89–006 

115TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 115–1050 

WEIGH HABITATS OFFSETTING LOCATIONAL EFFECTS 

ACT OF 2018 

NOVEMBER 27, 2018.—Committed to the Committee of the Whole House on the 

State of the Union and ordered to be printed 

Mr. BISHOP of Utah, from the Committee on Natural Resources, 

submitted the following 

R E P O R T 

together with 

DISSENTING VIEWS 

[To accompany H.R. 6346] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Natural Resources, to whom was referred the 

bill (H.R. 6346) to amend the Endangered Species Act of 1973 to 

provide for consideration of the totality of conservation measures in 

determining the impact of proposed Federal agency action, having 

considered the same, report favorably thereon without amendment 

and recommend that the bill do pass. 

PURPOSE OF THE BILL

The purpose of H.R. 6346 is to amend the Endangered Species 

Act of 1973 to provide for consideration of the totality of conservation measures in determining the impact of proposed Federal agency action. 

BACKGROUND AND NEED FOR LEGISLATION

The Endangered Species Act of 1973 (ESA, 16 U.S.C. 1531 et 

seq.) sets out the broad goal of conserving and recovering species 

facing extinction. The law authorizes federal agencies to identify 

imperiled species and list them as either threatened or endangered, 


lotter on DSKBCFDHB2PROD with REPORTS
2 

1 16 U.S.C. 1533. 

2 Id. 

3 CONG. RESEARCH SERV., RL31654, THE ENDANGERED SPECIES ACT: A PRIMER 15 (2016). 4 A History of the Endangered Species Act of 1973, U.S. FISH AND WILDLIFE SERVICE, U.S. 

DEPARTMENT OF THE INTERIOR, https://www.fws.gov/endangered/esa-library/pdf/history_ESA.pdf 

(last visited Sept. 18, 2018). 5 ECOS Environmental Conservation Online System, Listed Species Summary (Boxscore), U.S. 

FISH AND WILDLIFE SERVICE, U.S. DEPARTMENT OF THE INTERIOR, https://ecos.fws.gov/ecp0/reports/box-score-report (last visited Sept. 19, 2018). 6 ECOS Environmental Conservation Online System, Delisted Species, U.S. FISH AND WILD- LIFE SERVICE, U.S. DEPARTMENT OF THE INTERIOR, https://ecos.fws.gov/ecp0/reports/delisting-report (last visited Sept. 19, 2018). 7Supra, note 5. This number was determined by adding the total number of species listed as 

endangered or threatened under the ESA to the total number delisted since the ESA’s enactment. 8Supra, note 6. 9 COMMITTEE ON HOUSE NATURAL RESOURCES, ENDANGERED SPECIES ACT CONGRESSIONAL

WORKING GROUP, REPORT FINDINGS AND RECOMMENDATIONS, (2014) available at https:// 

naturalresources.house.gov/uploadedfiles/esa_working_group_final_report_and_recommendations _02_04_14.pdf; See also: Legislative Hearing on H.R. 424. H.R. 717, H.R. 1274, H.R. 2603, and 

H.R. 3131: Hearing before the H. Comm. on Natural Resources, 115th Cong, (2017) (testimony 

of Kent Holsinger, Manager and Founder, Holsinger Law, LLC) available at https:// 

naturalresources.house.gov/uploadedfiles/testimony_holsinger.pdf. 10 Hearing on Examining Policy Impacts of Excessive Litigation Against the Department of the 

Interior, Before the Subcomm. on Oversight & Investigations of the H. Comm. on Natural Resources, 115th Cong. (2017), available at https://naturalresources.house.gov/uploadedfiles/hearing_memo_--_ov_hrg_06.28.17.pdf. 11Supra, note 9. 12Legislative Hearing on H.R. 424. H.R. 717, H.R. 1274, H.R. 2603, and H.R. 3131: Hearing 

before the H. Comm. on Natural Resources, 115th Cong, (2017) (testimony of Kent Holsinger, 

Manager and Founder, Holsinger Law, LLC) available at https://naturalresources.house.gov/ 

uploadedfiles/testimony_holsinger.pdf. 

as appropriate.1 The law further requires agencies to take necessary actions to conserve those species and their habitats.2 The 

Secretary of the Interior, through the U.S. Fish and Wildlife Service (FWS), has responsibility for plants, wildlife and inland fisheries. The Secretary of Commerce, through the National Marine 

