II

104TH CONGRESS

1ST SESSION S. 768

To amend the Endangered Species Act of 1973 to reauthorize the Act,

and for other purposes.

IN THE SENATE OF THE UNITED STATES

MAY 9 (legislative day, MAY 1), 1995

Mr. GORTON (for himself, Mr. JOHNSTON, Mr. SHELBY, Mr. BREAUX and Mr.

PACKWOOD) introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works

A BILL

To amend the Endangered Species Act of 1973 to

reauthorize the Act, 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,

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS; REF4 ERENCES.

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

6 ‘‘Endangered Species Act Reform Act of 1995’’.

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

8 this Act is as follows:

Sec. 1. Short title; table of contents; references.

Sec. 2. Purposes.
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TITLE I—ENSURING THE INTEGRITY OF THE LISTING AND

CRITICAL HABITAT DESIGNATION PROCESSES

Sec. 101. Requiring peer review.

Sec. 102. Considering State, local, and foreign government activities.

Sec. 103. Improving the collection and analysis of scientific information.

Sec. 104. Improving public hearings in the listing process.

Sec. 105. Considering breeding populations in making listing determinations.

Sec. 106. Providing equal access to judicial review.

Sec. 107. Setting a standard for emergency rulemaking.

TITLE II—BROADENING THE RECOVERY PLAN TO CONSTITUTE A

CONSERVATION PLAN AND MAKING THE CONSERVATION PLAN

CENTRAL TO THE IMPLEMENTATION OF THE ENDANGERED

SPECIES ACT OF 1973

Sec. 201. Providing for coordination of conservation decisionmaking for a species after the listing determination; ensuring timely, comprehensive, and effective conservation plans.

Sec. 202. Providing transition periods for conservation plan preparation.

Sec. 203. Making technical and conforming amendments to ensure that conservation objectives and plans are the focus of management

under the Endangered Species Act of 1973.

TITLE III—IMPROVING THE CONSULTATION AND CONFERENCING

PROCESSES FOR FEDERAL AGENCY ACTIONS

Sec. 301. Clarifying the consultation and conferencing standards.

Sec. 302. Identifying when consultation is required.

Sec. 303. Making the consultation deadlines binding.

Sec. 304. Enhancing applicant participation.

Sec. 305. Specifying the reasonable and prudent alternatives identification

process.

Sec. 306. Clarifying the relationship of the consultation requirement with the

land management planning requirements for Federal lands.

Sec. 307. Further clarifying Federal agency responsibilities.

Sec. 308. Clarifying the effects of secondary impacts.

Sec. 309. Requiring risk assessment and cost benefit analyses in the consultation process.

Sec. 310. Eliminating the Endangered Species Committee.

TITLE IV—ENSURING THAT THE COMPLIANCE PROCEDURES AND

STANDARDS FOR NON-FEDERAL PERSONS ARE NOT MORE

BURDENSOME THAN THE PROCEDURES AND STANDARDS APPLICABLE TO FEDERAL AGENCIES

Sec. 401. Establishing consultation procedures with respect to private actions.

Sec. 402. Defining the taking prohibition in accordance with the intent of Congress.

Sec. 403. Clarifying the application of taking prohibitions.

Sec. 404. Authorizing the issuance of general permits.

Sec. 405. Improving the non-Federal conservation planning process.

Sec. 406. Encouraging exchanges to protect habitat on non-Federal lands.

TITLE V—PROVIDING FOR HABITAT CONSERVATION INCENTIVE

PROGRAMS
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Sec. 501. Providing for cooperative management agreements.

Sec. 502. Providing for habitat reserve grants.

TITLE VI—OTHER AMENDMENTS MAKING THE ENDANGERED

SPECIES ACT OF 1973 MORE EFFECTIVE AND LESS BURDENSOME

Sec. 601. Providing guidance for the release of experimental populations.

Sec. 602. Recognizing captive propagation as a means of recovery.

Sec. 603. Clarifying the application of prohibitions to threatened species.

Sec. 604. Encouraging research on alternative methods and technologies.

Sec. 605. Modifying enforcement authority.

Sec. 606. Providing adequate notice of hearings.

Sec. 607. Ensuring the protection of private property rights.

Sec. 608. Ensuring the use of water rights in accordance with existing State

laws.

Sec. 609. Providing for Federal cost-sharing of implementation costs imposed

under conservation plans or agency consultations.

Sec. 610. Enhancing public educational opportunities.

TITLE VII—AUTHORIZING INCREASED APPROPRIATIONS

Sec. 701. Reauthorizing the Endangered Species Act of 1973.

1 (c) REFERENCES TO ENDANGERED SPECIES ACT OF

2 1973.—Except as otherwise expressly provided, whenever

3 in this Act an amendment or repeal is expressed in terms

4 of an amendment to, or repeal of, a section or other provi5 sion, the reference shall be considered to be made to a

6 section or other provision of the Endangered Species Act

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

8 SEC. 2. PURPOSES.

9 The purposes of this Act are—

10 (1) to improve and protect the integrity of the

11 programs established under the Endangered Species

12 Act of 1973 (16 U.S.C. 1531 et seq.) for the con13 servation of endangered species and threatened spe14 cies;
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1 (2) to ensure the scientific validity of decisions

2 to designate the species and the critical habitat of

3 the species;

4 (3) to ensure balanced consideration of all im5 pacts of decisions implementing the Act;

6 (4) to make the conservation planning process

7 central to, and reduce the number of decisions need8 ed for, the implementation of the Act;

9 (5) to provide for equitable treatment of non10 Federal persons and Federal agencies under the Act;

11 (6) to ameliorate the impact of the Act on, and

12 provide less costly and time-consuming procedures

13 for, non-Federal lands; and

14 (7) to encourage non-Federal persons to con15 tribute voluntarily to species conservation.

16 TITLE I—ENSURING THE INTEG17 RITY OF THE LISTING AND

18 CRITICAL HABITAT DESIGNA19 TION PROCESSES

20 SEC. 101. REQUIRING PEER REVIEW.

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

22 at the end the following:

23 ‘‘(j) PEER REVIEW REQUIREMENT.—

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

25 ‘‘(A) ACTION.—The term ‘action’ means—
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1 ‘‘(i) the determination that a species

2 is an endangered species or a threatened

3 species under subsection (a)(1);

4 ‘‘(ii) the determination under sub5 section (a)(1) that an endangered species

6 or a threatened species be removed from

7 any list published under subsection (c);

8 and

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

10 the designation, of critical habitat for an

11 endangered species or a threatened species

12 under section 5(m).

13 ‘‘(B) QUALIFIED INDIVIDUAL.—The term

14 ‘qualified individual’ means an individual with

15 appropriate knowledge, training, or experience

16 who—

17 ‘‘(i) is not otherwise employed by or

18 under contract to the Secretary of the In19 terior or the Secretary of Commerce; and

20 ‘‘(ii) who has not participated in the

21 listing decision.

22 ‘‘(2) NOTICE OF RIGHT TO SEEK PEER RE23 VIEW.—On publication of the notice of proposed

24 rulemaking for a proposed action, the Secretary

25 shall provide notice of the right to seek peer review
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1 of the proposed action, by publication in the Federal

2 Register and in 1 or more newspapers of general cir3 culation in each area affected by the proposed ac4 tion. Any interested person may request the Sec5 retary to conduct a peer review of the proposed ac6 tion by submitting the request to the Secretary not

7 later than 45 days after the date of publication of

8 the notice.

9 ‘‘(3) PEER REVIEW.—If an interested person

10 submits, in accordance with paragraph (2), a request

11 for a peer review of an action, the Secretary shall

12 appoint, from among individuals recommended by

13 the head of the National Academy of Sciences, 3

14 qualified individuals who shall review, and report to

15 the Secretary on, the scientific information and anal16 yses on which the proposed action is based.

17 ‘‘(4) PUBLICATION OF RESULTS OF PEER RE18 VIEW.—The Secretary shall publish with any final

19 regulation implementing an action a summary of the

20 report of the peer review panel described in para21 graph (3) and the response of the Secretary to the

22 report.’’.
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1 SEC. 102. CONSIDERING STATE, LOCAL, AND FOREIGN GOV2 ERNMENT ACTIVITIES.

3 Section 4(a)(1)(D) (16 U.S.C. 1533(a)(1)(D)) is

4 amended by inserting ‘‘Federal, State, and local govern5 ment and international’’ after ‘‘existing’’.

6 SEC. 103. IMPROVING THE COLLECTION AND ANALYSIS OF

7 SCIENTIFIC INFORMATION.

8 (a) STATE PARTICIPATION.—Section 4(b)(1)(A) (16

9 U.S.C. 1533(b)(1)(A)) is amended—

10 (1) by striking ‘‘best scientific and commercial

11 data available to him’’ and inserting ‘‘best reason12 ably obtainable scientific information’’; and

13 (2) by inserting after ‘‘and after’’ the following:

14 ‘‘soliciting and fully considering the best reasonably

15 obtainable scientific information concerning the sta16 tus of a species from the appropriate State, if any,

17 and’’.

18 (b) FEDERAL GOVERNMENT RESPONSIBILITY.—Sec19 tion 4(b) (16 U.S.C. 1533(b)) is amended by adding at

20 the end the following:

21 ‘‘(9) SCIENTIFIC INFORMATION.—

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

23 identify and publish in the Federal Register,

24 with each proposed regulation promulgated

25 under subsection (a)(1) or section 5(m), a de26 scription of—
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1 ‘‘(i) the efforts to field test all sci2 entific information used as a basis for the

3 regulation; and

4 ‘‘(ii) any additional scientific informa5 tion that has not been collected and that is

6 necessary to ensure the scientific validity

7 of the determination, along with a plan

8 and deadlines for collecting the additional

9 information.

10 ‘‘(B) PUBLIC REVIEW AND COMMENT.—

11 The Secretary shall provide an opportunity for

12 public review and comment on the scientific in13 formation referred to in subparagraph (A)(ii).’’.

14 (c) BEST REASONABLY OBTAINABLE SCIENTIFIC IN15 FORMATION.—

16 (1) DEFINITIONS.—Section 3 (16 U.S.C. 1532)

17 is amended—

18 (A) by redesignating paragraphs (15)

19 through (21) as paragraphs (21) through (27),

20 respectively;

21 (B) by redesignating paragraphs (12)

22 through (14) as paragraphs (17) through (19),

23 respectively;

24 (C) by redesignating paragraph (10) as

25 paragraph (13);
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1 (D) by redesignating paragraphs (5)

2 through (9) as paragraphs (7) through (11), re3 spectively;

4 (E) by redesignating paragraphs (2)

5 through (4) as paragraphs (3) through (5), re6 spectively; and

7 (F) by inserting after paragraph (1) the

8 following:

9 ‘‘(2) BEST REASONABLY OBTAINABLE SCI10 ENTIFIC INFORMATION.—The term ‘best reasonably

11 obtainable scientific information’ means information

12 obtainable from both public sector and private sector

13 sources.’’.

14 (2) APPLICABILITY.—

15 (A) BASIS FOR DETERMINATIONS.—Sec16 tion 4(b) (16 U.S.C. 1533(b)) is amended—

17 (i) in paragraph (3)(B)(iii), by strik18 ing ‘‘data’’ and inserting ‘‘best reasonably

19 obtainable scientific information’’;

20 (ii) in paragraph (6)(B)(i), by striking

21 ‘‘data’’ each place it appears and inserting

22 ‘‘best reasonably obtainable scientific infor23 mation’’;

24 (iii) in the last sentence of paragraph

25 (7), by striking ‘‘best appropriate data
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1 available to him’’ and inserting ‘‘best rea2 sonably obtainable scientific information’’;

3 and

4 (iv) in paragraph (8), by striking

5 ‘‘data’’ each place it appears and inserting

6 ‘‘best reasonably obtainable scientific infor7 mation’’.

8 (B) COOPERATIVE AGREEMENTS.—Section

9 6(c)(2)(B) (16 U.S.C. 1535(c)(2)(B)) is amend10 ed by striking ‘‘data’’ and inserting ‘‘best rea11 sonably obtainable scientific information’’.

12 (C) BIOLOGICAL ASSESSMENT.—The sec13 ond sentence of section 7(c)(1) (16 U.S.C.

14 1536(c)(1)) is amended by striking ‘‘best sci15 entific and commercial data available’’ and in16 serting ‘‘best reasonably obtainable scientific in17 formation’’.

18 (D) NOTICE AND REVIEW OF EXEMP19 TIONS.—The second sentence of section 10(c)

20 (16 U.S.C. 1539(c)) is amended by striking

21 ‘‘data’’ and inserting ‘‘information’’.

22 SEC. 104. IMPROVING PUBLIC HEARINGS IN THE LISTING

23 PROCESS.

24 Section 4(b)(5) (16 U.S.C. 1533(b)(5)) is amended

25 by striking subparagraph (E) and inserting the following:
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1 ‘‘(E) promptly hold at least 2 hearings in each

2 State in which the species proposed for determina3 tion as an endangered species or a threatened spe4 cies is located (including at least 1 hearing in an af5 fected rural area if 1 or more rural areas within the

6 State are affected by the determination), except that

7 the Secretary may not be required to hold more than

8 10 hearings under this subparagraph.’’.

9 SEC. 105. CONSIDERING BREEDING POPULATIONS IN MAK10 ING LISTING DETERMINATIONS.

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

12 (1) by striking paragraph (2);

13 (2) by redesignating paragraph (1)(B) as para14 graph (2);

15 (3) in paragraph (1), by adding at the end the

16 following:

17 ‘‘(B) CONSIDERATION OF BRED POPU18 LATIONS.—In making a determination whether

19 a species is an endangered species or a threat20 ened species under this section, the Secretary

21 shall fully consider populations of the species

22 that are bred through private sector, university,

23 and Federal, State, and local government breed24 ing programs for release in the habitat of the

25 species. In the case of fish species, the bred
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1 populations referred to in the preceding sen2 tence shall include hatchery populations.’’; and

3 (4) in paragraph (2) (as so redesignated), by

4 redesignating clauses (i) and (ii) as subparagraphs

5 (A) and (B), respectively.

6 SEC. 106. PROVIDING EQUAL ACCESS TO JUDICIAL REVIEW.

7 Section 4(b)(3)(C) (16 U.S.C. 1533(b)(3)(C)) is

8 amended by striking clause (ii) and inserting the following:

9 ‘‘(ii) JUDICIAL REVIEW.—Any nega10 tive finding described in subparagraph (A)

11 or any finding described in subparagraph

12 (B) shall be subject to judicial review.’’.

13 SEC. 107. SETTING A STANDARD FOR EMERGENCY RULE14 MAKING.

15 (a) IN GENERAL.—Section 4(b)(7) (16 U.S.C.

16 1533(b)(7)) is amended—

17 (1) in the first sentence, by striking ‘‘a signifi18 cant risk to the well-being of’’ and inserting ‘‘an im19 minent threat to the existence of’’; and

20 (2) by adding at the end the following: ‘‘The

21 Secretary may not delegate the final decision to

22 issue an emergency regulation under this para23 graph.’’.

24 (b) DEFINITION OF IMMINENT THREAT TO THE EX25 ISTENCE OF.—Section 3 (16 U.S.C. 1532) is further
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1 amended by inserting after paragraph (11) (as redesig2 nated by section 103(c)(1)) the following:

3 ‘‘(12) IMMINENT THREAT TO THE EXISTENCE

4 OF.—The term ‘imminent threat to the existence of’,

5 with respect to a species, means, as determined by

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

7 under section 5(o)(2) solely on the basis of the best

8 reasonably obtainable scientific information, that

9 there is a significant likelihood that the species will

10 be placed on an irreversible course to extinction dur11 ing the 2-year period beginning on the date of the

12 listing determination, unless the species is accorded

13 fully the protections available under this Act during

14 the period.’’.
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1 TITLE II—BROADENING THE RE2 COVERY PLAN TO CON3 STITUTE A CONSERVATION

4 PLAN AND MAKING THE CON5 SERVATION PLAN CENTRAL

6 TO THE IMPLEMENTATION OF

7 THE ENDANGERED SPECIES

8 ACT OF 1973

9 SEC. 201. PROVIDING FOR COORDINATION OF CONSERVA10 TION DECISIONMAKING FOR A SPECIES

11 AFTER THE LISTING DETERMINATION; EN12 SURING TIMELY, COMPREHENSIVE, AND EF13 FECTIVE CONSERVATION PLANS.

14 (a) IN GENERAL.—The Act is amended—

15 (1) by redesignating section 5 (16 U.S.C. 1534)

16 as section 5A; and

17 (2) by inserting after section 4 (16 U.S.C.

