II 

109TH CONGRESS 

1ST SESSION S. 2110 

To amend the Endangered Species Act of 1973 to enhance the role of 

States in the recovery of endangered species and threatened species, 

to implement a species conservation recovery system, to establish certain 

recovery programs, to provide Federal financial assistance and a system 

of incentives to promote the recovery of species, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

DECEMBER 15, 2005 

Mr. CRAPO (for himself, Mrs. LINCOLN, Mr. THOMAS, and Mr. ALLARD) introduced the following bill; which was read twice and referred to the Committee on Finance 

A BILL 

To amend the Endangered Species Act of 1973 to enhance 

the role of States in the recovery of endangered species 

and threatened species, to implement a species conservation recovery system, to establish certain recovery programs, to provide Federal financial assistance and a 

system of incentives to promote the recovery of species, 

and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 
2 

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1 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

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

3 ‘‘Collaboration for the Recovery of Endangered Species 

4 Act’’. 

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

6 this Act is as follows: 

Sec. 1. Short title; table of contents. 

TITLE I—STATE GOVERNMENT ASSISTANCE 

Sec. 101. Short title. 

Sec. 102. Cooperation with the States. 

TITLE II—PRIORITY FOR LISTING AND RECOVERY 

Sec. 201. Short title. 

Sec. 202. Determination and recovery of endangered species and threatened 

species. 

TITLE III—INCENTIVES FOR SPECIES RECOVERY 

Sec. 301. Short title. 

Sec. 302. Conservation banks. 

Sec. 303. Exceptions. 

Sec. 304. Technical corrections. 

Sec. 305. Tax incentives. 

TITLE IV—PROTECTIONS AND MEASURES IN FORESTS 

Sec. 401. Protections and measures. 

7 TITLE I—STATE GOVERNMENT 

8 ASSISTANCE 

9 SEC. 101. SHORT TITLE. 

10 This title may be cited as the ‘‘State Government As11 sistance in Recovery Act’’. 

12 SEC. 102. COOPERATION WITH THE STATES. 

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

14 1535) is amended— 
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1 (1) in subsection (c), by adding at the end the 

2 following: 

3 ‘‘(3) COOPERATIVE AGREEMENTS.— 

4 ‘‘(A) AGREEMENTS.— 

5 ‘‘(i) IN GENERAL.—A cooperative 

6 agreement entered into by the Secretary 

7 under this subsection may provide for de8 velopment of a program for the conserva9 tion of— 

10 ‘‘(I) a species determined to be a 

11 candidate species under section 

12 4(b)(3)(B)(iii); or 

13 ‘‘(II) any other species that the 

14 State and the Secretary agree is likely 

15 to be determined to be an endangered 

16 species or threatened species under 

17 section 4(a)(1). 

18 ‘‘(ii) APPLICATION OF TAKE STATE19 MENT.—After consultation on the coopera20 tive agreement in accordance with sub21 section (e)(2), any incidental take state22 ment issued on the cooperative agreement 

23 shall apply to any species described in 

24 clause (i) and to the State and any land25 owners enrolled in any program under the 
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1 cooperative agreement, without further 

2 consultation (except any additional con3 sultation required under subsection (e)(2)), 

4 if— 

5 ‘‘(I) the species is subsequently 

6 determined to be an endangered spe7 cies or a threatened species; and 

8 ‘‘(II) the cooperative agreement 

9 remains an adequate and active pro10 gram for the conservation of endan11 gered species and threatened species. 

12 ‘‘(B) MONITORING.—A cooperative agree13 ment entered into by the Secretary under this 

14 subsection may provide for monitoring, or as15 sistance in monitoring, the status of— 

16 ‘‘(i) a candidate species in accordance 

17 with section 4(b)(3)(C)(iii); or 

18 ‘‘(ii) a species that is determined to be 

19 recovered, and that is delisted, in accord20 ance with section 4. 

21 ‘‘(4) ENROLLMENT OF LAND OR WATER

22 RIGHTS.—A cooperative agreement entered into by 

23 the Secretary under this subsection that provides for 

24 the enrollment of private land or water rights in any 

25 program established by the cooperative agreement 
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1 shall ensure that the decision to enroll is voluntary 

2 for each owner of the land or water rights.’’; 

3 (2) in subsection (d)(1)— 

4 (A) in the first sentence— 

5 (i) by striking ‘‘pursuant to subsection 

6 (c) of this section’’; and 

7 (ii) by striking ‘‘or to assist’’ and all 

8 that follows through ‘‘section 4(g)’’ and in9 serting ‘‘under paragraphs (1) or (2) of 

10 subsection (c) or section 4(b)(5)(C), or to 

11 address candidate species or other species 

12 at risk and recovered species under sub13 section (c)(3)’’; and 

14 (B) in subparagraph (F), by striking 

15 ‘‘monitoring the status of candidate species’’ 

16 and inserting ‘‘developing a conservation pro17 gram for, or monitoring the status of, candidate 

18 species or other species determined to be at risk 

19 under subsection (c)(3)’’; and 

20 (3) by striking subsection (e) and inserting the 

21 following: 

22 ‘‘(e) REVIEW OF STATE PROGRAMS.— 

23 ‘‘(1) IN GENERAL.—Any action taken by the 

24 Secretary under this section shall be subject to peri25 odic review by the Secretary at least every 3 years. 
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1 ‘‘(2) APPLICABLE AUTHORITY.—A cooperative 

2 agreement entered into by the Secretary under sub3 section (c) shall be subject to subsections (a)(2) 

4 through (d) of section 7 (including implementing 

5 regulations) only before the date on which— 

6 ‘‘(A) the Secretary enters into the coopera7 tive agreement; or 

8 ‘‘(B) the Secretary approves any renewal 

9 of, or amendment to, the cooperative agreement 

10 that— 

11 ‘‘(i) addresses species that— 

12 ‘‘(I) are determined to be endan13 gered species or threatened species; 

14 ‘‘(II) are not addressed in the co15 operative agreement; and 

16 ‘‘(III) may be affected by the co17 operative agreement; or 

18 ‘‘(ii) contains new information about 

19 any species addressed in the cooperative 

20 agreement that the Secretary determines— 

21 ‘‘(I) constitutes the best scientific 

22 and commercial data available; and 

23 ‘‘(II) indicates that the coopera24 tive agreement may have adverse ef25 fects on the species that had not been 
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1 considered previously when the coop2 erative agreement was entered into or 

3 during any revision of or amendment 

4 to the cooperative agreement. 

5 ‘‘(3) SUSPENSION OF COOPERATIVE AGREE6 MENT.—The Secretary may suspend a cooperative 

7 agreement entered into by the Secretary under sub8 section (c), after consultation with the Governor of 

9 the affected State, if Secretary finds during the peri10 odic review required by paragraph (1) that the coop11 erative agreement no longer constitutes an adequate 

12 and active program for the conservation of endan13 gered species and threatened species. 

14 ‘‘(4) TERMINATION OF COOPERATIVE AGREE15 MENT.—The Secretary may terminate a cooperative 

16 agreement entered into by the Secretary under sub17 section (c), after consultation with the Governor of 

18 the affected State, if— 

19 ‘‘(A) as result of subsections (a)(2) 

20 through (d) of section 7 (including imple21 menting regulations), the Secretary determines 

22 that— 

23 ‘‘(i) continued implementation of the 

24 cooperative agreement is likely— 
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1 ‘‘(I) to jeopardize the continued 

2 existence of endangered species or 

3 threatened species; or 

4 ‘‘(II) to result in the destruction 

5 or adverse modification of critical 

6 habitat; and 

7 ‘‘(ii) the cooperative agreement is not 

8 amended or revised to incorporate a rea9 sonable and prudent alternative offered by 

10 the Secretary under section 7(b)(3); or 

11 ‘‘(B) the cooperative agreement— 

12 ‘‘(i) has been suspended under para13 graph (3); and 

14 ‘‘(ii) as of the date that is 180 days 

15 after the date of the suspension, has not 

16 been amended or revised and found by the 

17 Secretary to constitute an adequate and 

18 active program for the conservation of en19 dangered species and threatened species.’’. 

20 TITLE II—PRIORITY FOR 

21 LISTING AND RECOVERY 

22 SEC. 201. SHORT TITLE. 

23 This title may be cited as the ‘‘Priority for Listing 

24 and Recovery Act’’. 
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1 SEC. 202. DETERMINATION AND RECOVERY OF ENDAN2 GERED SPECIES AND THREATENED SPECIES. 

3 (a) IN GENERAL.—Section 4 of the Endangered Spe4 cies Act of 1973 (16 U.S.C. 1533) is amended— 

5 (1) by striking the section heading and all that 

6 follows through ‘‘(a) GENERAL.—(1) The Secretary’’ 

7 and inserting the following: 

8 ‘‘SEC. 4. DETERMINATION AND RECOVERY OF ENDAN9 GERED SPECIES AND THREATENED SPECIES. 

