of the National Environmental Policy Act of 1969 (42 

U.S.C. 4321 et seq.): Provided, That an environmental impact 

statement which discusses the impacts upon endangered species or 

threatened species or their critical habitats shall have been previously prepared with respect to any agency action exempted by 

such order. 

ø(l) COMMITTEE ORDERS.—(1) If the Committee determines under 

subsection (h) that an exemption should be granted with respect to 

any agency action, the Committee shall issue an order granting the 

exemption and specifying the mitigation and enhancement measures established pursuant to subsection (h) which shall be carried 

out and paid for by the exemption applicant in implementing the 

agency action. All necessary mitigation and enhancement measures 

shall be authorized prior to the implementing of the agency action 

and funded concurrently with all other project features. 

ø(2) The applicant receiving such exemption shall include the 

costs of such mitigation and enhancement measures within the 

overall costs of continuing the proposed action. Notwithstanding 

the preceding sentence the costs of such measures shall not be 

treated as project costs for the purpose of computing benefit-cost or 

other ratios for the proposed action. Any applicant may request the 

Secretary to carry out such mitigation and enhancement measures. 

The costs incurred by the Secretary in carrying out any such measures shall be paid by the applicant receiving the exemption. No 

later than one year after the granting of an exemption, the exemption applicant shall submit to the Council on Environmental Quality a report describing its compliance with the mitigation and enhancement measures prescribed by this section. Such report shall 

be submitted annually until all such mitigation and enhancement 

measures have been completed. Notice of the public availability of 

such reports shall be published in the Federal Register by the 

Council on Environmental Quality. 

ø(m) NOTICE.—The 60-day notice requirement of section 11(g) of 

this Act shall not apply with respect to review of any final determination of the Committee under subsection (h) of this section 

granting an exemption from the requirements of subsection (a)(2) 

of this section. 

ø(n) JUDICIAL REVIEW.—Any person, as defined by section 3(13) 

of this Act, may obtain judicial review, under chapter 7 of title 5 

of the United States Code, of any decision of the Endangered Species Committee under subsection (h) in the United States Court of 

Appeals for (1) any circuit wherein the agency action concerned will 

be, or is being, carried out, or (2) in any case in which the agency 

action will be, or is being, carried out outside of any circuit, the 

District of Columbia, by filing in such court within 90 days after 

the date of issuance of the decision, a written petition for review. 

A copy of such petition shall be transmitted by the clerk of the 

court to the Committee and the Committee shall file in the court 

the record in the proceeding, as provided in section 2112, of title 

92 

28, United States Code. Attorneys designated by the Endangered 

Species Committee may appear for, and represent the Committee 

in any action for review under this subsection.¿ 

ø(o)¿ (e) øEXEMPTION AS PROVIDING¿ EXCEPTION ON TAKING OF

ENDANGERED SPECIES.—Notwithstanding sections 4(d) and 

9(a)(1)(B) and (C) of this Act, sections 101 and 102 of the Marine 

Mammal Protection Act of 1972, or any regulation promulgated to 

implement any øsuch section—

ø(1) any action for which an exemption is granted under subsection (h) of this section shall not be considered to be a taking 

of any endangered species or threatened species with respect 

to any activity which is necessary to carry out such action; and 

ø(2)¿ such section or in an agreement under section 5(m), any 

taking that is in compliance with the terms and conditions 

specified in a written statement provided under subsection 

(b)(4)(iv) of this section shall not be considered to be a prohibited taking of the species concerned. 

ø(p)¿ (f) EXEMPTIONS IN PRESIDENTIALLY DECLARED DISASTER

AREAS.—In any area which has been declared by the President to 

be a major disaster area under the Disaster Relief and Emergency 

Assistance Act, the President øis authorized to make the determinations required by subsections (g) and (h) of this section¿ may 

exempt an agency action from compliance with the requirements of 

subsections (a) through (d) of this section before the initiation of 

such agency action, for any project for the repair or replacement of 

a public facility substantially as it existed prior to the disaster 

under section 405 or 406 of the Disaster Relief and Emergency Assistance Act, and which the President determines (1) is necessary 

to prevent the recurrence of such a natural disaster and to reduce 

the potential loss of human life, and (2) to involve an emergency 

situation which does not allow the ordinary procedures of this section to be followed. øNotwithstanding any other provision of this 

section, the Committee shall accept the determinations of the 

President under this subsection.¿ 

INTERNATIONAL COOPERATION

SEC. 8. (a) FINANCIAL ASSISTANCE.—As a demonstration of the 

commitment of the United States to the worldwide protection of endangered species and threatened species, the President may, subject to the provisions of section 1415 of the Supplemental Appropriation Act, 1953 (31 U.S.C. 724), use foreign currencies accruing 

to the United States Government under the Agricultural Trade Development and Assistance Act of 1954 or any other law to provide 

to any foreign county (with its consent) assistance in the development and management of programs in that country which the Secretary determines to be necessary or useful for the conservation of 

øany endangered species or threatened species listed¿ any species 

determined to be an endangered species or a threatened species by 

the Secretary pursuant to section 4 of this Act. The President shall 

provide assistance (which includes, but is not limited to, the acquisition, by lease or otherwise, of lands, waters, or interests therein) 

to foreign countries under this section under such terms and conditions as øhe¿ the President deems appropriate. Whenever foreign 

currencies are available for the provision of assistance under this 

93 

section, such currencies shall be used in preference to funds appropriated under the authority of øsection 15¿ section 18 of this Act. 

(b) ENCOURAGEMENT OF FOREIGN PROGRAMS.—In order to carry 

out further the provisions of this Act, the Secretary, through the 

Secretary of State shall encourage— (1) foreign countries to provide for the conservation of fish or 

wildlife and plants including øendangered species and threatened species listed¿ species determined to be endangered species and threatened species pursuant to section 4 of this Act; 

* * * * * * * 

(3) foreign persons who directly or indirectly take fish or 

wildlife or plants in foreign countries or on the high seas for 

importation into the United States for commercial or other 

purposes to develop and carry out with such assistance as øhe¿ 

the Secretary of the Interior may provide, conservation practices designed to enhance such fish or wildlife or plants and 

their habitat. 

(c) PERSONNEL.—After consultation with the Secretary of State, 

the Secretary may—

(1) assign or otherwise make available any officer or employee of øhis¿ the Secretary’s department for the purpose of 

cooperating with foreign countries and international organizations in developing personnel resources and programs which 

promote the conservation of fish or wildlife or plants, and 

* * * * * * * 

(d) INVESTIGATIONS.—After consultation with the Secretary of 

State and the Secretary of the Treasury, as appropriate, the Secretary may conduct or cause to be conducted such law enforcement 

investigations and research abroad as øhe¿ the Secretary deems 

necessary to carry out the purposes of this Act. 

CONVENTION IMPLEMENTATION

SEC. 8A. (a) MANAGEMENT AUTHORITY AND SCIENTIFIC AUTHORITY.—The Secretary øof the Interior (hereinafter in this section referred to as the ‘‘Secretary’’)¿ is designated as the Management Authority and the Scientific Authority for purposes of the Convention 

and the respective functions of each such Authority shall be carried 

out through the United States Fish and Wildlife Service. 

* * * * * * * 

(c) SCIENTIFIC AUTHORITY FUNCTIONS.—(1) * * * 

(2) The Secretary shall base the determinations and advice given 

by øhim¿ the Secretary± under Article IV of the Convention with 

respect to wildlife upon the best available biological information derived from professionally accepted wildlife management practices; 

but is not required to make, or require any State to make, estimates of population size in making such determinations or giving 

such advice. 

(d) RESERVATIONS BY THE UNITED STATES UNDER CONVENTION.—

If the United States votes against including any species in Appendix I or II of the Convention and does not enter a reservation pursuant to paragraph (3) of Article XV of the Convention with respect 

to that species, the Secretary of State, before the 90th day after the 

last day on which such a reservation could be entered, shall submit 

94 

to the Committee on øMerchant Marine and Fisheries¿ Resources 

of the House of Representatives, and to the Committee on the Environment and Public Works of the Senate, a written report setting 

forth the reasons why such a reservation was not entered. 

(e) WILDLIFE PRESERVATION IN WESTERN HEMISPHERE.—(1) The 

Secretary øof the Interior (hereinafter in this subsection referred to 

as the ‘‘Secretary’’)¿, in cooperation with the Secretary of State, 

shall act on behalf of, and represent, the United States in all regards as required by the Convention on Nature Protection and 

Wildlife Preservation in the Western Hemisphere (56 Stat. 1354, 

T.S. 982, hereinafter in this subsection referred to as the ‘‘Western 

Convention’’). In the discharge of these responsibilities, the Secretary and the Secretary of State shall consult with the Secretary 

of Agriculture, the Secretary of Commerce, and the heads of other 

agencies with respect to matters relating to or affecting their areas 

of responsibility. 