Fisheries Service (NMFS) is responsible for implementing the ESA 

with respect to ocean-going fish and some marine mammals.3 Congress made its most significant amendments to ESA in 1978, 1982, 

and 1988, although the overall framework has remained essentially 

unchanged since its original enactment in 1973.4

Notwithstanding the worthy goal set out by the ESA to conserve 

and protect species, in the 45 years since its enactment, less than 

2 percent of species have recovered enough to warrant removal 

from the list of endangered and threatened species.5 In fact, many 

of those species were delisted after it was discovered that federal 

agencies used erroneous data in the original listing.6 In total, to 

date there have been 2,421 listings 7 under the ESA. In that time 

the Secretaries have delisted 77 species, but only 47 distinct species have been removed, either entirely or partially throughout 

their range, due to population recovery.8

In addition to failing to achieve meaningful recovery for species, 

implementation of the ESA disincentivizes conservation and can 

lead to increased conflict between people and species through unpredictable and expansive restrictions on land use.9 Excessive litigation and a lack of transparency in federal ESA decision-making 

has only exacerbated these problems and reduced the ESA’s effectiveness in recovering species.10

In many cases, implementation of the ESA has caused increased 

burdens for those living in close proximity to the protected species.11 Often States and local communities have the most knowledge about the species located in their State and can bring the 

greatest amount of resources to conservation efforts.12 They are 


lotter on DSKBCFDHB2PROD with REPORTS
3 

13 Id. 14See e.g., Letter from John Hickenlooper, Governor, State of Colorado, and Matt Mead, Governor, State of Wyoming, to Steve Ellis, Deputy Director, Bureau of Land Management, U.S. 

Dep’t of the Interior, and Leslie Weldon, Deputy Chief, National Forest System, U.S. Forest 

Service, U.S. Dep’t of Agriculture, Sept. 29, 2014, available at http://westgov.org/images/editor/ 

LTR_GSG_Rollup_Mtgs_FINAL.pdf. 15See e.g., Memo from Ben Tulchin, Ben Krompack, and Kiel Brunner, Tulchin Research, to 

Interested Parties, Jul. 6, 2015, available at https://earthjustice.org/sites/default/files/files/ 

PollingMemoNationalESASurvey.pdf. 16 16 U.S.C. § 1533. 17 16 U.S.C. 1539(a)(2); see also 50 C.F.R. 17.22. 18See WildEarth Guardians v. United States Fish & Wildlife Serv., 622 F. Supp. 2d 1155 (D. 

Utah 2009) (analysis of mitigation measures taken by incidental take permit applicant). 19 Id. 20What We Do, LESSER PRAIRIE CHICKEN INITIATIVE, http://lpcinitiative.org/our-work/what-wedo/ (last visited Sept. 19, 2018); see also: The Range-Wide Plan for Conserving the Lesser Prairie-Chicken, WESTERN ASSOCIATION OF FISH AND WILDLIFE AGENCIES, https://wafwalpcrwp. 

maps.arcgis.com/apps/MapJournal/index.html?appid=291fa9716d44404eabfd69d73ddbc002 (last 

visited Sept. 19, 2018). 

eager to stabilize species populations to prevent listings that can 

have a major negative economic impact on State and local communities through restrictions on land use.13 Yet, too often, federal 

management of threatened and endangered species fails to take advantage of the wealth of knowledge of State and local officials and 

of the successful conservation measures implemented by States.14

Despite these shortcomings in how the ESA has been implemented since its enactment, the ESA and its overall goal of conserving and recovering species remains widely popular and accepted.15 ESA modernization should prioritize effective species recovery 

while maintaining the core principles of the Act. 

The Weigh Habitats Offsetting Locational Effects Act of 2018, or 

the WHOLE Act, amends ESA to revise how the Secretaries review 

an agency action to determine whether the action is likely to jeopardize the continued existence of a listed species or result in the 

destruction or adverse modification of critical habitat. Specifically, 

the bill requires the appropriate Secretary, when making such a 

determination, to consider the offsetting effects of protection or conservation measures that are already in place or proposed to be implemented as part of the action. 

Section 7 of the ESA requires federal agencies to ensure that private projects they authorize or public development they undertake 

are not likely to impact critical habitat of an endangered or threatened species.16 As a consequence, federal and private entities seeking to develop on or near critical habitat may attempt to offset the 

effects of proposed actions by acquiring and managing suitable 

habitat that can be substituted for the critical habitat.17 The substituted habitat must be of equivalent size and quality and must 

be located within the species’ habitat range.18 The substituted 

habitat must also contain any characteristics deemed essential to 

the critical habitat designation.19 In sum, the substituted habitat 

is functionally equivalent to land designated as critical habitat. 