18 1533) the following:

19 ‘‘SEC. 5. COORDINATION OF SPECIES CONSERVATION EF20 FORTS; SPECIES CONSERVATION PLANS.

21 ‘‘(a) SPECIES PROTECTION.—Upon a determination

22 that a species is endangered or threatened, the Secretary

23 shall consider whether to—

24 ‘‘(1) issue 1 or more incidental taking permits

25 under section 10;
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1 ‘‘(2) enter into 1 or more cooperative manage2 ment agreements under section 6;

3 ‘‘(3) commence the development of a conserva4 tion objective under this section; or

5 ‘‘(4) carry out a combination of the activities

6 described in paragraphs (1) through (3).

7 ‘‘(b) SCHEDULE FOR CONSERVATION OBJECTIVE ES8 TABLISHMENT.—The Secretary shall publish a conserva9 tion objective for an affected species under subsection (e)

10 not later than 30 days after the date of issuance of the

11 assessment and planning team report under subsection

12 (d).

13 ‘‘(c) APPOINTMENT OF ASSESSMENT AND PLANNING

14 TEAM.—

15 ‘‘(1) IN GENERAL.—Not later than 30 days

16 after the date of a determination described in sub17 section (a), the Secretary shall appoint an assess18 ment and planning team consisting of—

19 ‘‘(A) appropriate biologists, economists,

20 and land use specialists from the Department

21 of the Secretary, other Federal agencies, and

22 the private sector;

23 ‘‘(B) such representatives from each af24 fected State as are nominated by the Governor

25 of the State; and
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1 ‘‘(C) representatives nominated by affected

2 local governments.

3 ‘‘(2) INAPPLICABILITY OF FEDERAL ADVISORY

4 COMMITTEE ACT.—The Federal Advisory Committee

5 Act (5 U.S.C. App.) shall not apply to an assess6 ment and planning team appointed under this sub7 section.

8 ‘‘(d) ASSESSMENTS.—Not later than 180 days after

9 the date of a determination described in subsection (a),

10 the assessment and planning team shall report to the Sec11 retary concerning the following factors with respect to the

12 affected species:

13 ‘‘(1) BIOLOGICAL ASSESSMENT.—The team

14 shall assess—

15 ‘‘(A) the biological considerations nec16 essary to carry out this Act;

17 ‘‘(B) the biological significance of the spe18 cies;

19 ‘‘(C) the geographic range and occupied

20 habitat of the species;

21 ‘‘(D) the current population of the species;

22 ‘‘(E) the population trend of the species;

23 ‘‘(F) the technical practicality of recover24 ing the species;
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1 ‘‘(G) the potential management measures

2 capable of recovering or reducing the risks to

3 survival of the species, including—

4 ‘‘(i) enhancement of the viability of

5 natural populations at selected locations;

6 ‘‘(ii) control of predators and competi7 tors;

8 ‘‘(iii) supplemental feeding;

9 ‘‘(iv) other measures to increase the

10 quantities or accessibility of food supplies;

11 and

12 ‘‘(v) other measures to enhance repro13 ductive success and survival of young;

14 ‘‘(H) the contribution of existing or poten15 tial captive breeding programs for the species;

16 and

17 ‘‘(I) whether any management measure

18 might include release of an experimental popu19 lation of the species outside the current range

20 of the species and, if the release is required, an

21 identification of each likely geographic area for

22 the release.

23 ‘‘(2) ECONOMIC ASSESSMENT.—The team shall

24 assess the direct, indirect, and cumulative economic

25 and social impacts on both the public and private
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1 sectors that may result from the listing of the spe2 cies, including any effects on any county, parish,

3 State, or multi-State region or any segment of the

4 national economy, and the potential management

5 measures identified under paragraph (1), includ6 ing—

7 ‘‘(A) the cost of governmental actions and

8 the impacts on tax and other revenues;

9 ‘‘(B) the impacts on employment;

10 ‘‘(C) the impacts on the use and value of

11 property; and

12 ‘‘(D) the impacts on other social, cultural,

13 and community values.

14 ‘‘(3) INTERGOVERNMENTAL ASSESSMENT.—The

15 team shall assess the impacts that may result from

16 the listing of the species and the potential manage17 ment measures identified under paragraph (1) on

18 State and local land use laws, conservation meas19 ures, and water allocation policies.

20 ‘‘(e) SECRETARIAL ESTABLISHMENT OF A CON21 SERVATION OBJECTIVE AND DETERMINATION OF

22 WHETHER TO PREPARE A CONSERVATION PLAN FOR THE

23 SPECIES.—

24 ‘‘(1) PUBLICATION.—After considering the re25 port of the assessment and planning team under,
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1 and the factors described in, subsection (d), the Sec2 retary shall publish in the Federal Register, in ac3 cordance with the schedule established under sub4 section (b), a conservation objective for the affected

5 species, together with a statement of findings on

6 which the conservation objective was established.

7 ‘‘(2) RANGE OF CONSERVATION OBJECTIVES.—

8 The conservation objective, which the Secretary shall

9 establish within the discretion of the Secretary, may

10 be—

11 ‘‘(A) recovery of the affected species;

12 ‘‘(B) such level of conservation of the spe13 cies and any critical habitat to be designated as

14 the Secretary considers practicable and reason15 able to the extent that the benefits of the con16 servation measures justify the human and eco17 nomic costs of implementation for the Federal

18 Government, State, and local governments, the

19 private sector (including any permit or license

20 applicants), and affected private individuals and

21 organizations;

22 ‘‘(C) no Federal action other than enforce23 ment against any person whose activity violates

24 the prohibitions specified in section 9(a), in25 cluding any activity that results in a taking of
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1 the species, unless the taking is incidental to,

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

3 otherwise lawful activity; or

4 ‘‘(D) such other objective as the Secretary

5 may determine that does not provide a lesser

6 level of protection than the level described in

7 subparagraph (C).

8 ‘‘(3) NO CONSERVATION PLAN.—If the con9 servation objective established by the Secretary is

10 the objective provided in paragraph (2)(C), the Sec11 retary shall not prepare a conservation plan under

12 subsection (g).

13 ‘‘(f) NATIONAL INTEREST DETERMINATION WITHIN

14 ESTABLISHMENT OF A CONSERVATION OBJECTIVE FOR

15 DISTINCT POPULATION SEGMENTS.—The Secretary may

16 establish a conservation objective, other than the objective

17 provided in subsection (e)(2)(C), for a distinct population

18 segment designated under section 4(a) after the date of

19 enactment of this subsection only if the Secretary issues,

20 in conjunction with the conservation objective, a deter21 mination that the objective is in the national interest

22 based on biological, social, and economic considerations.

23 ‘‘(g) SCHEDULE FOR CONSERVATION PLAN PREPA24 RATION.—Except as provided in subsection (e)(3), the

25 Secretary shall—
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1 ‘‘(1) direct the assessment and planning team

2 to prepare a draft conservation plan for the affected

3 species that includes alternative strategies required

4 under subsection (i);

5 ‘‘(2) not later than 1 year after the date of a

6 determination described in subsection (a), publish a

7 draft conservation plan for the affected species and

8 a draft regulation to designate any habitat of the

9 species as critical habitat under subsection (m); and

10 ‘‘(3) not later than 18 months after the date of

11 a determination described in subsection (a), publish

12 a final conservation plan for the affected species and

13 a final regulation to designate any habitat of the

14 species as critical habitat under subsection (m).

15 ‘‘(h) CONSERVATION PLAN PRIORITIES.—In the de16 velopment and implementation of a conservation plan or

17 plan revision under this section, the Secretary shall accord

18 priority to—

19 ‘‘(1) the development of an integrated plan for

20 2 or more endangered species or threatened species

21 that are likely to benefit from an integrated plan;

22 ‘‘(2) the geographic areas where conflicts be23 tween the conservation of species and development

24 projects or other forms of economic activity exist or

25 are likely to exist; and
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1 ‘‘(3) the implementation of conservation meas2 ures that have the least economic and social costs.

3 ‘‘(i) ALTERNATIVE STRATEGIES.—On the basis of

4 the assessments made under subsection (d), the assess5 ment and planning team shall include, in each draft con6 servation plan and plan revision, alternative strategies to

7 achieve the conservation objective for the affected species.

8 The alternative strategies shall range from a strategy re9 quiring the least possible Federal management to achieve

10 the conservation objective to a strategy involving more in11 tensive Federal management to achieve the objective.

12 Each alternative strategy shall contain—

13 ‘‘(1) an estimate of the risks to the survival and

14 recovery of the species that the alternative would en15 tail;

16 ‘‘(2) a description of any site-specific manage17 ment measures recommended for the alternative;

18 ‘‘(3) an analysis of the relationship of any habi19 tat of the species proposed for designation as critical

20 habitat to the site-specific measures;

21 ‘‘(4) a description of the direct and indirect

22 costs to the public and private sectors, including ef23 fects on employment, any multi-State region, or any

24 segment of the national economy, that may result

25 from the alternative;
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1 ‘‘(5) a description of any social dislocation that

2 may result from the alternative;

3 ‘‘(6) an analysis of any impacts that the alter4 native would have on the use and value of property;

5 ‘‘(7) a description of any captive breeding pro6 gram recommended for the alternative;

7 ‘‘(8) an analysis of whether the alternative

8 would include any release of an experimental popu9 lation outside the current range of the species and

10 an identification of candidate geographic areas for

11 the release;

12 ‘‘(9) a clear differentiation between—

13 ‘‘(A) any matters recommended generally

14 for Federal agencies to conserve the species

15 under section 7(a)(1);

16 ‘‘(B) any matters recommended for Fed17 eral agency actions to avoid being likely to jeop18 ardize the continued existence of the species as

19 determined under section 7(a)(2); and

20 ‘‘(C) any matters recommended for any

21 person to avoid a taking of the species prohib22 ited under section 4(d) or 9(a)(1);

23 ‘‘(10) objective and measurable criteria, includ24 ing a population level target, that, if met, would re25 sult in a determination under section 4 that the spe-
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1 cies be removed from a list published under section

2 4(c)(1);

3 ‘‘(11) estimates of the time and costs required

4 to carry out the actions needed to achieve the con5 servation objective and to achieve intermediate steps

6 toward the objective; and

7 ‘‘(12) a description of the role of each affected

8 State, if any, in achieving the conservation objective.

9 ‘‘(j) PROCEDURES.—

10 ‘‘(1) CONSULTATION WITH STATES.—The Sec11 retary shall consult with the Governor of each State

12 in which the affected species is located during the

13 preparation of each draft and final conservation plan

14 or plan revision.

15 ‘‘(2) PUBLICATION AND PUBLIC COMMENT.—

16 The Secretary shall publish in the Federal Register

17 and a newspaper of general circulation in each af18 fected county and parish—

19 ‘‘(A) a notice of the availability, and a

20 summary, of each draft conservation plan or

21 plan revision and each draft regulation des22 ignating any critical habitat; and

23 ‘‘(B) a request for the submission of com24 ments on the draft conservation plan or plan re25 vision and the draft regulation.
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1 ‘‘(3) HEARINGS.—The Secretary shall hold at

2 least 2 hearings on each draft conservation plan or

3 plan revision in each State to which the plan or revi4 sion would apply (including at least 1 hearing in an

5 affected rural area if 1 or more rural areas within

6 the State are affected by the determination), except

7 that the Secretary may not be required to hold more

8 than 10 hearings under this paragraph.

9 ‘‘(4) CONSIDERATION OF COMMENTS BY THE

10 SECRETARY.—Prior to any decision to adopt a final

11 conservation plan or plan revision, the Secretary

12 shall consider and weigh carefully all information

13 presented during each hearing held under paragraph

14 (3) or received in response to a request for com15 ments published under paragraph (2)(B).

16 ‘‘(k) PUBLICATION OF FINAL CONSERVATION

17 PLAN.—Not later than the date of publication of a final

18 conservation plan under subsection (g)(3), the Secretary

19 shall publish in the Federal Register a notice of the avail20 ability, and a summary, of a final conservation plan or

21 plan revision. The notice shall include a detailed descrip22 tion of—

23 ‘‘(1) the reasons for the selection of the final

24 conservation plan or plan revision;
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1 ‘‘(2) the reasons for not selecting each of the

2 other alternatives included in the draft conservation

3 plan or plan revision under subsection (i);

4 ‘‘(3) the effect of the priorities specified in sub5 section (h) on the selection; and

6 ‘‘(4) the response of the Secretary to the infor7 mation referred to in subsection (j)(4).

8 ‘‘(l) PARTICIPATION BY OTHER PERSONS.—In devel9 oping and implementing conservation plans and plan revi10 sions, the Secretary may use the services of appropriate

11 public and private agencies and institutions and other

12 qualified persons.

13 ‘‘(m) CRITICAL HABITAT DESIGNATION.—

14 ‘‘(1) DESIGNATION.—The Secretary may, by

15 regulation under subsection (g) and this subsection

16 and to the maximum extent prudent and determina17 ble—

18 ‘‘(A) designate any habitat of the affected

19 species that is considered to be critical habitat

20 and that supports the conservation objective for

21 the species; and

22 ‘‘(B) revise a critical habitat designation

23 on determining that the critical habitat does

24 not support the conservation objective.
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1 ‘‘(2) BASIS FOR DESIGNATION.—The designa2 tion of critical habitat, and any revision of the des3 ignation, shall be made on the basis of the best rea4 sonably obtainable scientific information after taking

5 into consideration the economic impact, and any

6 other relevant impact, of designating any particular

7 area as critical habitat and of the determination

8 made under section 4(a)(1).

9 ‘‘(3) ECONOMIC IMPACTS.—

10 ‘‘(A) DESCRIPTION.—In issuing any draft

11 regulation designating critical habitat of an en12 dangered species or a threatened species, or re13 vision of the designation, the Secretary shall de14 scribe the economic impacts and other relevant

15 impacts that are to be considered under para16 graph (2), and the benefits that are to be

17 weighed under paragraph (4), in designating an

18 area as critical habitat.

19 ‘‘(B) SUBMISSION TO BUREAU OF LABOR

20 STATISTICS.—The Secretary shall submit the

21 description, and the documentation supporting

22 the description, to the Bureau of Labor Statis23 tics of the Department of Labor. The Commis24 sioner of Labor Statistics shall submit written

25 comments during the comment period on the
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1 proposed regulation. In issuing any final regula2 tion designating critical habitat, the Secretary

3 shall respond separately and fully to each com4 ment.

5 ‘‘(4) CONSIDERATION OF COSTS AND BENE6 FITS.—The Secretary shall exclude any area from

7 critical habitat for which the Secretary determines

8 that the benefits of the exclusion outweigh the bene9 fits of designating the area as part of the critical

10 habitat, unless the Secretary determines, on the

11 basis of the best reasonably obtainable scientific in12 formation, that the failure to designate the area as

13 critical habitat will create an imminent threat to the

14 existence of the species.

15 ‘‘(n) EFFECTS OF ACTIONS CONSISTENT WITH THE

16 CONSERVATION OBJECTIVE AND PLAN.—If a conserva17 tion plan is prepared under subsection (g) or if a conserva18 tion objective is established that is described in subsection

19 (e)(3)—

20 ‘‘(1) any Federal agency that determines that

21 the actions of the agency are consistent with the

22 provisions of the conservation plan under subsection

23 (i)(9)(A) or the conservation objective shall be con24 sidered to comply with section 7(a)(1) for the af25 fected species;
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1 ‘‘(2) any agency action that the Federal agency

2 determines is consistent with the provisions of the

3 conservation plan under subsection (i)(9)(B) or the

4 conservation objective shall not be subject to section

5 7(a)(2) for the species, except that a Federal agen6 cy—

7 ‘‘(A) may initiate consultation under sec8 tion 7(a)(2) if the agency desires guidance from

9 the Secretary on the consistency of the action

10 of the agency with the plan or objective; and

11 ‘‘(B) shall initiate consultation under sec12 tion 7(a)(2) on any action that the agency de13 termines is inconsistent with the plan or objec14 tive; and

15 ‘‘(3) any action of any person that is consistent

16 with the provisions of the conservation plan under

17 subsection (i)(9)(C) or the conservation objective

18 shall not constitute a violation concerning the spe19 cies of any applicable prohibition under section 4(d)

20 or 9(a), except that the person may initiate consulta21 tion under section 10(a)(3) if the person—

22 ‘‘(A) desires guidance from the Secretary

23 on the consistency of the action with the plan

24 or objective; or
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1 ‘‘(B) desires to obtain a permit under sec2 tion 10 for any action that is inconsistent with

3 the plan or objective.

