II

103D CONGRESS

1ST SESSION S. 1521

To reauthorize and amend the Endangered Species Act of 1973 to improve

and protect the integrity of the programs of such Act for the conservation

of threatened and endangered species, to ensure balanced consideration

of all impacts of decisions implementing such Act, to provide for equitable

treatment of non-Federal persons and Federal agencies under such Act,

to encourage non-Federal persons to contribute voluntarily to species

conservation, and for other purposes.

IN THE SENATE OF THE UNITED STATES

OCTOBER 6 (legislative day, SEPTEMBER 27), 1993

Mr. SHELBY (for himself, Mr. GORTON, Mr. MATHEWS Mr. PACKWOOD, Mr.

COCHRAN, and Mr. HEFLIN) introduced the following bill; which was read

twice and referred to the Committee on Environment and Public Works

A BILL

To reauthorize and amend the Endangered Species Act of

1973 to improve and protect the integrity of the programs of such Act for the conservation of threatened

and endangered species, to ensure balanced consideration

of all impacts of decisions implementing such Act, to

provide for equitable treatment of non-Federal persons

and Federal agencies under such Act, to encourage nonFederal persons to contribute voluntarily to species conservation, 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,
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1 SECTION 1. SHORT TITLE.

2 This Act may be cited as the ‘‘Endangered Species

3 Act Procedural Reform Amendments of 1993’’.

4 SEC. 2. TABLE OF CONTENTS.

5 The table of contents of this Act is as follows:

Sec. 1. Short title.

Sec. 2. Table of contents.

Sec. 3. References to Endangered Species Act of 1973.

TITLE I—ENSURING THE INTEGRITY OF THE LISTING, CRITICAL

HABITAT DESIGNATION, AND CONSULTATION PROCESSES

Sec. 101. Peer review.

Sec. 102. Consideration of State, local, and foreign government activities.

Sec. 103. Priority for species conservation.

Sec. 104. Improving data collection and analysis.

Sec. 105. Providing an open and thorough process for designating critical habitat.

Sec. 106. Equal access to judicial review.

Sec. 107. Improving the consultation and conferencing processes for Federal

agency actions.

Sec. 108. Clarifying the effects of secondary impacts.

TITLE II—PROVIDING SIGNIFICANCE TO THE RECOVERY

PLANNING PROCESS

Sec. 201. Ensuring preparation and use of timely, comprehensive, and effective

recovery plans.

TITLE III—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. 301. Establishing consultation procedures with respect to private actions.

Sec. 302. Defining the take prohibition in accordance with the intent of Congress.

Sec. 303. Clarifying the application of take prohibitions.

Sec. 304. Authorizing the issuance of general permits.

Sec. 305. Improving the conservation planning process.

Sec. 306. Providing for exemptions of private actions and relieving payment requirements.

Sec. 307. Compensating property owners for substantially diminished value.

TITLE IV—PROVIDING FOR HABITAT CONSERVATION INCENTIVE

PROGRAMS

Sec. 401. Cooperative Management Agreements.

Sec. 402. Habitat reserve grants.

TITLE V—REAUTHORIZATION AND OTHER AMENDMENTS
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Sec. 501. Providing guidance for the release of experimental populations.

Sec. 502. Recognition of captive propagation as means of recovery.

Sec. 503. Clarifying the application of prohibitions to threatened species.

Sec. 504. Citizen suits.

Sec. 505. Increased authorization of appropriations.

1 SEC. 3. REFERENCES TO ENDANGERED SPECIES ACT OF

2 1973.

3 Except as otherwise expressly provided, whenever in

4 this Act an amendment or repeal is expressed in terms

5 of an amendment to, or repeal of, a section or other provi6 sion, the reference shall be considered to be made to a

7 section or other provision of the Endangered Species Act

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

9 TITLE I—ENSURING THE INTEG10 RITY OF THE LISTING, CRITI11 CAL HABITAT DESIGNATION,

12 AND CONSULTATION PROC13 ESSES

14 SEC. 101. PEER REVIEW.

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

16 at the end the following new subsection:

17 ‘‘(j) PEER REVIEW REQUIREMENT.—(1) If an inter18 ested person submits, in accordance with paragraph (2),

19 a request for a peer review of an action described in para20 graph (3), the Secretary of the Interior or the Secretary

21 of Commerce shall—

22 ‘‘(A) appoint, from among individuals rec23 ommended by the head of the National Academy of
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1 Sciences, 3 qualified individuals who shall review all

2 scientific and commercial data on which the action

3 is based, and all analyses of the data performed for

4 the purposes of the action; and

5 ‘‘(B) on completion of the review referred to in

6 subparagraph (A), consider and weigh carefully the

7 results of the review.

8 ‘‘(2) Any interested person may request the Secretary

9 to conduct a peer review under paragraph (1) with respect

10 to an action described in paragraph (3), by submitting the

11 request to the Secretary not later than 90 days after the

12 date of publication of the notice of proposed rulemaking

13 for the action.

14 ‘‘(3) An action referred to in paragraphs (1) and (2)

15 is—

16 ‘‘(A) the determination that a species is an en17 dangered species or threatened species under sub18 section (a)(1); or

19 ‘‘(B) the designation, or revision of designation,

20 of critical habitat for an endangered species or

21 threatened species under subsection (a)(3).

22 ‘‘(4) The Secretary shall publish with any final rule

23 implementing an action described in paragraph (3) a sum24 mary of the results of the peer review conducted under
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1 this subsection with respect to the rule and the response

2 of the Secretary to the results.

3 ‘‘(5) As used in this section, the term ‘qualified indi4 vidual’ means an individual with appropriate knowledge,

5 training, or experience who is not employed by, under con6 tract to, or receiving or using a grant or other financial

7 assistance from the Secretary of the Interior or the Sec8 retary of Commerce.’’.

9 SEC. 102. CONSIDERATION OF STATE, LOCAL, AND FOREIGN

10 GOVERNMENT ACTIVITIES.

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

12 amended by inserting after ‘‘existing’’ the following: ‘‘Fed13 eral, State, and local government and international’’.

14 SEC. 103. PRIORITY FOR SPECIES CONSERVATION.

15 Subsection (f) of section 4 (16 U.S.C. 1533(f)) is

16 amended to read as follows:

17 ‘‘(f) PRIORITIES IN DETERMINING AND CONSIDER18 ING ENDANGERED SPECIES AND THREATENED SPE19 CIES.—The Secretary may determine and conserve endan20 gered species and threatened species under this Act in the

21 following order of priority:

22 ‘‘(1) Single species genera.

23 ‘‘(2) Species.

24 ‘‘(3) Subspecies.

25 ‘‘(4) Distinct population segments.’’.
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1 SEC. 104. IMPROVING DATA COLLECTION AND ANALYSIS.

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

3 U.S.C. 1533(b)(1)(A)) is amended by inserting ‘‘soliciting

4 and fully considering scientific and commercial data con5 cerning the status of a species from the appropriate State,

6 if any, and’’ after ‘‘and after’’.

7 (b) FEDERAL GOVERNMENT RESPONSIBILITY.—Sec8 tion 4(b) (16 U.S.C. 1533(b)) is amended by adding at

9 the end the following new paragraph:

10 ‘‘(9)(A) For the purposes of paragraphs (1) and (2),

11 the best scientific and commercial data available shall be,

12 to the maximum extent feasible, data that are verified by

13 field testing.

14 ‘‘(B) The Secretary shall identify and publish in the

15 Federal Register with each proposed rule promulgated

16 under paragraph (1) or (3) of subsection (a) a description

17 of—

18 ‘‘(i) any gap in the data to be considered in

19 making the determination under the subsection to

20 which the proposed rule relates;

21 ‘‘(ii) data that are necessary to make the deter22 mination and that can be collected within the period

23 available for making the determination; and

24 ‘‘(iii) data that are necessary to ensure the con25 tinued viability of the determination, and each dead26 line for collecting the data.
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1 ‘‘(C) In making a determination pursuant to para2 graph (1) or (3) of subsection (a), the Secretary shall col3 lect and consider the data identified and described pursu4 ant to subparagraph (B)(ii).