Substitution is a proven, effective mitigation mechanism that 

benefits listed species while facilitating economic and public development. The unprecedented conservation efforts of private landowners in support of the Lesser Prairie Chicken resulted in approximately 5.8 million acres being dedicated to habitat preservation.20 However, ambiguity in the relevant ESA provisions and subsequent regulations have resulted in uncertainty as to whether 


lotter on DSKBCFDHB2PROD with REPORTS
4 

21 50 CFR 402.14. 

habitat substitution is explicitly authorized.21 Promoting flexibility 

in habitat mitigation practices is essential to the long-term success 

of the ESA. Congress needs to clarify that allowing landowners to 

substitute functionally equivalent habitat for critical habitat is authorized under the ESA. This added certainty would encourage and 

reward private conservation efforts and facilitate economic growth. 

SECTION-BY-SECTION ANALYSIS

Section 1. Short title 

This act may be cited as the Weigh Habitats Offsetting Locational Effects Act of 2018, or the WHOLE Act. 

Section 2. Consideration of the totality of conservation measures 

This section requires the relevant Secretary, when determining 

whether a federal agency action is likely to jeopardize a listed species or result in the destruction or adverse modification of critical 

habitat, to consider the offsetting effects of all avoidance, minimization, and other species protection or conservation measures that 

are already in place or proposed to be implemented as part of the 

action. This includes the development, improvement, protection, or 

management of species habitat whether or not it is designated as 

critical habitat of the affected species. 

COMMITTEE ACTION

H.R. 6346 was introduced on July 12, 2018, by Congressman 

Mike Johnson (R–LA). The bill was referred to the Committee on 

Natural Resources. On September 26, 2018, the Committee held a 

hearing on the bill. On September 27, 2018, the Committee met to 

consider the bill. No amendments were offered, and the bill was ordered favorably reported to the House of Representatives by a roll 

call vote of 20 yeas and 11 nays, as follows: 


lotter on DSKBCFDHB2PROD with REPORTS
5 


lotter on DSKBCFDHB2PROD with REPORTSInsert graphic folio 6 HR1050.001
6 

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 

Natural Resources’ oversight findings and recommendations are reflected in the body of this report. 

COMPLIANCE WITH HOUSE RULE XIII AND CONGRESSIONAL BUDGET

ACT

1. Cost of Legislation and the Congressional Budget Act. With respect to the requirements of clause 3(c)(2) and (3) of rule XIII of 

the Rules of the House of Representatives and sections 308(a) and 

402 of the Congressional Budget Act of 1974, the Committee has 

received the following estimate for the bill from the Director of the 

Congressional Budget Office: 

U.S. CONGRESS, CONGRESSIONAL BUDGET OFFICE, Washington, DC, November 15, 2018. 

Hon. ROB BISHOP, 

Chairman, Committee on Natural Resources, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 6346, the WHOLE Act of 

2018. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Janani Shankaran. 

Sincerely, 

KEITH HALL, Director. 

Enclosure. 

H.R. 6346 WHOLE Act of 2018 

Under the Endangered Species Act, the U.S. Fish and Wildlife 

Service (USFWS) or the National Oceanic and Atmospheric Administration (NOAA) may issue a biological opinion on whether a federal agency action—such as the permitting of a construction 

project—is likely to jeopardize the continued existence of a species 

or result in habitat modification or destruction. H.R. 6346 would 

require USFWS and NOAA to consider in those opinions any offsetting effects of protection and conservation measures already in 

place or that are proposed as part of the agency action. 

CBO expects that under the bill, the agencies would issue a rule 

on how they would implement the new requirement. Based on the 

costs of similar tasks, CBO estimates that those costs would be less 

than $500,000 over the 2019–2023 period; such spending would be 

subject to the availability of appropriated funds. 

H.R. 6346 would not affect direct spending or revenues; therefore, pay-as-you-go procedures do not apply. 

CBO estimates that enacting H.R. 6346 would not increase net 

direct spending or on-budget deficits in any of the four consecutive 

10-year periods beginning in 2029. 

H.R. 6346 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act. 


lotter on DSKBCFDHB2PROD with REPORTS
7 

The CBO staff contact for this estimate is Janani Shankaran. 