10 ‘‘(a) IN GENERAL.— 

11 ‘‘(1) FACTORS.—The Secretary’’; 

12 (2) in subsection (a)(3)(A), by striking clause 

13 (i) and inserting the following: 

14 ‘‘(i) shall designate any habitat of an endan15 gered species or a threatened species that is consid16 ered to be critical habitat in accordance with the pri17 ority system established under subsection (b); and’’; 

18 and 

19 (3) in subsection (b)— 

20 (A) by striking ‘‘(b) BASIS FOR DETER21 MINATIONS.—(1)(A) The Secretary’’ and insert22 ing the following: 

23 ‘‘(b) BASIS, PRIORITY, AND SCHEDULE FOR DECI24 SIONS.— 

25 ‘‘(1) BASIS FOR DECISIONS.— 

26 ‘‘(A) IN GENERAL.—The Secretary’’; 
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1 (B) in paragraph (1), by striking ‘‘(B) In 

2 carrying out’’ and inserting the following: 

3 ‘‘(B) CONSIDERATIONS.—In carrying out’’; 

4 (C) in paragraph (2), by striking ‘‘(2) The 

5 Secretary’’ and inserting the following: 

6 ‘‘(2) DESIGNATION OF CRITICAL HABITAT.— 

7 The Secretary’’; 

8 (D) by redesignating paragraphs (5) 

9 through (8) as paragraphs (7) through (10), re10 spectively; 

11 (E) in paragraph (3)— 

12 (i) by striking ‘‘(3)(A) To’’ and in13 serting the following: 

14 ‘‘(5) PETITION.— 

15 ‘‘(A) IN GENERAL.—To’’; 

16 (ii) in subparagraph (B)— 

17 (I) by striking ‘‘(B) Within 12 

18 months’’ and inserting the following: 

19 ‘‘(B) FINDINGS.—In accordance with the 

20 schedule established under paragraph (4), and 

21 not later than 3 years’’; 

22 (II) in clause (ii), by striking 

23 ‘‘paragraph (5)’’ and inserting ‘‘para24 graph (7)’’; 
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1 (III) in clause (iii)(I), by striking 

2 ‘‘paragraphs (5) and (6)’’ and insert3 ing ‘‘paragraphs (7) and (8)’’; and 

4 (IV) by indenting clauses (i) 

5 through (iii) and subclauses (I) and 

6 (II) appropriately; 

7 (iii) in subparagraph (C)— 

8 (I) by striking ‘‘(C)(i) A peti9 tion’’ and inserting the following: 

10 ‘‘(C) OTHER REQUIREMENTS.— 

11 ‘‘(i) TREATMENT OF CERTAIN PETI12 TIONS.—A petition’’; 

13 (II) in clause (ii), by striking 

14 ‘‘(ii) Any’’ and inserting the following: 

15 ‘‘(ii) JUDICIAL REVIEW.—Any’’; and 

16 (III) in clause (iii)— 

17 (aa) by striking ‘‘(iii) The 

18 Secretary’’ and inserting the fol19 lowing: 

20 ‘‘(iii) MONITORING.—The Secretary’’; 

21 and 

22 (bb) by striking ‘‘paragraph 

23 7’’ and inserting ‘‘paragraph 

24 (9)’’; and 

25 (iv) in subparagraph (D)— 
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1 (I) by striking ‘‘(D)(i) To the 

2 maximum extent practicable, within 

3 90 days’’ and inserting the following: 

4 ‘‘(D) SUBSTANTIAL SCIENTIFIC INFORMA5 TION.— 

6 ‘‘(i) IN GENERAL.—In accordance 

7 with the schedule described in paragraph 

8 (4), and not later than 1 year’’; and 

9 (II) in clause (ii), by striking 

10 ‘‘(ii) Within 12 months’’ and inserting 

11 the following: 

12 ‘‘(ii) INTENT TO PROCEED.—In ac13 cordance with the schedule described in 

14 paragraph (4), and not later than 3 

15 years’’; 

16 (F) in paragraph (4), by striking ‘‘(4) Ex17 cept as provided in paragraphs (5) and (6) of 

18 this subsection’’ and inserting the following: 

19 ‘‘(6) RULEMAKING PROCEDURES.—Except as 

20 provided in paragraphs (7) and (8)’’; 

21 (G) in paragraph (7)(A) (as redesignated 

22 by subparagraph (C))— 

23 (i) in clause (i), by striking ‘‘, and’’ 

24 and inserting a semicolon; and 
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1 (ii) by striking clause (ii) and insert2 ing the following: 

3 ‘‘(ii) give actual notice of the proposed reg4 ulation (including the complete text of the regu5 lation) to, and invite the comment of— 

6 ‘‘(I) the State agency in each State in 

7 which the species is believed to occur; 

8 ‘‘(II) each county or equivalent juris9 diction in which the species is believed to 

10 occur; and 

11 ‘‘(III) any county or municipality that 

12 has administrative jurisdiction over the 

13 area; and 

14 ‘‘(iii) with respect to a regulation to des15 ignate or revise a designation of critical habi16 tat— 

17 ‘‘(I) publish maps and coordinates 

18 that describe, in detail, the specific areas 

19 that meet the definition under section 3 of, 

20 and are designated under subsection (a)(3) 

21 as, critical habitat, and all field survey 

22 data upon which the designation is based; 

23 and 
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1 ‘‘(II) maintain the maps, coordinates, 

2 and data on a publicly accessible Internet 

3 page of the Department; and 

4 ‘‘(iv) include in each of the notices re5 quired under this subparagraph a reference to 

6 the Internet page described in clause (iii)(II);’’; 

7 (H) in paragraph (8) (as redesignated by 

8 subparagraph (C))— 

9 (i) in subparagraph (A), by striking 

10 ‘‘paragraph (5)(A)(i)’’ and inserting ‘‘para11 graph (7)(A)(i)’’; 

12 (ii) in subparagraph (C), by striking 

13 the matter preceding clause (i) and insert14 ing the following: 

15 ‘‘(C) FINAL REGULATION.—Either 3 years 

16 after the date on which a recovery program is 

17 commissioned or in accordance with the sched18 ule described in paragraph (4), and in no case 

19 later than 5 years after the date on which an 

20 endangered species or threatened species is list21 ed under this Act, the Secretary shall publish a 

22 final regulation designating the critical habitat 

23 of the endangered species or threatened species, 

24 unless the Secretary determines that—’’; and 
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1 (iii) by adding at the end the fol2 lowing: 

3 ‘‘(D) PROVISIONAL RECOVERY GOALS.— 

4 The Secretary shall promulgate and publish 

5 provisional recovery goals for a species at the 

6 time of the listing of the species, which— 

7 ‘‘(i) may set standards for delisting; 

8 and 

9 ‘‘(ii) shall remain in effect, unless re10 placed by an approved recovery plan.’’; 

11 (I) in paragraph (9) (as redesignated by 

12 subparagraph (C)), by striking ‘‘(9) Neither 

13 paragraph (4), (5), or (6)’’ and inserting the 

14 following: 

15 ‘‘(9) EMERGENCIES.—Neither paragraphs (6) 

16 through (8)’’; 

17 (J) in paragraph (10) (as redesignated by 

18 subparagraph (C)), by striking ‘‘(8) The publi19 cation’’ and inserting the following: 

20 ‘‘(10) PUBLICATION OF REGULATIONS.—The 

21 publication’’; 

22 (K) by inserting after paragraph (2) the 

23 following: 
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1 ‘‘(3) PRIORITY FOR DETERMINATIONS, DES2 IGNATIONS, AND COMMISSIONING OF RECOVERY PRO3 GRAMS.— 

4 ‘‘(A) IN GENERAL.—Not later than 270 

5 days after the date of enactment of the Priority 

6 for Listing and Recovery Act, the Secretary of 

7 the Interior and the Secretary of Commerce, 

8 after providing notice and an opportunity for 

9 public comment, each shall establish a priority 

10 system for making all decisions under this sub11 section, subsection (a), and subsection (f) re12 garding various species in the most efficient 

13 and effective manner practicable. 