5 ‘‘(D) The Secretary shall identify and publish in the

6 Federal Register with each final rule promulgated under

7 paragraph (1) or (3) of subsection (a)—

8 ‘‘(i) a description of any data that have not

9 been collected and considered in the determination

10 to which the rule relates and that are necessary to

11 ensure the continued scientific integrity of the deter12 mination; and

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

14 collect and consider the data in accordance with sub15 paragraph (E).

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

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

18 shall—

19 ‘‘(i) collect the data referred to in such sub20 paragraph;

21 ‘‘(ii) provide an opportunity for public review

22 and comment on the data;

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

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

2 of the consideration and a description of and sched3 ule for any actions warranted by the data.’’.

4 (c) CONFORMING AMENDMENT.—The first sentence

5 of section 4(b)(2) (16 U.S.C. 1533(b)(2)) is amended by

6 inserting ‘‘and commercial’’ after ‘‘scientific’’.

7 SEC. 105. PROVIDING AN OPEN AND THOROUGH PROCESS

8 FOR DESIGNATING CRITICAL HABITAT.

9 Section 4(b)(2) (16 U.S.C. 1533(b)(2)) is amended—

10 (1) by inserting ‘‘(A)’’ after ‘‘(2)’’;

11 (2) in subparagraph (A) (as so designated)—

12 (A) in the first sentence, by striking

13 ‘‘specifying any particular area as critical habi14 tat’’ and inserting ‘‘designating any particular

15 area as critical habitat and the determination

16 made pursuant to subsection (a)(1)’’; and

17 (B) in the second sentence, by striking

18 ‘‘may’’ and inserting ‘‘shall’’; and

19 (3) by adding at the end the following new sub20 paragraph:

21 ‘‘(B) A proposed regulation promulgated pursuant to

22 subsection (a)(3) shall describe in detail the economic im23 pacts and other relevant impacts that are to be considered,

24 and the benefits that are to be weighed, in designating

25 an area as critical habitat. The description, and the docu-
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1 mentation supporting the description, shall be submitted

2 to the Bureau of Labor Statistics of the Department of

3 Labor. The Commissioner of Labor Statistics shall submit

4 written comments during the comment period on the pro5 posed regulation. The Secretary shall respond separately

6 and fully to each comment in the final regulation.’’.

7 SEC. 106. EQUAL ACCESS TO JUDICIAL REVIEW.

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

9 amended by striking clause (ii) and inserting the following

10 new clause:

11 ‘‘(ii) Any finding described in subparagraph (A) or

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

13 SEC. 107. IMPROVING THE CONSULTATION AND CON14 FERENCING PROCESSES FOR FEDERAL

15 AGENCY ACTIONS.

16 (a) CONSULTATION STANDARDS AND PROCE17 DURES.—Section 7 (16 U.S.C. 1536) is amended—

18 (1) in subsection (a)—

19 (A) in the first sentence of paragraph (2),

20 by striking ‘‘or result in the destruction or ad21 verse modification of habitat of such species

22 which is determined by the Secretary, after con23 sultation as appropriate with affected States, to

24 be critical,’’ and inserting ‘‘or destroy or ad25 versely modify any habitat that is designated by
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1 the Secretary as critical habitat of such a spe2 cies in a manner that is likely to jeopardize the

3 continued existence of the species,’’;

4 (B) in paragraph (4), by striking ‘‘or re5 sult in the destruction or adverse modification

6 of critical habitat proposed to be designated for

7 such species’’ and inserting ‘‘or to destroy or

8 adversely modify any habitat that is proposed

9 to be designated by the Secretary as critical

10 habitat of such a species in a manner that is

11 likely to jeopardize the continued existence of

12 the species’’; and

13 (C) by adding at the end the following new

14 paragraphs:

15 ‘‘(5) Consultation and conferencing under paragraphs

16 (2) and (4) shall not be required for any agency action

17 that is consistent with—

18 ‘‘(A) the actions provided for in a final recovery

19 plan developed under section 5; or

20 ‘‘(B) the requirements of a Cooperative Man21 agement Agreement in effect under section 6(b).

22 ‘‘(6) An agency action shall not be a taking prohib23 ited by this Act or any regulation issued under this Act

24 if the action is consistent with—
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1 ‘‘(A) the actions provided for in a final recovery

2 plan developed under section 5; or

3 ‘‘(B) the requirements of a Cooperative Man4 agement Agreement in effect under section 6(b).’’;

5 and

6 (2) in subsection (b)(3)(A), by striking the sec7 ond sentence and inserting the following new sen8 tence: ‘‘If the Secretary finds that the action is

9 likely to result in jeopardy to the continued existence

10 of the species as described in subsection (a), the

11 Secretary shall suggest reasonable and prudent

12 alternatives (considering the reasonable and prudent

13 alternatives undertaken by other Federal agencies)

14 that are consistent with subsection (a)(2) and that

15 impose the least socioeconomic costs.’’.

16 (b) SCOPE OF CONSULTATION FOR CERTAIN FED17 ERAL AGENCY ACTIONS.—Section 7(a) (16 U.S.C.

18 1536(a)) is further amended by adding after paragraph

19 (6) (as added by subsection (a)(1)(C)) the following new

20 paragraph:

21 ‘‘(7) Consultation and conferencing under paragraphs

22 (2) and (3) regarding an agency action that consists solely

23 of routine maintenance to a Federal, State, or private

24 project or facility in existence at the time of the consulta25 tion and conferencing, or a modification to the project or
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1 facility required by any Federal, State, or local govern2 ment agency for safety purposes, shall be limited to the

3 consideration of the direct effects that result from the

4 maintenance or modification that comprises the agency ac5 tion.’’.

6 (c) CLARIFICATION OF FEDERAL AGENCY RESPON7 SIBILITIES.—Section 7(a) (16 U.S.C. 1536(a)) is further

8 amended—

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

10 inserting before the period at the end the following:

11 ‘‘, and shall, in addition to considering other obliga12 tions and responsibilities under each applicable stat13 ute, treaty, interstate compact, and contractual

14 agreement, consider the opinion and any reasonable

15 and prudent alternatives developed pursuant to sub16 section (b)(3)’’; and

17 (2) by adding after paragraph (7) (as added by

18 subsection (b)) the following new paragraph:

19 ‘‘(8) If the head of a Federal agency determines that

20 compliance with paragraph (2) is not consistent with other

21 obligations and responsibilities of the agency under each

22 applicable statute, treaty, interstate compact, and contrac23 tual agreement, the agency head shall—
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1 ‘‘(A) determine what pending action would have

2 been authorized, funded, or carried out but for sub3 section (a)(2); and

4 ‘‘(B) provide to the applicant, if any—

5 ‘‘(i) a written statement summarizing the

6 information on which the determination is

7 based; and

8 ‘‘(ii) a notice of the opportunity for an ex9 emption under subsection (e).’’.

10 (d) PARTICIPATION IN CONSULTATIONS.—Section 7

11 (16 U.S.C. 1536) is amended—

12 (1) in subsection (a)—

13 (A) in paragraph (3), by inserting ‘‘with

14 the involvement of,’’ after ‘‘at the request of,’’;

15 and

16 (B) in paragraph (4), by inserting after

17 ‘‘confer with the Secretary’’ the following: ‘‘and

18 any prospective permit or license applicant’’;

19 and

20 (2) in subsection (b)(1), by adding at the end

21 the following new subparagraphs:

22 ‘‘(C) A prospective permit or license applicant shall

23 be entitled to participate fully in any consultation or con24 ference under this section with respect to an agency action

25 that involves the applicant.
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1 ‘‘(D) A person that is a party to a written contract

2 with a Federal agency to purchase a product or service

3 that is provided as a result of an agency action shall be

4 entitled to participate fully in any consultation or con5 ference under this section with respect to the agency ac6 tion.’’.