The estimate was reviewed by H. Samuel Papenfuss, Deputy Assistant Director for Budget Analysis. 

2. 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 the Endangered Species Act of 1973 to provide for consideration of the totality of conservation measures in 

determining the impact of proposed Federal agency action. 

EARMARK STATEMENT

This bill does not contain any Congressional earmarks, limited 

tax benefits, or limited tariff benefits as defined under clause 9(e), 

9(f), and 9(g) of rule XXI of the Rules of the House of Representatives. 

COMPLIANCE WITH PUBLIC LAW 104–4 

This bill contains no unfunded mandates. 

COMPLIANCE WITH H. RES. 5 

Directed Rule Making. This bill contains no directed 

rulemakings. 

Duplication of Existing Programs. This bill does not establish or 

reauthorize a program of the federal government known to be duplicative of another program. Such program was not included in 

any report from the Government Accountability Office to Congress 

pursuant to section 21 of Public Law 111–139 or identified in the 

most recent Catalog of Federal Domestic Assistance published pursuant to the Federal Program Information Act (Public Law 95–220, 

as amended by Public Law 98–169) as relating to other programs. 

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 (new matter is printed in italic 

and existing law in which no change is proposed is shown in 

roman): 

ENDANGERED SPECIES ACT OF 1973 

* * * * * * * 

INTERAGENCY COOPERATION

SEC. 7. (a) FEDERAL AGENCY ACTIONS AND CONSULTATIONS.—(1) 

The Secretary shall review other programs administered by him 

and utilize such programs in furtherance of the purposes of this 

Act. All other Federal agencies shall, in consultation with and with 

the assistance of the Secretary, utilize their authorities in furtherance of the purposes of this Act by carrying out programs for the 

conservation of endangered species and threatened species listed 

pursuant to section 4 of this Act. 


lotter on DSKBCFDHB2PROD with REPORTS
8 

(2) Each Federal agency shall, in consultation with and with the 

assistance of the Secretary, insure that any action authorized, 

funded, or carried out by such agency (hereinafter in this section 

referred to as an ‘‘agency action’’) is not likely to jeopardize the continued existence of any endangered species or threatened species or 

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 best scientific 

and commercial data available. 

(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 his 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 listed under section 4 or result in the 

destruction or adverse modification of critical habitat proposed to 

be designated for such species. This paragraph does not require a 

limitation on the commitment of resources as described in subsection (d). 

(b) OPINION OF SECRETARY.—(1)(A) Consultation under subsection (a)(2) with respect to any agency action shall be concluded 

within the 90-day period beginning on the date on which initiated 

or, subject to subparagraph (B), within such other period of time 

as is mutually agreeable to the Secretary and the Federal agency. 

(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 applicant a written statement setting forth— 

(I) the reasons why a longer period is required; 

(II) the information that is required to complete the consultation; and 

(III) the estimated date on which consultation will be 

completed; or 

(ii) if the consultation period proposed to be agreed to will 

end 150 or more days after the date on which consultation was 

initiated, obtains the consent of the applicant to such period. 

The Secretary and the Federal agency may mutually agree to extend a consultation period established under the preceding sentence if the Secretary, before the close of such period, obtains the 

consent of the applicant to the extension. 

(2) Consultation under subsection (a)(3) shall be concluded within 

such period as is agreeable to the Secretary, the Federal agency, 

and the applicant concerned. 


lotter on DSKBCFDHB2PROD with REPORTS
9 

(3)(A) Promptly after conclusion of consultation under paragraph 

(2) or (3) of subsection (a), the Secretary shall provide to the Federal agency and the applicant, if any, a 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 or its critical habitat. If 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. 

(B) Consultation under subsection (a)(3), and an opinion based by 

the Secretary incident to such consultation, regarding an agency 

action shall be treated respectively as a consultation under subsection (a)(2), and as an opinion issued after consultation under 

such subsection, regarding that action if the Secretary reviews the 

action before it is commenced by the Federal agency and finds, and 

notifies such agency, that no significant changes have been made 

with respect to the action and that no significant change has occurred regarding the information used during the initial consultation. 

(C) In determining whether a Federal agency action is likely to 

jeopardize the continued existence of any endangered species or 

threatened species or result in the destruction or adverse modification of the critical habitat of a species, the Secretary shall consider 

the offsetting effects of all avoidance, minimization, and other species-protection or conservation measures that are already in place or 

proposed to be implemented as part of the action, including the development, improvement, protection, or management of species habitat whether or not it is designated as critical habitat of such species. 