14 ‘‘(B) CRITERIA FOR PRIORITIES.—The pri15 ority system shall assign priorities to species 

16 based on— 

17 ‘‘(i) the magnitude and immediacy of 

18 risk of extinction (high, moderate, or low), 

19 considering— 

20 ‘‘(I) the level of risk to the spe21 cies based on the factors described in 

22 subsection (a)(1); 

23 ‘‘(II) the geographic distribution 

24 of the species (wide or narrow), 
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1 ‘‘(III) the habitat specificity of 

2 the species (broad or restricted); and 

3 ‘‘(IV) the taxonomic distinctive4 ness of the species (monotypic genus, 

5 species, subspecies, or distinct popu6 lation segment); 

7 ‘‘(ii) the likelihood of achieving recov8 ery of the species; 

9 ‘‘(iii) the quality and quantity of 

10 available information, with the species pri11 ority increasing progressively as current 

12 professional documentation is obtained for 

13 each of the following in order of increasing 

14 importance: 

15 ‘‘(I) Distribution of the species 

16 based on data describing presence and 

17 absence. 

18 ‘‘(II) Habitat types that correlate 

19 with population density (defined as 

20 various concentrations of individuals 

21 of the species occupying an area). 

22 ‘‘(III) Rates of reproduction, sur23 vival, or population growth. 
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1 ‘‘(IV) Habitat types that cor2 relate with rates of reproduction, sur3 vival, or population growth; 

4 ‘‘(iv) the degree to which recovering 

5 the species helps recover other species; and 

6 ‘‘(v) the degree to which recovery ef7 forts would minimize conflicts with— 

8 ‘‘(I) construction, development 

9 projects, jobs, private property, or 

10 other economic activities; 

11 ‘‘(II) military training and oper12 ations; or 

13 ‘‘(III) other human activities. 

14 ‘‘(C) INCENTIVE FOR COLLABORATIVE

15 CONSERVATION.— 

16 ‘‘(i) IN GENERAL.—The Secretary 

17 shall assign highest priority to a decision 

18 pending for any species if petitioned to do 

19 so by a collaborative group that, in the 

20 judgment of the Secretary, meets the de21 scription of an executive committee under 

22 subsection (f)(3)(B). 

23 ‘‘(ii) FACILITATION.—If a collabo24 rative group described in clause (i) uses 

25 non-Federal funds to carry out actions 
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1 that support the completion of the pending 

2 action for a species, the Secretary shall fa3 cilitate the pending action to a commensu4 rate extent. 

5 ‘‘(4) SCHEDULE.— 

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

7 establish a schedule of all decisions under this 

8 subsection, subsection (a), and subsection (f) 

9 based on the priority ranking system described 

10 in paragraph (3). 

11 ‘‘(B) ESTIMATES.—Not later than Feb12 ruary 1 of each year following the date of en13 actment of this subparagraph, the Secretary 

14 shall submit to the Committee on Appropria15 tions of the Senate and the Committee on Ap16 propriations of the House of Representatives an 

17 estimate with respect to the following year, 

18 based on the priority ranking system described 

19 in paragraph (3), of— 

20 ‘‘(i) the quantity of— 

21 ‘‘(I) petitions to be reviewed 

22 under this section; 

23 ‘‘(II) status reviews to be com24 pleted under this section; and 
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1 ‘‘(III) rules that will be promul2 gated with respect to status and crit3 ical habitat; and 

4 ‘‘(ii) the amount of funds required for 

5 each recovery plan to be funded under this 

6 section. 

7 ‘‘(C) PENDING ACTIONS.—The schedule es8 tablished under subparagraph (A) shall include 

9 all decisions pending under this subsection, sub10 section (a), and subsection (f), including— 

11 ‘‘(i) findings and decisions based on 

12 status reviews, proposed determinations, or 

13 final determinations for which a court has 

14 issued an order prior to the date of enact15 ment of the Collaboration for the Recovery 

16 of Endangered Species Act remanding to 

17 the Secretary a decision, or setting a 

18 schedule for the Secretary to act, or re19 quiring any other action regarding such 

20 findings and decisions; and 

21 ‘‘(ii) designations of critical habitat 

22 for which a court has issued an order prior 

23 to the date of enactment of the Collabora24 tion for the Recovery of Endangered Spe25 cies Act remanding to the Secretary a deci-
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1 sion, or ordering the Secretary to act by a 

2 specified date, or requiring any other ac3 tion regarding the designation of critical 

4 habitat. 

5 ‘‘(D) REMANDED ACTIONS.—No court 

6 shall have the power to require the Secretary to 

7 complete an action inconsistent with the sched8 ule established under subparagraph (A). 

9 ‘‘(E) REVISIONS TO SCHEDULE.—The Sec10 retary may revise the schedule established 

11 under subparagraph (A) during a fiscal year 

12 by— 

13 ‘‘(i) reviewing a petition received dur14 ing the fiscal year that the Secretary deter15 mines to be filed in a timely manner; or 

16 ‘‘(ii) elevating the priority of a recov17 ery plan that receives financial or other 

18 commitments from a non-Federal spon19 sor.’’; 

20 (4) by striking subsection (f) and inserting the 

21 following: 

22 ‘‘(f) RECOVERY PROGRAMS.— 

23 ‘‘(1) IN GENERAL.—When a species is sched24 uled for recovery under subsection (b)(4), or upon 

25 the petition of a collaborative group that qualifies as 
22 

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1 an executive committee under paragraph (3), the 

2 Secretary— 

3 ‘‘(A) shall establish a recovery program for 

4 that species, and other threatened or endan5 gered species if practicable, by assigning a re6 covery coordinator; and 

7 ‘‘(B) may, based on the nature and extent 

8 of actions required for recovery, also form a re9 covery team, an executive committee, or both. 

10 ‘‘(2) RECOVERY TEAM.— 

11 ‘‘(A) ESTABLISHMENT.— 

12 ‘‘(i) IN GENERAL.—If the Secretary 

13 establishes a recovery team, the team shall 

14 consist of members of appropriate public 

15 and private agencies and institutions re16 flecting individual perspectives and objec17 tiveness resulting from professional exper18 tise, and technical and academic experi19 ence, relating to the species or ecosystem 

20 that is the subject of the recovery program. 

21 ‘‘(ii) LACK OF BIAS.—In carrying out 

22 the duties described in subparagraph (B), 

23 members described in clause (i) shall pro24 vide their expertise in good faith and not 
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1 express the views or representations of any 

2 organization. 

3 ‘‘(B) DUTIES.—After considering the pro4 visional recovery goals set by the Secretary 

5 under subsection (b)(8)(D) and identifying all 

6 relevant conservation programs of State, local, 

7 tribal, and private entities and foreign govern8 ments, a recovery team shall propose a recovery 

9 plan to the executive committee. 

10 ‘‘(C) FACA.—A recovery team established 

11 under this subsection shall not be subject to the 

12 Federal Advisory Committee Act (5 U.S.C. 

13 App.). 

14 ‘‘(3) EXECUTIVE COMMITTEE.— 

15 ‘‘(A) IN GENERAL.—For each recovery 

16 program, the Secretary shall establish an execu17 tive committee to propose collaborative efforts 

18 to achieve the goals of the recovery plan. 

19 ‘‘(B) MEMBERSHIP.—The membership of 

20 an executive committee shall— 

21 ‘‘(i) reflect a cross-section of interests 

22 from appropriate public and private per23 sons, agencies, or institutions reflecting a 

24 balance of viewpoints; 
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1 ‘‘(ii) to be selected for diversity of 

2 knowledge and experience in natural re3 source issues and for commitment to col4 laborative decisionmaking; 

5 ‘‘(iii) to the maximum extent prac6 ticable, be from communities within and 

7 adjacent to the recovery plans geographic 

8 area; and 

9 ‘‘(iv) have an economic, social, or pro10 fessional interest in the recovery of the 

11 species. 

12 ‘‘(C) DUTIES.—An executive committee 

13 shall— 

14 ‘‘(i) review the proposed recovery plan 

15 and make recommendations on collabo16 rative efforts that may be undertaken to 

17 implement and achieve the goals of the re18 covery plan; 

19 ‘‘(ii) consult with the applicable recov20 ery team, as necessary; 

21 ‘‘(iii) consult with State, local, and 

22 tribal governments and landowners on op23 portunities for implementation of the re24 covery plan; and 
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1 ‘‘(iv) after approval by the Secretary 

2 of the applicable recovery plan, publish a 

3 work plan describing the collaborative and 

4 voluntary efforts that the executive com5 mittee recommends to contribute to the re6 covery of the applicable species. 

7 ‘‘(D) FACA.—An executive committee es8 tablished under this subsection shall not be sub9 ject to the Federal Advisory Committee Act (5 

10 U.S.C. App.). 

11 ‘‘(4) RECOVERY COORDINATOR.—The Secretary 

12 shall assign for each recovery program, by direct em13 ployment or cooperative arrangement with an appro14 priate Federal department or agency, a full-time re15 covery coordinator— 

16 ‘‘(A) to serve as the primary staff to im17 plement the recovery plan and manage program 

18 operations for the executive committee, if appli19 cable; and 

20 ‘‘(B) to the maximum extent practicable, 

21 to ensure that relevant Federal and State pro22 grams are coordinated to support programs to23 ward the recovery goals of the recovery plan. 