7 SEC. 108. CLARIFYING THE EFFECTS OF SECONDARY IM8 PACTS.

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

10 amended—

11 (1) by inserting ‘‘(i)’’ after ‘‘(3)(A)’’; and

12 (2) by adding at the end the following new

13 clause:

14 ‘‘(ii) Unless required by a provision of law other than

15 subsections (a) through (d), the Secretary, in any opinion

16 or statement concerning an agency action made pursuant

17 to this subsection (including any reasonable and prudent

18 alternative suggested under clause (i) or any reasonable

19 and prudent measure specified under clause (ii) of para20 graph (4)), and the head of the Federal agency proposing

21 the agency action, may not require, provide for, or rec22 ommend the imposition of any restriction or obligation on

23 the activity of any person that is not authorized, funded,

24 carried out, or otherwise subject to regulation by the Fed25 eral agency. Nothing in this clause shall prevent the Sec-
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1 retary from pursuing any appropriate remedy under sec2 tion 11 for any activity prohibited by section 9.’’.

3 TITLE II—PROVIDING SIGNIFI4 CANCE TO THE RECOVERY

5 PLANNING PROCESS

6 SEC. 201. ENSURING PREPARATION AND USE OF TIMELY,

7 COMPREHENSIVE, AND EFFECTIVE RECOV8 ERY PLANS.

9 (a) IN GENERAL.—

10 (1) DEFINITION OF RECOVERY PLAN.—Section

11 3 (16 U.S.C. 1532) is amended—

12 (A) by redesignating paragraphs (15)

13 through (21) as paragraphs (16) through (22),

14 respectively; and

15 (B) by inserting after paragraph (14) the

16 following new paragraph:

17 ‘‘(15) The term ‘recovery plan’ means a plan devel18 oped under section 5.’’.

19 (2) RECOVERY PLANS.—The Act is amended—

20 (A) by redesignating section 5 (16 U.S.C.

21 1534) as section 5A; and

22 (B) by inserting after section 4 (16 U.S.C.

23 1533) the following new section:
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1 ‘‘SEC. 5. RECOVERY PLANS.

2 ‘‘(a) IN GENERAL.—The Secretary shall develop and

3 implement a plan for the conservation and survival of each

4 species determined to be an endangered species or a

5 threatened species pursuant to section 4, unless the Sec6 retary determines, upon completion of assessments re7 quired by this section, that a plan is not necessary to pro8 mote the conservation and survival of the species. If the

9 Secretary determines that a recovery plan is not necessary,

10 the Secretary shall prepare and publish in the Federal

11 Register findings stating the basis upon which the deter12 mination is made.

13 ‘‘(b) PRIORITY.—In the development and implemen14 tation of a plan under this section, the Secretary shall,

15 to the maximum extent practicable, give priority to—

16 ‘‘(1) the development of an integrated recovery

17 plan for 2 or more endangered species or threatened

18 species that are likely to benefit from an integrated

19 recovery plan;

20 ‘‘(2) the geographic areas where conflicts be21 tween the conservation of species and development

22 projects or other forms of economic activity exist or

23 are likely to exist; and

24 ‘‘(3) the implementation of recovery measures

25 that have the least socioeconomic costs.
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1 ‘‘(c) RECOVERY TEAM.—For each recovery plan the

2 Secretary shall—

3 ‘‘(1) appoint a recovery team consisting of—

4 ‘‘(A) appropriate biologists, economists,

5 and land use specialists from the department of

6 the Secretary, other Federal agencies, and the

7 private sector;

8 ‘‘(B) representatives from each affected

9 State nominated by the Governor of the State;

10 and

11 ‘‘(C) representatives nominated by affected

12 local governments; and

13 ‘‘(2) provide technical assistance to the recovery

14 team.

15 ‘‘(d) RECOVERY TEAM ASSESSMENTS.—Each recov16 ery team shall make the following assessments with re17 spect to the development of a recovery plan for a species:

18 ‘‘(1) BIOLOGICAL.—An assessment of—

19 ‘‘(A) the biological considerations nec20 essary to carry out this Act;

21 ‘‘(B) the biological significance of the spe22 cies;

23 ‘‘(C) the precise geographical range of the

24 species;
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1 ‘‘(D) the then current population of the

2 species;

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

4 ‘‘(F) the technical practicality of recover5 ing the species;

6 ‘‘(G) the potential conservation measures

7 designed to recover the species or to reduce the

8 risks to survival of the species;

9 ‘‘(H) any captive breeding program that

10 would contribute to the goal of the conservation

11 of the species; and

12 ‘‘(I) whether conservation measures will re13 quire any release of an experimental population

14 outside the then current range of the species

15 and, if the release is required, an identification

16 of candidate geographical areas for the release.

17 ‘‘(2) ECONOMIC.—An assessment of—

18 ‘‘(A) the socioeconomic impacts that may

19 result from the listing of the species and poten20 tial conservation measures identified pursuant

21 to this subsection, including a description of the

22 direct and indirect costs to the public and pri23 vate sectors;

24 ‘‘(B) the effects on employment; and
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1 ‘‘(C) the impacts on the use and value of

2 property.

3 ‘‘(3) INTERGOVERNMENTAL.—An assessment of

4 the impact of the listing of the species and the po5 tential conservation measures identified pursuant to

6 this subsection on State and local land use laws,

7 conservation measures, and the water allocation pol8 icy of affected States.

9 ‘‘(e) RECOVERY TEAM REPORTS.—Each recovery

10 team shall report the assessments of the team under sub11 section (d) to the Secretary. The Secretary shall use the

12 assessments as a baseline in the formation and develop13 ment of a recovery plan, including alternatives developed

14 pursuant to subsection (f).

15 ‘‘(f) ALTERNATIVES.—The Secretary, on the basis of

16 the assessments under subsection (d), shall include in each

17 draft recovery plan and plan revision alternative strategies

18 for the recovery and survival of the species. The alter19 native strategies shall range from strategies that do not

20 require Federal management to strategies that may re21 quire intensive Federal management. Each alternative

22 strategy shall recommend a balance of goals and require23 ments pursuant to this Act, and shall contain—
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1 ‘‘(1) an estimate of the risks to the survival and

2 recovery of the species that the alternative would en3 tail;

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

5 costs to the public and private sectors, including ef6 fects on employment, that may result from the alter7 native;

8 ‘‘(3) a description of any social dislocation that

9 may result from the alternative;

10 ‘‘(4) an analysis of any impacts that the alter11 native would have on the use and value of property;

12 ‘‘(5) a description of site-specific management

13 actions necessary to achieve the goals of the alter14 native;

15 ‘‘(6) a description of any captive breeding pro16 gram that would contribute to the goals of the alter17 native;

18 ‘‘(7) a discussion of whether the alternative

19 would require any release of an experimental popu20 lation outside the then current range of the species

21 and, if the release would be required, an identifica22 tion of candidate geographical areas for the release;

23 ‘‘(8) a clear differentiation between—
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1 ‘‘(A) the actions recommended generally

2 for Federal agencies to conserve the species

3 pursuant to section 7(a)(1);

4 ‘‘(B) the actions recommended with respect

5 to Federal agency actions that are the subject

6 of consultation pursuant to section 7(a)(2); and

7 ‘‘(C) the actions recommended to be taken

8 by any person to avoid any take of the species

9 prohibited under section 4(d) or 9(a)(1);

10 ‘‘(9) objective, measurable criteria for recovery,

11 including a population level target, that, if met,

12 would result in a determination, pursuant to section

13 4, that the species be removed from a list published

14 pursuant to section 4(c)(1);

15 ‘‘(10) estimates of the time and costs required

16 to carry out the actions needed to achieve the goals

17 of the alternative and to achieve intermediate steps

18 to the goals; and

19 ‘‘(11) a description of the role of the appro20 priate State, if any, in achieving the goals of the al21 ternative.

22 ‘‘(g) PROCEDURES.—

23 ‘‘(1) IN GENERAL.—Except as provided in para24 graph (2), for each species for which the Secretary
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1 is required to develop a recovery plan under sub2 section (a), the Secretary shall—

3 ‘‘(A) publish a draft recovery plan not

4 later than 1 year after the date of the publica5 tion under section 4(b)(6) of the final regula6 tion to implement the determination described

7 in such section; and

8 ‘‘(B) issue a final recovery plan not later

9 than 18 months after the date of publication

10 described in subparagraph (A).