4 ‘‘(o) INTERIM MANAGEMENT.—

5 ‘‘(1) IN GENERAL.—Prior to the publication of

6 a conservation objective described in subsection

7 (e)(3) or a final conservation plan under subsection

8 (g)(2), the entering into of a cooperative manage9 ment agreement, or the issuance of an incidental

10 taking permit with respect to an endangered species

11 or a threatened species—

12 ‘‘(A) the prohibitions of section 9(a) shall

13 apply to any person, except in the case of a tak14 ing by a person that is incidental to, and not

15 the purpose of, the carrying out of an otherwise

16 lawful activity, which incidental taking activity

17 may include the routine operation, maintenance,

18 or repair of any structure, building, road, dam,

19 airport, or any irrigation or other facility that

20 is in operation prior to the publication of the

21 listing determination under section 4(b)(6); and

22 ‘‘(B) no Federal agency shall be required

23 to comply with section 7(a)(1) and no consulta24 tion shall be required on any agency action

25 under section 7(a)(2).
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1 ‘‘(2) EMERGENCY PERIODS.—

2 ‘‘(A) IN GENERAL.—Notwithstanding para3 graph (1) and subject to subparagraph (B),

4 paragraphs (1) and (2) of section 7(a) and sec5 tion 9(a) shall apply fully to the affected species

6 during a period in which an emergency rule7 making is in effect under section 4(b)(7).

8 ‘‘(B) EXPIRATION OF DECLARATION.—Any

9 declaration of the Secretary described in sub10 paragraph (A) shall expire on—

11 ‘‘(i) the date of publication of a con12 servation objective described in subsection

13 (e)(3); or

14 ‘‘(ii) the date of publication of a final

15 conservation plan.

16 ‘‘(3) EXTENSION OF INTERIM MANAGEMENT

17 PERIOD.—The Secretary shall make every effort to

18 issue any incidental taking permit, or enter into any

19 cooperative management agreement, not later than

20 18 months after the date of a determination de21 scribed in subsection (a). If no such permit has been

22 issued or agreement entered into, the Secretary may

23 extend the interim management period applicable to

24 that portion of the affected species to which the per25 mit or agreement would apply for an additional pe-
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1 riod of not to exceed 18 months if the Secretary de2 termines that satisfactory progress is being made to3 ward issuance of the permit or entering into of the

4 agreement.

5 ‘‘(p) SUSPENSION OF CONSERVATION PLAN OR OB6 JECTIVE.—

7 ‘‘(1) IN GENERAL.—If, at any time after the

8 date of publication of a conservation objective de9 scribed in subsection (e)(3) or a final conservation

10 plan under subsection (g)(3), the Secretary issues an

11 incidental taking permit or enters into a cooperative

12 management agreement, the Secretary, by publica13 tion of notice in the Federal Register, shall suspend

14 the conservation objective or conservation plan with

15 respect to the portion of the species to which the

16 permit or agreement applies.

17 ‘‘(2) SUSPENSION OF MEASURES WITHIN A

18 PLAN.—If a Federal contribution for costs incurred

19 under a conservation plan required under section 16

20 is not made, the applicable provision of the conserva21 tion plan shall be suspended until such time as the

22 full contribution is made. If the suspended provision

23 includes a conservation easement or other instru24 ment restricting title to property, nonpayment of the

25 full contribution for a period of more than 4 con-
33

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1 secutive years shall result in the nullification of the

2 previously granted restriction on title.

3 ‘‘(q) NONDELEGATION OF DUTIES.—The Secretary

4 may not delegate the authority to issue an emergency rule

5 or the final decision to establish a conservation objective

6 or issue a conservation plan under this section.

7 ‘‘(r) REPORT.—Not later than 2 years after the date

8 of enactment of this subsection and biennially thereafter,

9 the Secretary shall report to the Committee on Environ10 ment and Public Works of the Senate and the Committee

11 on Resources of the House of Representatives on the sta12 tus of efforts to develop and implement conservation plans

13 for all species included in a list published under section

14 4(c)(1) and on the status of all species for which the plans

15 have been developed.

16 ‘‘(s) REVIEW OF CONSERVATION PLANS.—

17 ‘‘(1) IN GENERAL.—The Secretary shall—

18 ‘‘(A) review each conservation plan and

19 conservation objective before the end of the 5-

20 year period that begins on the date of publica21 tion of the plan, and before the end of each 5-

22 year period thereafter; and

23 ‘‘(B) determine whether the conservation

24 plan and conservation objective meets the re25 quirements of this section.
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1 ‘‘(2) REVISIONS.—The Secretary shall revise a

2 conservation plan or conservation objective if the

3 Secretary determines—

4 ‘‘(A) through a 5-year review under para5 graph (1), that the conservation plan or con6 servation objective does not meet the require7 ments of this section; or

8 ‘‘(B) at any time—

9 ‘‘(i) that funding is not available for

10 the implementation of a specific conserva11 tion measure that is integral to the con12 servation plan or that a more cost-effective

13 alternative exists for a specific conserva14 tion measure that is integral to the con15 servation plan; or

16 ‘‘(ii) on the basis of scientific informa17 tion that was not available during the de18 velopment of the conservation objective or

19 conservation plan, that the conservation

20 objective is not achievable or the conserva21 tion plan will not achieve the conservation

22 objective.

23 ‘‘(3) APPLICABLE REQUIREMENTS TO REVI24 SIONS.—Any revision of a conservation plan or con25 servation objective shall be undertaken in accordance
35

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1 with the requirements of this section applicable to

2 preparation of a conservation plan or conservation

3 objective.

4 ‘‘(t) STANDARD OF REVIEW.—The standard for judi5 cial review of any decision of the Secretary, or a Federal

6 agency under this section shall be whether the decision

7 is arbitrary, capricious, an abuse of discretion, or other8 wise not in accordance with law.

9 ‘‘(u) OTHER PLANS PROTECTING LISTED SPE10 CIES.—Any conservation measure that provides protection

11 to a species listed as endangered or threatened that is car12 ried out under a plan developed under the Pacific North13 west Electric Power Planning and Conservation Act (16

14 U.S.C. 839 et seq.) shall be considered to be part of the

15 conservation plan for the species for the purpose of any

16 cost-sharing arrangement under section 16.’’.

17 (b) DEFINITION OF CRITICAL HABITAT.—Section 3

18 (16 U.S.C. 1532) is further amended in paragraph (7) (as

19 redesignated by section 103(c)(1))—

20 (1) by striking ‘‘(7)(A)’’ and all that follows

21 through the end of subparagraph (A) and inserting

22 the following:

23 ‘‘(7) CRITICAL HABITAT.—

24 ‘‘(A) IN GENERAL.—The term ‘critical

25 habitat’ for an endangered species or a threat-
36

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1 ened species means the specific areas within the

2 geographic area occupied by a species at the

3 time the species is listed in accordance with sec4 tion 4 that contain such physical or biological

5 features as—

6 ‘‘(i) are essential to the persistence of

7 the species over the 50-year period begin8 ning on the date the regulation designating

9 the critical habitat, or any revision of the

10 regulation, is promulgated; and

11 ‘‘(ii) may require special management

12 considerations or protection.’’; and

13 (2) in subparagraph (C), by striking ‘‘which can

14 be’’.

15 (c) CONFORMING AMENDMENTS.—

16 (1) Section 6(d)(1) (16 U.S.C. 1535(d)(1)) is

17 amended by striking ‘‘section 4(g)’’ and inserting

18 ‘‘section 4(f)’’.

19 (2) Section 10(f)(5) (16 U.S.C. 1539(f)(5)) is

20 amended by striking the last sentence.

21 (3) Section 7(a)(1) of the Land and Water

22 Conservation Fund Act of 1965 (16 U.S.C. 460l–

23 9(a)(1)) is amended by striking ‘‘section 5(a)’’ and

24 inserting ‘‘section 5A(a)’’.
37

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1 (4) Section 5(b) of Public Law 103–64 (16

2 U.S.C. 460iii–4) is amended by striking ‘‘section

3 5(b) of the Endangered Species Act of 1973 (16

4 U.S.C. 1534(b))’’ and inserting ‘‘section 5A(b) of

5 the Endangered Species Act of 1973’’.

6 (5) Section 101(a)(5)(E)(i)(II) of the Marine

7 Mammal Protection Act of 1972 (16 U.S.C.

8 1371(a)(5)(E)(i)(II)) is amended by striking ‘‘a re9 covery plan has been developed or is being developed

10 for such species or stock pursuant to the’’ and in11 serting ‘‘a conservation plan has been developed or

12 is being developed for the species or stock pursuant

13 to section 5 of the’’.

14 (6) Section 104(c)(4) of the Marine Mammal

15 Protection Act of 1972 (16 U.S.C. 1374(c)(4)) is

16 amended—

17 (A) in subparagraph (A)(ii)—

18 (i) in subclause (I), by striking ‘‘any

19 recovery plan developed under section 4(f)’’

20 and inserting ‘‘any conservation plan devel21 oped under section 5’’; and

22 (ii) in subclause (II)—

23 (I) by striking ‘‘or recovery’’; and

24 (II) by striking ‘‘or a recovery

25 plan’’; and
38

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1 (B) in subparagraph (B)(iii), by striking

2 ‘‘recovery plan’’ and inserting ‘‘conservation

3 plan’’.

4 (7) Section 115(b)(2) of the Marine Mammal

5 Protection Act of 1972 (16 U.S.C. 1383b(b)(2)) is

6 amended by striking ‘‘recovery plans required under

7 section 4(f) of the Endangered Species Act of 1973

8 (16 U.S.C. 1533(f))’’ and inserting ‘‘conservation

9 plans required under section 5 of the Endangered

10 Species Act of 1973’’.

11 (8) Section 118(f)(11) of the Marine Mammal

12 Protection Act of 1972 (16 U.S.C. 1387(f)(11)) is

13 amended by striking ‘‘recovery plan developed for

14 such species or stock under section 4’’ and inserting

15 ‘‘conservation plan developed for the species or stock

16 under section 5’’.

17 SEC. 202. PROVIDING TRANSITION PERIODS FOR CON18 SERVATION PLAN PREPARATION.

19 (a) EXPEDITED CONSERVATION PLAN ISSUANCE.—

20 (1) IN GENERAL.—Not later than 30 days after

21 the date of enactment of this Act, the Secretary (as

22 defined in section 3 of the Endangered Species Act

23 of 1973 (16 U.S.C. 1532)) shall publish a list of all

24 species that were determined to be endangered spe25 cies or threatened species under section 4 of the Act
39

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1 (16 U.S.C. 1533) for which no final recovery plans

2 were issued under section 4(f) of the Act (16 U.S.C.

3 1533(f)) (as in effect on the day before the date of

4 enactment of this Act).

5 (2) SPECIES LISTED IN MORE THAN 1 STATE.—

6 In the case of a species that is listed as endangered

7 or threatened in more than 1 State, the Secretary

8 shall publish under section 5 of the Endangered

9 Species Act of 1973 (as amended by section 201) a

10 conservation objective not later than 210 days, a

11 draft conservation plan not later than 1 year, and a

12 final conservation plan not later than 18 months,

13 after the date of enactment of this Act, unless a con14 servation objective is published that is described in

15 section 5(e)(3) of the Act.

16 (3) SPECIES LISTED IN 1 STATE.—In the case

17 of a species that is listed as endangered or threat18 ened in 1 State, the Secretary shall publish a con19 servation objective under section 5 of the Act (as

20 amended by section 201) as expeditiously as prac21 ticable.

22 (b) EXISTING RECOVERY PLANS.—

23 (1) IN GENERAL.—A final recovery plan issued

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

25 1973 (16 U.S.C. 1533(f)) (as in effect on the day
40

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1 before the date of enactment of this Act) shall con2 tinue to apply to a species until a final revision of

3 the final recovery plan is published under this sub4 section. Not later than 90 days after the date of en5 actment of this Act, the Secretary shall publish a

6 list of all species that were determined to be endan7 gered species or threatened species under section 4

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

9 1533) for which final recovery plans were issued

10 under section 4(f) of the Act (16 U.S.C. 1533(f))

11 (as in effect on the day before the date of enactment

12 of this Act).

13 (2) SPECIES LISTED IN MORE THAN 1 STATE.—

14 In the case of a species subject to a final recovery

15 plan described in paragraph (1) that is listed in

16 more than 1 State, the Secretary shall commence

17 the development of a conservation objective under

18 section 5 of the Endangered Species Act of 1973 (as

19 amended by section 201) as expeditiously as prac20 ticable, but not later than 2 years after the date of

21 enactment of this Act. Upon the commencement of

22 the development of a conservation objective, the

23 schedules established under section 5 of the Act

24 shall apply.
41

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1 (3) SPECIES LISTED IN 1 STATE.—Not later

2 than 1 year after the date of enactment of this Act,

3 the Secretary shall publish a plan for the orderly re4 view of all final recovery plans described in para5 graph (1) that are not subject to paragraph (2). In

6 reviewing the plans, the Secretary shall first re7 view—

8 (A) those plans with respect to which con9 flicts between the conservation of a species and

10 development projects or other forms of eco11 nomic activity exist or are likely to exist; and

12 (B) those plans that have adverse social or

13 economic impacts on affected communities or

14 State or local governments.

15 (4) RESCISSION OF RECOVERY PLAN.—If the

16 Secretary publishes a conservation objective de17 scribed in section 5(e)(3) of the Act (as amended by

18 section 201) for any species subject to this sub19 section, the final recovery plan applicable to the spe20 cies shall be rescinded.

21 (5) PROHIBITION ON ADDITIONAL REQUIRE22 MENTS.—No increase in a population target or ob23 jective, other measurable criterion, or site-specific

24 management action may be required by the Sec25 retary or any other Federal agency in addition to
42

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1 the requirements of a final recovery plan issued

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

3 1973 (16 U.S.C. 1533(f)) (as in effect on the day

4 before the date of enactment of this Act), until such

5 time as a conservation objective has been published

6 under section 5 of the Act (as amended by section

7 201) in accordance with this subsection.

8 (c) EXISTING BIOLOGICAL OPINIONS.—In conjunc9 tion with the issuance of a conservation objective described

10 in section 5(e)(3) of the Act (as amended by section 201)

11 or a conservation plan under subsection (a) or (b), the

12 Secretary (as defined in section 3 of the Endangered Spe13 cies Act of 1973 (16 U.S.C. 1532)) shall review and re14 issue, in accordance with section 7 of the Act (as amended

15 by this Act), any written opinion of the Secretary issued

16 after January 1, 1995, that relates to the affected listed

17 species and was issued under section 7(b)(3) of the Act

18 (16 U.S.C. 1536(b)(3)) (as in effect on the day before the

19 date of enactment of this Act).
43

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1 SEC. 203. MAKING TECHNICAL AND CONFORMING AMEND2 MENTS TO ENSURE THAT CONSERVATION OB3 JECTIVES AND PLANS ARE THE FOCUS OF

4 MANAGEMENT UNDER THE ENDANGERED

5 SPECIES ACT OF 1973.

6 (a) TABLE OF CONTENTS.—The table of contents in

7 the first section (16 U.S.C. prec. 1531) is amended by

8 striking the item relating to section 5 and inserting the

9 following:

‘‘Sec. 5. Coordination of species conservation efforts; species conservation plans.

‘‘Sec. 5A. Land acquisition.’’.