24 ‘‘(5) RECOVERY PLAN.— 
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1 ‘‘(A) IN GENERAL.—A recovery plan 

2 shall— 

3 ‘‘(i) be proposed by a recovery team 

4 and an executive committee, in a case in 

5 which a recovery team and executive com6 mittee are involved in the recovery pro7 gram; 

8 ‘‘(ii) be approved by the Secretary; 

9 and 

10 ‘‘(iii) include— 

11 ‘‘(I) a description of site-specific 

12 recovery actions that may be nec13 essary to achieve the goal of the plan 

14 for the conservation of the species, in15 cluding appropriate financial assist16 ance and incentive programs for land17 owners; 

18 ‘‘(II) guidance on how the geo19 graphic distribution of site-specific re20 covery actions can enhance the effec21 tiveness of the actions in promoting 

22 recovery; and 

23 ‘‘(III) objective, measurable cri24 teria (including population size and 

25 geographic range) that, when met, 
27 

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1 would result in a determination, in ac2 cordance with this section, that the 

3 status of the species should be 

4 changed from an endangered species 

5 or a threatened species, or that the 

6 species should be removed from the 

7 list. 

8 ‘‘(B) EFFECT OF PLAN.—A recovery plan 

9 approved by the Secretary— 

10 ‘‘(i) shall be non-binding and advisory; 

11 and 

12 ‘‘(ii) may be amended by the Sec13 retary or by recommendation of the execu14 tive committee and approval by the Sec15 retary. 

16 ‘‘(C) RELATIONSHIP TO CONSERVATION

17 PROGRAMS.—The Secretary shall— 

18 ‘‘(i) acknowledge appropriate existing 

19 conservation programs; and 

20 ‘‘(ii) coordinate with all governmental 

21 agencies to incorporate those programs in 

22 a recovery plan. 

23 ‘‘(6) PERIODIC REVIEW.— 
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1 ‘‘(A) IN GENERAL.—The Secretary shall 

2 periodically review the progress of all recovery 

3 programs. 

4 ‘‘(B) INQUIRY.—If the Secretary finds that 

5 a recovery program is not making progress to6 wards recovery of the species or is not acting 

7 within the guidance of the recovery plan, the 

8 Secretary shall submit to the relevant executive 

9 committee a written inquiry for an explanation 

10 that requests specific remedial actions. 

11 ‘‘(C) RESPONSE.—The executive com12 mittee shall have 180 days from the date of re13 ceipt of the inquiry to fulfill the request. 

14 ‘‘(D) DISPUTE RESOLUTION.—If the exec15 utive committee disputes the findings of the 

16 Secretary— 

17 ‘‘(i) the Secretary shall, in consulta18 tion with an appropriate professional soci19 ety, appoint a technical reviewer; 

20 ‘‘(ii) the executive committee shall, in 

21 consultation with an appropriate profes22 sional society, appoint a technical reviewer; 

23 ‘‘(iii) the 2 technical reviewers shall 

24 appoint a third technical reviewer; 
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1 ‘‘(iv) the technical reviewers, based on 

2 majority opinion, shall make a rec3 ommendation to the Secretary as to wheth4 er the program is achieving progress to5 ward recovery and whether remedial ac6 tions are necessary; and 

7 ‘‘(v) having considered the rec8 ommendation of the technical reviewers, 

9 the Secretary may— 

10 ‘‘(I) require remedial actions of 

11 the executive committee; 

12 ‘‘(II) decommission the recovery 

13 program; or 

14 ‘‘(III) take other appropriate ac15 tions.’’; 

16 (5) in subsection (g)(2), by striking ‘‘paragraph 

17 7 of subsection (b) of this section’’ and inserting 

18 ‘‘subsection (b)(9)’’; 

19 (6) in subsection (h)(1), by striking ‘‘subsection 

20 (b)(3) of this section’’ and inserting ‘‘subsection 

21 (b)(5)’’; and 

22 (7) in subsection (i)— 

23 (A) by striking ‘‘subsection (b)(5)(A)(ii)’’ 

24 and inserting ‘‘subsection (b)(7)(A)(ii)’’; and 
30 

•S 2110 IS

1 (B) by striking ‘‘subsection (b)(3)’’ and in2 serting ‘‘subsection (b)(5)’’. 

3 (b) CONFORMING AMENDMENT.—The table of con4 tents in the first section of the Endangered Species Act 

5 of 1973 (16 U.S.C. 1531 note) is amended by striking 

6 the item relating to section 4 and inserting the following: 

‘‘Sec. 4. Determination and recovery of endangered species and threatened 

species.’’. 

7 TITLE III—INCENTIVES FOR 

8 SPECIES RECOVERY 

9 SEC. 301. SHORT TITLE. 

10 This title may be cited as the ‘‘Incentives for Species 

11 Recovery Act’’. 

12 SEC. 302. CONSERVATION BANKS. 

13 (a) IN GENERAL.—The Endangered Species Act of 

14 1973 (16 U.S.C. 1531 et seq.) is amended by inserting 

15 after section 4 the following: 

16 ‘‘SEC. 4A. CONSERVATION BANKS. 

17 ‘‘(a) PURPOSES.—The purposes of this section are— 

18 ‘‘(1) to conserve, restore, and enhance habitat 

19 for the conservation and recovery of— 

20 ‘‘(A) candidate species; 

21 ‘‘(B) threatened species; 

22 ‘‘(C) endangered species; and 

23 ‘‘(D) species of special concern; and 
31 

•S 2110 IS

1 ‘‘(2) to provide market incentives that promote 

2 conservation of species on private property. 

3 ‘‘(b) DEFINITIONS.—In this section: 

4 ‘‘(1) CONSERVATION BANK.—The term ‘con5 servation bank’ means an area of land, water, or 

6 other habitat (not necessarily contiguous) that is 

7 managed— 

8 ‘‘(A) in perpetuity, or for another appro9 priate period, under an enforceable legal instru10 ment; and 

11 ‘‘(B) for purposes of conservation and re12 covery of— 

13 ‘‘(i) a habitat; 

14 ‘‘(ii) a candidate species, threatened 

15 species, or endangered species; or 

16 ‘‘(iii) a species of special concern. 

17 ‘‘(2) CREDIT.— 

18 ‘‘(A) IN GENERAL.—The term ‘credit’ 

19 means the unit of currency of a conservation 

20 bank, generated by preserving or restoring habi21 tat in a conservation bank agreement, as estab22 lished through a quantification of the conserva23 tion values of a species or habitat. 
32 

•S 2110 IS

1 ‘‘(B) CONSERVATION VALUES.—Conserva2 tion values described in subparagraph (A) 

3 shall— 

4 ‘‘(i) be determined by the Secretary 

5 for each conservation bank; and 

6 ‘‘(ii) be converted into a fixed number 

7 of credits that may be bought, sold, or 

8 traded to offset the impact of Federal, 

9 State, tribal, local, or private activities. 

10 ‘‘(3) SERVICE AREA.— 

11 ‘‘(A) IN GENERAL.—The term ‘service 

12 area’ means an area identified in a conservation 

13 bank agreement. 

14 ‘‘(B) INCLUSIONS.—The term ‘service 

15 area’ includes a soil type, watershed, habitat 

16 type, political boundary, an area described in a 

17 federally-recognized conservation plan, and an 

18 area designated for conservation purposes in 

19 which a credit may be used to offset an effect 

20 of a project. 

21 ‘‘(c) ESTABLISHMENT AND MANAGEMENT OF CON22 SERVATION BANKS.— 

23 ‘‘(1) ESTABLISHMENT.—A conservation bank 

24 under this section may be established by any private 

25 landowner that— 
33 

•S 2110 IS

1 ‘‘(A) submits to the Secretary an applica2 tion, in accordance with any regulations pro3 mulgated by the Secretary; 

4 ‘‘(B) demonstrates that the affected area 

5 of land, water, or other habitat is managed 

6 under an enforceable legal instrument; and 

7 ‘‘(C) contributes to the conservation of the 

8 candidate species, threatened species, endan9 gered species, or species of special concern that 

10 is the subject of the conservation bank. 

11 ‘‘(2) CERTAIN PROPERTY OWNERS.—A property 

12 owner that uses Federal or State funding (including 

13 funding for technical assistance), such as funding 

14 under the Farm Security and Rural Investment Act 

15 of 2002 (Public Law 107–171; 116 Stat. 134) or an 

16 amendment made by that Act, may submit an appli17 cation to the Secretary under paragraph (1)(B)(i). 