11 ‘‘(2) EXPEDITED ISSUANCE.—For any species

12 that was determined by the Secretary under section

13 4 to be an endangered species or threatened species

14 before January 1, 1993, and for which a final recov15 ery plan was not published before the date, the Sec16 retary shall—

17 ‘‘(A)(i) publish a draft recovery plan not

18 later than 18 months after the date of enact19 ment of this subsection; and

20 ‘‘(ii) issue a final recovery plan not later

21 than 2 years after the date of enactment of this

22 subsection; or

23 ‘‘(B) publish in the Federal Register a de24 termination that a recovery plan is not required
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1 under this section, not later than 18 months

2 after the date of enactment of this subsection.

3 ‘‘(3) PUBLICATION AND PUBLIC COMMENT.—

4 The Secretary shall publish in the Federal Register

5 and a newspaper of general circulation in each af6 fected county and parish—

7 ‘‘(A) a notice of availability and a sum8 mary of—

9 ‘‘(i) each draft recovery plan;

10 ‘‘(ii) each final recovery plan; and

11 ‘‘(iii) each draft and final revision to

12 a recovery plan; and

13 ‘‘(B) a request for the submission of com14 ments on the draft plan or revision.

15 ‘‘(4) HEARINGS.—The Secretary shall hold a

16 public hearing on each draft recovery plan and plan

17 revision in each county and parish to which the plan

18 applies.

19 ‘‘(5) CONSIDERATION OF COMMENTS BY THE

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

21 recovery plan or plan revision, the Secretary shall

22 consider and weigh carefully all information pre23 sented during each hearing held pursuant to para24 graph (4) or received in response to a request for

25 comments published under paragraph (3)(B).
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1 ‘‘(h) PUBLICATION OF REASONS FOR SELECTING AL2 TERNATIVES AND RESPONSE TO COMMENTS AND TESTI3 MONY.—The Secretary shall publish in the Federal Reg4 ister, with the notice of availability and summary of a final

5 recovery plan or plan revision, a detailed discussion of—

6 ‘‘(1) the reasons for the selection of the species

7 recovery and survival strategies included in the plan

8 or plan revision;

9 ‘‘(2) for each alternative strategy included in a

10 draft recovery plan or plan revision under subsection

11 (f) that is not selected for the final recovery plan or

12 plan revision, the reasons the alternative was not se13 lected; and

14 ‘‘(3) the response of the Secretary to all infor15 mation referred to in subsection (g)(5).

16 ‘‘(i) PARTICIPATION BY STATES AND OTHER PER17 SONS.—The Secretary, in developing and implementing re18 covery plans, may use the services of appropriate public

19 and private agencies and institutions and of other quali20 fied persons.

21 ‘‘(j) RELATIONSHIP TO OTHER LAW.—The Federal

22 Advisory Committee Act (5 U.S.C. App.) shall not apply

23 to recovery teams appointed under this section.

24 ‘‘(k) REPORT.—Not later than 2 years after the date

25 of enactment of this subsection and biennially thereafter,
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1 the Secretary shall report to the Committee on Environ2 ment and Public Works of the Senate and the Committee

3 on Merchant Marine and Fisheries of the House of Rep4 resentatives on the status of efforts to develop and imple5 ment recovery plans for all species included in a list pub6 lished pursuant to section 4(c)(1) and on the status of

7 all species for which the plans have been developed.

8 ‘‘(l) REVIEW OF RECOVERY PLANS.—The Secretary

9 shall—

10 ‘‘(1) review each recovery plan before the end of

11 the 5-year period that begins on the date of the pub12 lication of the recovery plan, and before the end of

13 each 5-year period thereafter; and

14 ‘‘(2) determine whether the plan meets the re15 quirements of this section.’’.

16 (3) CONFORMING AMENDMENT.—Section

17 4(h)(4) (16 U.S.C. 1533(h)(4)) is amended by strik18 ing ‘‘subsection (f) of this section’’ and inserting

19 ‘‘section 5’’.

20 (b) EXISTING RECOVERY PLANS.—

21 (1) IN GENERAL.—Except as provided in para22 graphs (2), (3), and (4), a final recovery plan issued

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

24 1973 (16 U.S.C. 1533(f)) (as in effect on the day

25 before the date of enactment of this Act) before Jan-
26

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1 uary 1, 1993, shall continue in effect as if this sec2 tion had not been enacted.

3 (2) REVISIONS.—The amendments made by

4 subsection (a)(2) shall apply to a revision to a recov5 ery plan referred to in paragraph (1).

6 (3) REVIEWS.—A final recovery plan issued be7 fore the date of enactment of this Act shall be re8 viewed under section 5(l) of the Endangered Species

9 Act of 1973 (as added by subsection (a)) on or be10 fore the date the plan would have been required to

11 be reviewed if—

12 (A) such section had been in effect on the

13 date the plan was issued; and

14 (B) the plan had been reviewed at the end

15 of each 5-year period under such section.

16 (4) PLANS.—A final recovery plan issued by the

17 National Marine Fisheries Service under section 4(f)

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

19 1533(f)) (as in effect on the day before the date of

20 the date of enactment of this Act) before January 1,

21 1993, shall be reissued in accordance with section 5

22 of such Act (as added by subsection (a)).

23 (c) CONFORMING AMENDMENTS.—

24 (1) The table of contents in the first section (16

25 U.S.C. prec. 1531) is amended by striking the item
27

•S 1521 IS

1 relating to section 5 and inserting the following new

2 items:

‘‘Sec. 5. Recovery plans.

‘‘Sec. 5A. Land acquisition.’’.

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

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

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

6 inserting ‘‘section 5A(a)’’.

7 TITLE III—ENSURING THAT THE

8 COMPLIANCE PROCEDURES

9 AND STANDARDS FOR NON10 FEDERAL PERSONS ARE NOT

11 MORE BURDENSOME THAN

12 THE PROCEDURES AND

13 STANDARDS APPLICABLE TO

14 FEDERAL AGENCIES

15 SEC. 301. ESTABLISHING CONSULTATION PROCEDURES

16 WITH RESPECT TO PRIVATE ACTIONS.

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

18 amended—

19 (1) in subsection (a)—

20 (A) in paragraph (2)(A)—

21 (i) by striking ‘‘No permit may be is22 sued by the Secretary authorizing any tak23 ing referred to in paragraph (1)(B) unless

24 the applicant’’ and inserting ‘‘A permit
28

•S 1521 IS

1 may be issued by the Secretary pursuant

2 to paragraph (1)(B) if the applicant’’; and

3 (ii) in clause (i), by striking ‘‘such

4 taking’’ and inserting ‘‘the taking referred

5 to in paragraph (1)(B)’’; and

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

7 paragraph:

8 ‘‘(3)(A) Subject to such regulations as the Secretary

9 may issue, any non-Federal person may initiate a con10 sultation with the Secretary on any prospective activity of

11 the person to determine whether the activity is or is not

12 likely to jeopardize the continued existence of any endan13 gered species or threatened species, or to destroy or ad14 versely modify the designated critical habitat of the species

15 in a manner that is likely to jeopardize the continued ex16 istence of the species.

17 ‘‘(B) A consultation under subparagraph (A) shall

18 conclude not later than 90 days after the date on which

19 the consultation is initiated, or by such other date as is

20 mutually agreeable to the Secretary and the person initiat21 ing the consultation.

22 ‘‘(C)(i) As soon as practicable after the conclusion of

23 consultation under subparagraph (A), the Secretary shall

24 provide to the person initiating the consultation a written

25 statement setting forth the opinion of the Secretary, and
29

•S 1521 IS

1 a summary of the information on which the opinion is

2 based, describing in detail how the prospective activity af3 fects the species or the critical habitat of the species.

4 ‘‘(ii) If the Secretary finds that the activity is not

5 likely to result in jeopardy to the continued existence of

6 the species as described in subparagraph (A), the Sec7 retary shall provide to the person initiating the consulta8 tion a statement that the proposed activity will not jeop9 ardize the continued existence of the species.