10 (b) DEFINITIONS OF CONSERVATION OBJECTIVE

11 AND PLAN.—Section 3 (16 U.S.C. 1532) is further

12 amended by striking paragraph (4) (as redesignated by

13 section 103(c)(1)) and inserting the following:

14 ‘‘(4) CONSERVATION OBJECTIVE; CONSERVA15 TION PLAN.—The terms ‘conservation objective’ and

16 ‘conservation plan’ (except when modified by ‘non17 Federal’) mean a conservation objective and a con18 servation plan, respectively, developed under section

19 5.’’.

20 (c) CRITICAL HABITAT DESIGNATIONS.—Section 4

21 (16 U.S.C. 1533) (as amended by section 101) is further

22 amended—

23 (1) in subsection (a), by striking paragraph (3);

24 (2) in subsection (b)—
44

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1 (A) in paragraph (3), by striking subpara2 graph (D);

3 (B) in paragraph (5), by striking ‘‘deter4 mination, designation, or revision referred to in

5 subsection (a) (1) or (3),’’ and inserting ‘‘deter6 mination referred to in subsection (a)(1),’’;

7 (C) in paragraph (6)—

8 (i) in subparagraph (A)—

9 (I) by striking ‘‘Register’’ and all

10 that follows through ‘‘(i) if’’ and in11 serting the following: ‘‘Register, if’’;

12 (II) by striking ‘‘species, or a re13 vision of critical habitat,’’ and insert14 ing ‘‘species’’;

15 (III) by striking clause (ii);

16 (IV) by striking ‘‘(I) a’’ and in17 serting the following:

18 ‘‘(i) a’’;

19 (V) by striking ‘‘(II) a’’ and in20 serting the following:

21 ‘‘(ii) a’’;

22 (VI) by striking ‘‘(III) notice’’

23 and inserting the following:

24 ‘‘(iii) notice’’;
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1 (VII) by striking ‘‘(IV) notice’’

2 and inserting the following:

3 ‘‘(iv) notice’’; and

4 (VIII) in clause (iv) (as amended

5 by subclause (VII)), by striking

6 ‘‘based; or’’ and inserting ‘‘based.’’;

7 (ii) in subparagraph (B)—

8 (I) in clause (i), by striking ‘‘or

9 revision concerned’’; and

10 (II) in clause (iii), by striking ‘‘or

11 revision concerned, a finding that the

12 revision should not be made,’’; and

13 (iii) by striking subparagraph (C);

14 and

15 (D) in paragraph (8), by striking ‘‘regula16 tion; and if such regulation designates or re17 vises critical habitat, such summary shall, to

18 the maximum extent practicable, also include a

19 brief description and evaluation of those activi20 ties (whether public or private) which, in the

21 opinion of the Secretary, if undertaken may ad22 versely modify such habitat, or may be affected

23 by such designation.’’ and inserting ‘‘regula24 tion.’’;

25 (3) by striking subsection (f); and
46

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1 (4) by redesignating subsections (g) through (j)

2 as subsections (f) through (i), respectively.

3 (d) SECRETARIAL GUIDELINES.—Section 4(g)(4) (16

4 U.S.C. 1533(h)(4)) (as redesignated by subsection (c)(4))

5 is amended by striking ‘‘recovery plans under subsection

6 (f) of this section’’ and inserting ‘‘conservation objectives

7 and conservation plans’’.

8 (e) CONSULTATION PROCESS.—Section 7 (16 U.S.C.

9 1536) is amended—

10 (1) in subsection (a)—

11 (A) in the second sentence of paragraph

12 (1), by striking ‘‘All’’ and inserting ‘‘Except as

13 provided in subsections (e)(3), (n)(1), and

14 (o)(1)(B) of section 5, all’’;

15 (B) in paragraph (2)—

16 (i) in the first sentence, by striking

17 ‘‘Each’’ and inserting ‘‘Except as provided

18 in subsections (e)(3), (n)(2), and (o)(1)(B)

19 of section 5, each’’; and

20 (ii) by inserting after the first sen21 tence the following: ‘‘As provided in section

22 5(n)(2), each Federal agency may initiate

23 consultation with the Secretary to receive

24 guidance from the Secretary on the con25 sistency of an agency action with the con-
47

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1 servation objective or conservation plan for

2 the species, with an incidental taking per3 mit for the species, or with a cooperative

4 management agreement concerning the

5 species.’’; and

6 (C) in paragraph (3), by striking ‘‘project’’

7 and inserting ‘‘project, that the project is incon8 sistent with the conservation objective or con9 servation plan, an incidental taking permit, or

10 a cooperative management agreement, for the

11 species,’’; and

12 (2) in the first sentence of subsection (b)(3)(A),

13 by inserting after ‘‘detailing’’ the following: ‘‘wheth14 er the agency action is consistent with the conserva15 tion objective or plan, an incidental taking permit,

16 or a cooperative management agreement, or’’.

17 (f) PROHIBITED ACTS.—Section 9(a) (16 U.S.C.

18 1538(a)) is amended by striking ‘‘sections 6(g)(2) and 10

19 of this Act’’ each place it appears in paragraphs (1) and

20 (2) and inserting ‘‘section 6(g)(2), subsections (n)(3) and

21 (o) of section 5, and section 10’’.

22 (g) NON-FEDERAL CONSERVATION PLANS.—Section

23 10(a)(2) (16 U.S.C. 1539(a)(2)) is amended by inserting

24 ‘‘non-Federal’’ before ‘‘conservation plan’’ each place it

25 appears in subparagraphs (A) and (B).
48

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1 TITLE III—IMPROVING THE CON2 SULTATION AND CONFERENC3 ING PROCESSES FOR FED4 ERAL AGENCY ACTIONS

5 SEC. 301. CLARIFYING THE CONSULTATION AND CON6 FERENCING STANDARDS.

7 (a) CONSULTATION AND CONFERENCING STAND8 ARD.—Section 7(a) (16 U.S.C. 1536(a)) is amended—

9 (1) in the first sentence of paragraph (2), by

10 striking ‘‘or result in the destruction or adverse

11 modification of habitat of such species which is de12 termined by the Secretary, after consultation as ap13 propriate with affected States, to be critical,’’ and

14 inserting ‘‘or destroy or adversely modify any habi15 tat that is designated by the Secretary as critical

16 habitat of the species in a manner that is likely to

17 jeopardize the continued existence of the species,’’;

18 and

19 (2) in paragraph (4), by striking ‘‘or result in

20 the destruction or adverse modification of critical

21 habitat proposed to be designated for such species’’

22 and inserting ‘‘or to destroy or adversely modify any

23 habitat that is proposed to be designated by the Sec24 retary as critical habitat of such a species in a man-
49

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1 ner that is likely to jeopardize the continued exist2 ence of the species’’.

3 (b) JEOPARDY DEFINITION.—Section 3 (16 U.S.C.

4 1532) is further amended by inserting after paragraph

5 (13) (as redesignated by section 103(c)(1)) the following:

6 ‘‘(15) LIKELY TO JEOPARDIZE THE CONTINUED

7 EXISTENCE OF.—The term ‘likely to jeopardize the

8 continued existence of’, with respect to an action or

9 activity affecting an endangered species or a threat10 ened species, means an action or activity that sig11 nificantly diminishes the likelihood of the survival of

12 the species in the wild by significantly reducing the

13 numbers or distribution of the entire species.’’.

14 SEC. 302. IDENTIFYING WHEN CONSULTATION IS RE15 QUIRED.

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

17 (1) in paragraph (2)—

18 (A) in the first sentence, by striking ‘‘shall,

19 in consultation with and with the assistance of

20 the Secretary, insure’’ and inserting ‘‘shall en21 sure’’; and

22 (B) by inserting after the first sentence

23 the following: ‘‘In the case of any agency action

24 that is subject to this paragraph and that is

25 likely to significantly and adversely affect an
50

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1 endangered species or a threatened species, the

2 Federal agency shall fulfill the requirements of

3 this paragraph in consultation with and with

4 the assistance of the Secretary.’’; and

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

6 ‘‘(5) ACTIONS EXEMPT FROM CONSULTATION

7 AND CONFERENCING.—Consultation and conferenc8 ing under paragraphs (2) and (4) shall not be re9 quired for any agency action that—

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

11 final conservation plan under section 5(n) or a

12 conservation objective described in section

13 5(e)(3);

14 ‘‘(B) is consistent with a cooperative man15 agement agreement or an incidental taking per16 mit;

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

18 to public health or safety or a catastrophic nat19 ural event; or

20 ‘‘(D) consists of routine maintenance or re21 pair to a Federal or non-Federal project or fa22 cility.

23 ‘‘(6) ACTIONS NOT CONSTITUTING TAKINGS.—

24 An agency action shall not constitute a taking of a
51

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1 species prohibited by this Act or any regulation is2 sued under this Act if the action is consistent with—

3 ‘‘(A) the actions provided for in a final

4 conservation plan under section 5(n) or a con5 servation objective described in section 5(e)(3);

6 or

7 ‘‘(B) a cooperative management agreement

8 or an incidental taking permit.’’.

9 SEC. 303. MAKING THE CONSULTATION DEADLINES BIND10 ING.

11 Section 7(b)(1) (16 U.S.C. 1536(b)(1)) is amended—

12 (1) in subparagraph (A), by striking ‘‘initiated

13 or, subject to subparagraph (B), within such other

14 period of time as is mutually agreeable to the Sec15 retary and the Federal agency.’’ and inserting ‘‘initi16 ated by the Federal agency. The period may be ex17 tended by not more than 45 days by the Secretary

18 or head of the Federal agency by publication of no19 tice in the Federal Register that sets forth the rea20 sons for the extension. Consultation on an agency

21 action involving a permit or license applicant shall

22 be concluded not later than the earlier of—

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

24 application to the Federal agency; or
52

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1 ‘‘(ii) the end of the period established under

2 subparagraph (B).’’;

3 (2) in subparagraph (B)—

4 (A) in the first sentence—

5 (i) by striking ‘‘In’’ and inserting

6 ‘‘Subject to subparagraph (A), in’’; and

7 (ii) in clause (ii), by striking ‘‘150 or

8 more days’’ and inserting ‘‘on or after the

9 150th day but before the 210th day’’; and

10 (B) by striking the second sentence; and

11 (3) by adding at the end the following:

12 ‘‘(C) EFFECT OF FAILURE TO TIMELY

13 CONCLUDE CONSULTATION.—If consultation is

14 not concluded and the written statement of the

15 Secretary required under paragraph (3)(A) is

16 not provided to the Federal agency by the appli17 cable deadline established under this paragraph,

18 the requirements of subsection (a)(2) shall be

19 deemed met and the Federal agency may pro20 ceed with the agency action.’’.

21 SEC. 304. ENHANCING APPLICANT PARTICIPATION.

22 (a) NATURE OF PARTICIPATION.—Section 7 (16

23 U.S.C. 1536) is further amended—

24 (1) in subsection (a)(3), by inserting ‘‘with the

25 involvement of,’’ after ‘‘at the request of,’’; and
53

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1 (2) in subsection (b)(1), by adding after sub2 paragraph (C) (as added by section 303(3)) the fol3 lowing:

4 ‘‘(D) PARTICIPATION BY APPLICANT.—A

5 permit or license applicant shall be entitled to

6 participate fully in any consultation or con7 ferencing under this section with respect to any

8 agency action required for the granting of an

9 authorization or provision of funding to the ap10 plicant.’’.

11 (b) DEFINITION OF APPLICANT.—Section 3 (16

12 U.S.C. 1532) is further amended by striking paragraph

13 (17) (as redesignated by section 103(c)(1)) and inserting

14 the following:

15 ‘‘(17) PERMIT OR LICENSE APPLICANT.—The

16 term ‘permit or license applicant’ means, with re17 spect to the consultation procedures established by

18 section 7, any person that requires authorization or

19 funding from a Federal agency as a prerequisite to

20 conducting an activity (including a party to a writ21 ten lease, right-of-way, license, contract to purchase

22 or provide a product or service, or other permit with

23 a Federal agency) that requires an action from the

24 agency to obtain the benefit of the activity.’’.
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1 SEC. 305. SPECIFYING THE REASONABLE AND PRUDENT AL2 TERNATIVES IDENTIFICATION PROCESS.

3 (a) IDENTIFICATION.—Section 7(b)(3)(A) (16 U.S.C.

4 1536(b)(3)(A)) is amended by striking the second sen5 tence and inserting the following: ‘‘If the Secretary deter6 mines that the action is likely to jeopardize the continued

7 existence of the species as described in subsection (a), the

8 Secretary shall suggest reasonable and prudent alter9 natives (considering any reasonable and prudent alter10 natives undertaken by other Federal agencies) that are

11 consistent with subsection (a)(2) and that impose the least

12 social and economic costs.’’.

13 (b) DEFINITION.—Section 3 (16 U.S.C. 1532) is fur14 ther amended by inserting after paragraph (19) (as redes15 ignated by section 103(c)(1)) the following:

16 ‘‘(20) REASONABLE AND PRUDENT ALTER17 NATIVE.—The term ‘reasonable and prudent alter18 native’ means an alternative action identified under

19 section 7(b)(3) during consultation on an agency ac20 tion that—

21 ‘‘(A) can be implemented in a manner con22 sistent with the intended purpose of the action;

23 ‘‘(B) can be implemented consistent with

24 the scope of the legal authority and jurisdiction

25 of the Federal agency;
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1 ‘‘(C) is economically and technologically

2 feasible; and

3 ‘‘(D) the Secretary believes would avoid

4 being likely to jeopardize the continued exist5 ence of the species.’’.

6 SEC. 306. CLARIFYING THE RELATIONSHIP OF THE CON7 SULTATION REQUIREMENT WITH THE LAND

8 MANAGEMENT PLANNING REQUIREMENTS

9 FOR FEDERAL LANDS.

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

11 (1) by striking ‘‘RESOURCES.—After’’; and in12 serting the following: ‘‘RESOURCES.—

13 ‘‘(1) IN GENERAL.—Except as provided in para14 graph (2), after’’; and

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

16 ‘‘(2) RELATIONSHIP TO LAND MANAGEMENT

17 PLANNING REQUIREMENTS.—If the listing of a spe18 cies, or other procedure or decision related to a spe19 cies listed under section 4(c)(1), requires consulta20 tion under subsection (a)(2) on a land use plan or

21 land or resource management plan (or an amend22 ment to or revision of the plan) prepared under sec23 tion 202 of the Federal Land Policy and Manage24 ment Act of 1976 (43 U.S.C. 1712) or section 6 of

25 the Forest and Rangeland Renewable Resources
56

•S 768 IS

1 Planning Act of 1974 (16 U.S.C. 1604), the land

2 management agency implementing the plan may au3 thorize, fund, or carry out an agency action that is

4 consistent with the plan prior to the completion of

5 the consultation, if, under the procedures established

6 by this section, the head of the land management

7 agency responsible for the action determines or has

8 determined that the action—

9 ‘‘(A) is not likely to significantly and ad10 versely affect the species; or

11 ‘‘(B) is likely to significantly and adversely

12 affect the species, and the Secretary issues an

13 opinion on the action that finds that the ac14 tion—

15 ‘‘(i) is not likely to jeopardize the con16 tinued existence of the species; or

17 ‘‘(ii) is likely to jeopardize the contin18 ued existence of the species, and the agen19 cy agrees to a reasonable and prudent al20 ternative.’’.

21 SEC. 307. FURTHER CLARIFYING FEDERAL AGENCY RE22 SPONSIBILITIES.

23 Section 7(a) (16 U.S.C. 1536(a)) is further amend24 ed—
57

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1 (1) in the last sentence of paragraph (2), by

2 striking ‘‘best scientific and commercial data avail3 able’’ and inserting ‘‘best reasonably obtainable sci4 entific information, shall consider any opinion and

5 any reasonable and prudent alternatives developed

6 under subsection (b)(3)(A), and shall render the de7 cision of the agency in a manner consistent with the

8 obligations and responsibilities of the agency under

9 each applicable law and treaty’’; and

10 (2) by adding after paragraph (6) (as added by

11 section 302(2)) the following:

12 ‘‘(7) RELATIONSHIP TO DUTIES UNDER OTHER

13 LAWS.—

14 ‘‘(A) IN GENERAL.—The responsibilities of

15 a Federal agency under this section shall not

16 supersede duties assigned to the Federal agency

17 by any other laws or by any treaties.