(4) If after consultation under subsection (a)(2) of this section, 

the Secretary concludes that— 

(A) the agency action will not violate such subsection, or offers reasonable and prudent alternatives which the Secretary 

believes would not violate such subsection; 

(B) the taking of an endangered species or a threatened species incidental to the agency action will not violate such subsection; and 

(C) 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; 

the Secretary shall provide the Federal agency and the applicant 

concerned, if any, with a written statement that— 

(i) specifies the impact of such incidental taking on the species, 

(ii) specifies those reasonable and prudent measures that the 

Secretary considers necessary or appropriate to minimize such 

impact, 

(iii) in the case of marine mammals, specifies those measures 

that are necessary to comply with section 101(a)(5) of the Marine Mammal Protection Act of 1972 with regard to such taking, and 

(iv) sets forth the terms and conditions (including, but not 

limited to, reporting requirements) that must be complied with 


lotter on DSKBCFDHB2PROD with REPORTS
10 

by the Federal agency or applicant (if any), or both, to implement the measures specified under clauses (ii) and (iii). 

(c) BIOLOGICAL ASSESSMENT.—(1) To facilitate compliance with 

the requirements of subsection (a)(2) each Federal agency shall, 

with respect to any agency action of such agency for which no contract for construction has been entered into and for which no construction has begun on the date of enactment of the Endangered 

Species Act Amendments of 1978, request of the Secretary information whether any species which is listed or proposed to be listed 

may be present in the area of such proposed action. If the Secretary advises, based on the best scientific and commercial data 

available, that such species may be present, such agency shall conduct a biological assessment for the purpose of identifying any endangered species or threatened species which is likely to be affected by such action. Such assessment shall be completed within 

180 days after the date on which initiated (or within such other period as in mutually agreed to by the Secretary and such agency, except that if a permit or license applicant is involved, the 180-day 

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). 

(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. 

(d) LIMITATION ON COMMITMENT OF RESOURCES.—After initiation 

of consultation required under subsection (a)(2), the Federal agency 

and the permit or license applicant shall not make any irreversible 

or irretrievable commitment of resources with respect to the agency 

action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures 

which would not violate subsection (a)(2). 

(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’’). 

(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. 

(3) The Committee shall be composed of seven members as follows: 

(A) The Secretary of Agriculture. 

(B) The Secretary of the Army. 

(C) The Chairman of the Council of Economic Advisors. 

(D) The Administrator of the Environmental Protection 

Agency. Agency. 


lotter on DSKBCFDHB2PROD with REPORTS
11 

(E) The Secretary of the Interior. 

(F) The Administrator of the National Oceanic and Atmospheric Administration. 

(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. 

(4)(A) Members of the Committee shall receive no additional pay 

on account of their service on the Committee. 

(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 

(5)(A) Five members of the Committee or their representatives 

shall constitute a quorum for the transaction of any function of the 

Committee, except that, in no case shall any representative be considered in determining the existence of a quorum for the transaction of any function of the Committee if that function involves a 

vote by the Committee on any matter before the Committee. 

(B) The Secretary of the Interior shall be the Chairman of the 

Committee. 

(C) The Committee shall meet at the call of the Chairman or five 

of its members. 

(D) All meetings and records of the Committee shall be open to 

the public. 

(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. 

(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. 

(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. 

(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. 

(D) The Committee may use the United States mails in the same 

manner and upon the same conditions as a Federal agency. 

(E) The Administrator of General Services shall provide to the 

Committee on a reimbursable basis such administrative support 

services as the Committee may request. 

(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. 


lotter on DSKBCFDHB2PROD with REPORTS
12 

(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. 

(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. 

(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— 

(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 

(2) a statement describing why such action cannot be altered 

or modified to conform with the requirements of subsection 

(a)(2) of this section. 

(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. 

(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. 

(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 


lotter on DSKBCFDHB2PROD with REPORTS
13 

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. 

(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— 

(A) determine that the Federal agency concerned and the exemption applicant have— 

(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); 

(ii) conducted any biological assessment required by subsection (c); and 

(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 

(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. 

(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). 

(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— 

(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; 

(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; 

(C) appropriate reasonable mitigation and enhancement 

measures which should be considered by the Committee; and 

(D) whether the Federal agency concerned and the exemption applicant refrained from making any irreversible or irretrievable commitment of resources prohibited by subsection (d). 