* * * * * * * 

ø(3) No later than September 30, 1985, the Secretary and the 

Secretary of State shall submit a report to Congress describing 

those steps taken in accordance with the requirements of this subsection and identifying the principal remaining actions yet necessary for comprehensive and effective implementation of the Western Convention.¿ 

ø(4)¿ (3) The provisions of this subsection shall not be construed 

as affecting the authority, jurisdiction, or responsibility of the several States to manage, control, or regulate resident fish or wildlife 

under State law or regulations. 

PROHIBITED ACTS

SEC. 9. (a) GENERAL.—(1) Except as provided in sections 6(g)(2) 

and 10 øof this Act, with respect to any endangered species of fish 

or wildlife listed pursuant to section 4 of this Act¿, with respect to 

any species of fish or wildlife determined to be an endangered species under section 4 it is unlawful for any person subject to the jurisdiction of the United States to—

(A) * * * 

* * * * * * * 

(G) violate any regulation pertaining to such species or to 

any øthreatened species of fish or wildlife listed pursuant to 

section 4 of this Act¿ species of fish or wildlife determined to 

be a threatened species under section 4 and promulgated by the 

Secretary pursuant to authority provided by this Act. 

(2) Except as provided in sections 6(g)(2) and 10 øof this Act, 

with respect to any endangered species of plants listed pursuant to 

section 4 of this Act¿, with respect to any species of plants determined to be an endangered species under section 4, it is unlawful 

for any person subject to the jurisdiction of the United States to—

(A) * * * 

* * * * * * * 

(E) violate any regulation pertaining to such species or to 

any threatened species of plants ølisted pursuant to section 4 

of this Act¿ determined to be a threatened species under section 

95 

4 and promulgated by the Secretary pursuant to authority provided by this Act. 

(b)ø(1)¿ SPECIES HELD IN CAPTIVITY OR CONTROLLED ENVIRONMENT.—(1) The provisions of subsections (a)(1)(A) and (a)(1)(G) of 

this section shall not apply to any fish or wildlife which was held 

in captivity or in a controlled environment on (A) December 28, 

1973, or (B) the date of the publication in the Federal Register of 

a final regulation øadding such fish or wildlife species to any list 

published pursuant to subsection (c) of section 4 of this Act: Provided, That¿ determining such fish or wildlife species to be an endangered species or a threatened species under section 4, if such 

holding and any subsequent holding or use of the fish or wildlife 

was not in the course of a commercial activity. With respect to any 

act prohibited by subsections (a)(1)(A) and (a)(1)(G) of this section 

which occurs after a period of 180 days from (i) December 28, 1973, 

or (ii) the date of publication in the Federal Register of a final regulation øadding such fish or wildlife species to any list published 

pursuant to subsection (c) of section 4 of this Act¿ determining such 

fish or wildlife species to be an endangered species or a threatened 

species under section 4, there shall be a rebuttable presumption 

that the fish or wildlife involved in such act is not entitled to the 

exemption contained in this subsection. 

* * * * * * * 

(c) VIOLATION OF CONVENTION.—(1) * * * 

(2) Any importation into the United States of fish or wildlife 

shall, if—

(A) such fish or wildlife is not øan endangered species listed¿ 

a species determined to be an endangered species pursuant to 

section 4 of this Act but is listed in Appendix II of the Convention; 

* * * * * * * 

(d) IMPORTS AND EXPORTS.—

(1) IN GENERAL.—It is unlawful for any person, without first 

having obtained permission from the Secretary, to engage in 

business—

(A) as an importer or exporter of fish or wildlife (other 

than shellfish and fishery products which ø(i) are not listed pursuant to section 4 of this Act as endangered species 

or threatened species, and¿ (i) are not determined to be endangered species or threatened species under section 4, and 

(ii) are imported for purposes of human or animal consumption or taken in waters under the jurisdiction of the 

United States or on the high seas for recreational purposes) or plants; or 

* * * * * * * 

(2) REQUIREMENTS.—Any person required to obtain permission under paragraph (1) of this subsection shall—

(A) keep such records as will fully and correctly disclose 

each importation or exportation of fish, wildlife, plants, or 

African elephant ivory made by øhim¿ such person and the 

subsequent disposition, made by øhim¿ such person with 

respect to such fish, wildlife, plants, or ivory; 

96 

(B) at all reasonable times upon notice by a duly authorized representative of the Secretary, afford such representative access to øhis¿ such person’s place of business, an opportunity to examine øhis¿ such person’s inventory of imported fish, wildlife, plants, or African elephant ivory and 

the records required to be kept under subparagraph (A) of 

this paragraph, and to copy such records; and 

* * * * * * * 

(e) REPORTS.—It is unlawful for any person importing or exporting fish or wildlife (other than shellfish and fishery products which 

ø(1) are not listed pursuant to section 4 of this Act as endangered 

or threatened species, and¿ (1) are not determined to be endangered 

species or threatened species under section 4, and (2) are imported 

for purposes of human or animal consumption or taken in waters 

under the jurisdiction of the United States or on the high seas for 

recreational purposes) or plants to fail to file any declaration or report as the Secretary deems necessary to facilitate enforcement of 

this Act or to meet the obligations of the Convention. 

(f) DESIGNATION OF PORTS.—(1) It is unlawful for any person subject to the jurisdiction of the United States to import into or export 

from the United States any fish or wildlife (other than shellfish 

and fishery products which ø(A) are not listed pursuant to section 

4 of this Act as endangered species or threatened species, and¿ (A) 

are not determined to be endangered species or threatened species 

under section 4, and (B) are imported for purposes of human or animal consumption or taken in waters under the jurisdiction of the 

United States or on the high seas for recreational purposes) or 

plants, except at a port or ports designated by the Secretary øof the 

Interior¿. For the purposes of facilitating enforcement of this Act 

and reducing the costs thereof, the Secretary øof the Interior¿, with 

approval of the Secretary of the Treasury and after notice and opportunity for public hearing, may, by regulation, designate ports 

and change such designations. The Secretary øof the Interior¿, under such terms and conditions as øhe¿ the Secretary may prescribe, may permit the importation or exportation at nondesignated 

ports in the interest of the health or safety of the fish or wildlife 

or plants, or for other reasons if, in øhis¿ such person’s discretion, 

øhe¿ the Secretary deems it appropriate and consistent with the 

purpose of this subsection. 

* * * * * * * 

EXCEPTIONS

SEC. 10. (a) PERMITS.—(1) The Secretary may permit, under such 

terms and conditions as øhe¿ the Secretary shall prescribe—

(A) * * * 

* * * * * * * 

(2)(A) No permit may be issued by the Secretary authorizing any 

taking referred to in paragraph (1)(B) unless the applicant therefor 

submits to the Secretary a conservation plan that specifies— (i) * * * 

* * * * * * * 

97 

(iii) what alternative actions to such taking the applicant 

considered and the reasons why such alternatives are not 

being utilized; øand¿ 

(iv) objective, measurable biological goals to be achieved for 

species covered by the plan and specific measures for achieving 

such goals consistent with the requirements of subparagraph 

(B); 

(v) measures the applicant will take to monitor impacts of the 

plan on covered species and the effectiveness of the plan’s measures in achieving the plan’s biological goals; 

(vi) adaptive management provisions necessary to respond to 

all reasonably foreseeable changes in circumstances that could 

appreciably reduce the likelihood of the survival and recovery 

of any species covered by the plan; and 

ø(iv)¿ (vii) such other measures that the Secretary may require as being necessary or appropriate for purposes of the 

plan. 

(B) If the Secretary finds, after opportunity for public comment, 

with respect to a permit application and the related conservation 

plan that— (i) * * * 

* * * * * * * 

(iv) the taking will not appreciably reduce the likelihood of 

the survival and recovery of the species in the wild; øand¿ 

(v) the term of the permit is reasonable, taking into consideration—

(I) the period in which the applicant can be expected to 

diligently complete the principal actions covered by the 

plan; 

(II) the extent to which the plan will enhance the conservation of covered species; 

(III) the adequacy of information underlying the plan; 

(IV) the length of time necessary to implement and 

achieve the benefits of the plan; and 

(V) the scope of the plan’s adaptive management strategy; 

and 

ø(v)¿ (vi) the measures, if any, required under subparagraph 

(A)(iv) will be met; 

and øhe¿ the Secretary has received such other assurances as øhe¿ 

the Secretary may require that the plan will be implemented, the 

Secretary shall issue the permit. The permit shall contain such 

terms and conditions as the Secretary deems necessary or appropriate to carry out the purposes of this paragraph, including, but 

not limited to, such reporting requirements as the Secretary deems 

necessary for determining whether such terms and conditions are 

being complied with. 