18 ‘‘(B) RESOLUTION OF CONFLICTS.—

19 ‘‘(i) REQUEST BY THE AGENCY.—If a

20 Federal agency determines that the re21 sponsibilities and duties described in sub22 paragraph (A) are in irreconcilable conflict,

23 the action agency shall request the Presi24 dent to resolve the conflict.
58

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1 ‘‘(ii) DECISION BY THE PRESIDENT.—

2 In determining a resolution to such a con3 flict, the President shall consider and

4 choose the course of action that best meets

5 the public interest and, to the extent pos6 sible, balances pursuit of the conservation

7 objective or the purposes of the conserva8 tion plan with pursuit of the purposes of

9 the other laws or treaties. The authority

10 assigned to the President by this subpara11 graph may not be delegated to a member

12 of the executive branch who has not been

13 confirmed by the Senate.

14 ‘‘(8) MODIFICATION OF PROJECTS AND FACILI15 TIES.—Any consultation and conferencing required

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

17 that consists solely of a modification of a Federal,

18 State, local government, or private project or facility

19 shall be limited to the consideration of the effects

20 that result from the modification that comprises the

21 agency action.’’.

22 SEC. 308. CLARIFYING THE EFFECTS OF SECONDARY IM23 PACTS.

24 Section 7(b)(3)(A) (16 U.S.C. 1536(b)(3)(A)) is

25 amended—
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1 (1) by striking ‘‘(3)(A) Promptly’’ and inserting

2 the following:

3 ‘‘(3) WRITTEN OPINION OF SECRETARY.—

4 ‘‘(A) ISSUANCE.—

5 ‘‘(i) IN GENERAL.—Promptly’’; and

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

7 ‘‘(ii) SCOPE.—Unless required by law

8 other than subsections (a) through (d), the

9 Secretary, in any opinion or statement con10 cerning an agency action made under this

11 subsection (including any reasonable and

12 prudent alternative suggested under clause

13 (i) or any reasonable and prudent measure

14 specified under clause (ii) of paragraph

15 (4)), and the head of the Federal agency

16 proposing the agency action, may not re17 quire, provide for, or recommend the impo18 sition of any restriction or obligation on

19 the activity of any person that is not au20 thorized, funded, carried out, or otherwise

21 subject to regulation by the Federal agen22 cy. Nothing in this clause prevents the

23 Secretary from pursuing any appropriate

24 remedy under section 11 for any activity

25 prohibited by section 4(d) or 9.’’.
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1 SEC. 309. REQUIRING RISK ASSESSMENT AND COST BENE2 FIT ANALYSES IN THE CONSULTATION PROC3 ESS.

4 Section 7(b) (16 U.S.C. 1536(b)) is amended by add5 ing at the end the following:

6 ‘‘(5) RISK ASSESSMENT.—

7 ‘‘(A) IN GENERAL.—Any opinion of the

8 Secretary provided under this subsection shall

9 include a clear and concise statement that—

10 ‘‘(i) describes and, to the extent prac11 ticable, quantifies the risks to endangered

12 species, threatened species, or critical habi13 tat to be addressed by the opinion;

14 ‘‘(ii) compares the risks to endangered

15 species, threatened species, or critical habi16 tat to be addressed by the terms of the

17 opinion to other risks chosen by the Sec18 retary, including—

19 ‘‘(I) the risks to at least 3 other

20 species listed as endangered or threat21 ened under section 4(a); and

22 ‘‘(II) such other risks as the Sec23 retary considers appropriate;

24 ‘‘(iii) estimates—

25 ‘‘(I) the costs to the Federal

26 Government, State and local govern-
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1 ments, the applicant, and the private

2 sector of implementing and complying

3 with the elements of the opinion de4 scribed in clause (i); and

5 ‘‘(II) the benefits of the elements

6 of the opinion described in clause (i);

7 including both quantifiable measures of

8 costs and benefits, to the fullest extent

9 that the costs and benefits can be esti10 mated, and qualitative measures that are

11 difficult to quantify; and

12 ‘‘(iv) contains a certification by the

13 Secretary that—

14 ‘‘(I) the analyses performed

15 under clauses (i) through (iii) are

16 based on the best reasonably obtain17 able scientific information;

18 ‘‘(II) the elements of the opinion

19 described in clause (i) are likely to

20 significantly reduce the risks to the

21 endangered species, threatened spe22 cies, or critical habitat addressed by

23 the opinion;

24 ‘‘(III) there is no regulatory or

25 administrative alternative that is al-
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1 lowed by this Act that would achieve

2 an equivalent reduction in risk in a

3 more cost-effective manner, along with

4 a brief explanation of why other such

5 regulatory or administrative alter6 natives that were considered by the

7 Secretary were found to be less cost8 effective; and

9 ‘‘(IV) the elements of the opinion

10 described in clause (i) are likely to

11 produce benefits to endangered spe12 cies, threatened species, or critical

13 habitat that will justify the costs to

14 the Federal Government, State and

15 local governments, any applicant, and

16 the private sector of implementing

17 and complying with the elements.

18 ‘‘(B) NO EFFECT ON OTHER LAW OR AC19 TION.—Nothing in this paragraph—

20 ‘‘(i) affects any other Federal law;

21 ‘‘(ii) changes the factors that the Sec22 retary shall consider under this subsection

23 in issuing the opinion; or
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1 ‘‘(iii) shall delay any action required

2 to meet a deadline imposed by statute or

3 a court.

4 ‘‘(C) NO EFFECT ON RIGHTS.—

5 ‘‘(i) IN GENERAL.—Except as pro6 vided in clause (ii), nothing in this section

7 creates any right to judicial review, or cre8 ates any right or benefit, substantive or

9 procedural, enforceable at law or equity by

10 a party against the United States, agen11 cies, instrumentalities, officers, or employ12 ees of the United States, or any other per13 son.

14 ‘‘(ii) EXCEPTION.—Each risk assess15 ment, cost-benefit analysis, certification,

16 and peer review report prepared under this

17 section shall be made part of the adminis18 trative review of any final agency action to

19 which it relates. If the elements of the

20 opinion described in subparagraph (A)(i)

21 are subject to judicial review under any

22 other law, the adequacy of the certification

23 prepared under subparagraph (A)(iv), and

24 any alleged failure to comply with this

25 paragraph, may not be used as independ-
64

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1 ent grounds for affecting or invalidating

2 the opinion, although the adequacy of com3 pliance or any failure to comply may be

4 considered by the court solely for the pur5 pose of determining whether a final agency

6 action is arbitrary and capricious or an

7 abuse of discretion under section

8 706(2)(A) of title 5, United States Code.’’.

9 SEC. 310. ELIMINATING THE ENDANGERED SPECIES COM10 MITTEE.

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

12 (1) in the first sentence of subsection (a)(2), by

13 striking ‘‘, unless such agency has been granted an

14 exemption for such action by the Committee under

15 subsection (h) of this section’’;

16 (2) in subsection (c)—

17 (A) by striking ‘‘(1)’’; and

18 (B) by striking paragraph (2);

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

20 following:

21 ‘‘(e) EXEMPTIONS.—Notwithstanding any other pro22 vision of this Act—

23 ‘‘(1) the Secretary shall grant an exemption

24 from this Act for any activity if the Secretary of De-
65

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1 fense determines that the exemption of the activity

2 is necessary for reasons of national security; and

3 ‘‘(2) the President may grant an exemption

4 from this Act for any area that the President has

5 declared to be a major disaster area under the Rob6 ert T. Stafford Disaster Relief and Emergency As7 sistance Act (42 U.S.C. 5121 et seq.) for any project

8 for the repair or replacement of a public facility sub9 stantially as the facility existed prior to the disaster

10 under section 405 or 406 of the Act (42 U.S.C.

11 5171 and 5172), if the President determines that

12 the project—

13 ‘‘(A) is necessary to prevent the recurrence

14 of such a natural disaster and to reduce the po15 tential loss of human life; and

16 ‘‘(B) involves an emergency situation that

17 does not allow the procedures of this Act (other

18 than this subsection) to apply.’’; and

19 (4) by striking subsections (f) through (p).
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1 TITLE IV—ENSURING THAT THE

2 COMPLIANCE PROCEDURES

3 AND STANDARDS FOR NON4 FEDERAL PERSONS ARE NOT

5 MORE BURDENSOME THAN

6 THE PROCEDURES AND

7 STANDARDS APPLICABLE TO

8 FEDERAL AGENCIES

9 SEC. 401. ESTABLISHING CONSULTATION PROCEDURES

10 WITH RESPECT TO PRIVATE ACTIONS.

11 (a) IN GENERAL.—Section 10 (16 U.S.C. 1539) is

12 amended—

13 (1) in subsection (a)—

14 (A) in paragraph (2)(A), by striking ‘‘No’’

15 and inserting ‘‘Except as provided in paragraph

16 (3), no’’; and

17 (B) by adding at the end the following:

18 ‘‘(3) CONSULTATION.—

19 ‘‘(A) IN GENERAL.—Subject to such regu20 lations as the Secretary may issue, any non21 Federal person may initiate consultation with

22 the Secretary on any prospective activity of the

23 person—

24 ‘‘(i) to determine if the activity is con25 sistent or inconsistent with a conservation
67

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1 plan or conservation objective, an inciden2 tal taking permit, or a cooperative manage3 ment agreement; or

4 ‘‘(ii) if the person determines that the

5 activity is inconsistent, to determine

6 whether the activity is likely to jeopardize

7 the continued existence of an endangered

8 species or a threatened species, or to de9 stroy or adversely modify the designated

10 critical habitat of the species in a manner

11 that is likely to jeopardize the continued

12 existence of the species.

13 ‘‘(B) DURATION OF CONSULTATION.—A

14 consultation under subparagraph (A) shall con15 clude not later than 90 days after the date on

16 which the consultation is initiated, or not later

17 than such other date as is mutually agreeable

18 to the Secretary and the person initiating the

19 consultation.

20 ‘‘(C) WRITTEN OPINION OF SECRETARY.—

21 ‘‘(i) IN GENERAL.—As soon as prac22 ticable after the conclusion of consultation

23 under subparagraph (A), the Secretary

24 shall provide to the person initiating the

25 consultation a written statement setting
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1 forth the opinion of the Secretary, and a

2 summary of the information on which the

3 opinion is based, describing in detail

4 whether the prospective activity is consist5 ent with the documents referred to in sub6 paragraph (A)(i) and how the prospective

7 activity affects the species or the critical

8 habitat of the species as described in sub9 paragraph (A)(ii).

10 ‘‘(ii) DETERMINATION OF NO JEOP11 ARDY.—If the Secretary determines under

12 clause (i) that the activity is not likely to

13 jeopardize the continued existence of the

14 species as described in subparagraph

15 (A)(ii), the Secretary shall provide to the

16 person initiating the consultation a state17 ment that the proposed activity will not

18 jeopardize the continued existence of the

19 species.

20 ‘‘(iii) DETERMINATION OF LIKELY

21 JEOPARDY.—If the Secretary determines

22 under clause (i) that the activity is likely

23 to jeopardize the continued existence of the

24 species as described in subparagraph

25 (A)(ii), the Secretary shall suggest the rea-
69

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1 sonable and prudent alternatives that the

2 Secretary determines would not be likely to

3 jeopardize the continued existence of the

4 species and that can be taken by the per5 son initiating the consultation in carrying

6 out the activity.

7 ‘‘(D) ISSUANCE OF PERMIT.—After the

8 conclusion of consultation under subparagraph

9 (A), if the person initiating the consultation so

10 requests, the Secretary shall issue a permit

11 under paragraph (1)(B) to the person if the

12 Secretary determines that—

13 ‘‘(i)(I) the activity of the person initi14 ating the consultation is not likely to jeop15 ardize the continued existence of the spe16 cies as described in subparagraph (A)(ii);

17 or

18 ‘‘(II) the person has accepted a rea19 sonable and prudent alternative offered by

20 the Secretary under subparagraph (C)(iii),

21 in which case the Secretary shall issue a

22 permit requiring the alternative; and

23 ‘‘(ii)(I) no taking of an endangered

24 species or a threatened species incidental

25 to the activity or alternative will occur; or
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1 ‘‘(II) the taking of an endangered spe2 cies or a threatened species incidental to

3 the activity or alternative may occur but is

4 not likely to jeopardize the continued exist5 ence of the species as described in sub6 paragraph (A)(ii).

7 ‘‘(E) REVOCATION OF PERMIT.—The Sec8 retary shall revoke a permit issued under this

9 paragraph if the Secretary determines that the

10 permittee is not complying with the terms and

11 conditions of the permit.

12 ‘‘(F) PERMITS FOR INCIDENTAL TAK13 ING.—If a determination is made under sub14 paragraph (D)(ii)(II) that an incidental taking

15 may occur, a permit issued under paragraph

16 (1)(B) shall—

17 ‘‘(i) describe the impact of the inci18 dental taking on the species;

19 ‘‘(ii) specify the reasonable and pru20 dent measures that the Secretary considers

21 necessary or appropriate to minimize the

22 impact; and

23 ‘‘(iii) specify the terms and conditions

24 that the person initiating the consultation
71

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1 shall comply with to implement the meas2 ures.

3 ‘‘(G) INTERIM ACTIONS BY PERSON.—

4 After the initiation of consultation under sub5 paragraph (A), the person initiating the con6 sultation may not make any irreversible or irre7 trievable commitment of resources with respect

8 to the activity that is the subject of the con9 sultation if the commitment has the effect of

10 foreclosing the formulation or implementation

11 of any reasonable and prudent alternative or

12 measure that would not be likely to have an ef13 fect described in subparagraph (A)(ii).

14 ‘‘(H) BIOLOGICAL AND ENVIRONMENTAL

15 ASSESSMENTS.—Any consultation initiated

16 under subparagraph (A), and the activity that

17 is the subject of the consultation, shall not be

18 subject to section 7(c) of this Act or section

19 102(2) of the National Environmental Policy

20 Act of 1969 (42 U.S.C. 4332(2)).

21 ‘‘(I) TAKINGS.—Notwithstanding section

22 4(d) and subparagraphs (B) and (C) of section

23 9(a)(1) of this Act and sections 101 and 102 of

24 the Marine Mammal Protection Act of 1972 (16

25 U.S.C. 1371 and 1372), a taking of a species
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•S 768 IS

1 in the course of an action of a person that is

2 the subject of a written opinion provided to the

3 person by the Secretary under subparagraph

4 (C)(ii) shall not be considered to be a prohib5 ited taking under this Act if—

6 ‘‘(i) the Secretary determines that the

7 action is not likely to jeopardize the contin8 ued existence of the species under subpara9 graph (C)(ii); or

10 ‘‘(ii) the taking is in compliance with

11 the terms and conditions of a permit is12 sued in accordance with subparagraph

13 (D).’’; and

14 (2) in the first sentence of subsection (c), by

15 striking ‘‘this section’’ and inserting ‘‘subsections

16 (a)(2) and (b)’’.

17 (b) DEFINITIONS.—

18 (1) INCIDENTAL TAKING PERMIT.—Section 3

19 (16 U.S.C. 1532) is further amended by inserting

20 after paragraph (13) (as redesignated by section

21 103(c)(1)) the following:

22 ‘‘(14) INCIDENTAL TAKING PERMIT.—The term

23 ‘incidental taking permit’ means a permit issued

24 under section 10(a)(1)(B).’’.
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1 (2) NON-FEDERAL PERSON.—Section 3 (16

2 U.S.C. 1532) is further amended by inserting after

3 paragraph (15) (as added by section 301(b)) the fol4 lowing:

5 ‘‘(16) NON-FEDERAL PERSON.—The term ‘non6 Federal person’ means a person other than an offi7 cer, employee, agent, department, or instrumentality

8 of the Federal Government or a foreign government,

9 acting in the official capacity of the person.’’.

10 SEC. 402. DEFINING THE TAKING PROHIBITION IN ACCORD11 ANCE WITH THE INTENT OF CONGRESS.

12 Section 3 (16 U.S.C. 1532) is further amended by

13 striking paragraph (25) (as redesignated by section

14 103(c)(1)) and inserting the following:

15 ‘‘(25) TAKE.—

16 ‘‘(A) IN GENERAL.—The term ‘take’

17 means to harass, harm, pursue, hunt, shoot,

18 wound, kill, trap, capture, or collect, or to at19 tempt to engage in that conduct.