10 ‘‘(iii) If the Secretary finds that the activity is likely

11 to result in jeopardy to the continued existence of the spe12 cies as described in subparagraph (A), the Secretary shall

13 suggest the reasonable and prudent alternatives that the

14 Secretary determines would not violate subparagraph (A)

15 and that can be taken by the person initiating the con16 sultation in carrying out the activity of the person.

17 ‘‘(D) After the conclusion of consultation under sub18 paragraph (A), if the person initiating the consultation so

19 requests, the Secretary shall issue a permit pursuant to

20 paragraph (1)(B) to the person if the Secretary deter21 mines that—

22 ‘‘(i)(I) the activity of the person initiating the

23 consultation will not violate subparagraph (A); or
30

•S 1521 IS

1 ‘‘(II) the person has accepted a reasonable and

2 prudent alternative offered by the Secretary pursu3 ant to subparagraph (C); and

4 ‘‘(ii) the taking of an endangered species or

5 threatened species incidental to the activity or alter6 native will not result in jeopardy to the continued

7 existence of the species as described in subparagraph

8 (A).

9 ‘‘(E) A permit issued pursuant to subparagraph (D)

10 shall—

11 ‘‘(i) describe the impact of the incidental taking

12 on the species;

13 ‘‘(ii) specify the reasonable and prudent meas14 ures that the Secretary considers necessary or ap15 propriate to minimize the impact; and

16 ‘‘(iii) set forth the terms and conditions that

17 the person initiating the consultation must comply

18 with to implement the measures.

19 ‘‘(F) After the initiation of consultation under sub20 paragraph (A), the person initiating the consultation may

21 not make any irreversible or irretrievable commitment of

22 resources with respect to the activity that is the subject

23 of the consultation if the commitment has the effect of

24 foreclosing the formulation or implementation of any rea-
31

•S 1521 IS

1 sonable and prudent alternative or measure that would not

2 violate subparagraph (A).

3 ‘‘(G) Any consultation initiated pursuant to subpara4 graph (A), and the activity that is the subject of the con5 sultation, shall not be subject to section 7(c) of this Act

6 or section 102(2) of the National Environmental Policy

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

8 ‘‘(H) Notwithstanding section 4(d) and subpara9 graphs (B) and (C) of section 9(a)(1) of this Act and sec10 tions 101 and 102 of the Marine Mammal Protection Act

11 of 1972 (16 U.S.C. 1371 and 1372), a taking of a species

12 in the course of an action of a person that is the subject

13 of a written opinion provided to the person by the Sec14 retary under this paragraph shall not be considered to be

15 a prohibited taking if—

16 ‘‘(i) the Secretary finds that the action is not

17 likely to result in jeopardy to the continued existence

18 of the species pursuant to subparagraph (C)(ii); or

19 ‘‘(ii) the taking is in compliance with the terms

20 and conditions of a permit issued pursuant to sub21 paragraph (D).

22 ‘‘(I) The Secretary shall revoke a permit issued under

23 this paragraph if the Secretary finds that the permittee

24 is not complying with the terms and conditions of the per25 mit.’’; and
32

•S 1521 IS

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

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

3 (a)(2) and (b)’’.

4 (b) DEFINITION OF NON-FEDERAL PERSON.—Sec5 tion 3 (16 U.S.C. 1532) is amended by inserting after

6 paragraph (10) the following new paragraph:

7 ‘‘(11) The term ‘non-Federal person’ means a person

8 other than an officer, employee, agent, department, or in9 strumentality of—

10 ‘‘(A) the Federal Government; or

11 ‘‘(B) a foreign government.’’.

12 SEC. 302. DEFINING THE TAKE PROHIBITION IN ACCORD13 ANCE WITH THE INTENT OF CONGRESS.

14 Paragraph (20) of section 3 (as redesignated by sec15 tion 201(a)(1)(A)) is amended to read as follows:

16 ‘‘(20) The term ‘take’ means—

17 ‘‘(A) to pursue, hunt, shoot, wound, kill, trap,

18 capture, or collect;

19 ‘‘(B) to attempt to commit an act described in

20 subparagraph (A); or

21 ‘‘(C) to harass or harm a member of a spe22 cies—

23 ‘‘(i) in a manner that causes injury to the

24 member; or

25 ‘‘(ii) in an attempt to cause the injury.’’.
33

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1 SEC. 303. CLARIFYING THE APPLICATION OF TAKE PROHI2 BITIONS.

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 new

9 paragraph:

10 ‘‘(3) An activity of a non-Federal person is deemed

11 not to constitute a take of a species if the activity—

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

13 recovery plan developed under section 5; or

14 ‘‘(B) complies with the requirements of a Coop15 erative Management Agreement in effect under sec16 tion 6(b).’’.

17 SEC. 304. AUTHORIZING THE ISSUANCE OF GENERAL PER18 MITS.

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

20 section 301(a)(1)(B)) is further amended by adding at the

21 end the following new paragraph:

22 ‘‘(4)(A) After providing notice and opportunity for

23 public hearings, the Secretary may issue a general permit

24 pursuant to paragraph (1)(B) on a county, State, regional,

25 or nationwide basis for any category of activities that may

26 affect a species that is included on a list published pursu-
34

•S 1521 IS

1 ant to section 4(c)(1) if the Secretary determines that the

2 activities in the category are similar in nature, will cause

3 only minimal adverse effects on the species when per4 formed separately, and will have only minimal cumulative

5 diverse effects on the species generally. A general permit

6 issued under this paragraph shall set forth the require7 ments and standards that apply to an activity authorized

8 by the general permit.

9 ‘‘(B) A general permit issued pursuant to subpara10 graph (A) shall be effective for a period to be specified

11 by the Secretary, but not to exceed 5 years after the date

12 of the issuance of the permit. The Secretary may revoke

13 or modify a general permit if, after providing an oppor14 tunity for a public hearing, the Secretary determines that

15 the activities authorized by the general permit have a

16 greater than minimal adverse effect on a species that is

17 included on a list published pursuant to section 4(c)(1)

18 or the activities are more appropriately authorized by indi19 vidual permits pursuant to paragraph (2) or (3).’’.

20 SEC. 305. IMPROVING THE CONSERVATION PLANNING

21 PROCESS.

22 (a) FEDERAL SHARE OF COSTS; INTERIM PER23 MITS.—Section 10(a)(2) (16 U.S.C. 1539(a)(2)) is

24 amended—
35

•S 1521 IS

1 (1) by redesignating subparagraph (C) as sub2 paragraph (G); and

3 (2) by inserting after subparagraph (B) the fol4 lowing new subparagraphs:

5 ‘‘(C) The Secretary may not require the applicant,

6 as a condition of processing the application or issuing the

7 permit, to expand the application to include land or inter8 est in land not owned by the applicant or to address a

9 species other than the species for which the application

10 is made, unless the Secretary determines that the require11 ment will not appreciably increase the time or cost of proc12 essing the application or the cost of implementing the per13 mit.

14 ‘‘(D) The Secretary shall pay 50 percent of the direct

15 and indirect cost of implementing the terms and condi16 tions of the permit. To the maximum extent practicable,

17 the sums paid by the Secretary shall be paid directly by

18 the Secretary in lieu of reimbursement to the permittee.

19 ‘‘(E) For such activities as the Secretary determines

20 will not appreciably reduce the chances of survival of a

21 species, the Secretary may issue an interim permit to any

22 applicant that—

23 ‘‘(i) files an application under this section; and

24 ‘‘(ii) provides evidence of appropriate interim

25 species conservation activities that—
36

•S 1521 IS

1 ‘‘(I) are associated with the activity pro2 posed for permitting; and

3 ‘‘(II) are to be performed while the under4 lying permit application is being considered

5 under this section.

6 ‘‘(F) An interim permit issued under subparagraph

7 (E)—

8 ‘‘(i) shall specifically state the types of activities

9 that are authorized to be carried out under the in10 terim permit;

11 ‘‘(ii) shall not create any right to the issuance

12 of a permit under this section;

13 ‘‘(iii) shall expire on the date of the granting or

14 denial of the underlying permit application; and

15 ‘‘(iv) may be revoked by the Secretary upon the

16 termination of a 60-day period following notice for

17 any failure to comply with the terms of the interim

18 permit.’’.