ø(C) The Secretary shall revoke a permit issued under this paragraph if he finds that the permittee is not complying with the 

terms and conditions of the permit.¿ 

(3) Any terms and conditions offered by the Secretary pursuant to 

paragraph (2)(B) to reduce or offset the impacts of incidental taking 

shall be roughly proportional to the impact of the incidental taking 

specified in the conservation plan pursuant to in paragraph 

(2)(A)(i). This paragraph shall not be construed to limit the authority of the Secretary to require greater than acre-for-acre mitigation 

98 

where necessary to address the extent of such impacts. In any case 

in which various terms and conditions are available, the terms and 

conditions shall be capable of successful implementation and shall 

be consistent with the objective of the applicant to the greatest extent 

possible. 

(4)(A) If the holder of a permit issued under this subsection for 

other than scientific purposes is in compliance with the terms and 

conditions of the permit, and any conservation plan or agreement 

incorporated by reference therein, the Secretary may not require the 

holder, without the consent of the holder, to adopt any new minimization, mitigation, or other measure with respect to any species 

adequately covered by the permit during the term of the permit, except as provided in subparagraphs (B) and (C) to meet circumstances that have changed subsequent to the issuance of the permit. 

(B) For any circumstance identified in the permit or incorporated 

document that has changed, the Secretary may, in the absence of 

consent of the permit holder, require only such additional minimization, mitigation, or other measures as are already provided in the 

permit or incorporated document for such changed circumstance. 

(C) For any changed circumstance not identified in the permit or 

incorporated document, the Secretary may, in the absence of consent 

of the permit holder, require only such additional minimization, 

mitigation, or other measures to address such changed circumstance 

that do not involve the commitment of any additional land, water, 

or financial compensation not otherwise committed, or the imposition of additional restrictions on the use of any land, water or other 

natural resources otherwise available for development or use, under 

the original terms and conditions of the permit or incorporated document. 

(D) The Secretary shall have the burden of proof in demonstrating 

and documenting, with the best available scientific data, the occurrence of any changed circumstances for purposes of this paragraph. 

(E) All permits issued under this subsection on or after the date 

of the enactment of the Threatened and Endangered Species Recovery Act of 2005, other than permits for scientific purposes, shall contain the assurances contained in subparagraphs (B) through (D) of 

this paragraph and paragraph (5)(A) and (B). Permits issued under 

this subsection on or after March 25, 1998, and before the date of 

the enactment of the Threatened and Endangered Species Recovery 

Act of 2005, other than permits for scientific purposes, shall be governed by the applicable sections of parts 17.22(b), (c), and (d), and 

17.32(b), (c), and (d) of title 50, Code of Federal Regulations, as the 

same exist on the date of the enactment of the Threatened and Endangered Species Act of 2005. 

(5)(A) The Secretary shall revoke a permit issued under paragraph (2) if the Secretary finds that the permittee is not complying 

with the terms and conditions of the permit. 

(B) Any permit subject to paragraph (4)(A) may be revoked due 

to changed circumstances only if—

(i) the Secretary determines that continuation of the activities 

to which the permit applies would be inconsistent with the criteria in paragraph (2)(B)(iv); 

(ii) the Secretary provides 60 days notice of revocation to the 

permittee; and 

99 

(iii) the Secretary is unable to, and the permittee chooses not 

to, remedy the condition causing such inconsistency. 

(b) HARDSHIP EXEMPTIONS.—(1) If any person enters into a contract with respect to a species of fish or wildlife or plant before the 

date of the publication in the Federal Register of notice of consideration of that species as øan endangered species and the subsequent 

listing of that species as an endangered species pursuant to section 

4 of this Act¿ an endangered species or a threatened species and the 

subsequent determination that the species is an endangered species 

or a threatened species under section 4 will cause undue hardship 

to such person under the contract, the Secretary, in order to minimize such hardship, may exempt such person from the application 

of øsection 9(a) of this Act¿ section 9(a) to the extent the Secretary 

deems appropriate if such person applies to øhim¿ the Secretary for 

such exemption and includes with such application such information as the Secretary may require to prove such hardship; except 

that (A) no such exemption shall be for a duration of more than one 

year from the date of publication in the Federal Register of notice 

of consideration of the species concerned, or shall apply to a quantity of fish or wildlife or plants in excess of that specified by the 

Secretary; (B) the one-year period for those species of øfish or wildlife listed by the Secretary as endangered¿ fish or wildlife determined to be an endangered species or threatened species by the Secretary prior to the effective date of this Act shall expire in accordance with the terms of section 3 of the Act of December 5, 1969 

(83 Stat. 275); and (C) no such exemption may be granted for the 

importation or exportation of a specimen listed in Appendix I of the 

Convention which is to be used in a commercial activity. 

(2) As used in this subsection, the term ‘‘undue economic hardship’’ shall include, but not be limited to: 

(A) substantial economic loss resulting from inability caused 

by this Act to perform contracts with respect to species of fish 

and wildlife entered into prior to the date of publication in the 

Federal Register of a notice of consideration of such species as 

an endangered species or a threatened species; 

(B) substantial economic loss to persons who, for the year 

prior to the notice of consideration of such species as an endangered species or a threatened species, derived a substantial portion of their income from the lawful taking of any ølisted species¿ endangered species or threatened species, which taking 

would be made unlawful under this Act; or 

* * * * * * * 

(3) The Secretary may make further requirements for a showing 

of undue economic hardship as øhe¿ the Secretary deems fit. Exceptions granted under this section may be limited by the Secretary 

in øhis¿ the Secretary’s discretion as to time, area, or other factor 

of applicability. 

(c) NOTICE AND REVIEW.—The Secretary shall publish notice in 

the Federal Register of each application for an exemption or permit 

which is made under this section. Each notice shall invite the submission from interested parties, within øthirty¿ 45 days after the 

date of the notice, of written data, views, or arguments with respect to the application; except that such øthirty¿ 45-day period 

may be waived by the Secretary in an emergency situation where 

the health or life of an endangered animal is threatened and no 

100 

reasonable alternative is available to the applicant, but notice of 

any such waiver shall be published by the Secretary in the Federal 

Register within ten days following the issuance of the exemption or 

permit. Information received by the Secretary as part of any application shall be available to the public as a matter of public record 

at every stage of the proceeding. 

(d) PERMIT AND EXEMPTION POLICY.—The Secretary may grant 

exceptions under subsections (a)(1)(A) and (b) of this section only 

if øhe¿ the Secretary finds and publishes øhis¿ the finding in the 

Federal Register that (1) such exceptions were applied for in good 

faith, (2) if granted and exercised will not operate to the disadvantage of such endangered species or threatened species, and (3) will 

be consistent with the purposes and policy set forth in section 2 øof 

this Act¿. 

(e) ALASKA NATIVES.—(1) * * * 

* * * * * * * 

(4) Notwithstanding the provisions of paragraph (l) of this subsection, whenever the Secretary determines that any species of fish 

or wildlife which is subject to taking under the provisions of this 

subsection is an endangered species or threatened species, and that 

such taking materially and negatively affects the threatened or endangered species, øhe¿ the Secretary may prescribe regulations 

upon the taking of such species by any such Indian, Aleut, Eskimo, 

or non-native Alaskan resident of an Alaskan native village. Such 

regulations may be established with reference to species, geographical description of the area included, the season for taking, or 

any other factors related to the reason for establishing such regulations and consistent with the policy of this Act. Such regulations 

shall be prescribed after a notice and hearings in the affected judicial districts of Alaska and as otherwise required by section 103 of 

the Marine Mammal Protection Act of 1972, and shall be removed 

as soon as the Secretary determines that the need for their impositions has disappeared. 

(f) PRE-ACT PARTS AND SCRIMSHAW.—(1) As used in this subsection—

(A) * * * 

* * * * * * * 

(2) The Secretary, pursuant to the provisions of this subsection, 

may exempt, if such exemption is not in violation of the Convention, any pre-Act endangered species part from one or more of the 

following prohibitions. 

(A) The prohibition on exportation from the United States 

set forth in section 9(a)(1)(A) øof this Act¿. (B) Any prohibition set forth in section 9(a)(1) (E) or (F) øof 

this Act¿. (3) Any person seeking an exemption described in paragraph (2) 

of this subsection shall make application therefor to the Secretary 

in such form and manner as øhe¿ the person shall prescribe, but 

no such application may be considered by the Secretary unless the 

application— (A) * * * 

* * * * * * * 

101 

(4) If the Secretary approves any application for exemption made 

under this subsection, øhe¿ the Secretary shall issue to the applicant a certificate of exemption which shall specify— (A) * * * 

* * * * * * * 

(g) BURDEN OF PROOF IN SEEKING EXEMPTION OR PERMIT.—In 

connection with any action alleging a violation of section 9, any 

person claiming the benefit of any exemption or permit under this 

Act shall have the burden of proving that the exemption or permit 

is applicable, has been granted, and was valid and in force at the 

time of the alleged violation. 