20 ‘‘(B) HARM.—In subparagraph (A), the

21 term ‘harm’ means to take a direct action

22 against any member of an endangered species

23 of fish or wildlife that actually injures or kills

24 a member of the species.’’.
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1 SEC. 403. CLARIFYING THE APPLICATION OF TAKING PRO2 HIBITIONS.

3 Section 9(a) (16 U.S.C. 1538(a)) is amended—

4 (1) in paragraph (1), by striking ‘‘Except as

5 provided in sections 6(g)(2) and 10 of this Act,’’ and

6 inserting ‘‘Except as provided in paragraph (3) and

7 sections 6(g)(2) and 10,’’; and

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

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

10 non-Federal person is deemed not to constitute a

11 taking of a species if the activity—

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

13 final conservation plan or conservation objec14 tive;

15 ‘‘(B) complies with the terms and condi16 tions of an incidental taking permit or a cooper17 ative management agreement;

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

19 to public health or safety or a catastrophic nat20 ural event; or

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

22 of, the carrying out of an otherwise lawful ac23 tivity that occurs within an area of the terri24 torial sea or exclusive economic zone established

25 by Proclamation Numbered 5030, dated March

26 10, 1983, that is not designated as critical
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1 habitat under section 5(m), and the affected

2 species is not a species of fish.’’.

3 SEC. 404. AUTHORIZING THE ISSUANCE OF GENERAL PER4 MITS.

5 Section 10(a) (16 U.S.C. 1539(a)) is further amend6 ed by adding after paragraph (3) (as added by section

7 401(a)(1)(B)) the following:

8 ‘‘(4) GENERAL PERMITS.—

9 ‘‘(A) IN GENERAL.—After providing notice

10 and opportunity for public hearing, the Sec11 retary may issue a general permit under para12 graph (1)(B) on a county, parish, State, re13 gional, or nationwide basis for any category of

14 activities that may affect a species that is in15 cluded in a list published under section 4(c)(1)

16 if the Secretary determines that the activities in

17 the category are similar in nature, will cause

18 only minimal adverse effects on the species if

19 performed separately, and will have only mini20 mal cumulative adverse effects on the species

21 generally. A general permit issued under this

22 paragraph shall specify the requirements and

23 standards that apply to an activity authorized

24 by the general permit.
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1 ‘‘(B) DURATION.—A general permit issued

2 under this paragraph shall be effective for a pe3 riod to be specified by the Secretary, but not to

4 exceed the 5-year period that begins on the date

5 of issuance of the permit.

6 ‘‘(C) REVOCATION OR MODIFICATION.—

7 The Secretary may revoke or modify a general

8 permit if, after providing notice and oppor9 tunity for public hearing, the Secretary deter10 mines that the activities authorized by the gen11 eral permit have a greater than minimal ad12 verse effect on a species that is included in a

13 list published under section 4(c)(1) or that the

14 activities are more appropriately authorized by

15 individual permits issued under paragraph (1)

16 or (3).’’.

17 SEC. 405. IMPROVING THE NON-FEDERAL CONSERVATION

18 PLANNING PROCESS.

19 (a) SCOPE OF NON-FEDERAL CONSERVATION

20 PLAN.—Section 10(a)(2) (16 U.S.C. 1539(a)(2)) is

21 amended—

22 (1) by redesignating subparagraph (C) as sub23 paragraph (H); and

24 (2) by inserting after subparagraph (B) the fol25 lowing:
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1 ‘‘(C) SCOPE OF PERMIT.—The Secretary

2 may not require the applicant, as a condition of

3 processing the application or issuing the permit,

4 to expand the application to include land, an in5 terest in land, or a proprietary water right not

6 owned by the applicant or to address a species

7 other than the species for which the application

8 is made, unless the Secretary determines that

9 the requirement will not appreciably increase

10 the time or cost of processing the application or

11 the cost of implementing the permit.

12 ‘‘(D) ENVIRONMENTAL ASSESSMENTS.—

13 The preparation and approval of a non-Federal

14 conservation plan and issuance of a permit

15 under paragraph (1)(B) shall not be subject to

16 section 102(2) of the National Environmental

17 Policy Act of 1969 (42 U.S.C. 4332(2)).’’.

18 (b) NO SURPRISES POLICY.—Section 10(a)(2) (16

19 U.S.C. 1539(a)(2)) is further amended by inserting after

20 subparagraph (D) (as added by subsection (a)(2)) the fol21 lowing:

22 ‘‘(E) PROHIBITION ON ADDITIONAL MEAS23 URES.—

24 ‘‘(i) IN GENERAL.—Except under ex25 traordinary circumstances determined
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1 under clause (ii), no additional measures to

2 minimize and mitigate impacts on a species

3 that is a subject of a permit issued under

4 paragraph (1)(B) shall be required of a

5 permittee that is in compliance with the

6 permit. With respect to any species that is

7 a subject of such a permit, under no cir8 cumstance shall a permittee in compliance

9 with the permit be required to make any

10 additional payment for any purpose, or ac11 cept any additional restriction on any par12 cel of land available for development or

13 land management under the permit, with14 out the consent of the permittee.

15 ‘‘(ii) EXTRAORDINARY CIR16 CUMSTANCES.—

17 ‘‘(I) IN GENERAL.—The Sec18 retary shall have the burden of dem19 onstrating that an extraordinary cir20 cumstance under clause (i) exists,

21 based on the best reasonably obtain22 able scientific information.

23 ‘‘(II) FACTORS.—The Secretary

24 shall establish, by regulation, the fac25 tors to be considered in making the
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1 determination whether an extraor2 dinary circumstance under clause (i)

3 exists.’’.

4 (c) FEDERAL COST-SHARING.—Section 10(a)(2) (16

5 U.S.C. 1539(a)(2)) is further amended by inserting after

6 subparagraph (E) (as added by subsection (b)) the follow7 ing:

8 ‘‘(F) FEDERAL COST-SHARING.—

9 ‘‘(i) IN GENERAL.—The Secretary

10 shall pay 50 percent of the direct costs of

11 implementing the terms and conditions of

12 the permit, except that, at the request of

13 the applicant, the Secretary may adjust the

14 percentage of the Federal contribution to a

15 higher or lower share. To the maximum ex16 tent practicable, the Secretary shall pay

17 the sums directly (in lieu of reimburse18 ment) to the permittee.

19 ‘‘(ii) EFFECT OF FEDERAL

20 NONPAYMENT.—If the contribution re21 quired by clause (i) is not made, the appli22 cation of the applicable term or condition

23 shall be suspended until such time as the

24 full contribution is made. If the suspended

25 term or condition includes a conservation
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1 easement or other instrument restricting

2 title to the property of the permittee,

3 nonpayment of the full contribution for a

4 period of more than 4 consecutive years

5 shall result in the nullification of the pre6 viously granted restriction on title.

7 ‘‘(iii) LOANS.—The Secretary may not

8 consider a loan to the permittee in cal9 culating the contribution required by

10 clause (i).

11 ‘‘(iv) RECOVERED COSTS.—The Sec12 retary may not consider as a portion of the

13 contribution required by clause (i) any

14 costs to the Federal Government that are

15 recovered through rates for the sale or

16 transmission of power or water.

17 ‘‘(v) IN-KIND CONTRIBUTIONS.—The

18 permittee may include in-kind contribu19 tions in calculating the appropriate share

20 of the costs of the permittee.’’.

21 (d) INTERIM PERMITS.—Section 10(a)(2) (16 U.S.C.

22 1539(a)(2)) is further amended by inserting after sub23 paragraph (F) (as added by subsection (c)) the following:

24 ‘‘(G) INTERIM PERMITS.—
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1 ‘‘(i) IN GENERAL.—For such activities

2 as the Secretary determines will not appre3 ciably reduce the chances of survival of a

4 species, the Secretary may issue an interim

5 permit to any applicant for a permit under

6 this section that provides evidence of ap7 propriate interim measures that—

8 ‘‘(I) will minimize and mitigate

9 any impacts of any incidental taking

10 that may be associated with the activ11 ity proposed for permitting; and

12 ‘‘(II) are to be performed while

13 the underlying permit application is

14 being considered under this section.

15 ‘‘(ii) CONTENTS.—An interim permit

16 issued under clause (i)—

17 ‘‘(I) shall specifically state the

18 types of activities that are authorized

19 to be carried out under the interim

20 permit;

21 ‘‘(II) shall not create any right to

22 the issuance of a permit under this

23 section;
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1 ‘‘(III) shall expire on the date of

2 the granting or denial of the underly3 ing permit application; and

4 ‘‘(IV) may be revoked by the Sec5 retary upon failure to comply with

6 any term of the interim permit.’’.

7 (e) MULTIPLE SPECIES NON-FEDERAL CONSERVA8 TION PLANS.—Section 10 (16 U.S.C. 1539) is amended

9 by adding at the end the following:

10 ‘‘(k) MULTIPLE SPECIES NON-FEDERAL CONSERVA11 TION PLANS.—

12 ‘‘(1) DEVELOPMENT.—The Secretary may as13 sist a non-Federal person in the development of a

14 plan, to be known as a ‘multiple species non-Federal

15 conservation plan’, for the conservation of—

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

17 finding is made and a status review is com18 menced under section 4(b)(3)(A); and

19 ‘‘(B) any other species that—

20 ‘‘(i) inhabits the area covered by the

21 plan; and

22 ‘‘(ii) is designated in the plan or is

23 within a taxonomic group designated in the

24 plan.
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1 ‘‘(2) ISSUANCE OF PERMITS.—The Secretary

2 may issue a permit under subsection (a)(1)(B) au3 thorizing a taking described in section 9(a)(1)(B) of

4 a species for which a multiple species non-Federal

5 conservation plan is developed under this subsection,

6 if the Secretary, after providing opportunity for pub7 lic comment on the plan—

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

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

10 ‘‘(B) makes the findings described in sub11 section (a)(2)(B) with respect to the permit ap12 plication and the plan; and

13 ‘‘(C) receives such assurances as the Sec14 retary may require that the plan will be imple15 mented.

16 ‘‘(3) EFFECT OF LISTING OF SPECIES.—A mul17 tiple species non-Federal conservation plan developed

18 under this subsection and a permit issued with re19 spect to the plan shall remain in effect and shall not

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

21 plan and permit apply is determined to be an endan22 gered species or a threatened species under section

23 4.’’.
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1 SEC. 406. ENCOURAGING EXCHANGES TO PROTECT HABI2 TAT ON NON-FEDERAL LANDS.

3 Section 5A (as redesignated by section 201(a)) is fur4 ther amended by adding at the end the following:

5 ‘‘(c) EXCHANGES.—

6 ‘‘(1) IN GENERAL.—In accordance with sub7 section (a), the Secretary of the Interior and the

8 Secretary of Agriculture shall encourage exchanges

9 of lands, waters, or interests in land or water within

10 the jurisdiction of each Secretary (other than units

11 of the National Park System and units of the Na12 tional Wilderness Preservation System) for lands,

13 waters, or interests in land or water that are not in

14 Federal ownership and that are affected by this Act.

15 ‘‘(2) TIMING OF EXCHANGES.—An exchange

16 under this subsection may be made if the Secretary

17 of the Interior or the Secretary of Agriculture deter18 mines, without a formal appraisal, that the lands to

19 be exchanged are of approximately equal value.

20 ‘‘(3) ENVIRONMENTAL ASSESSMENT.—An envi21 ronmental assessment shall be the only document

22 under section 102(2) of the National Environmental

23 Policy Act of 1976 (16 U.S.C. 4332(2)) that shall

24 be prepared with respect to any exchange under this

25 subsection.
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1 ‘‘(4) EXPEDITIOUS EXCHANGE DECISIONS.—An

2 exchange under this subsection shall be processed as

3 expeditiously as practicable. The Secretary of the In4 terior or the Secretary of Agriculture shall periodi5 cally provide information to the non-Federal land6 owner on the status of the exchange.

7 ‘‘(5) APPLICABLE LAW.—The Secretary of the

8 Interior and the Secretary of Agriculture shall proc9 ess exchanges under this subsection in accordance

10 with applicable laws that are consistent with this

11 subsection.

12 ‘‘(d) VALUATION.—Any land, water, or interest in

13 land or water to be acquired by the Secretary or the Sec14 retary of Agriculture by purchase, exchange, donation, or

15 otherwise under this section shall be valued as if the land,

16 water, or interest in land or water were not subject to any

17 restriction on use under this Act imposed after the date

18 of acquisition by the current owner of the land, water, or

19 interest in land or water.’’.
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1 TITLE V—PROVIDING FOR HABI2 TAT CONSERVATION INCEN3 TIVE PROGRAMS

4 SEC. 501. PROVIDING FOR COOPERATIVE MANAGEMENT

5 AGREEMENTS.

6 (a) IN GENERAL.—Section 6 (16 U.S.C. 1535) is

7 amended by striking subsection (b) and inserting the fol8 lowing:

9 ‘‘(b) COOPERATIVE MANAGEMENT AGREEMENTS.—

10 ‘‘(1) IN GENERAL.—On the request of any

11 State or group of States, political subdivision of a

12 State, or local government having authority, control,

13 or ownership over the area affected by any deter14 mination that a species is an endangered species or

15 a threatened species, any proposed determination, or

16 any proposed candidacy for determination, the Sec17 retary may enter into a cooperative management

18 agreement that shall govern the administration and

19 management of each area that the Secretary identi20 fies as habitat for the affected species that is within

21 the authority, control, or ownership of the request22 ing party.

23 ‘‘(2) NOTIFICATION.—Not later than 30 days

24 after the submission of a request to enter into a co25 operative management agreement, the person sub-
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1 mitting the request shall provide notice of the re2 quest to any non-Federal person or Federal power

3 marketing administration that would be subject to

4 the proposed cooperative management agreement.

5 ‘‘(3) SPECIES ASSESSMENT.—On submission of

6 a request to enter into a cooperative management

7 agreement, the requesting party shall conduct an as8 sessment of the affected species in accordance with

9 section 5(d) and submit the assessment to the Sec10 retary. On the receipt of the assessment, the Sec11 retary may approve the assessment, or make a de12 termination that the assessment is deficient and re13 quest the party to review and revise the assessment

14 not later than 30 days after the date of issuance of

15 the determination. If, on resubmission, the Secretary

16 determines that the assessment remains deficient, or

17 if no resubmission is made, the Secretary may con18 duct an independent assessment of the affected spe19 cies in accordance with section 5(d).

20 ‘‘(4) SUBMISSION OF AGREEMENT.—After com21 pletion of the assessment of the affected species

22 under paragraph (3), the requesting party shall de23 velop, and submit to the Secretary, a proposed coop24 erative management agreement.
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1 ‘‘(5) PUBLICATION IN FEDERAL REGISTER.—

2 The Secretary shall publish in the Federal Reg3 ister—

4 ‘‘(A) a notice of availability of, and a re5 quest for public comment on, a proposed coop6 erative management agreement; and

7 ‘‘(B) a notice of availability of each cooper8 ative management agreement entered into by

9 the Secretary.

10 ‘‘(6) PUBLIC HEARING.—The Secretary shall

11 hold a public hearing on a proposed cooperative

12 management agreement in each county or parish to

13 which the proposed agreement applies.

14 ‘‘(7) CONSIDERATION OF PUBLIC COMMENT.—

15 ‘‘(A) IN GENERAL.—Before entering into a

16 cooperative management agreement, the Sec17 retary shall consider and weigh carefully all in18 formation—

19 ‘‘(i) received in response to the re20 quest for comment published under para21 graph (5)(A); and

22 ‘‘(ii) presented as testimony in each

23 hearing held under paragraph (6).

24 ‘‘(B) PUBLICATION OF RESPONSES.—The

25 notice of availability of a cooperative manage-
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1 ment agreement required to be published under

2 paragraph (5)(B) shall include the response of

3 the Secretary to all information referred to in

4 subparagraph (A) that is received or presented

5 with respect to the agreement.