19 (b) MULTIPLE SPECIES CONSERVATION PLANS.—

20 Section 10 (16 U.S.C. 1539) is amended by adding at the

21 end the following new subsection:

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

23 (1) The Secretary may assist a non-Federal person in the

24 development of a plan (to be known as a ‘multiple species

25 conservation plan’) for the conservation of—
37

•S 1521 IS

1 ‘‘(A) any species with respect to which a finding

2 is made and a status review is commenced under

3 section 4(b)(3)(A); and

4 ‘‘(B) any other species that—

5 ‘‘(i) inhabits the area covered by the plan;

6 and

7 ‘‘(ii) is designated in the plan for conserva8 tion.

9 ‘‘(2)(A) The Secretary may issue a permit under this

10 paragraph authorizing any taking described in subsection

11 (a)(1)(B) of a species for which a multiple species con12 servation plan is developed under this subsection, if the

13 Secretary, after the opportunity for public comment on the

14 plan—

15 ‘‘(i) finds that the plan specifies the informa16 tion described in subsection (a)(2)(A);

17 ‘‘(ii) makes the findings described in subsection

18 (a)(2)(B) with respect to the permit application and

19 the plan; and

20 ‘‘(iii) receives such assurances as the Secretary

21 may require that the plan will be implemented.

22 ‘‘(B) A permit issued under this paragraph with re23 spect to a multiple species conservation plan shall be treat24 ed in the same manner as a permit issued under sub-
38

•S 1521 IS

1 section (a)(1)(B) with respect to the species for which the

2 plan is developed.’’.

3 SEC. 306. PROVIDING FOR EXEMPTIONS OF PRIVATE AC4 TIONS AND RELIEVING PAYMENT REQUIRE5 MENTS.

6 (a) EXEMPTION OF NON-FEDERAL PERSONS.—Sec7 tion 7 (16 U.S.C. 1536) is amended—

8 (1) in subsection (m), by striking ‘‘under sub9 section (h) of this section granting an exemption

10 from the requirements of subsection (a)(2) of this

11 section’’ and inserting ‘‘under subsection (h) or (q)

12 granting an exemption for an agency action or an

13 activity of a person’’;

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

15 inserting ‘‘or activity of a person’’ after ‘‘agency ac16 tion’’ both places it appears; and

17 (3) by adding at the end the following new sub18 section:

19 ‘‘(q) EXEMPTION FOR NON-FEDERAL PERSONS.—(1)

20 A non-Federal person (other than an officer, employee,

21 agent, department, or instrumentality of a State, munici22 pality, or political subdivision of a State, and a State, mu23 nicipality, or political subdivision of a State) may apply

24 to the Secretary for an exemption by the Committee of

25 an action of the person if the person—
39

•S 1521 IS

1 ‘‘(A)(i) receives a written opinion of the Sec2 retary under section 10(a)(3)(C)(iii) in which the

3 Secretary finds that the action is likely to result in

4 jeopardy to the continued existence of a species; and

5 ‘‘(ii) does not accept any reasonable and pru6 dent alternative or is otherwise denied a permit

7 under section 10(a)(3)(D);

8 ‘‘(B) is denied a permit for the action under

9 section 10(a)(1); or

10 ‘‘(C) has a permit revoked under section

11 10(a)(2)(G).

12 ‘‘(2) The Secretary may accept or deny an exemption

13 application, and the Committee may grant or deny an ex14 emption, in accordance with the relevant or applicable pro15 visions of subsections (g), (h), and (l) and with regulations

16 issued by the Secretary.

17 ‘‘(3) Notwithstanding section 4(d) and subpara18 graphs (B) and (C) of section 9(a)(1) of this Act and sec19 tions 101 and 102 of the Marine Mammal Protection Act

20 of 1972 (16 U.S.C. 1371 and 1372), an action for which

21 an exemption is granted under this subsection shall not

22 be considered to be a taking of any endangered species

23 or threatened species with respect to any activity that is

24 necessary to carry out the action.’’.
40

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1 (b) PAYMENT OF COSTS OF COMPLYING WITH EN2 DANGERED SPECIES COMMITTEE ORDERS.—Section 7(l)

3 (16 U.S.C. 1536(l)) is amended—

4 (1) in paragraph (1), by striking ‘‘and paid

5 for’’; and

6 (2) in paragraph (2)—

7 (A) in the second sentence, by striking

8 ‘‘Notwithstanding the preceding sentence the

9 costs’’ and inserting ‘‘The costs’’; and

10 (B) by striking the fourth sentence.

11 SEC. 307. COMPENSATING PROPERTY OWNERS FOR SUB12 STANTIALLY DIMINISHED VALUE.

13 (a) IN GENERAL.—The Act is amended by inserting

14 after section 10 (16 U.S.C. 1539) the following new sec15 tion:

16 ‘‘SEC. 10A. COMPENSATION FOR LANDOWNERS.

17 ‘‘(a) ELIGIBILITY.—A property owner that, as a con18 sequence of a final decision of the Secretary pursuant to

19 section 7(a) or paragraph (1), (2), or (3) of section 10(a),

20 is substantially deprived of the economically viable use of

21 the property owned or held by the property owner shall

22 be entitled to receive compensation in accordance with this

23 section.

24 ‘‘(b) DEADLINE.—Not later than 90 days after the

25 receipt of a final decision of the Secretary under section
41

•S 1521 IS

1 7(a), or paragraph (1), (2), or (3) of section 10(a), that

2 substantially deprives a property owner of the economi3 cally viable use of the property owned or held by the prop4 erty owner, the property owner may submit in writing a

5 request to the Secretary for compensation in accordance

6 with subsection (c).

7 ‘‘(c) OFFER BY THE SECRETARY.—Not later than

8 180 days after the receipt of a request for compensation

9 under subsection (b), the Secretary shall provide to the

10 property owner—

11 ‘‘(1) an offer to purchase the affected property

12 of the property owner at a fair market value assum13 ing no use restrictions under this Act; and

14 ‘‘(2) an offer to compensate the property owner

15 for the difference between the fair market value of

16 the property without the restrictions and the fair

17 market value of the property with the restrictions.

18 ‘‘(d) RESPONSE BY THE PROPERTY OWNER; ARBI19 TRATION.—

20 ‘‘(1) IN GENERAL.—Not later than 60 days

21 after the date of the receipt of the offers of the Sec22 retary under subsection (c), a property owner shall

23 accept 1 of the offers or reject both offers.

24 ‘‘(2) SUBMISSION TO ARBITRATION.—If the

25 property owner rejects both offers, the property
42

•S 1521 IS

1 owner may submit the matter for arbitration to an

2 arbitrator appointed by the Secretary from a list of

3 arbitrators submitted to the Secretary by the Amer4 ican Arbitration Association. The arbitration shall be

5 conducted in accordance with the real estate valu6 ation arbitration rules of the Association.

7 ‘‘(3) EFFECT OF ARBITRATION.—For the pur8 poses of this section, an arbitration shall be binding

9 on the Secretary and a property owner as to the

10 amount, if any, of compensation owed to the prop11 erty owner and whether for the purposes of this sec12 tion the property owner has been substantially de13 prived of the economically viable use of the affected

14 property.

15 ‘‘(e) POST-ARBITRATION OFFER AND RESPONSE BY

16 THE OWNER.—Not later than 30 days after the comple17 tion of the arbitration, the Secretary shall make a deter18 mination, and notify the property owner in writing of the

19 determination, as to whether to submit a new offer of pur20 chase or compensation that adheres to the results of the

21 arbitration. Not later than 60 days after the date of re22 ceipt of the new offer, the property owner may accept or

23 reject the offer.
43

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1 ‘‘(f) OTHER REMEDIES NOT AFFECTED.—Nothing

2 in this section shall affect the right of a property owner

3 to pursue any other remedy available at law.

4 ‘‘(g) JUDGMENT.—A final decision of the Secretary

5 pursuant to section 7(a) or paragraph (1), (2), or (3) of

6 section 10(a) that substantially deprives a property owner

7 of the economically viable use of the property owned or

8 held by the property owner is deemed to be a judgment

9 against the United States if the property owner accepts

10 an offer by the Secretary under subsection (d) or sub11 section (e).