(h) CERTAIN ANTIQUE ARTICLES.—(1) Sections 4(d), 9(a), and 9(c) 

do not apply to any article which— (A) * * * 

(B) is composed in whole or in part of any øendangered species or threatened species listed¿ species determined to be an 

endangered species or a threatened species under section 4; 

* * * * * * * 

(j) EXPERIMENTAL POPULATIONS.—(1) øFor purposes of this subsection, the term ‘‘experimental population’’ means any population 

(including any offspring arising solely therefrom) authorized by the 

Secretary for release under paragraph (2), but only when, and at 

such times as, the population is wholly separate geographically 

from nonexperimental populations of the same species.¿ For purposes of this subsection, the term ‘‘experimental population’’ means 

any population (including any offspring arising therefrom) authorized by the Secretary for release under paragraph (2), but only when 

such population is in the area designated for it by the Secretary, 

and such area is, at the time of release, wholly separate geographically from areas occupied by nonexperimental populations of the 

same species. For purposes of this subsection, the term ‘‘areas occupied by nonexperimental populations’’ means areas characterized by 

the sustained and predictable presence of more than negligible numbers of successfully reproducing individuals over a period of many 

years. 

(2)(A) * * * 

(B) Before authorizing the release of any population under subparagraph (A), the Secretary shall by regulation identify the population and determine, on the basis of the best available øinformation¿ scientific data, whether or not such population is essential to 

the continued existence of an endangered species or a threatened 

species. 

(C) For the purposes of this Act, each member of an experimental 

population shall be treated as a threatened species; except øthat—

ø(i) solely¿ that solely for purposes of section 7 (other than 

subsection (a)(1) thereof), an experimental population determined under subparagraph (B) to be not essential to the continued existence of a species shall be treated, except when it 

occurs in an area within the National Wildlife Refuge System 

or the National Park System, as a species proposed to be ølisted¿ determined to be an endangered species or a threatened species under section 4ø; and 

ø(ii) critical habitat shall not be designated under this Act 

for any experimental population determined under subparaVerDate Aug 31 2005 09:09 Sep 28, 2005 Jkt 023574 PO 00000 Frm 00101 Fmt 6659 Sfmt 6601 E:\HR\OC\HR237.XXX HR237
102 

graph (B) to be not essential to the continued existence of a 

species.¿. 

* * * * * * * 

(k) WRITTEN DETERMINATION OF COMPLIANCE.—(1) A property 

owner (in this subsection referred to as a ‘‘requester’’) may request 

the Secretary to make a written determination that a proposed use 

of the owner’s property that is lawful under State and local law will 

comply with section 9(a), by submitting a written description of the 

proposed action to the Secretary by certified mail. 

(2) A written description of a proposed use is deemed to be sufficient for consideration by the Secretary under paragraph (1) if the 

description includes— (A) the nature, the specific location, the lawfulness under 

State and local law, and the anticipated schedule and duration 

of the proposed use, and a demonstration that the property 

owner has the means to undertake the proposed use; and 

(B) any anticipated adverse impact to a species that is included on a list published under 4(c)(1) that the requestor reasonably expects to occur as a result of the proposed use. 

(3) The Secretary may request and the requestor may supply any 

other information that either believes will assist the Secretary to 

make a determination under paragraph (1). 

(4) If the Secretary does not make a determination pursuant to a 

request under this subsection because of the omission from the request of any information described in paragraph (2), the requestor 

may submit a subsequent request under this subsection for the same 

proposed use. 

(5)(A) Subject to subparagraph (B), the Secretary shall provide to 

the requestor a written determination of whether the proposed use, 

as proposed by the requestor, will comply with section 9(a), by not 

later than expiration of the 180-day period beginning on the date of 

the submission of the request. 

(B) The Secretary may request, and the requestor may grant, a 

written extension of the period under subparagraph (A). 

(6) If the Secretary fails to provide a written determination before 

the expiration of the period under paragraph (5)(A) (or any extension thereof under paragraph (5)(B)), the Secretary is deemed to 

have determined that the proposed use complies with section 9(a). 

(7) This subsection shall not apply with respect to agency actions 

that are subject to consultation under section 7. 

(8) Any use or action taken by the property owner in reasonable 

reliance on a written determination of compliance under paragraph 

(5) or on the application of paragraph (6) shall not be treated as a 

violation of section 9(a). 

(9) Any determination of compliance under this subsection shall 

remain effective— (A) in the case of a written determination provided under 

paragraph (5)(A), for the 10-year period beginning on the date 

the written determination is provided; or 

(B) in the case of a determination that under paragraph (6) 

the Secretary is deemed to have made, the 5-year period beginning on the first date the Secretary is deemed to have made the 

determination. 

(10) The Secretary may withdraw a determination of compliance 

under this section only if the Secretary determines that, because of 

103 

unforeseen changed circumstances, the continuation of the use to 

which the determination applies would preclude conservation measures essential to the survival of any endangered species or threatened species. Such a withdrawal shall take effect 10 days after the 

date the Secretary provides notice of the withdrawal to the requester. 

(11) The Secretary may extend the period that applies under paragraph (5) by up to 180 days if seasonal considerations make a determination impossible within the period that would otherwise apply. 

(l) NATIONAL SECURITY.—The President, after consultation with 

the appropriate Federal agency, may exempt any act or omission 

from the provisions of this Act if such exemption is necessary for national security. 

(m) DISASTER DECLARATION AND PROTECTION.—(1) The President 

may suspend the application of any provision of this Act in any area 

for which a major disaster is declared under the Robert T. Stafford 

Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et 

seq.). 

(2) The Secretary shall, within one year after the date of the enactment of the Threatened and Endangered Species Recovery Act of 

2005, promulgate regulations regarding application of this Act in 

the event of an emergency (including circumstances other than a 

major disaster referred to in paragraph (1)) involving a threat to 

human health or safety or to property, including regulations—

(A) determining what constitutes an emergency for purposes 

of this paragraph; and 

(B) to address immediate threats through expedited consideration under or waiver of any provision of this Act. 

PENALTIES AND ENFORCEMENT

SEC. 11. (a) CIVIL PENALTIES.—(1) Any person who knowingly 

violates, and any person engaged in business as an importer or exporter of fish, wildlife, or plants who violates, any provision of this 

Act, or any provision of any permit or certificate issued hereunder, 

or of any regulation issued in order to implement subsection 

(a)(1)(A), (B), (C), (D), (E), or (F), (a)(2(A), (B), (C), or (D), (c), (d), 

(other than regulation relating to recordkeeping or filing of reports), (f), or (g) of section 9 of this Act, may be assessed a civil 

penalty by the Secretary of not more than $25,000 for each violation. Any person who knowingly violates, and any person engaged 

in business as an importer or exporter of fish, wildlife, or plants 

who violates, any provision of any other regulation issued under 

this Act may be assessed a civil penalty by the Secretary of not 

more than $12,000 for each such violation. Any person who otherwise violates any provision of this Act, or any regulation, permit, 

or certificate issued hereunder, may be assessed a civil penalty by 

the Secretary of not more than $500 for each such violation. No 

penalty may be assessed under this subsection unless such person 

is given notice and opportunity for a hearing with respect to such 

violation. Each violation shall be a separate offense. Any such civil 

penalty may be remitted or mitigated by the Secretary. Upon any 

failure to pay a penalty assessed under this subsection, the Secretary may request the Attorney General to institute a civil action 

in a district court of the United States for any district in which 

such person is found, resides, or transacts business to collect the 

104 

penalty and such court shall have jurisdiction to hear and decide 

any such action. The court shall hear such action on the record 

made before the Secretary and shall sustain øhis¿ the Secretary’s 

action if it is supported by substantial evidence on the record considered as a whole. 

* * * * * * * 

(3) Notwithstanding any other provision of this Act, no civil penalty shall be imposed if it can be shown by a preponderance of the 

evidence that the defendant committed an act based on a good faith 

belief that øhe¿ the defendant was acting to protect øhimself or 

herself¿ the defendant, a member of øhis or her¿ the defendant’s 

family, or any other individual from bodily harm, from any endangered or threatened species. 

(b) CRIMINAL VIOLATIONS.—(1) * * * 

* * * * * * * 

(3) Notwithstanding any other provision of this Act, it shall be 

a defense to prosecution under this subsection if the defendant 

committed the offense based on a good faith belief that øhe¿ the defendant was acting to protect øhimself or herself¿ the defendant, a 

member of øhis or her¿ the defendant’s family, or any other individual, from bodily harm from any endangered or threatened species. 