18 ‘‘(3) DETERMINATIONS REGARDING APPLICA19 TIONS.—The Secretary shall approve or disapprove a 

20 proposed conservation bank under paragraph (1)(B) 

21 not later than 180 days after the date on which the 

22 application relating to the conservation bank is sub23 mitted to the Secretary under paragraph (1)(B)(i). 

24 ‘‘(4) MANAGEMENT.— 
34 

•S 2110 IS

1 ‘‘(A) IN GENERAL.—A conservation bank 

2 established under paragraph (1) may be man3 aged, in accordance with a conservation bank 

4 agreement under subparagraph (B), by— 

5 ‘‘(i) a State, in accordance with a 

6 process of the State that has been ap7 proved by the Secretary; 

8 ‘‘(ii) the holder of the conservation 

9 bank; 

10 ‘‘(iii) a party other than the holder of 

11 the conservation bank, as specified in the 

12 conservation bank agreement; or 

13 ‘‘(iv) a party that acquires property 

14 rights relating to the conservation bank. 

15 ‘‘(B) CONSERVATION BANK AGREE16 MENTS.— 

17 ‘‘(i) IN GENERAL.—The holder of a 

18 conservation bank under this section 

19 shall— 

20 ‘‘(I) establish an agreement that 

21 describes the proposed management of 

22 the conservation bank; and 

23 ‘‘(II) submit the agreement to 

24 the Secretary for approval. 
35 

•S 2110 IS

1 ‘‘(ii) APPROVAL BY SECRETARY.—As 

2 soon as practicable after the date on which 

3 the Secretary receives an agreement under 

4 clause (i)(II), the Secretary shall approve 

5 or disapprove the agreement. 

6 ‘‘(iii) AMENDMENTS.—An agreement 

7 approved under clause (ii) may be amend8 ed on the approval of— 

9 ‘‘(I) each party to the agreement; 

10 and 

11 ‘‘(II) the Secretary. 

12 ‘‘(iv) NULLIFICATION OF AGREE13 MENT.—The Secretary shall nullify an 

14 agreement approved under clause (ii) on a 

15 determination by the Secretary that— 

16 ‘‘(I) the holder of the conserva17 tion bank has been convicted of— 

18 ‘‘(aa) making a materially 

19 false statement on a bank appli20 cation or a report to the Sec21 retary; or 

22 ‘‘(bb) any other offense that 

23 demonstrates that the holder is 

24 unfit to manage the conservation 

25 bank; or 
36 

•S 2110 IS

1 ‘‘(II)(aa) the holder of the con2 servation bank has irremediably failed 

3 to carry out the duties of the holder; 

4 and 

5 ‘‘(bb) the failure was not the re6 sult of a drought, hurricane, tornado, 

7 or other event outside the reasonable 

8 control of the holder. 

9 ‘‘(d) RECOVERY PLANS AND INCENTIVE PRO10 GRAMS.—In developing and implementing recovery plans 

11 and incentive programs, the Secretary shall— 

12 ‘‘(1) take into consideration the practicability of 

13 establishing conservation banks; and 

14 ‘‘(2) not later than 180 days after the date of 

15 enactment of this section, promulgate regulations to 

16 manage conservation banks in a manner that bal17 ances— 

18 ‘‘(A) the biological conditions of candidate 

19 species, threatened species, and endangered spe20 cies, species of special concern, and habitat; 

21 with 

22 ‘‘(B) economic free market principles to 

23 ensure value to landowners through a tradable 

24 credit program. 
37 

•S 2110 IS

1 ‘‘(e) REGULATIONS.—Regulations promulgated under 

2 subsection (d)(2) shall include provisions relating to— 

3 ‘‘(1) conservation and recovery goals; 

4 ‘‘(2) activities that may be carried out in a con5 servation bank; 

6 ‘‘(3) design, operation, and management to en7 sure the viability of conservation banks; 

8 ‘‘(4) the demonstration of adequate legal con9 trol of property proposed to be included in the con10 servation bank, such as a title, license, easement, or 

11 option relating to the property; 

12 ‘‘(5) criteria for determining— 

13 ‘‘(A) the number of credits allocated to a 

14 conservation bank under subsection (f)(1); 

15 ‘‘(B) methods for accounting for, and re16 cording, the creation and use of credits; and 

17 ‘‘(C) a timeline with respect to the transfer 

18 and accounting of credits; 

19 ‘‘(6) the determination of the boundaries of 

20 service areas; 

21 ‘‘(7) the applicability of, and compliance with, 

22 sections 7 and 10; 

23 ‘‘(8) the monitoring of, and reporting require24 ments for, conservation banks; 
38 

•S 2110 IS

1 ‘‘(9) financial requirements to ensure the viabil2 ity of conservation banks; 

3 ‘‘(10) procedures for resolving disputes relating 

4 to conservation bank management, including proce5 dures for providing notices; and 

6 ‘‘(11) remedies for disputes that are not re7 solved under a procedure described in paragraph 

8 (10). 

9 ‘‘(f) TRANSFER OF CREDITS BY CONSERVATION

10 BANKS.— 

11 ‘‘(1) ALLOCATION.—The number of credits allo12 cated for transfer by a conservation bank shall be 

13 determined by biological data that reflects— 

14 ‘‘(A) the quality of habitat preserved or re15 stored in the conservation bank; 

16 ‘‘(B) the necessary amount of habitat 

17 needed to be preserved or restored within the 

18 entire service area of the conservation bank; 

19 and 

20 ‘‘(C) the population of candidate species, 

21 threatened species, and endangered species, and 

22 species of special concern, that the conservation 

23 bank supports or could support. 

24 ‘‘(2) CREDIT TRANSFER APPROVAL PROCESS.— 
39 

•S 2110 IS

1 ‘‘(A) IN GENERAL.—As soon as practicable 

2 after the date of enactment of this section, the 

3 Secretary shall establish a standard credit 

4 transfer approval process for each service area 

5 to facilitate efficient and prompt transactions 

6 relating to credits. 

7 ‘‘(B) REQUIREMENTS.—The process estab8 lished under subparagraph (A) shall provide for 

9 credit transfers for purposes of— 

10 ‘‘(i) compliance with an injunctive 

11 order of a court; 

12 ‘‘(ii) meeting a requirement under 

13 subsection (a) or (b) of section 7, or sec14 tion 10(a)(1); and 

15 ‘‘(iii) out-of-kind mitigation under 

16 subparagraph (C). 

17 ‘‘(C) OUT-OF-KIND MITIGATION.— 

18 ‘‘(i) DEFINITION OF OUT-OF-KIND.— 

19 In this subparagraph, the term ‘out-of20 kind’, with respect to mitigation, means 

21 mitigation involving the same species or 

22 habitats, but in a different service area. 

23 ‘‘(ii) DETERMINATION BY SEC24 RETARY.—The Secretary may allow out-of25 kind mitigation through the use of credits 
40 

•S 2110 IS

1 if the Secretary determines that out-of2 kind mitigation— 

3 ‘‘(I) is a desirable ecological al4 ternative to in-kind mitigation; and 

5 ‘‘(II) is practicable for an ex6 panded market of potential buyers of 

7 credits. 

8 ‘‘(iii) PREFERENCE.—Notwith9 standing any other provision of this sub10 paragraph, the Secretary shall give pref11 erence to in-kind mitigation to the max12 imum extent practicable. 

13 ‘‘(iv) EFFECT OF SUBPARAGRAPH.— 

14 Nothing in this subparagraph affects any 

15 requirement relating to in-kind mitigation. 

16 ‘‘(D) LIMITATION.—In establishing a proc17 ess under this subsection, the Secretary shall 

18 not— 

19 ‘‘(i) regulate the price of any credit 

20 transfer; or 

21 ‘‘(ii) limit participation in the credit 

22 transfer process by any party. 

23 ‘‘(3) CREDIT TRANSFERS.—A conservation 

24 bank may transfer credits of the conservation 

25 bank— 
41 

•S 2110 IS

1 ‘‘(A) on the date on which the Secretary 

2 approves the conservation bank under sub3 section (c)(3); or 

4 ‘‘(B) before the date described in subpara5 graph (A), if the holder of the conservation 

6 bank demonstrates to the satisfaction of the 

7 Secretary that— 

8 ‘‘(i) the conservation bank agreement 

9 adequately provides for each activity pro10 posed to be carried out relating to the con11 servation bank; and 

12 ‘‘(ii) a timetable relating to the activi13 ties described in clause (i) has been ap14 proved by the Secretary. 

15 ‘‘(4) USE OF PROFITS BY CERTAIN HOLDERS.— 

16 A holder of a conservation bank described in sub17 section (c)(2) may retain any profits from the trans18 fer of a credit under this subsection. 