(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 


lotter on DSKBCFDHB2PROD with REPORTS
14 

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. 

(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. 

(8) All meetings and records resulting from activities pursuant to 

this subsection shall be open to the public. 

(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— 

(A) it determines on the record, based on the report of the 

Secretary, the record of the hearing held under subsection 

(g)(4), and on such other testimony or evidence as it may receive, that— 

(i) there are no reasonable and prudent alternatives to 

the agency action; 

(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; 

(iii) the action is of regional or national significance; and 

(iv) neither the Federal agency concerned nor the exemption applicant made any irreversible or irretrievable commitment of resources prohibited by subsection (d); and 

(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. 

(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— 

(i) regardless whether the species was identified in the biological assessment; and 

(ii) only if a biological assessment has been conducted under 

subsection (c) with respect to such agency action. 

(B) An exemption shall be permanent under subparagraph (A) 

unless— 

(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 


lotter on DSKBCFDHB2PROD with REPORTS
15 

(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. 

(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. 

(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. 

(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. 

(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. 

(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. 


lotter on DSKBCFDHB2PROD with REPORTS
16 

(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. 

(n) JUDICIAL REVIEW.—Any person, as defined by section 3(13) of 

this Act, may obtain judicial review, under chapter 7 of title 5 of 

the United States Code, of any decision of the Endangered Species 

Committee under subsection (h) in the United States Court of Appeals for (1) any circuit wherein the agency action concerned will 

be, or is being, carried out, or (2) in any case in which the agency 

action will be, or is being, carried out outside of any circuit, the 

District of Columbia, by filing in such court within 90 days after 

the date of issuance of the decision, a written petition for review. 

A copy of such petition shall be transmitted by the clerk of the 

court to the Committee and the Committee shall file in the court 

the record in the proceeding, as provided in section 2112, of title 

28, United States Code. Attorneys designated by the Endangered 

Species Committee may appear for, and represent the Committee 

in any action for review under this subsection. 

(o) EXEMPTION AS PROVIDING EXCEPTION ON TAKING OF ENDAN- GERED 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 

such section— 

(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 

(2) 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. 

(p) EXEMPTIONS IN PRESIDENTIALLY DECLARED DISASTER

AREAS.—In any area which has been declared by the President to 

be a major disaster area under the Disaster Relief and Emergency 

Assistance Act, the President is authorized to make the determinations required by subsections (g) and (h) of this section for any 

project for the repair or replacement of a public facility substantially as it existed prior to the disaster under section 405 or 406 

of the Disaster Relief and Emergency Assistance Act, and which 

the President determines (1) is necessary to prevent the recurrence 

of such a natural disaster and to reduce the potential loss of 

human life, and (2) to involve an emergency situation which does 

not allow the ordinary procedures of this section to be followed. 

Notwithstanding any other provision of this section, the Committee 

shall accept the determinations of the President under this subsection. 

* * * * * * * 


lotter on DSKBCFDHB2PROD with REPORTS
(17) 

DISSENTING VIEWS 

This legislation is part of a package of nine Republican bills, 

spearheaded by the Western Caucus, introduced late in the second 

session of this Congress, and designed to destroy the Endangered 

Species Act. Each bill has its own, logic-defying, acronym. 

H.R. 6346 would fundamentally weaken the federal agency consultation process under Section 7 of the Endangered Species Act. 

The bill directs the Secretary to consider potential, nonbinding 

avoidance, minimization, or other conservation measures when determining whether a proposed action is likely to jeopardize an imperiled species or their habitat. The bill also allows the Secretary 

to consider any conservation activities that occur outside critical 

habitat during the consultation process, even those that have not 

been implemented. Therefore, this bill would increase the probability that a federal agency action would jeopardize the continued 

existence of a listed species and cause harm to critical habitats. 

For these reasons, we oppose the bill as reported. 

RAU ́ L M. GRIJALVA, 

Ranking Member, Committee 

on Natural Resources. 

JARED HUFFMAN. 

A. DONALD MCEACHIN. 

WM. LACY CLAY. 

GRACE F. NAPOLITANO. 

NANETTE DIAZ BARRAGA ́ N

NIKI TSONGAS. 

DONALD S. BEYER, JR. 

Æ 


lotter on DSKBCFDHB2PROD with REPORTS