* * * * * * * 

(d) REWARDS AND CERTAIN INCIDENTAL EXPENSES.—The Secretary or the Secretary of the Treasury shall pay, from sums received as penalties, fines, or forfeitures of property for any violations of this chapter or any regulation issued hereunder (1) a reward to any person who furnishes information which leads to an 

arrest, a criminal conviction, civil penalty assessment, or forfeiture 

of property for any violation of this chapter or any regulation 

issued hereunder, and (2) the reasonable and necessary costs incurred by any person in providing temporary care for any fish, 

wildlife, or plant pending the disposition of any civil or criminal 

proceeding alleging a violation of this chapter with respect to that 

fish, wildlife, or plant. The amount of the reward, if any, is to be 

designated by the Secretary or the Secretary of the Treasury, as 

appropriate. Any officer or employee of the United States or any 

State or local government who furnishes information or renders 

service in the performance of øhis¿ the officer’s or employee’s official 

duties is ineligible for payment under this subsection. Whenever 

the balance of sums received under this section and section 6(d) of 

the Act of November 16, 1981 (16 U.S.C. 3375(d)) as penalties or 

fines, or from forfeitures of property, exceed $500,000, the Secretary of the Treasury shall deposit an amount equal to such excess balance in the cooperative endangered species conservation 

fund established under section 6(i) of this Act. 

(e) ENFORCEMENT.—(1) * * * 

* * * * * * * 

(3) Any person authorized by the Secretary, the Secretary of the 

Treasury, or the Secretary of the Department in which the Coast 

Guard is operating, to enforce this Act may detain for inspection 

and inspect any package, crate, or other container, including its 

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105 

portation. øSuch persons¿ Such a person may make arrests without 

a warrant for any violation of this Act if øhe¿ the person has reasonable grounds to believe that the person to be arrested is committing the violation in øhis¿ the person’s presence or view and 

may execute and serve any arrest warrant, search warrant, or 

other warrant or civil or criminal process issued by any officer or 

court of competent jurisdiction for enforcement of this Act. Such 

person so authorized may search and seize, with or without a warrant, as authorized by law. Any fish, wildlife, property, or item so 

seized shall be held by any person authorized by the Secretary, the 

Secretary of the Treasury, or the Secretary of the Department in 

which the Coast Guard is operating pending disposition of civil or 

criminal proceedings, or the institution of an action in rem for forfeiture of such fish, wildlife, property, or item pursuant to paragraph (4) of the subsection; except that the Secretary may, in lieu 

of holding such fish, wildlife, property, or item, permit the owner 

or consignee to post a bond or other surety satisfactory to the Secretary, but upon forfeiture of any such property to the United 

States, or the abandonment or waiver of any claim to any such 

property, it shall be disposed of (other than by sale to the general 

public) by the Secretary in such a manner, consistent with the purposes of this Act, as the Secretary shall by regulation prescribe. 

* * * * * * * 

(5) All provisions of law relating to the seizure, forfeiture, and 

condemnation of a vessel for violation of the customs laws, the disposition of such vessel or the proceeds from the sale thereof, and 

the remission or mitigation of such forfeiture, shall apply to the 

seizures and forfeitures incurred, or alleged to have been incurred, 

under the provisions of this Act, insofar as such provisions of law 

are applicable and not inconsistent with the provisions of this Act; 

except that all powers, rights, and duties conferred or imposed by 

the customs laws upon any officer or employee of the Treasury Department shall, for the purposes of this Act, be exercised or performed by the Secretary or by such persons as øhe¿ the Secretary 

may designate. 

* * * * * * * 

(g) CITIZEN SUITS.—(1) Except as provided in paragraph (2) of 

this subsection any person may commence a civil suit on øhis¿ the 

person’s own behalf— (A) * * * 

* * * * * * * 

øCONFORMING AMENDMENTS

øSEC. 13. (a) Subsection 4(c) of the Act of October 15, 1966 (80 

Stat. 928, 16 U.S.C. 668dd(c)), is further amended by revising the 

second sentence thereof to read as follows: ‘‘With the exception of 

endangered species and threatened species listed by the Secretary 

pursuant to section 4 of the Endangered Species Act of 1973 in 

States wherein a cooperative agreement does not exist pursuant to 

section 6(c) of that Act, nothing in this Act shall be construed to 

authorize the Secretary to control or regulate hunting or fishing of 

resident fish and wildlife on lands not within the system.’’

106 

ø(b) Subsection 10(a) of the Migratory Bird Conservation Act (45 

Stat. 1224, 16 U.S.C. 715i(a)) and subsection 401(a) of the Act 

ofJune 15, 1935 (49 Stat. 383, 16 U.S.C. 715s(a)), are each amended bystriking out ‘‘threatened with extinction,’’ and inserting in lieu 

thereof the following: ‘‘listed pursuant to section 4 of the Endangered Species Act of 1973 as endangered species or threatened species,’’. ø(c) Section 7(a)(1) of the Land and Water Conservation Fund 

Act of 1965 (16 U.S.C. 4601-9 (a)(1)) is amended by striking out: ‘‘THRETENED SPECIES.—For any national area which may be 

authorized for the preservation of species of fish or wildlife 

that are threatened with extinction.’’ and inserting in lieu thereof the following: 

ø‘‘ENDANGERED SPECIES AND THREATENED SPECIES.—For 

lands, waters, or interests therein, the acquisition of which is 

authorized under section 5(a) of the Endangered Species Act of 

1973, needed for the purpose of conserving endangered or 

threatened species of fish or wildlife or plants.’’

ø(d) The first sentence of section 2 of the Act of September 28, 

1962, as amended (76 Stat. 653, 16 U.S.C. 460k-1), is amended to 

read as follows: 

ø‘‘The Secretary is authorized to acquire areas of land, or interests therein, which are suitable for—

ø‘‘(1) incidental fish and wildlife-oriented recreational development, 

ø‘‘(2) the protection of natural resources, 

ø‘‘(3) the conservation of endangered species or threatened 

species listed by the Secretary pursuant to section 4 of the Endangered Species Act of 1973, or 

ø‘‘(4) carrying out two or more of the purposes set forth in 

paragraphs (1) through (3) of this section, and are adjacent to, 

or within, the said conservation areas, except that the acquisition of any land or interest therein pursuant to this section 

shall be accomplished only with such funds as may be appropriated therefor by the Congress or donated for such purposes, 

but such property shall not be acquired with funds obtained 

from the sale of Federal migratory bird hunting stamps.’’ ø(e) The Marine Mammal Protection Act of 1972 (16 U.S.C. 1361- 

1407) is amendedø(1) by striking out ‘‘Endangered Species Conservation Act of 

1969’’ in section 3(1)(B) thereof and inserting in lieu thereof 

the following: ‘‘Endangered Species Act of 1973’’; 

ø(2) by striking out ‘‘pursuant to the Endangered Species 

Conservation Act of 1969’’ in section 101(a)(3)(B) thereof and 

inserting in lieu thereof the following: ‘‘or threatened species 

pursuant to the Endangered Species Act of 1973’’; 

ø(3) by striking out ‘‘endangered under the Endangered Species Conservation Act of 1969’’ in section 102(b)(3) thereof and 

inserting in lieu thereof the following: ‘‘an endangered species 

or threatened species pursuant to the Endangered Species Act 

of 1973’’; and 

ø(4) by striking out ‘‘of the Interior such revisions of 

theEndangered Species List, authorized by the Endangered 

Species Conservation Act of 1969,’’ in section 202(a)(6) thereof 

and inserting in lieu thereof the following: ‘‘such revisions of 

107 

the endangered species list and threatened species list published pursuant to section 4(c)(1) of the Endangered Species 

Act of 1973’’. 

ø(f) Section 2(l) of the Federal Environmental Pesticide Control 

Act of 1972 (Public Law 92-516) is amended by striking out the 

words ‘‘by the Secretary of the Interior under Public Law 91-135’’

and inserting in lieu thereof the words ‘‘or threatened by the Secretary pursuant to the Endangered Species Act of 1973’’. 

øREPEALER

øSEC. 14. The Endangered Species Conservation Act of 1969 (sections 1 through 3 of the Act of October 16, 1966, and sections 1 

through 6 of the Act of December 5,1969; 16 U.S.C. 668aa-666cc6), is repealed. 

øAUTHORIZATION OF APPROPRIATIONS

øSEC. 15. (a) IN GENERAL.—Except as provided in subsection (b), 

(c), and (d), there are authorized to be appropriated—

ø(1) not to exceed $35,000,000 for fiscal year 1988, 

$36,500,000 for fiscal year 1989, $38,000,000 for fiscal year 

1990, $39,500,000 for fiscal year 1991, and $41,500,000 for fiscal year 1992 to enable the Department of the Interior to carry 

out such functions and responsibilities as it may have been 

given under this Act; 

ø(2) not to exceed $5,750,000 for fiscal year 1988, $6,250,000 

for each of fiscal years 1989 and 1990, and $6,750,000 for each 

of fiscal years 1991 and 1992 to enable the Department of 

Commerce to carry out such functions and responsibilities as 

it may have been given under this Act; and 

ø(3) not to exceed $2,200,000 for fiscal year 1988, $2,400,000 

for each of fiscal years 1989 and 1990, and $2,600,000 for each 

of fiscal years 1991 and 1992, to enable the Department of Agriculture to carry out its functions and responsibilities with respect to the enforcement of this Act and the Convention which 

pertain to the importation or exportation of plants. 