19 ‘‘(g) INTEGRATION WITH OTHER CONSERVATION

20 PLANS.— 

21 ‘‘(1) IN GENERAL.—Except as provided in para22 graph (2), to the maximum extent practicable, the 

23 creation of a conservation bank shall be integrated 

24 with conservation plans developed or being developed 

25 under section 10 if the conservation bank— 
42 

•S 2110 IS

1 ‘‘(A) meets the ecological criteria of the 

2 habitat conservation plan; and 

3 ‘‘(B) provides greater economic benefits 

4 compared with other forms of mitigation of 

5 habitat destruction. 

6 ‘‘(2) EFFECT OF SUBSECTION.—Notwith7 standing paragraph (1), nothing in this subsection 

8 requires any person operating a conservation bank 

9 in existence on the date of enactment of this section 

10 to submit an application for the conservation bank 

11 under this section. 

12 ‘‘(h) JUDICIAL REVIEW.— 

13 ‘‘(1) IN GENERAL.—Any party to an agreement 

14 entered into with respect to a conservation bank may 

15 bring a civil action in a United States district court 

16 for a breach of the agreement. 

17 ‘‘(2) ACTIONS BY COURT.—A United States dis18 trict court described in paragraph (1) may— 

19 ‘‘(A) issue such awards and judgments, in20 cluding equitable relief, as the court determines 

21 to be appropriate; and 

22 ‘‘(B) award costs of litigation to the pre23 vailing party. 

24 ‘‘(3) CERTAIN DEFENDANTS.— 
43 

•S 2110 IS

1 ‘‘(A) IN GENERAL.—Notwithstanding any 

2 other provision of law, the United States, a 

3 State, an Indian tribe, or a unit of local govern4 ment may 0be named as a defendant in a civil 

5 action under this subsection. 

6 ‘‘(B) SOVEREIGN IMMUNITY.—An entity 

7 described in subparagraph (A) that is named as 

8 a defendant in a civil action under this sub9 section shall be considered to have waived sov10 ereign immunity.’’. 

11 (b) CONFORMING AMENDMENT.—The table of con12 tents of the Endangered Species Act of 1973 (16 U.S.C. 

13 1531 note) is amended— 

14 (1) by inserting after the item relating to sec15 tion 4 the following: 

‘‘Sec. 4A. Conservation banks.’’; 

16 and 

17 (2) by inserting after the item relating to sec18 tion 17 the following: 

‘‘Sec. 18. Annual cost analysis by the Fish and Wildlife Service.’’. 

19 SEC. 303. EXCEPTIONS. 

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

21 (16 U.S.C. 1539(a)) is amended— 

22 (1) in paragraph (2)— 

23 (A) in subparagraph (A)— 

24 (i) by striking clauses (i) and (iv); 
44 

•S 2110 IS

1 (ii) by redesignating clauses (ii) and 

2 (iii) as subclauses (I) and (II), respectively, 

3 and indenting the subclauses appropriately; 

4 (iii) in the matter preceding subclause 

5 (I) (as redesignated by clause (i)), by strik6 ing ‘‘that specifies—’’ and inserting the 

7 following: ‘‘that— 

8 ‘‘(i) summarizes the potential for and degree of 

9 incidental take that may be reasonably expected to 

10 occur under the proposed action and habitat con11 servation plan; and 

12 ‘‘(ii) specifies—’’; 

13 (iv) in subclause (I) (as redesignated 

14 by clause (i)), by striking ‘‘and the fund15 ing’’ and all that follows through the end 

16 of the subclause and inserting ‘‘the fund17 ing that will be available to implement 

18 those steps, and reports describing the im19 plementation and results of the conserva20 tion plan;’’; 

21 (v) in subclause (II) (as redesignated 

22 by clause (i)), by striking ‘‘and’’ at the 

23 end; and 

24 (vi) by adding at the end the fol25 lowing: 
45 

•S 2110 IS

1 ‘‘(III) objective, measurable biological 

2 goals to be achieved for species covered by the 

3 plan and specific measures for achieving the 

4 goals consistent with subparagraph (B); 

5 ‘‘(IV) measures the applicant will take to 

6 monitor impacts of the plan on covered species 

7 and the effectiveness of the measures in achiev8 ing the biological goals of the plan; and 

9 ‘‘(V) adaptive management provisions nec10 essary to respond to all reasonably foreseeable 

11 changes in circumstances that could appreciably 

12 reduce the likelihood of the survival and recov13 ery of any species covered by the plan.’’; 

14 (B) in subparagraph (B)— 

15 (i) in the matter preceding clause (i), 

16 by striking ‘‘If’’ and inserting ‘‘The Sec17 retary shall issue a permit for an applica18 tion and the related conservation plan if’’; 

19 (ii) in clause (v)— 

20 (I) by striking ‘‘, if any,’’; 

21 (II) by striking ‘‘subparagraph 

22 (A)(iv)’’ and inserting ‘‘subparagraph 

23 (A)(ii)’’; and 

24 (III) by striking the semicolon at 

25 the end and inserting a period; and 
46 

•S 2110 IS

1 (iii) by striking the matter following 

2 clause (v); and 

3 (C) by striking subparagraph (C) and in4 serting the following: 

5 ‘‘(C) VOLUNTARY CONTRIBUTIONS TO RE6 COVERY.— 

7 ‘‘(i) IN GENERAL.—If a proposed con8 servation plan implements a site-specific 

9 recovery action from a relevant approved 

10 recovery plan, the Secretary shall include 

11 such terms and conditions as the Secretary 

12 considers necessary to reduce or offset the 

13 impacts of incidental taking or otherwise 

14 comply with the requirements of paragraph 

15 (2)(B), such that— 

16 ‘‘(I) the effect of the terms and 

17 conditions are approximately propor18 tional in extent to the effect of the in19 cidental take specified in the con20 servation plan under subparagraph 

21 (A)(i); and 

22 ‘‘(II) the terms and conditions 

23 are feasible and consistent with the 

24 goals of the plan to the maximum ex25 tent practicable. 
47 

•S 2110 IS

1 ‘‘(ii) ADDITIONAL FINDING.—If, in 

2 addition to a finding described in subpara3 graph (B), the Secretary finds that the 

4 proposed conservation plan will implement 

5 1 or more site-specific recovery actions 

6 from a relevant approved recovery plan, so 

7 long as the contribution to recovery is at 

8 least proportional to the potential for and 

9 degree of incidental take that may reason10 ably be expected to occur under the plan, 

11 the application relating to, and issuance of 

12 a permit for, the plan shall be considered 

13 to be exempt from— 

14 ‘‘(I) section 7; and 

15 ‘‘(II) the National Environmental 

16 Policy Act of 1969 (42 U.S.C. 4321 

17 et seq.). 

18 ‘‘(iii) EFFECT OF PARAGRAPH.—This 

19 paragraph does not limit the authority of 

20 the Secretary to require greater than acre21 for-acre mitigation when necessary to ad22 dress the extent of the impacts.’’; and 

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

24 ‘‘(3) QUALIFICATION FOR PROVISIONAL PER25 MIT.— 
48 

•S 2110 IS

1 ‘‘(A) IN GENERAL.—An applicant shall 

2 qualify for a provisional permit with respect to 

3 an application and the related conservation plan 

4 if, as of the date on which the applicant sub5 mits the application and the related conserva6 tion plan to the Secretary under this sub7 section— 

8 ‘‘(i) the applicant voluntarily imple9 ments the terms of the proposed applica10 tion under paragraph (2) during the pend11 ency of review; and 

12 ‘‘(ii) the applicant has completed a 

13 field survey to determine the area occupied 

14 by the species. 

15 ‘‘(B) EFFECT OF PERMIT.—A provisional 

16 permit under subparagraph (A) shall— 

17 ‘‘(i) authorize existing activities (ex18 cept an activity that requires ground clear19 ing) relating to the relevant land; and 

20 ‘‘(ii) remain in effect until the date on 

21 which a permit is issued under this sub22 section. 

23 ‘‘(C) ADMISSIBILITY OF INFORMATION.— 

24 Information submitted by an applicant in an 

25 application under this paragraph shall not be 
49 

•S 2110 IS

1 admissible in any action relating to a prohibited 

2 act under section 9. 

3 ‘‘(4) AGRICULTURAL AGREEMENTS.—If a land4 owner enters into an agreement under title XII of 

5 the Food and Security Act of 1985 (16 U.S.C. 3831 

6 et. seq.) and the conservation activities of the land7 owner include 1 or more site-specific recovery ac8 tions from an approved recovery plan resulting in a 

9 net conservation benefit for a listed species, the Sec10 retary shall permit the incidental take of that spe11 cies— 

12 ‘‘(A) for the duration of the agreement; 

13 and 

14 ‘‘(B) within the area in which the net con15 servation benefits will accrue, so long as the 

16 contribution to recovery is at least proportional 

17 to the potential for and degree of incidental 

18 taking that may reasonably be expected to 

19 occur in the agreement. 