12 ‘‘(h) PAYMENT.—The Secretary shall pay a property

13 owner any compensation required under the terms of an

14 offer of the Secretary that is accepted by the property

15 owner in accordance with subsection (d) or subsection (e)

16 not later than 60 days after the date of the acceptance.

17 ‘‘(i) DEFINITIONS.—As used in this section:

18 ‘‘(1) PROPERTY.—The term ‘property’ means—

19 ‘‘(A) land;

20 ‘‘(B) any interest in land; and

21 ‘‘(C) any proprietary water right.

22 ‘‘(2) PROPERTY OWNER.—The term ‘property

23 owner’ means a non-Federal person (other than an

24 officer, employee, agent, department, or instrumen25 tality of a State, municipality, or political subdivi-
44

•S 1521 IS

1 sion of a State, or a State, municipality, or political

2 subdivision of a State) that—

3 ‘‘(A) owns property referred to in subpara4 graph (A) or (B) of paragraph (1); or

5 ‘‘(B) holds property referred to in para6 graph (1)(C).’’.

7 (b) CONFORMING AMENDMENT.—The table of con8 tents in the first section (16 U.S.C. prec. 1531) is amend9 ed by inserting after the item relating to section 10 the

10 following new item:

‘‘Sec. 10A. Compensation for property owners.’’.

11 TITLE IV—PROVIDING FOR HABI12 TAT CONSERVATION INCEN13 TIVE PROGRAMS

14 SEC. 401. COOPERATIVE MANAGEMENT AGREEMENTS.

15 (a) IN GENERAL.—Subsection (b) of section 6 (16

16 U.S.C. 1535(b)) is amended to read as follows:

17 ‘‘(b) COOPERATIVE MANAGEMENT AGREEMENTS.—

18 (1) The Secretary may enter into an agreement with any

19 non-Federal person having authority, control, or owner20 ship over the area affected by any listing, proposed listing,

21 or candidacy for listing of a species pursuant to section

22 4(a)(1), any designation of critical habitat pursuant to

23 section 4(a)(3), or any listing of a species subject to sec24 tion 4(b)(3)(B)(iii). The agreement shall be known as a

25 ‘Cooperative Management Agreement’ and shall govern
45

•S 1521 IS

1 the administration and management of each area that the

2 Secretary identifies as habitat for the species.

3 ‘‘(2) The Secretary may initiate, or a non-Federal

4 person may submit to the Secretary a request to enter

5 into, a Cooperative Management Agreement. A person

6 shall submit with the request a proposed Cooperative Man7 agement Agreement.

8 ‘‘(3) The Secretary shall publish in the Federal Reg9 ister—

10 ‘‘(A) a notice of availability of, and a request

11 for public comment on, a proposed Cooperative Man12 agement Agreement; and

13 ‘‘(B) a notice of availability of each Cooperative

14 Management Agreement entered into by the Sec15 retary.

16 ‘‘(4) The Secretary shall hold a public hearing on a

17 proposed Cooperative Management Agreement in each

18 county to which the proposed Agreement applies.

19 ‘‘(5)(A) Before entering into a Cooperative Manage20 ment Agreement, the Secretary shall consider and weigh

21 carefully all information—

22 ‘‘(i) received in response to the request for com23 ment published under paragraph (3); and

24 ‘‘(ii) presented as testimony in each hearing

25 held under paragraph (4).
46

•S 1521 IS

1 ‘‘(B) The Secretary shall publish under paragraph

2 (3)(B) with a notice of availability of a Cooperative Man3 agement Agreement the response of the Secretary to all

4 information referred to in subparagraph (A) that is re5 ceived or presented with respect to the Agreement.

6 ‘‘(6)(A) Not later than 120 days after the submission

7 of a proposed Cooperative Management Agreement in ac8 cordance with paragraph (2), the Secretary shall deter9 mine whether the proposed Agreement—

10 ‘‘(i) is in accordance with this subsection; and

11 ‘‘(ii) will promote the conservation of the spe12 cies to which the proposed Agreement applies.

13 ‘‘(B) The Secretary shall approve and enter into a

14 proposed Cooperative Management Agreement with the

15 person that submits the proposed Agreement if the Sec16 retary finds that—

17 ‘‘(i) the person has sufficient authority under

18 law to implement and carry out the terms of the

19 Agreement;

20 ‘‘(ii) the Agreement defines an area that serves

21 as habitat for the species to which the Agreement

22 applies;

23 ‘‘(iii) the Agreement provides for the adminis24 tration and management of the area and adequately

25 regulates activities occurring in the area that may
47

•S 1521 IS

1 not otherwise promote the conservation of the spe2 cies to which the Agreement applies;

3 ‘‘(iv) the Agreement promotes the conservation

4 of the species to which the Agreement applies by

5 committing Federal or non-Federal efforts to the

6 conservation; and

7 ‘‘(v) the Agreement is adequately funded to

8 carry out the Agreement.

9 ‘‘(7)(A) Paragraphs (1) and (3) of section 4(a), and

10 sections 5 and 7, shall not apply to such activities of a

11 person that is a party to a Cooperative Management

12 Agreement as are conducted in accordance with the Agree13 ment.

14 ‘‘(B) Notwithstanding subparagraph (A), an inten15 tional or knowing violation of a Cooperative Management

16 Agreement, or a statute or regulation implementing a Co17 operative Management Agreement, that has the effect of

18 jeopardizing the continued existence of a species to which

19 the Agreement applies shall be considered to be a violation

20 of this Act.

21 ‘‘(8)(A) If the Secretary determines after public hear22 ing and opportunity for comment that a person that is

23 a party to a Cooperative Management Agreement is not

24 administering or acting in accordance with the Agreement,

25 the Secretary shall notify the person.
48

•S 1521 IS

1 ‘‘(B) If a person that is notified under subparagraph

2 (A) fails to take appropriate corrective action within a pe3 riod of time determined by the Secretary to be reasonable

4 (not to exceed 90 days after the date of the notification)—

5 ‘‘(i) the Secretary shall rescind the entire Coop6 erative Management Agreement that is the subject

7 of the notification or the applicability of the Agree8 ment to the person; and

9 ‘‘(ii) on and after the date of the rescission—

10 ‘‘(I) the entire Agreement shall not be ef11 fective, or the Agreement shall not be effective

12 with respect to the person (as appropriate); and

13 ‘‘(II) paragraphs (1) and (3) of section

14 4(a), and sections 5 and 7, shall apply to activi15 ties of the person.’’.

16 (b) CONFORMING AMENDMENTS.—

17 (1) Section 6 (16 U.S.C. 1535) is amended by

18 striking the section heading and inserting the follow19 ing new section heading: ‘‘COOPERATION WITH NON20 FEDERAL PERSONS’’.

21 (2) The table of contents in the first section (16

22 U.S.C. prec. 1531) is amended by striking the item

23 relating to section 6 and inserting the following new

24 item:

‘‘Sec. 6. Cooperation with non-Federal persons.’’.
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1 SEC. 402. HABITAT RESERVE GRANTS.

2 Section 6(b) (16 U.S.C. 1535(b)) (as amended by

3 section 401(a)) is further amended by adding at the end

4 the following new paragraph:

5 ‘‘(9)(A) The Secretary may provide a grant to a non6 Federal person (other than an officer, employee, agent, de7 partment, or instrumentality of a State, municipality, or

8 political subdivision of a State, and a State, municipality,

9 or political subdivision of a State) for the purpose of pre10 serving habitat for any species that is determined under

11 section 4 to be an endangered species or threatened spe12 cies.

13 ‘‘(B) The Secretary may annually provide a grant

14 under this paragraph if the Secretary determines that—

15 ‘‘(i) the property for which the grant is pro16 vided contains habitat that significantly contributes

17 to the protection of the population of the species;

18 ‘‘(ii) the property has been dedicated to species

19 protection for a period of time that has been suffi20 cient to significantly contribute to the protection of

21 the population of the species; and

22 ‘‘(iii) the preservation of the habitat advances

23 the interest of species protection.