ø(b) EXEMPTIONS FROM ACT.—There are authorized to be appropriated to the Secretary to assist him and the Endangered Species 

Committee in carrying out their functions under sections 7 (e), (g), 

and (h) not to exceed $600,000 for each of fiscal years 1988, 1989, 

1990, 1991, and 1992. 

ø(c) CONVENTION IMPLEMENTATION.—There are authorized to be 

appropriated to the Department of the Interior for purposes of carrying out section 8A(e) not to exceed $400,000 for each of fiscal 

years 1988, 1989, and 1990, and $500,000 for each of fiscal years 

1991 and 1992, and such sums shall remain available until expended. 

øEFFECTIVE DATE

øSEC. 16. This Act shall take effect on the date of its enactment.¿ 

PRIVATE PROPERTY CONSERVATION

SEC. 13. (a) IN GENERAL.—The Secretary may provide conservation grants (in this section referred to as ‘‘grants’’) to promote the 

voluntary conservation of endangered species and threatened species 

108 

by owners of private property and shall provide financial conservation aid (in this section referred to as ‘‘aid’’) to alleviate the burden 

of conservation measures imposed upon private property owners by 

this Act. The Secretary may provide technical assistance when requested to enhance the conservation effects of grants or aid. 

(b) AWARDING OF GRANTS AND AID.—Grants to promote conservation of endangered species and threatened species on private property—

(1) may not be used to fund litigation, general education, general outreach, lobbying, or solicitation; 

(2) may not be used to acquire leases or easements of more 

than 50 years duration or fee title to private property; 

(3) must be designed to directly contribute to the conservation 

of an endangered species or threatened species by increasing the 

species’ numbers or distribution; and 

(4) must be supported by any private property owners on 

whose property any grant funded activities are carried out. 

(c) PRIORITY.—Priority shall be accorded among grant requests in 

the following order: 

(1) Grants that promote conservation of endangered species or 

threatened species on private property while making economically beneficial and productive use of the private property on 

which the conservation activities are conducted. 

(2) Grants that develop, promote, or use techniques to increase the distribution or population of an endangered species 

or threatened species on private property. 

(3) Other grants that promote voluntary conservation of endangered species or threatened species on private property. 

(d) ELIGIBILITY FOR AID.—(1) The Secretary shall award aid to 

private property owners who—

(A) received a written determination under section 10(k) finding that the proposed use of private property would not comply 

with section 9(a); or 

(B) receive notice under section 10(k)(10) that a written determination has been withdrawn. 

(2) Aid shall be in an amount no less than the fair market value 

of the use that was proposed by the property owner if—

(A) the owner has foregone the proposed use; 

(B) the owner has requested financial aid—

(i) within 180 days of the Secretary’s issuance of a written determination that the proposed use would not comply 

with section 9(a); or 

(ii) within 180 days after the property owner is notified 

of a withdrawal under section 10(k)(10); and 

(C) the foregone use would be lawful under State and local 

law and the property owner has demonstrated that the property 

owner has the means to undertake the proposed use. 

(e) DISTRIBUTION OF GRANTS AND AID.—(1) The Secretary shall 

pay eligible aid—

(A) within 180 days after receipt of a request for aid unless 

there are unresolved questions regarding the documentation of 

the foregone proposed use or unresolved questions regarding the 

fair market value; or 

109 

(B) at the resolution of any questions concerning the documentation of the foregone use established under subsection (f) or 

the fair market value established under subsection (g). 

(2) All grants provided under this section shall be paid on the last 

day of the fiscal year. Aid shall be paid based on the date of the 

initial request. 

(f) DOCUMENTATION OF THE FOREGONE USE.—Within 30 days of 

the request for aid, the Secretary shall enter into negotiations with 

the property owner regarding the documentation of the foregone proposed use through such mechanisms such as contract terms, lease 

terms, deed restrictions, easement terms, or transfer of title. If the 

Secretary and the property owner are unable to reach an agreement, 

then, within 60 days of the request for aid, the Secretary shall determine how the property owner’s foregone use shall be documented 

with the least impact on the ownership interests of the property 

owner necessary to document the foregone use. 

(g) FAIR MARKET VALUE.—For purposes of this section, the fair 

market value of the foregone use of the affected portion of the private property, including business losses, is what a willing buyer 

would pay to a willing seller in an open market. Fair market value 

shall take into account the likelihood that the foregone use would 

be approved under State and local law. The fair market value shall 

be determined within 180 days of the documentation of the foregone 

use. The fair market value shall be determined jointly by 2 licensed 

independent appraisers, one selected by the Secretary and one selected by the property owner. If the 2 appraisers fail to agree on fair 

market value, the Secretary and the property owner shall jointly select a third licensed appraiser whose appraisal within an additional 

90 days shall be binding on the Secretary and the private property 

owner. Within one year after the date of enactment of the Threatened and Endangered Species Recovery Act of 2005, the Secretary 

shall promulgate regulations regarding selection of the jointly selected appraisers under this subsection. 

(h) LIMITATION ON AID AVAILABILITY.—Any person receiving aid 

under this section may not receive additional aid under this section 

for the same foregone use of the same property and for the same period of time. 

(i) ANNUAL REPORTING.—The Secretary shall by January 15 of 

each year provide a report of all aid and grants awarded under this 

section to the Committee on Resources of the House of Representatives and the Environment and Public Works Committee of the Senate and make such report electronically available to the general 

public on the website required under section 14. 

PUBLIC ACCESSIBILITY AND ACCOUNTABILITY

SEC. 14. The Secretary shall make available on a publicly accessible website on the Internet—

(1) each list published under section 4(c)(1); 

(2) all final and proposed regulations and determinations 

under section 4; 

(3) the results of all 5-year reviews conducted under section 

4(c)(2)(A); 

(4) all draft and final recovery plans issued under section 

5(a), and all final recovery plans issued and in effect under section 4(f)(1) of this Act as in effect immediately before the enactVerDate Aug 31 2005 09:09 Sep 28, 2005 Jkt 023574 PO 00000 Frm 00109 Fmt 6659 Sfmt 6603 E:\HR\OC\HR237.XXX HR237
110 

ment of the Threatened and Endangered Species Recovery Act 

of 2005; 

(5) all reports required under sections 5(e) and 16, and all reports required under sections 4(f)(3) and 18 of this Act as in effect immediately before the enactment of the Threatened and 

Endangered Species Recovery Act of 2005; and 

(6) data contained in the reports referred to in paragraph (5) 

of this section, and that were produced after the date of enactment of the Threatened and Endangered Species Recovery Act 

of 2005, in the form of databases that may be searched by the 

variables included in the reports. 

MARINE MAMMAL PROTECTION ACT OF 1972

SEC. ø17¿ 15. Except as otherwise provided in this Act, no provision of this Act shall take precedence over any more restrictive conflicting provision of the Marine Mammal Protection Act of 1972. 

øANNUAL COST ANALYSIS BY THE FISH AND WILDLIFE SERVICE

øSEC. 18. Notwithstanding section 3003 of Public Law 104–66 (31 

U.S.C. 1113 note; 109 Stat. 734), on or before January 15, 1990, 

and each January 15 thereafter, the Secretary of the Interior, acting through the Fish and Wildlife Service, shall submit to the Congress an annual report covering the preceding fiscal year which 

shall contain—

ø(1) an accounting on a species by species basis of all reasonably unidentifiable Federal expenditures made primarily for 

the conservation of endangered or threatened species pursuant 

to this Act; and 

ø(2) an accounting on a species by species basis for all reasonably identifiable expenditures made primarily for the conservation of endangered or threatened species pursuant to this 

Act by States receiving grants under section 6.¿ 

ANNUAL COST ANALYSIS BY UNITED STATES FISH AND WILDLIFE

SERVICE

SEC. 16. (a) IN GENERAL.—On or before January 15 of each year, 

the Secretary shall submit to the Congress an annual report covering the preceding fiscal year that contains an accounting of all 

reasonably identifiable expenditures made primarily for the conservation of species included on lists published and in effect under 

section 4(c). 

(b) SPECIFICATION OF EXPENDITURES.—Each report under this 

section shall specify—

(1) expenditures of Federal funds on a species-by-species 

basis, and expenditures of Federal funds that are not attributable to a specific species; 

(2) expenditures by States for the fiscal year covered by the 

report on a species-by-species basis, and expenditures by States 

that are not attributable to a specific species; and 

(3) based on data submitted pursuant to subsection (c), expenditures voluntarily reported by local governmental entities 

on a species-by-species basis, and such expenditures that are not 

attributable to a specific species. 