20 ‘‘(5) LIABILITY WHILE PERFORMING RECOVERY

21 ACTIONS.—The Secretary shall permit the incidental 

22 take of a species that— 

23 ‘‘(A) occurs or may occur as a result of the 

24 landowner implementing a site-specific recovery 

25 action of an approved recovery plan in a man-
50 

•S 2110 IS

1 ner that contributes to the conservation of the 

2 species; and 

3 ‘‘(B) occurs or may occur within the area 

4 in which the net conservation benefits will ac5 crue, so long as the contribution to recovery is 

6 at least proportional to the potential for and de7 gree of incidental taking that may reasonably 

8 be expected to occur. 

9 ‘‘(6) REQUIREMENTS APPLICABLE UPON COM10 PLIANCE WITH PERMIT.— 

11 ‘‘(A) IN GENERAL.—Except as otherwise 

12 provided in this paragraph, if the holder of a 

13 permit under this subsection for any purpose 

14 other than a scientific purpose is in compliance 

15 with the terms and conditions of the permit (in16 cluding any conservation plan or agreement in17 corporated by reference in the permit), as deter18 mined by the Secretary, the Secretary shall not 

19 require the holder to adopt any minimization, 

20 mitigation, or other measure with respect to 

21 any species that the Secretary determines to be 

22 adequately covered by the permit during the 

23 term of the permit without the consent of the 

24 holder. 
51 

•S 2110 IS

1 ‘‘(B) IDENTIFIED CHANGE OF CIR2 CUMSTANCE.—If a change of circumstance that 

3 is identified in the permit occurs, as determined 

4 by the Secretary, the Secretary may require the 

5 holder to carry out only such additional mini6 mization, mitigation, or other measures as are 

7 provided under the permit with respect to the 

8 circumstance. 

9 ‘‘(C) UNIDENTIFIED CHANGE OF CIR10 CUMSTANCE.—If a change of circumstance that 

11 is not identified in the permit occurs, the Sec12 retary may require the holder to carry out only 

13 additional minimization, mitigation, and other 

14 measures that do not involve— 

15 ‘‘(i) the commitment of any additional 

16 uncommitted land, water, or financial com17 pensation; or 

18 ‘‘(ii) the imposition of additional re19 strictions on the use of any land, water, or 

20 other natural resource that is otherwise 

21 available for development or use under the 

22 original terms and conditions of the per23 mit. 

24 ‘‘(D) BURDEN OF PROOF.—The Secretary 

25 shall have the burden of proof in demonstrating 
52 

•S 2110 IS

1 and documenting, using the best scientific and 

2 commercial data available, the occurrence of 

3 any changed circumstances for the purpose of 

4 this paragraph. 

5 ‘‘(E) ASSURANCES.— 

6 ‘‘(i) RECENT PERMITS.—All permits 

7 issued under this subsection on or after 

8 the date of enactment of this paragraph, 

9 other than permits issued for scientific 

10 purposes, shall contain assurances regard11 ing requirements specified in subpara12 graphs (B) through (D) of this paragraph 

13 and subparagraphs (A) and (B) of para14 graph (5). 

15 ‘‘(ii) OLDER PERMITS.—All permits 

16 issued under this subsection on or after 

17 March 25, 1998, and before the date of en18 actment of this paragraph, other than per19 mits issued for scientific purposes, shall be 

20 governed by the applicable portions of sub21 sections (b) through (d) of section 17.22, 

22 and subsections (b) through (d) of section 

23 17.32, of title 50, Code of Federal Regula24 tions (as in effect as of the date of enact25 ment of this paragraph). 
53 

•S 2110 IS

1 ‘‘(7) REVOCATION OF PERMIT.— 

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

3 revoke a permit issued under this subsection if 

4 the Secretary determines that the holder of the 

5 permit is not in compliance with the terms and 

6 conditions of the permit. 

7 ‘‘(B) REVOCATION OF PERMIT THAT IN8 CLUDES CONSERVATION PLAN.—The Secretary 

9 may revoke a permit that includes a conserva10 tion plan described in this subsection due to a 

11 change in circumstances only if the Secretary— 

12 ‘‘(i) determines that continuing the 

13 activities under the permit would be incon14 sistent with paragraph (2); 

15 ‘‘(ii) not later than 60 days before the 

16 date on which the Secretary revokes the 

17 permit, provides a notice of revocation to 

18 the holder of the permit; and 

19 ‘‘(iii) is unable to otherwise remedy 

20 the inconsistency. 

21 ‘‘(8) STATEMENTS AND ASSESSMENTS.— 

22 ‘‘(A) IN GENERAL.—In preparing any envi23 ronmental impact statement or environmental 

24 assessment under section 102 of the National 

25 Environmental Policy Act of 1969 (42 U.S.C. 
54 

•S 2110 IS

1 4332) with respect to the application for, or 

2 issuance of, a permit under this subsection, the 

3 Secretary shall not identify or analyze the im4 pacts and potential minimization and mitigation 

5 measures relating to any alternative other 

6 than— 

7 ‘‘(i) the alternative presented by the 

8 permit applicant under the conservation 

9 plan or another document; and 

10 ‘‘(ii) an alternative requiring no action 

11 by the Secretary. 

12 ‘‘(B) REGULATIONS.—The Secretary shall 

13 promulgate regulations under which the Sec14 retary, subject to the availability of appropria15 tions, shall reimburse a permit applicant under 

16 this subsection for reasonable amounts paid by 

17 the person for preparation by a contractor, or 

18 another person selected by the Secretary, of an 

19 environmental impact statement, environmental 

20 assessment, or related documentation or study 

21 required under section 102 of the National En22 vironmental Policy Act of 1969 (42 U.S.C. 

23 4332) with respect to the application for, or 

24 issuance of, the permit. 
55 

•S 2110 IS

1 ‘‘(9) PUBLICATION OF NOTICE OF DECISION.— 

2 Not later than 15 days before the proposed effective 

3 date of a permit, the Secretary shall publish in the 

4 Federal Register a notice of any decision of the Sec5 retary to approve or disapprove an application for, 

6 or amendment to, a permit under this section.’’. 

7 SEC. 304. TECHNICAL CORRECTIONS. 

8 Section 4(f)(1) of the Endangered Species Act of 

9 1978 (16 U.S.C. 1533(f)(1)) is amended— 

10 (1) in the matter preceding subparagraph (A), 

11 by striking ‘‘in development’’ and inserting ‘‘in de12 veloping’’; and 

13 (2) in subparagraph (A), by striking ‘‘activity;’’ 

14 and inserting ‘‘activity; and’’. 

15 SEC. 305. TAX INCENTIVES. 

16 (a) DEDUCTION FOR COST OF CONSERVATION AND

17 RECOVERY BANK CREDIT.— 

18 (1) IN GENERAL.—Part VI of subchapter B of 

19 chapter 1 of the Internal Revenue Code of 1986 (re20 lating to itemized deductions for individuals and cor21 porations) is amended by adding at the end the fol22 lowing new section: 

23 ‘‘SEC. 200. CONSERVATION BANK CREDITS. 

24 ‘‘There shall be allowed as a deduction an amount 

25 equal to the cost of any credit purchased from a conserva-
56 

•S 2110 IS

1 tion bank approved under section 4A of the Endangered 

2 Species Act of 1973 in the taxable year in which such 

3 credit is purchased.’’. 

4 (2) CLERICAL AMENDMENT.—The table of sec5 tions for such part VI is amended by adding at the 

6 end the following new item: 

‘‘Sec. 200. Conservation bank credits.’’. 

7 (3) EFFECTIVE DATE.—The amendments made 

8 by this subsection shall apply to taxable years end9 ing after the date of the enactment of this Act. 

10 (b) CREDIT FOR COSTS INCURRED FOR CONVERSA11 TION ACTIVITIES RELATED TO ENDANGERED, THREAT12 ENED, AND CANDIDATE SPECIES.— 

13 (1) IN GENERAL.—Subpart B of part IV of 

14 subchapter A of chapter 1 of the Internal Revenue 

15 Code of 1986 (relating to other credits) is amended 

16 by adding at the end the following new section: 

17 ‘‘SEC. 30D. CREDIT FOR COSTS INCURRED FOR CONVERSA18 TION AND RECOVERY ACTIVITIES RELATED 

19 TO ENDANGERED, THREATENED, AND CAN20 DIDATE SPECIES. 

21 ‘‘(a) ALLOWANCE OF CREDIT.—There shall be al22 lowed as a credit against the tax imposed by this chapter 

23 for the taxable year an amount equal to the qualified con24 servation and recovery costs of an eligible taxpayer for the 

25 taxable year. 
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1 ‘‘(b) LIMITATION BASED ON AMOUNT OF TAX.—The 

2 credit allowed under subsection (a) for the taxable year 

3 shall not exceed the excess of— 

4 ‘‘(1) the sum of the regular tax liability (as de5 fined in section 26(b)) plus the tax imposed by sec6 tion 55, over 

7 ‘‘(2) the sum of the credits allowable under sub8 part A and sections 27, 30A, 30B, and 30C for the 

9 taxable year. 