24 ‘‘(C) A grant made under this paragraph shall be

25 transferable to subsequent owners of the property for

26 which the grant is provided.’’.
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1 TITLE V—REAUTHORIZATION

2 AND OTHER AMENDMENTS

3 SEC. 501. PROVIDING GUIDANCE FOR THE RELEASE OF EX4 PERIMENTAL POPULATIONS.

5 Section 10(j) (16 U.S.C. 1539(j)) is amended—

6 (1) in paragraph (2)—

7 (A) in subparagraph (B)—

8 (i) by inserting ‘‘and the precise

9 boundaries of the geographical area for the

10 release’’ after ‘‘the population’’; and

11 (ii) by inserting ‘‘whether the release

12 is in the public interest and’’ after ‘‘infor13 mation,’’;

14 (B) in subparagraph (C)—

15 (i) in clause (i), by striking ‘‘and’’ at

16 the end;

17 (ii) by redesignating clause (ii) as

18 clause (iii); and

19 (iii) by inserting after clause (i) the

20 following new clause:

21 ‘‘(ii) for the purposes of sections 4(d) and

22 9(a)(1)(B), any member of an experimental popu23 lation found outside the geographical area in which

24 the population is released shall not be treated as a
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1 threatened species if the member poses a threat to

2 the welfare of the public; and’’;

3 (2) by redesignating paragraph (3) as para4 graph (4); and

5 (3) by inserting after paragraph (2) the follow6 ing new paragraph:

7 ‘‘(3) In authorizing the release of a population under

8 paragraph (2), the Secretary shall require that—

9 ‘‘(A) to the extent possible, the release occurs

10 only in a unit of the National Park System or the

11 National Wildlife Refuge System;

12 ‘‘(B) a release outside a unit occurs only in an

13 area that has been identified as a candidate site for

14 release in the recovery plan for the species of the

15 population developed under section 5;

16 ‘‘(C) for a release outside a unit, measures to

17 protect the safety and welfare of the public and do18 mestic animals and the funding for the measures are

19 identified in the regulations authorizing the release

20 and are implemented;

21 ‘‘(D) the regulations authorizing the release

22 identify precisely the geographical area for release;

23 ‘‘(E) a release on non-Federal land occurs only

24 with the written consent of the owner of the land;

25 and
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1 ‘‘(F) the regulations authorizing the release in2 clude measurable reintroduction goals to restore via3 ble populations only within the specific geographic

4 area identified for release in the regulations.’’.

5 SEC. 502. RECOGNITION OF CAPTIVE PROPAGATION AS

6 MEANS OF RECOVERY.

7 (a) IN GENERAL.—Section 13 (87 Stat. 902) is

8 amended to read as follows:

9 ‘‘SEC. 13. RECOGNITION OF CAPTIVE PROPAGATION AS

10 MEANS OF RECOVERY.

11 ‘‘(a) IN GENERAL.—In carrying out responsibilities

12 of the Secretary under sections 4, 5, and 7, the Secretary

13 shall recognize to the maximum extent practicable, and

14 may utilize, captive propagation as a means of conserving

15 an endangered species or threatened species.

16 ‘‘(b) CAPTIVE PROPAGATION GRANTS.—The Sec17 retary may annually provide grants to non-Federal per18 sons to fund captive propagation programs for the purpose

19 of preserving any species that is determined under section

20 4 to be an endangered species or threatened species, if

21 the Secretary determines that the program contributes to

22 enhancement of the population of the species.’’.

23 (b) EFFECT ON PRIOR AMENDMENTS.—Nothing in

24 this section or the amendment made by this section is in25 tended to affect the amendments made by section 13 of
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1 the Endangered Species Act of 1973 (87 Stat. 902), as

2 in effect on the day before the date of enactment of this

3 Act.

4 (c) CONFORMING AMENDMENT.—The table of con5 tents in the first section (16 U.S.C. prec. 1531) is amend6 ed by striking the item relating to section 13 and inserting

7 the following new item:

‘‘Sec. 13. Recognition of captive propagation as means of recovery.’’.

8 SEC. 503. CLARIFYING THE APPLICATION OF PROHIBI9 TIONS TO THREATENED SPECIES.

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

11 (1) in the first sentence, by inserting ‘‘, concur12 rently with or subsequent to the regulation that pro13 vides for the listing of the species,’’ after ‘‘issue’’;

14 and

15 (2) in the second sentence, by striking ‘‘by reg16 ulation prohibit with respect to any’’ and inserting

17 ‘‘in the regulations prohibit with respect to the spe18 cific’’.

19 SEC. 504. CITIZEN SUITS.

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

21 (1) in paragraph (1)—

22 (A) in the first sentence, in subparagraph

23 (A), by striking ‘‘any person, including the

24 United States and any other governmental in25 strumentality or agency (to the extent per-
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1 mitted by the eleventh amendment to the Con2 stitution),’’ and inserting ‘‘the United States or

3 any agency or official of the United States’’;

4 and

5 (B) in the second sentence, by striking ‘‘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 new

11 paragraph:

12 ‘‘(6) A non-Federal person (including a person that

13 sustains actual or imminent economic injury as a direct

14 or indirect result of a violation of this Act or a regulation

15 issued under this Act by the United States or any agency

16 or official of the United States) may commence a civil suit

17 on behalf of the person and may intervene as a matter

18 of right in any suit brought under this Act related to the

19 injury sustained by the person.’’.

20 SEC. 505. INCREASED AUTHORIZATION OF APPROPRIA21 TIONS.

22 Section 15 (16 U.S.C. 1542) is amended to read as

23 follows:
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1 ‘‘SEC. 15. AUTHORIZATION OF APPROPRIATIONS.

2 ‘‘(a) IN GENERAL.—In addition to the amounts au3 thorized to be appropriated under section 6(i) and sub4 sections (b), (c), (d), and (e), there are authorized to be

5 appropriated—

6 ‘‘(1) to the Department of the Interior to carry

7 out the duties of the Secretary of the Interior under

8 this Act $110,000,000 for fiscal year 1994,

9 $120,000,000 for fiscal year 1995, $130,000,000 for

10 fiscal year 1996, $140,000,000 for fiscal year 1997,

11 $150,000,000 for fiscal year 1998, and

12 $160,000,000 for fiscal year 1999;

13 ‘‘(2) to the Department of Commerce to carry

14 out the duties of the Secretary of Commerce under

15 this Act $15,000,000 for fiscal year 1994,

16 $20,000,000 for fiscal year 1995, $25,000,000 for

17 fiscal year 1996, $30,000,000 for fiscal year 1997,

18 $35,000,000 for fiscal year 1998, and $40,000,000

19 for fiscal year 1999; and

20 ‘‘(3) to the Department of Agriculture to carry

21 out the duties of the Secretary of Agriculture under

22 this Act $4,000,000 for each of fiscal years 1994

23 through 1999.

24 ‘‘(b) EXEMPTIONS FROM ACT.—There are authorized

25 to be appropriated to the Department of the Interior to

26 carry out the duties of the Secretary of the Interior and
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1 the Endangered Species Committee under subsections (e),

2 (g), and (h) of section 7 $625,000 for each of fiscal years

3 1994 through 1999.

4 ‘‘(c) CONVENTION IMPLEMENTATION.—There are au5 thorized to be appropriated to the Department of the Inte6 rior to carry out section 8A(e) $1,000,000 for each of fis7 cal years 1994 through 1999. Amounts appropriated

8 under this subsection shall remain available until ex9 pended.

10 ‘‘(d) HABITAT CONSERVATION PLANNING.—There

11 are authorized to be appropriated to the Department of

12 the Interior to carry out section 10(a)(2)(D) $20,000,000

13 for each of fiscal years 1994 through 1999. Amounts ap14 propriated under this subsection shall remain available

15 until expended.

16 ‘‘(e) HABITAT RESERVE GRANTS.—There are au17 thorized to be appropriated to the Department of the Inte18 rior to provide habitat reserve grants under section

19 6(b)(9) $20,000,000 for each of fiscal years 1994 through

20 1999. Amounts appropriated under this subsection shall

21 remain available until expended.’’.

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