111 

(c) ENCOURAGEMENT OF VOLUNTARY SUBMISSION OF DATA BY

LOCAL GOVERNMENTS.—The Secretary shall provide a means by 

which local governmental entities may—

(1) voluntarily submit electronic data regarding their expenditures for conservation of species listed under section 4(c); and 

(2) attest to the accuracy of such data. 

REIMBURSEMENT FOR DEPREDATION OF LIVESTOCK BY

REINTRODUCED SPECIES

SEC. 17. (a) IN GENERAL.—The Secretary of the Interior, acting 

through the Director of the United States Fish and Wildlife Service, 

may reimburse the owner of livestock for any loss of livestock resulting from depredation by any population of a species if the population is listed under section 4(c) and includes or derives from members of the species that were reintroduced into the wild. 

(b) ELIGIBILITY FOR AND AMOUNT.—Eligibility for, and the 

amount of, reimbursement under this section shall not be conditioned on the presentation of the body of any animal for which reimbursement is sought. 

(c) LIMITATION ON REQUIREMENT TO PRESENT BODY.—The Secretary may not require the owner of livestock to present the body of 

individual livestock as a condition of payment of reimbursement 

under this section. 

(d) USE OF DONATIONS.—The Secretary may accept and use donations of funds to pay reimbursement under this section. 

(e) AVAILABILITY OF APPROPRIATIONS.—The requirement to pay reimbursement under this section is subject to the availability of 

funds for such payments. 

AUTHORIZATION OF APPROPRIATIONS

SEC. 18. (a) IN GENERAL.—There are authorized to be appropriated to carry out this Act, other than section 8A(e)—

(1) to the Secretary of the Interior to carry out functions and 

responsibilities of the Department of the Interior under this Act, 

such sums as are necessary for fiscal years 2006 through 2010; 

and 

(2) to the Secretary of Agriculture to carry out functions and 

responsibilities of the Department of the Interior with respect to 

the enforcement of this Act and the convention which pertain 

the importation of plants, such sums as are necessary for fiscal 

year 2006 through 2010. 

(b) CONVENTION IMPLEMENTATION.—There is authorized to be appropriated to the Secretary of the Interior to carry out section 8A(e) 

such sums as are necessary for fiscal years 2006 through 2010. 

MARINE MAMMAL PROTECTION ACT OF 1972 

* * * * * * * 

TITLE I—CONSERVATION AND PROTECTION OF MARINE 

MAMMALS 

* * * * * * * 

112 

PERMITS

SEC. 104. (a) * * * 

* * * * * * * 

(c)(1) * * * 

* * * * * * * 

(4)(A) A permit may be issued for enhancing the survival or recovery of a species or stock only with respect to a species or stock 

for which the Secretary, after consultation with the Marine Mammal Commission and after notice and opportunity for public comment, has first determined that—

(i) * * * 

(ii) taking or importation is consistent (I) with any conservation plan adopted by the Secretary under section 115(b) of this 

title or any recovery plan developed under øsection 4(f)¿ section 5 of the Endangered Species Act of 1973 for the species 

or stock, or (II) if there is no conservation or recovery plan in 

place, with the Secretary’s evaluation of actions required to enhance the survival or recovery of the species or stock in light 

to the factors that would be addressed in a conservation plan 

or a recovery plan. 

* * * * * * * 

STATUS REVIEW; CONSERVATION PLANS

SEC. 115. (a) * * * 

(b)(1) * * * 

(2) Each plan shall have the purpose of conserving and restoring 

the species or stock to its optimum sustainable population. The 

Secretary shall model such plans on recovery plans required under 

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

1533(f))¿ section 5 of the Endangered Species Act of 1973. 

* * * * * * * 

(113) 

ADDITIONAL VIEWS 

ADDITIONAL VIEWS OF CONGRESSMAN DON YOUNG 

For too long, the Endangered Species Act has been used not as 

a tool for protecting the environment but as a roadblock. The original intent of species protection has been lost by those eager to 

wield the ESA’s power for legal and bureaucratic ensnarement. The 

problems with the current Act ensure that it will remain primarily 

used in this dilatory role instead of its higher calling. 

I particularly applaud the improvement to the scientific standards included in H.R. 3824: The Threatened and Endangered Species Recovery Act. My fellow Alaskans, for instance, have told me 

of wildlife counts drastically at odds with government agency findings, but the Act’s unclear definition of ‘‘best available’’ allows information gathered during airplane fly-overs to count more than 

the on the ground reality as found by those who live there. 

While the Federal Government has failed to recover endangered 

species to healthy and sustainable populations, it has unfortunately not failed to cause massive hardship for landowners and 

communities while pursuing this so far widely unobtained goal. A 

better approach is needed—for plants, wildlife, and humans. I applaud Chairman Pombo and his efforts on this urgent matter. 

DON YOUNG. 

(114) 

ADDITIONAL VIEWS OF REPRESENTATIVE MARK UDALL 

While I have strongly supported the Endangered Species Act, I 

have never rejected the idea of changing it. 

On the contrary, I have repeatedly said that I thought it would 

be possible to improve the way it was implemented. 

So, I regret that I was unable to support H.R. 3824 as ordered 

reported by the Resources Committee. 

I don’t think the bill is all bad. I like the idea of putting more 

emphasis on recovery plans and on steps to provide incentives for 

landowners and other private parties to help with recovering species. And there are other provisions that I think are acceptable or 

even desirable. 

Unfortunately, though, to my mind the bill’s defects are still so 

numerous and so serious that it does not deserve to be favorably 

reported as it stands. It simply isn’t ready for prime time on the 

floor of the House. 

That was why I offered an amendment to retain protections for 

species listed as ‘‘threatened’’ and why I joined with the gentleman 

from New Mexico, Mr. Pearce, in offering an amendment to authorize the fish and wildlife service to compensate ranchers for livestock lost to an endangered predator that has been reintroduced 

into the wild—something I supported to help ensure fair treatment 

for ranchers where those reintroductions take place or where those 

predators may relocate themselves. I am pleased that the Committee adopted those amendments. 

In addition, I voted for a number of amendments that would 

have made other improvements in the bill. If all those amendments 

had been adopted, I would have a much higher opinion of the bill. 

Regrettably, that did not happen, and the legislation’s other 

flaws meant that I could not vote to approve the bill. 

However, I take hope from the fact that the vote on reporting the 

bill will not be the last vote on this legislation. And, as the legislative process goes forward, I will continue to do what I can to maintain essential protections for endangered species while working to 

improve the way those protections are implemented. 

MARK UDALL. 

(115) 

DISSENTING VIEWS 

Enacted in 1973, the Endangered Species Act (ESA) has demonstrated that it is possible to protect our country’s heritage and 

at the same time effectively compete in a global economy. H.R. 

3824 will unravel the progress this Nation has made in sparing 

from extinction more than 1,200 species, including the bald eagle 

and grizzly bear, on their way to recovery, and the brown pelican, 

American Peregrine Falcon and gray whale, which have recovered. 

Those who argue that the law is a failure because it has not recovered more species do not understand that the Endangered Species Act was never intended as a quick fix to protect our favorite 

species. It is the law of last resort when other State and Federal 

laws fail to result in species conservation. The true value of the Endangered Species Act lies in the intricacies of life itself. 

The Endangered Species Act has been amended several times. 

There are administrative remedies available to address most, if not 

all, the reasonable issues that have been raised about the law. But 

there is no justification for H.R. 3824, except for the expedience of 

a short-sighted political agenda. H.R. 3824 would establish precedents we strongly oppose. 

PESTICIDE WAIVER

H.R. 3824 would repeal the Endangered Species Act provisions 

that protect threatened and endangered species from the harmful 

impacts of pesticides. Have we forgotten that it was the pesticide 

DDT that was largely responsible for the demise of our Nation’s 

most enduring symbol, the American bald eagle? Pesticides have 

also been blamed for poisoning the salmon in the Pacific Northwest, and are suspected of playing a key role in the recent dramatic decline of fish populations in California’s San Francisco Bay/ 

Sacramento-San Joaquin Delta. 

Yet, H.R. 3824 would insulate those who use pesticides from the 

Endangered Species Act’s prohibitions against killing endangered 

and threatened species. Additionally, it would waive the requirements in Section 7 of ESA that Federal agencies consult with the 

National Oceanic and Atmospheric Administration’s National Marine Fisheries Service or Fish and Wildlife Service (Services) to determine the effects that a proposed action may have on listed species. As long as corporations and Federal agencies comply with the 

Federal Insecticide, Fungicide and Rodenticide Act, they will have 

no further obligation to meet the requirements in the Endangered 

Species Act. 