6 ‘‘(8) APPROVAL OF AGREEMENT.—

7 ‘‘(A) IN GENERAL.—Not later than 120

8 days after the submission of a proposed cooper9 ative management agreement under paragraph

10 (4), the Secretary shall determine whether the

11 proposed agreement—

12 ‘‘(i) is in accordance with this sub13 section; and

14 ‘‘(ii) will promote the conservation of

15 the species to which the proposed agree16 ment applies.

17 ‘‘(B) CRITERIA.—The Secretary shall ap18 prove and enter into a proposed cooperative

19 management agreement if the Secretary deter20 mines that—

21 ‘‘(i) the requesting party has suffi22 cient authority under law to implement

23 and carry out the terms of the agreement;
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1 ‘‘(ii) the agreement defines an area

2 that serves as habitat for the species to

3 which the agreement applies;

4 ‘‘(iii) the agreement provides for the

5 administration and management of the

6 area and adequately regulates activities oc7 curring in the area that may not otherwise

8 promote the conservation of the species to

9 which the agreement applies;

10 ‘‘(iv) the agreement promotes the con11 servation of the species to which the agree12 ment applies by committing Federal or

13 non-Federal efforts to the conservation;

14 ‘‘(v) the term of the agreement is of

15 sufficient duration to carry out the agree16 ment; and

17 ‘‘(vi) the agreement is adequately

18 funded to carry out the agreement.

19 ‘‘(C) ENVIRONMENTAL ASSESSMENTS.—

20 The preparation, approval, and entering into of

21 a cooperative management agreement under

22 this subsection shall not be subject to section

23 102(2) of the National Environmental Policy

24 Act of 1969 (42 U.S.C. 4332(2)).
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1 ‘‘(9) CRITICAL HABITAT.—As a term of a coop2 erative management agreement, the Secretary

3 may—

4 ‘‘(A) designate as critical habitat under

5 section 5(m) any habitat within the geographic

6 area covered by the agreement that is consid7 ered to be critical habitat as of the date of en8 tering into the agreement; or

9 ‘‘(B) revise a critical habitat designation

10 under section 5(m).

11 ‘‘(10) EFFECT OF LISTING OF SPECIES.—A co12 operative management agreement entered into under

13 this subsection shall remain in effect and shall not

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

15 agreement applies is determined to be an endan16 gered species or a threatened species under section

17 4.

18 ‘‘(11) APPLICABILITY OF CERTAIN PROVI19 SIONS.—

20 ‘‘(A) IN GENERAL.—Sections 5 and 7 shall

21 not apply to such activities of a person that is

22 a party to a cooperative management agreement

23 as are conducted in accordance with the agree24 ment.
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1 ‘‘(B) INTENTIONAL OR KNOWING VIOLA2 TIONS.—An intentional or knowing violation of

3 a cooperative management agreement, or a law

4 implementing a cooperative management agree5 ment, shall be deemed a violation of this Act.

6 ‘‘(12) VIOLATIONS OF AGREEMENTS.—

7 ‘‘(A) NOTIFICATION BY THE SEC8 RETARY.—If the Secretary determines after

9 public hearing and opportunity for comment

10 that a party to a cooperative management

11 agreement is not administering or acting in ac12 cordance with the agreement, the Secretary

13 shall notify the party.

14 ‘‘(B) FAILURE TO TAKE CORRECTIVE AC15 TION.—If a party that is notified under sub16 paragraph (A) fails to take appropriate correc17 tive action within a period of time determined

18 by the Secretary to be reasonable (not to exceed

19 90 days after the date of the notification)—

20 ‘‘(i) the Secretary shall rescind the

21 entire cooperative management agreement

22 or the applicability of the agreement to the

23 party that is the subject of the notification;

24 and
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1 ‘‘(ii) beginning on the date of the re2 scission—

3 ‘‘(I) the entire agreement shall

4 not be effective, or the agreement

5 shall not be effective with respect to

6 the party, whichever is appropriate;

7 and

8 ‘‘(II) sections 5 and 7 shall apply

9 to activities of the party.

10 ‘‘(13) FEDERAL COST-SHARING.—

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

12 pay 50 percent of the direct costs of implement13 ing the terms and conditions of a cooperative

14 management agreement, including any costs in15 curred by a party to the agreement, non-Fed16 eral person, or Federal power marketing admin17 istration. To the maximum extent practicable,

18 the sums paid by the Secretary shall be paid di19 rectly (in lieu of reimbursement) to the party,

20 person, or administration.

21 ‘‘(B) EFFECT OF FEDERAL

22 NONPAYMENT.—If the contribution required by

23 subparagraph (A) is not made, the applicable

24 term or condition shall be suspended until such

25 time as the full contribution is made. If the sus-
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1 pended term or condition includes a conserva2 tion easement or other instrument restricting

3 title to property, nonpayment of the full con4 tribution for a period of more than 4 consecu5 tive years shall result in nullification of the pre6 viously granted restriction on title.

7 ‘‘(C) LOANS.—The Secretary may not con8 sider a loan to the party, person, or administra9 tion in calculating the contribution required by

10 subparagraph (A).

11 ‘‘(D) RECOVERED COSTS.—The Secretary

12 may not consider as a portion of the contribu13 tion required by subparagraph (A) any costs to

14 the Federal Government that are recovered

15 through rates for the sale or transmission of

16 power or water.

17 ‘‘(E) IN-KIND CONTRIBUTIONS.—The

18 party, person, or administration may include in19 kind contributions in calculating the appro20 priate share of the costs of the party.’’.

21 (b) DEFINITION OF COOPERATIVE MANAGEMENT

22 AGREEMENT.—Section 3 (16 U.S.C. 1532) is further

23 amended by inserting after paragraph (5) (as redesignated

24 by section 103(c)(1)) the following:
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1 ‘‘(6) COOPERATIVE MANAGEMENT AGREE2 MENT.—The term ‘cooperative management agree3 ment’ means an agreement entered into under sec4 tion 6(b).’’.

5 (c) CONFORMING AMENDMENTS.—

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

7 striking the section heading and inserting the follow8 ing:

9 ‘‘SEC. 6. COOPERATION WITH NON-FEDERAL PERSONS.’’.

10 (2) The table of contents in the first section (16

11 U.S.C. prec. 1531) is amended by striking the item

12 relating to section 6 and inserting the following:

‘‘Sec. 6. Cooperation with non-Federal persons.’’.

13 SEC. 502. PROVIDING FOR HABITAT RESERVE GRANTS.

14 Section 6(b) (16 U.S.C. 1535(b)) (as amended by

15 section 501(a)) is further amended by adding at the end

16 the following:

17 ‘‘(14) HABITAT RESERVE GRANTS.—

18 ‘‘(A) IN GENERAL.—The Secretary may

19 provide a grant to a non-Federal person (other

20 than an officer, employee, or agent (acting in

21 the official capacity of the agent) of, or a de22 partment or instrumentality of, a State, munici23 pality, or political subdivision of a State, or a

24 State, municipality, or political subdivision of a

25 State) for the purpose of preserving habitat for
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1 any species that is determined under section 4

2 to be an endangered species or a threatened

3 species.

4 ‘‘(B) CRITERIA FOR PROVISION OF

5 GRANTS.—The Secretary may provide a grant

6 under this paragraph if the Secretary deter7 mines that—

8 ‘‘(i) the property for which the grant

9 is provided contains habitat that signifi10 cantly contributes to the protection of the

11 population of the species;

12 ‘‘(ii) the property has been dedicated

13 to species protection for a period of time

14 that has been sufficient to significantly

15 contribute to the protection of the popu16 lation of the species; and

17 ‘‘(iii) the preservation of the habitat

18 advances the interest of species protection.

19 ‘‘(C) TRANSFERABILITY OF GRANTS.—A

20 grant made under this paragraph shall be

21 transferable to subsequent owners of the prop22 erty for which the grant is provided.’’.
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1 TITLE VI—OTHER AMENDMENTS

2 MAKING THE ENDANGERED

3 SPECIES ACT OF 1973 MORE

4 EFFECTIVE AND LESS BUR5 DENSOME

6 SEC. 601. PROVIDING GUIDANCE FOR THE RELEASE OF EX7 PERIMENTAL POPULATIONS.

8 Section 10(j) (16 U.S.C. 1539(j)) is amended—

9 (1) in paragraph (2)—

10 (A) in subparagraph (B)—

11 (i) by inserting ‘‘and the precise

12 boundaries of the geographic area for the

13 release’’ after ‘‘the population’’; and

14 (ii) by inserting ‘‘whether the release

15 is in the public interest and’’ after ‘‘infor16 mation,’’; and

17 (B) in subparagraph (C)—

18 (i) in clause (i), by striking ‘‘and’’ at

19 the end;

20 (ii) by redesignating clause (ii) as

21 clause (iii); and

22 (iii) by inserting after clause (i) the

23 following:

24 ‘‘(ii) for the purposes of sections 4(d) and

25 9(a)(1)(B), any member of an experimental popu-
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1 lation found outside the geographic area in which

2 the population is released shall not be treated as a

3 threatened species if the member poses a threat to

4 the welfare of the public; and’’;

5 (2) by redesignating paragraph (3) as para6 graph (4); and

7 (3) by inserting after paragraph (2) the follow8 ing:

9 ‘‘(3) REQUIREMENTS FOR RELEASES.—In au10 thorizing the release of a population under para11 graph (2), the Secretary shall require that—

12 ‘‘(A) to the maximum extent practicable,

13 the release occurs only in a unit of the National

14 Park System or the National Wildlife Refuge

15 System;

16 ‘‘(B) a release outside a unit occurs only in

17 an area that has been identified as a candidate

18 site for release of the population in a conserva19 tion plan for the species;

20 ‘‘(C) in the case of a release outside a unit,

21 measures to protect the safety and welfare of

22 the public and domestic animals and the fund23 ing for the measures are identified in the regu24 lations authorizing the release and are imple25 mented;
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1 ‘‘(D) the regulations authorizing the re2 lease identify precisely the geographic area for

3 the release;

4 ‘‘(E) a release on non-Federal land occurs

5 only with the written consent of the owner of

6 the land; and

7 ‘‘(F) the regulations authorizing the re8 lease include measurable reintroduction goals to

9 restore viable populations only within the spe10 cific geographic area identified for release in

11 the regulations.’’.

12 SEC. 602. RECOGNIZING CAPTIVE PROPAGATION AS A

13 MEANS OF RECOVERY.

14 (a) IN GENERAL.—Section 13 (87 Stat. 902) is

15 amended to read as follows:

16 ‘‘SEC. 13. RECOGNITION OF CAPTIVE PROPAGATION AS

17 MEANS OF RECOVERY.

18 ‘‘(a) IN GENERAL.—In carrying out this Act, the Sec19 retary shall recognize to the maximum extent practicable,

20 and may utilize, captive propagation as a means of pro21 tecting or conserving an endangered species or a threat22 ened species.

23 ‘‘(b) CAPTIVE PROPAGATION GRANTS.—The Sec24 retary may provide annual grants to non-Federal persons

25 to fund captive propagation programs for the purpose of
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1 protecting or conserving any species that is determined

2 under section 4 to be an endangered species or a threat3 ened species, if the Secretary determines that such a pro4 gram contributes to enhancement of the population of the

5 species.’’.

6 (b) EFFECT ON PRIOR AMENDMENTS.—Nothing in

7 this section or the amendment made by this section affects

8 the amendments made by section 13 of the Endangered

9 Species Act of 1973 (87 Stat. 902), as in effect on the

10 day before the date of enactment of this Act.

11 (c) CONFORMING AMENDMENT.—The table of con12 tents in the first section (16 U.S.C. prec. 1531) is amend13 ed by striking the item relating to section 13 and inserting

14 the following:

‘‘Sec. 13. Recognition of captive propagation as means of recovery.’’.

15 SEC. 603. CLARIFYING THE APPLICATION OF PROHIBI16 TIONS TO THREATENED SPECIES.

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

18 (1) in the first sentence, by striking ‘‘issue’’

19 and inserting ‘‘issue, concurrently with or subse20 quent to the regulation that provides for the listing

21 of the species,’’; and

22 (2) in the second sentence, by striking ‘‘by reg23 ulation prohibit with respect to any’’ and inserting

24 ‘‘in the regulations prohibit with respect to the spe25 cific’’.
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1 SEC. 604. ENCOURAGING RESEARCH ON ALTERNATIVE

2 METHODS AND TECHNOLOGIES.

3 Section 10(a) (16 U.S.C. 1539(a)) is further amend4 ed by adding after paragraph (4) (as added by section

5 404) the following:

6 ‘‘(5) RESEARCH ON ALTERNATIVE METHODS

7 AND TECHNOLOGIES.—Priority for issuing permits

8 under paragraph (1)(A) shall be accorded to applica9 tions for permits to conduct research on alternative

10 methods and technologies, and the comparative costs

11 of the methods and technologies, to reduce the inci12 dental taking as described in paragraph (1)(B) of an

13 endangered species or a threatened species for which

14 the employment of existing methods or technologies

15 for avoidance of the incidental taking entails signifi16 cant costs for non-Federal persons.’’.

17 SEC. 605. MODIFYING ENFORCEMENT AUTHORITY.

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

19 (1) in paragraph (2) of the first sentence of

20 subsection (d), by inserting ‘‘endangered or threat21 ened’’ after ‘‘temporary care for any’’;

22 (2) in subsection (e)—

23 (A) in the fourth sentence of paragraph

24 (3), by striking ‘‘fish, wildlife,’’ and inserting

25 ‘‘endangered or threatened fish or wildlife,’’;

26 and
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1 (B) in paragraph (4)—

2 (i) in subparagraph (A), by inserting

3 ‘‘endangered or threatened’’ after ‘‘All’’;

4 and

5 (ii) in subparagraph (B), by inserting

6 ‘‘endangered or threatened’’ after ‘‘import7 ing of any’’;

8 (3) in the first sentence of subsection (f), by in9 serting ‘‘endangered or threatened’’ after ‘‘storage

10 of’’; and

11 (4) in subsection (g)(2)(C), by inserting before

12 the period at the end the following: ‘‘included in a

13 list published under section 4(c)(1)’’.

14 SEC. 606. PROVIDING ADEQUATE NOTICE OF HEARINGS.

15 (a) IN GENERAL.—Section 14 (87 Stat. 903) is

16 amended to read as follows:

17 ‘‘SEC. 14. NOTICE OF HEARINGS.

18 ‘‘Except as otherwise provided by this Act, the Sec19 retary shall provide notice of any hearing or other public

20 meeting at which public comment is accepted under this

21 Act by publication in the Federal Register and in a news22 paper of general circulation in the location of the hearing

23 or meeting at least 30 days prior to the hearing or meet24 ing.’’.
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1 (b) CONFORMING AMENDMENT.—The table of con2 tents in the first section (16 U.S.C. prec. 1531) is amend3 ed by striking the item relating to section 14 and inserting

4 the following:

‘‘Sec. 14. Notice of hearings.’’.

5 (c) EFFECT ON PRIOR REPEAL.—Nothing in this sec6 tion or the amendment made by this section affects the

7 repeal made by section 14 of the Endangered Species Act

8 of 1973 (87 Stat. 903), as in effect on the day before the

9 date of enactment of this Act.

10 SEC. 607. ENSURING THE PROTECTION OF PRIVATE PROP11 ERTY RIGHTS.

12 (a) POLICY.—

13 (1) PURPOSE.—The purpose of this subsection

14 is to establish a national policy that implementation

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

16 1531 et seq.) shall respect private property rights.

17 (2) AMENDMENT.—Section 2(c) (16 U.S.C.

18 1531(c)) is amended by adding at the end the fol19 lowing:

20 ‘‘(3) PRIVATE PROPERTY RIGHTS.—It is further

21 declared to be the policy of Congress that Federal

22 agencies shall carry out this Act in a manner that—

23 ‘‘(A) ensures that persons are not denied

24 the reasonable use of their private property;

25 and
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1 ‘‘(B) avoids any significant diminishment

2 of the value of private property.’’.

3 (b) DUTY.—

4 (1) PURPOSE.—The purpose of this subsection

5 is to establish an affirmative duty that the Secretary

6 and Federal agencies minimize the impact of con7 servation measures on private property.