10 ‘‘(c) QUALIFIED CONSERVATION AND RECOVERY

11 COSTS.—For purposes of this section, the term ‘qualified 

12 conservation and recovery costs’ means costs paid or in13 curred by the eligible taxpayer in carrying out approved 

14 site-specific recovery actions under section 4(f) of the En15 dangered Species Act (16 U.S.C. 1533(f)), or any other 

16 Federal- or State-approved conservation and recovery 

17 agreements involving an endangered, threatened, or can18 didate species under the Endangered Species Act (16 

19 U.S.C. 1531 et seq.) in an amount equal to— 

20 ‘‘(1) under a binding agreement for not less 

21 than 99 years, the sum of— 

22 ‘‘(A) the amount by which the fair market 

23 value of the land is reduced by such site-specific 

24 recovery actions or agreements, and 
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1 ‘‘(B) the actual costs to the property 

2 owner of such approved site-specific recovery 

3 actions or agreements, 

4 ‘‘(2) under a binding agreement for not less 

5 than 30 years but less than 99 years, the sum of— 

6 ‘‘(A) 75 percent of the amount described 

7 in paragraph (1)(A), and 

8 ‘‘(B) 75 percent of the actual costs of such 

9 approved site-specific recovery actions or agree10 ments, and 

11 ‘‘(3) under a binding agreement for not less 

12 than 10 years but less than 30 years, 75 percent of 

13 the actual costs of such approved site-specific recov14 ery actions or agreements. 

15 ‘‘(d) ELIGIBLE TAXPAYER.—For purposes of this 

16 section— 

17 ‘‘(1) IN GENERAL.—The term ‘eligible taxpayer’ 

18 means any person who submits to the Secretary, to19 gether with the return of the taxpayer for the tax20 able year— 

21 ‘‘(A) evidence of the binding agreement de22 scribed in subsection (c), and 

23 ‘‘(B) a written verification from a biologist 

24 not directly employed by the taxpayer that any 
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1 conservation and recovery practice for which the 

2 taxpayer seeks a credit under this section— 

3 ‘‘(i) is described in a Federal- or 

4 State-approved agreement in subsection 

5 (c), and 

6 ‘‘(ii) was carried out— 

7 ‘‘(I) during the taxable year, and 

8 ‘‘(II) in accordance with the 

9 schedule of the Federal- or State-ap10 proved agreement in subsection (c). 

11 ‘‘(2) EFFECT OF GOVERNMENTAL ASSISTANCE

12 ON ELIGIBILITY.—Such term shall not include any 

13 taxpayer who receives any cost share assistance from 

14 the Federal Government or a State government 

15 under any approved site-specific recovery action or 

16 agreement described in subsection (c) for the taxable 

17 year, unless the adjusted gross income of the tax18 payer for such taxable year does not exceed the 

19 amount of the adjusted gross income limitation 

20 which would apply to such taxpayer for such taxable 

21 year for purposes of the credit allowed under section 

22 32. 

23 ‘‘(e) CARRYBACK AND CARRYFORWARD ALLOWED.— 

24 ‘‘(1) IN GENERAL.—If the credit allowable 

25 under subsection (a) for a taxable year exceeds the 
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1 amount of the limitation under subsection (b) for 

2 such taxable year (in this paragraph referred to as 

3 the ‘unused credit year’), such excess shall be a 

4 credit carryback to each of the 1 taxable years pre5 ceding the unused credit year and a credit 

6 carryforward to each of the 20 taxable years fol7 lowing the unused credit year. 

8 ‘‘(2) RULES.—Rules similar to the rules of sec9 tion 39 shall apply with respect to the credit 

10 carryback and credit carryforward under subpara11 graph (A). 

12 ‘‘(f) CREDITS MAY BE TRANSFERRED.—Nothing in 

13 any law or rule of law shall be construed to limit the trans14 ferability of any credit allowed by this section through sale 

15 and repurchase agreements. 

16 ‘‘(g) SPECIAL RULES.— 

17 ‘‘(1) BASIS REDUCTION.—The basis of any 

18 property for which a credit is allowable under sub19 section (a) shall be reduced by the amount of such 

20 credit (determined without regard to subsection (b)). 

21 ‘‘(2) NO DOUBLE BENEFIT.—The amount of 

22 any deduction or credit allowable under this chapter 

23 (other than the credit allowable under subsection 

24 (a)), shall be reduced by the amount of credit al-
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1 lowed under subsection (a) (determined without re2 gard to subsection (b)(2)) for the taxable year. 

3 ‘‘(3) REDUCTION FOR ASSISTANCE.—The 

4 amount taken into account under subsection (a) with 

5 respect to any project shall be reduced by the 

6 amount of any Federal, State, or local grant or 

7 other assistance received by the taxpayer during 

8 such taxable year or any prior taxable year which 

9 was used for qualified conservation and recovery 

10 costs and which was not included in the gross in11 come of such taxpayer. 

12 ‘‘(h) RECAPTURE.—The Secretary shall, by regula13 tions, provide for the recapture of any credit allowable 

14 under subsection (a) if the taxpayer breaches or termi15 nates the agreement described in subsection (c).’’. 

16 (2) BASIS ADJUSTMENT.—Section 1016(a) of 

17 such Code is amended by striking ‘‘and’’ at the end 

18 of paragraph (36), by striking the period at the end 

19 of paragraph (37) and inserting ‘‘, and’’, and by 

20 adding at the end the following new paragraph: 

21 ‘‘(38) to the extent provided in section 

22 30D(g)(1).’’. 

23 (3) CLERICAL AMENDMENT.—The table of sec24 tions for subpart B of part IV of subchapter A of 

25 chapter 1 of such Code is amended by inserting 
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1 after the item relating to section 30C the following 

2 new item: 

‘‘Sec. 30D. Credit for costs incurred for conversation activities related to 

endangered, threatened, and candidate species.’’. 

3 (4) EFFECTIVE DATE.—The amendments made 

4 by this subsection shall apply to taxable years end5 ing after the date of the enactment of this Act. 

6 TITLE IV—PROTECTIONS AND 

7 MEASURES IN FORESTS 

8 SEC. 401. PROTECTIONS AND MEASURES. 

9 Section 506(a) of the Healthy Forests Restoration 

10 Act of 2003 (16 U.S.C. 6576(a)) is amended— 

11 (1) by striking ‘‘and protection under—’’ and 

12 inserting ‘‘and protection as follows:’’; and 

13 (2) by striking paragraphs (1) and (2) and in14 serting the following: 

15 ‘‘(1) CONSERVATION ACTIVITIES THAT INCLUDE

16 A SITE-SPECIFIC RECOVERY ACTION.—In the case of 

17 a landowner that enrolls in the program and the res18 toration plan of which includes 1 or more site-spe19 cific recovery actions from a recovery plan approved 

20 under section 4(f) of the Endangered Species Act of 

21 1973 (16 U.S.C. 1533(f)), the landowner shall not 

22 be liable under section 9 of that Act (16 U.S.C. 

23 1538) for the incidental take of species covered by 

24 the restoration plan— 
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1 ‘‘(A) for the duration of the agreement; 

2 and 

3 ‘‘(B) within the area in which the net con4 servation benefits will accrue, so long as the 

5 contribution to recovery is at least proportional 

6 to the potential for and degree of incidental 

7 taking that may reasonably be expected to 

8 occur in the restoration plan. 

9 ‘‘(2) CONSERVATION ACTIVITIES THAT DO NOT

10 INCLUDE A SITE-SPECIFIC RECOVERY ACTION.—In 

11 the case of a landowner the conservation activities of 

12 which do not include a site-specific recovery action 

13 from a recovery plan approved under section 4(f) of 

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

15 1533(f)), the Secretary of Agriculture shall make 

16 available to the landowner safe harbor or similar as17 surances and protections under— 

18 ‘‘(A) section 7(b)(4) of the Endangered 

19 Species Act of 1973 (16 U.S.C. 1536(b)(4)); or 

20 ‘‘(B) section 10 (a)(1) of that Act (16 

21 U.S.C. 1539(a)(1)).’’. 

Æ