Notwithstanding the billions of dollars this country has spent to 

restore estuaries and waterways, from the Chesapeake Bay to the 

Everglades and San Francisco Bay/Sacramento-San Joaquin Delta, 

this provision would lift prohibitions in place to protect drinking 

116 

water quality, fisheries and wildlife. The economic and environmental implications of this provision are staggering. 

PAYMENT FOR ESA COMPLIANCE

Under the misleading label ‘‘conservation grants,’’ Section 14 creates a new, potentially open-ended entitlement program for property developers and speculators. Section 14 would establish the 

dangerous precedent that private individuals must be paid in order 

to comply with an environmental law designed to protect the public 

interest in preserving endangered species 

Under Section 14, the Services would be put in an untenable position where enforcement of the Endangered Species Act would 

generate countless compensation claims and virtually unlimited liability against the agencies and Federal taxpayers. 

The ‘‘takings’’ clause of the Fifth Amendment to the Constitution 

states: ‘‘[N]or shall private property be taken for public use, without just compensation.’’ However, under the provisions of Section 

14, property developers would be compensated for government actions which do not constitute takings under the Fifth Amendment. 

The Majority’s intent to disregard the long-standing principles of 

Fifth-amendment based compensation was made clear by their rejection of Mr. Inslee’s amendment. 

If the ‘‘pay people to comply with the law’’ language of Section 

14 were applied to local zoning, no Mayor or city council could govern a community without facing fear that a decision might drive 

the community into financial ruin. Among its many flaws, Section 

14 redefines ‘‘fair market value’’ to include speculative ‘‘business 

losses’’ and allows for compensation of ‘‘no less than fair market 

value’’ even if only a portion of the property is affected by the government action. 

Ironically, Section 14 provides no assurance that the new compensation program would lead to greater conservation or recovery 

of endangered species. The far greater likelihood is an unwarranted 

windfall for land developers, and speculators, and their lawyers at 

an enormous cost to the taxpayers and budget deficit. 

ALTERNATIVE CONSULTATION PROCEDURES

H.R. 3824 cuts the heart out of the Section 7 consultation process, the lynchpin of the ESA. H.R. 3824 allows the Secretary of the 

Interior or Commerce to delegate those responsibilities to other 

Federal agencies through undefined procedures. Section 12 imposes 

no standards for these procedures, thus potentially allowing destructive Federal activities to proceed without the normal review 

by the scientists with wildlife expertise. The only justification given 

for this provision is that the Services have a heavy workload. This 

problem could be addressed if additional resources for ESA compliance were allocated to the responsible agencies, a solution repeatedly suggested in testimony before the Committee. 

Those tasked with determining the effects of a proposed agency 

action would be forced to wear blinders when considering whether 

a species is in jeopardy of extinction. Under existing law, the Services consider the condition of the species at the time the proposed 

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117 

pacting the species, the Services address their cumulative effects 

when evaluating whether the species is in trouble. Yet H.R. 3824 

forbids the Services from taking these baseline conditions into account. The Services will be obligated to ignore reality and base 

their decision on fiction. There is a real risk that this provision 

could allow political expediency to override the concerns of qualified agency scientists. 

Once the Secretary of the Interior or Commerce has entered into 

a cooperative agreement with a State, H.R. 3824 limits the applicability of the Section 7 consultation provisions in the ESA to the 

time when the agreement is renewed or amended. If it is found 

that the agreement results in the harm or jeopardy of a listed species, it is questionable whether consultation would have to be reinitiated. There is no requirement that the cooperative agreement 

meet any meaningful conservation standard. 

JEOPARDY DEFINITION

While we are highly critical of H.R. 3824, we believe that including a statutory definition of ‘‘jeopardize the continued existence’’ of 

listed species is a step in the right direction. The existing regulatory definition in 50 CFR 402.02 allows agency actions to proceed 

unless they impede both the ‘‘survival and recovery’’ of a listed species. This definition allows too many species to totter on the brink 

of extinction. A species that is merely surviving is clearly not recovering. 

The statutory definition of what constitutes jeopardy in H.R. 

3824 prohibits any agency action that is likely to make species’ conservation significantly less likely in the long-term. The term ‘‘longterm’’ will allow the Secretary to balance the proven long-term benefits of an action intended to promote the species’ conservation 

against potential short term negative impacts in assessing whether 

jeopardy is likely to occur. For example, prescriptive-burning or 

other active habitat management may be necessary to ensure a 

species’ conservation in the long-term, even though such management actions may cause short-term adverse impacts to individual 

members of a species. It is expected that a species’ recovery plan, 

including the identification in such plans of habitat necessary for 

the conservation of the species, is to factor significantly in making 

a jeopardy determination during the Section 7 consultation process. 

The bill replaces the Secretary’s obligation to designate critical 

habitat for listed species with a new obligation to identify in a species’ recovery plan that habitat which is of special value for the 

conservation of the species. It is expected that an endangered or 

threatened species’ recovery plan, including the identification in 

such plan of areas of special value to the conservation of the species, will factor significantly in making a jeopardy determination 

during the Section 7 consultation process. In the absence of a 

meaningful recovery plan or criteria or where the Secretary has determined that he or she cannot yet ascertain recovery criteria, the 

jeopardy analysis shall be informed by the proposed agency action’s 

likely impact on achieving interim recovery criteria, if any, and the 

extent to which the proposed agency action is likely to impact the 

species’ current status and potential prospects for recovery. 

118 

CONCLUSION

Notwithstanding our support for the inclusion of a statutory definition of jeopardy, we strongly oppose H.R. 3824 which will undermine any progress this country has seen in species recovery. There 

is no justification to overhaul the law in this way, and its enactment will likely result in more species extinctions and greater costs 

to the taxpayer. 

We cannot know what currently unforeseen miracles of science 

and medicine reside in the small, seemingly insignificant life forms 

which surround us. But modern medicine has saved untold numbers of lives by gaining a deeper understanding of life forms. If we 

wish for human life to continue, we must recognize that our lives 

are inextricably woven with all other life. 

None among us fully understands the complex design of life on 

earth. Until we do, we should preserve God’s wonders in all their 

forms. It is not for us to decide which pieces of God’s plan meet our 

standards, which should survive, and which should be extinguished 

for our convenience and pleasure. 

NICK RAHALL. EDWARD J. MARKEY. FRANK PALLONE, JR. RAU ́ L M. GRIJALVA. RON KIND. DALE E. KILDEE. MARK UDALL. TOM UDALL. GEORGE MILLER. GRACE F. NAPOLITANO. 

(119) 

ADDITIONAL DISSENTING VIEWS OF REPRESENTATIVES 

MARKEY, PALLONE, INSLEE, AND GRIJALVA 

In addition to the concerns that we have about other objectionable components of the bill approved by the Resources Committee, 

we would also like to address specifically the provisions in H.R. 

3824 that deal with the designation of habitat. This bill eliminates 

the mandatory and enforceable designation of a listed species’ critical habitat that is in current law. Instead, section 10 of this bill 

directs the Secretary to create recovery plans for listed species that 

include identification of areas of ‘‘special value’’ to a species’ conservation. Replacing the current mandatory designation and protection of critical habitat with a recovery plan, which continues to lack 

regulatory force, represents a dangerous shift in policy that would 

significantly undermine the protection and recovery of threatened 

and endangered species. 

Designating critical habitat for listed species is an integral part 

of a species’ continued existence and recovery. A major factor forcing threatened and endangered species towards extinction is the 

loss and deterioration of habitat necessary for survival. We cannot 

expect a species to recover without first ensuring that it has the 

habitat in which to do so. 

One example of the necessity and success of critical habitat designation is the case of the whooping crane. The whooping crane is 

a bird that was at the brink of extinction—at one point there were 

only 16 in the wild. Enforcement action under the critical habitat 

protection led to the protection of the bird’s designated migratory 

path along the Platte River and now there are over 200 wild 

whooping cranes. 

The critical habitat designation is the only part of the current 

law that protects the entire habitat needed for the recovery of a 

species. Under the current law, Federal agencies and private actors 

within a Federal nexus must refrain from ‘‘adverse modification’’ of 

critical habitat. There is no provision in this bill that similarly expressly protects a species’ habitat. To mandate that areas of special 

value be identified but then to prevent the enforcement of the protection of those areas, will simply result in the filing of plans that 

have no regulatory effect. It would create a blizzard of unenforceable bureaucratic paperwork which, in the words of Shakespeare, 

would be ‘‘full of sound and fury but signifying nothing.’’ We strongly oppose the elimination of critical habitat requirements as an enforceable feature of our national law to protect endangered species and urge that habitat designations and protections be strengthened as the bill moves forward. 

EDWARD J. MARKEY. 

JAY INSLEE. 

FRANK PALLONE, JR. 

RAU ́ L M. GRIJALVA. 

(120) 


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