8 (2) DUTY.—The Act (16 U.S.C. 1531 et seq.)

9 is amended—

10 (A) by redesignating section 15 as section

11 19; and

12 (B) by inserting after section 14 the fol13 lowing:

14 ‘‘SEC. 15. MINIMIZATION OF IMPACT OF CONSERVATION

15 MEASURES ON PRIVATE PROPERTY.

16 ‘‘(a) IN GENERAL.—In carrying out sections 5 and

17 7—

18 ‘‘(1) the Secretary shall balance the objectives

19 of—

20 ‘‘(A) achieving the conservation objective

21 for the species; and

22 ‘‘(B) ensuring continuing economic growth,

23 providing essential infrastructure, maintaining

24 strong State and local tax bases, and protecting
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1 against the diminishment of the use and value

2 of private property; and

3 ‘‘(2) the Secretary, the heads of all other Fed4 eral agencies, and other officials of the Federal Gov5 ernment shall seek to minimize the adverse impacts

6 on the use and value of private property resulting

7 from any requirements imposed on the property

8 under the sections.

9 ‘‘(b) RIGHT TO SEEK COMPENSATION.—Nothing in

10 this Act diminishes or impedes the right of an owner of

11 private property to receive compensation from the Federal

12 Government under the Fifth Amendment of the Constitu13 tion or other Federal law for lost use of value of the prop14 erty due to requirements imposed on the property under

15 this Act after the date of acquisition of the property by

16 the owner.

17 ‘‘(c) EXCEPTIONS TO THE APPLICATION OF THE ACT

18 TO PRIVATE PROPERTY.—This Act shall not apply to ac19 tivities carried out on—

20 ‘‘(1) privately owned property consisting of 5

21 contiguous acres or less, unless the proposed activity

22 presents an imminent threat to the existence of an

23 endangered species or a threatened species; and

24 ‘‘(2) such other property specifically identified

25 by the Secretary, by regulation, based on a deter-
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1 mination by the Secretary that the proposed activity

2 will not be likely to jeopardize the continued exist3 ence of a species.’’.

4 (3) CONFORMING AMENDMENTS.—

5 (A) The table of contents in the first sec6 tion (16 U.S.C. prec. 1531) is further amend7 ed—

8 (i) by striking the item relating to sec9 tion 15 and inserting the following:

‘‘Sec. 15. Minimization of impact of conservation measures on private property.’’;

10 and

11 (ii) by adding at the end the follow12 ing:

‘‘Sec. 19. Authorization of appropriations.’’.

13 (B) Section 8(a) (16 U.S.C. 1537(a)) is

14 amended by striking ‘‘section 15 of this Act’’

15 and inserting ‘‘section 19’’.

16 (c) CITIZEN SUITS.—Section 11(g) (16 U.S.C.

17 1540(g)) is amended—

18 (1) in paragraph (1)—

19 (A) in subparagraph (A) of the first sen20 tence, by striking ‘‘any person, including the

21 United States and any other governmental in22 strumentality or agency (to the extent per23 mitted by the eleventh amendment to the Con-
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1 stitution),’’ and inserting ‘‘the United States or

2 any agency or official of the United States’’;

3 and

4 (B) in the second sentence, by striking ‘‘,

5 without regard to the amount in controversy or

6 the citizenship of the parties,’’;

7 (2) in paragraph (3)—

8 (A) by striking ‘‘(A)’’; and

9 (B) by striking subparagraph (B); and

10 (3) by adding at the end the following:

11 ‘‘(6) ACTIONS TO REMEDY ECONOMIC IN12 JURY.—Any person (including a person that sustains

13 actual or imminent economic injury as a direct or in14 direct result of a violation of this Act or a regulation

15 issued under this Act by the United States or any

16 agency or official of the United States) may—

17 ‘‘(A) to the full extent permitted by the

18 Constitution without regard to any prudential

19 limitations, commence a civil suit as authorized

20 by this subsection to remedy any violation of

21 this Act or a regulation issued under this Act

22 by the United States or any agency or official

23 of the United States; and

24 ‘‘(B) intervene as a matter of right in any

25 suit brought under this Act that threatens to
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1 cause injury to the person or relates to any in2 jury sustained by the person.’’.

3 SEC. 608. ENSURING THE USE OF WATER RIGHTS IN AC4 CORDANCE WITH EXISTING STATE LAWS.

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

6 (1) in the first sentence—

7 (A) by striking ‘‘(1)’’ and inserting ‘‘(A)’’;

8 and

9 (B) by striking ‘‘(2)’’ and inserting ‘‘(B)’’;

10 (2) by striking ‘‘LAWS.—Any State’’ and insert11 ing the following: ‘‘LAWS.—

12 ‘‘(1) IN GENERAL.—Any State’’; and

13 (3) adding at the end the following:

14 ‘‘(2) WATER RIGHTS.—Any water right ac15 quired, or otherwise used, by the United States, a

16 permit or license applicant, or any other non-Federal

17 party for any purpose under this Act shall be ac18 quired and exercised in accordance with the laws of

19 the State in which the water will be used, including

20 a law providing for any priority system between

21 types of water uses.’’.
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1 SEC. 609. PROVIDING FOR FEDERAL COST-SHARING OF IM2 PLEMENTATION COSTS IMPOSED UNDER

3 CONSERVATION PLANS OR AGENCY CON4 SULTATIONS.

5 (a) IN GENERAL.—Section 16 (16 U.S.C. 1531 note)

6 is amended to read as follows:

7 ‘‘SEC. 16. FEDERAL COST-SHARING REQUIREMENTS FOR

8 CONSERVATION OBLIGATIONS.

9 ‘‘(a) DEFINITION OF ALLOWED COSTS.—In this sec10 tion, the term ‘allowed costs’ includes any direct or indi11 rect cost incurred by a non-Federal person or Federal

12 power marketing administration that results from compli13 ance with a provision of a conservation plan under this

14 Act, a conservation measure described in section 5(u), or

15 a requirement imposed on the person or administration

16 under section 7.

17 ‘‘(b) COST SHARING FOR CONSERVATION PLANS.—

18 ‘‘(1) COSTS EXCEEDING $10,000,000.—The Sec19 retary shall pay 50 percent of allowed costs incurred

20 by a non-Federal person or Federal power marketing

21 administration that result from compliance with any

22 provision of a conservation plan, to the extent that

23 the allowed costs exceed, in the aggregate,

24 $10,000,000.

25 ‘‘(2) COSTS AT OR BELOW $10,000,000.—The

26 Secretary may pay a Federal share to a non-Federal
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1 person or Federal power marketing administration

2 of any allowed costs less than or equal to

3 $10,000,000 that result from compliance with a con4 servation plan.

5 ‘‘(c) COST SHARING FOR COMPLIANCE WITH CON6 SULTATION REQUIREMENTS.—The Secretary shall pay 50

7 percent of allowed costs incurred by a non-Federal person

8 or Federal power marketing administration that result

9 solely from requirements imposed on the person or mar10 keting administration under section 7.

11 ‘‘(d) EXISTING COST-SHARING AGREEMENTS.—Any

12 cost-sharing agreement with a non-Federal person pro13 vided in any recovery plan or other agreement in existence

14 prior to the date of enactment of this subsection shall re15 main in effect unless the non-Federal person incurring the

16 costs requests that the cost-sharing percentage be recon17 sidered.

18 ‘‘(e) ADJUSTMENTS TO COST-SHARING PERCENT19 AGE.—At the request of the non-Federal person, the Sec20 retary may adjust the Federal share determined under

21 subsection (b) or (c) with respect to the person.

22 ‘‘(f) PROVISION OF FEDERAL SHARE.—

23 ‘‘(1) IN GENERAL.—
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1 ‘‘(A) NON-FEDERAL PERSONS.—The Sec2 retary may make a contribution under sub3 section (b) or (c) by—

4 ‘‘(i) providing to the non-Federal per5 son a habitat reserve grant under section

6 6(b)(14);

7 ‘‘(ii) acquiring, from or for the per8 son, land or an interest in land as provided

9 in section 5A; or

10 ‘‘(iii) providing appropriated funds to

11 the person.

12 ‘‘(B) FEDERAL POWER MARKETING AD13 MINISTRATION.—The Secretary shall make a

14 contribution under subsection (b) or (c) to a

15 Federal power marketing administration by

16 providing appropriated funds directly to the

17 power marketing administration.

18 ‘‘(2) LOANS.—The Secretary may not consider

19 a loan to the non-Federal person or Federal power

20 marketing administration as a contribution or por21 tion of a contribution under subsection (b) or (c).

22 ‘‘(3) RECOVERED COSTS.—The Secretary may

23 not claim as a portion of the Federal share under

24 subsection (b) or (c) any costs to the Federal Gov-
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1 ernment that are recovered through rates for the

2 sale or transmission of power or water.

3 ‘‘(4) EFFECT OF FEDERAL NONPAYMENT.—If

4 the Secretary fails to make the contribution required

5 under subsection (b), (c), or (d), the application of

6 the applicable provision of the conservation plan or

7 the requirement under section 7 shall be suspended

8 until such time as the full contribution is made. If

9 the suspended provision or requirement includes a

10 conservation easement or other instrument restrict11 ing title to the property of the non-Federal person,

12 nonpayment of the full contribution for a period of

13 more than 4 consecutive years shall result in the

14 nullification of the previously granted restriction on

15 title.

16 ‘‘(g) IN-KIND CONTRIBUTIONS.—A non-Federal per17 son or Federal power marketing administration may in18 clude in-kind contributions in calculating the appropriate

19 share of the costs of the person or administration under

20 this section.

21 ‘‘(h) COSTS PAID BY THE SECRETARY.—Compensa22 tion from the Federal Government under section 15(b)

23 may not cover costs incurred by a non-Federal person that

24 were paid by the Secretary under subsection (b) or (c).’’.

25 (b) CONFORMING AMENDMENTS.—
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1 (1) The table of contents in the first section (16

2 U.S.C. prec. 1531) is further amended by striking

3 the item relating to section 16 and inserting the fol4 lowing:

‘‘Sec. 16. Federal cost-sharing requirements for conservation obligations.’’.

5 (2) Section 10(b)(1)(B) (16 U.S.C.

6 1539(b)(1)(B)) is amended by striking ‘‘the effective

7 date of this Act’’ and inserting ‘‘December 28,

8 1973,’’.

9 SEC. 610. ENHANCING PUBLIC EDUCATIONAL OPPORTUNI10 TIES.

11 (a) LICENSED EXHIBITORS.—Section 3 (16 U.S.C.

12 1532) is further amended in the proviso of paragraph (3)

13 (as redesignated by section 103(c)(1)) by striking ‘‘by mu14 seums’’ and inserting ‘‘or species by exhibitors licensed

15 under the Animal Welfare Act (7 U.S.C. 2131 et seq.),

16 museums,’’.

17 (b) EDUCATION OF THE PUBLIC.—Section 10(a) (16

18 U.S.C. 1539(a)) is further amended—

19 (1) in paragraph (1)(A)—

20 (A) by striking ‘‘to, acts’’ and inserting the

21 following: ‘‘to—

22 ‘‘(i) acts’’; and

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

24 ‘‘(ii) the public display or exhibition of liv25 ing wildlife in a manner designed to educate, or
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1 that otherwise contributes to the education of,

2 the public about the ecological role and con3 servation needs of the affected species; or’’; and

4 (2) by adding after paragraph (5) (as added by

5 section 604) the following:

6 ‘‘(6) EDUCATIONAL PERMITS.—

7 ‘‘(A) CONDITIONS OF ISSUANCE.—A per8 mit referred to in paragraph (1)(A)(ii) shall be

9 issued if—

10 ‘‘(i) the applicant holds a current and

11 valid license as an exhibitor under the Ani12 mal Welfare Act (7 U.S.C. 2131 et seq.);

13 ‘‘(ii) the applicant maintains a public

14 display or exhibition of living wildlife de15 scribed in paragraph (1)(A)(ii); and

16 ‘‘(iii) viewing of the public display or

17 exhibition is not limited or restricted other

18 than by charging an admission fee.

19 ‘‘(B) TERM.—A permit referred to in para20 graph (1)(A)(ii) shall be for a term of not less

21 than 6 years.

22 ‘‘(C) ADDITIONAL AUTHORITY.—A permit

23 referred to in paragraph (1)(A)(ii) shall also

24 authorize the permittee to import, export, sell,
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1 purchase, or otherwise transfer possession of

2 the affected species.

3 ‘‘(D) REVOCATION.—The Secretary shall

4 revoke a permit referred to in paragraph

5 (1)(A)(ii) if the Secretary determines that the

6 permittee—

7 ‘‘(i) no longer meets the requirements

8 of subparagraph (A) and is not reasonably

9 likely to meet the requirements in the near

10 future;

11 ‘‘(ii) is not complying with the terms

12 and conditions of the permit; or

13 ‘‘(iii) is engaging in an activity likely

14 to jeopardize the continued existence of the

15 species subject to the permit.’’.

16 (c) WILDLIFE BRED IN CAPTIVITY.—Section 10 (16

17 U.S.C. 1539) is further amended by adding after sub18 section (k) (as added by section 405(e)) the following:

19 ‘‘(l) WILDLIFE BRED IN CAPTIVITY.—For the pur20 pose of export or import, or registration of captive-bred

21 wildlife under the captive-bred wildlife registration system

22 established under section 17.21(g) of title 50, Code of

23 Federal Regulations, the terms ‘bred in captivity’ and

24 ‘captive-bred’, with respect to wildlife, mean wildlife, in-
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1 cluding eggs, born or otherwise produced from parents in

2 captivity.’’.

3 TITLE VII—AUTHORIZING

4 INCREASED APPROPRIATIONS

5 SEC. 701. REAUTHORIZING THE ENDANGERED SPECIES ACT

6 OF 1973.

7 Section 19 (as redesignated by section 607(b)(2)(A))

8 is further amended to read as follows:

9 ‘‘SEC. 19. AUTHORIZATION OF APPROPRIATIONS.

10 ‘‘(a) IN GENERAL.—In addition to the amounts au11 thorized to be appropriated under section 6(i) and sub12 sections (b) through (e), there are authorized to be appro13 priated—

14 ‘‘(1) to the Department of the Interior to carry

15 out the duties of the Secretary of the Interior under

16 this Act $110,000,000 for fiscal year 1996,

17 $120,000,000 for fiscal year 1997, $130,000,000 for

18 fiscal year 1998, $140,000,000 for fiscal year 1999,

19 $150,000,000 for fiscal year 2000, and

20 $160,000,000 for fiscal year 2001;

21 ‘‘(2) to the Department of Commerce to carry

22 out the duties of the Secretary of Commerce under

23 this Act $15,000,000 for fiscal year 1996,

24 $20,000,000 for fiscal year 1997, $25,000,000 for

25 fiscal year 1998, $30,000,000 for fiscal year 1999,
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1 $35,000,000 for fiscal year 2000, and $40,000,000

2 for fiscal year 2001; and

3 ‘‘(3) to the Department of Agriculture to carry

4 out the duties of the Secretary of Agriculture under

5 this Act $4,000,000 for each of fiscal years 1996

6 through 2001.

7 ‘‘(b) COOPERATIVE MANAGEMENT AGREEMENTS.—

8 There are authorized to be appropriated to the Depart9 ment of the Interior to carry out section 6(b),

10 $20,000,000 for each of fiscal years 1996 through 2001,

11 to remain available until expended.

12 ‘‘(c) CONVENTION IMPLEMENTATION.—There are au13 thorized to be appropriated to the Department of the Inte14 rior to carry out section 8A(e) $1,000,000 for each of fis15 cal years 1996 through 2001, to remain available until ex16 pended.

17 ‘‘(d) NON-FEDERAL CONSERVATION PLANNING.—

18 There are authorized to be appropriated to the Depart19 ment of the Interior to carry out section 10(a)(2)(F)

20 $20,000,000 for each of fiscal years 1996 through 2001,

21 to remain available until expended.

22 ‘‘(e) HABITAT RESERVE GRANTS.—There are au23 thorized to be appropriated to the Department of the Inte24 rior to provide habitat reserve grants under section
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1 6(b)(14) $20,000,000 for each of fiscal years 1996 though

2 2001, to remain available until expended.’’.

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