Calendar No. 242

105TH CONGRESS

1ST SESSION S. 1180

[Report No. 105–128]

A BILL

To reauthorize the Endangered Species Act.

OCTOBER 31, 1997

Reported with an amendment and an amendment to the

title
II

Calendar No. 242

105TH CONGRESS

1ST SESSION S. 1180

[Report No. 105–128]

To reauthorize the Endangered Species Act.

IN THE SENATE OF THE UNITED STATES

SEPTEMBER 16, 1997

Mr. KEMPTHORNE (for himself, Mr. CHAFEE, Mr. BAUCUS, Mr. REID, Mr.

SMITH of Oregon, Mr. STEVENS, Mr. BENNETT, Mr. COVERDELL, Mr.

MURKOWSKI, and Mr. FAIRCLOTH) introduced the following bill; which

was read twice and referred to the Committee on Enviroment and Public

Works

OCTOBER 31, 1997

Reported by Mr. CHAFEE, with an amendment and an amendment to the title

[Strike out all after the enacting clause and insert the part printed in italic]

A BILL

To reauthorize the Endangered Species Act.

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.

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

5 ‘‘Endangered Species Recovery Act of 1997’’.
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1 (b) TABLE OF CONTENTS.—The table of contents for

2 this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Listing and delisting species.

Sec. 3. Enhanced recovery planning.

Sec. 4. Interagency consultation and cooperation.

Sec. 5. Conservation plans.

Sec. 6. Enforcement.

Sec. 7. Education and technical assistance.

Sec. 8. Authorization of appropriations.

Sec. 9. Other amendments.

3 (c) REFERENCES TO ENDANGERED SPECIES ACT.—

4 Except as otherwise expressly provided, whenever in this

5 Act an amendment or repeal is expressed in terms of an

6 amendment to, or repeal of, a section or other provision,

7 the reference shall be considered to be made to that sec8 tion or provision of the Endangered Species Act (16

9 U.S.C. 1531 et seq.).

10 SEC. 2. LISTING AND DELISTING SPECIES.

11 (a) BEST SCIENTIFIC AND COMMERCIAL DATA

12 AVAILABLE.—Section 3 of the Act (16 U.S.C. 1532) is

13 amended—

14 (1) by striking the title and inserting the fol15 lowing:

16 ‘‘DEFINITIONS AND GENERAL PROVISIONS’’;

17 (2) by striking ‘‘For the purposes of this

18 Act—’’ and inserting the following:

19 ‘‘(a) DEFINITIONS.—For purposes of this Act—’’;

20 and
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1 (3) by adding at the end the following new sub2 section:

3 ‘‘(b) GENERAL PROVISIONS.—

4 ‘‘(1) BEST SCIENTIFIC AND COMMERCIAL DATA

5 AVAILABLE.—Where this Act requires the Secretary

6 to use the best scientific and commercial data avail7 able, the Secretary shall when evaluating comparable

8 data give greater weight to scientific or commercial

9 data that is empirical, field-tested or peer-re10 viewed.’’.

11 (b) CONFORMING AMENDMENT.—The table of con12 tents in the first section (16 U.S.C. 1531) is amended by

13 striking the item relating to section 3 and inserting the

14 following:

‘‘Sec. 3. Definitions and general provisions.’’.

15 (c) LISTING AND DELISTING.—

16 (1) FACTORS CONSIDERED FOR LISTING.—Sec17 tion 4(a)(1) is amended—

18 (A) in subparagraph (C) by inserting ‘‘in19 troduced species, competition,’’ prior to ‘‘dis20 ease or predation’’; and

21 (B) in subparagraph (D) by inserting

22 ‘‘Federal, State and local government and inter23 national’’ prior to ‘‘regulatory mechanisms’’.

24 (2) CRITICAL HABITAT.—Section 4(a) is

25 amended by striking paragraph (3).
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1 (3) DELISTING.—Section 4(b)(2) is amended to

2 read as follows:

3 ‘‘(2) DELISTING.—The Secretary shall, in ac4 cordance with section 5 and upon a determination

5 that the goals of the recovery plan for a species have

6 been met, initiate the procedures for determining, in

7 accordance with subsection (a)(1), whether to re8 move a species form a list published under sub9 section (c).’’

10 (4) RESPONSE TO PETITIONS.—Section 4(b)(3)

11 is amended to read as follows:

12 ‘‘(3) RESPONSE TO PETITIONS.—

13 ‘‘(A) ACTION MAY BE WARRANTED.—

14 ‘‘(i) IN GENERAL.—To the maximum

15 extent practicable, within 90 days after re16 ceiving the petition of an interested person

17 under section 553(e) of title 5, United

18 States Code, to—

19 ‘‘(I) add a species to,

20 ‘‘(II) remove a species from, or

21 ‘‘(III) change a species status

22 from a previous determination with

23 respect to

24 either of the lists published under sub25 section (c), the Secretary shall make a
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1 finding as to whether the petition presents

2 substantial scientific or commercial infor3 mation indicating that the petitioned ac4 tion may be warranted. If a petition is

5 found to present such information, the

6 Secretary shall promptly commence a re7 view of the status of the species concerned

8 the Secretary shall promptly publish each

9 finding made under this subparagraph in

10 the Federal Register.

11 ‘‘(ii) MINIMUM DOCUMENTATION.—A

12 finding that the petition presents the infor13 mation described in clause (i) shall not be

14 made unless the petition provides—

15 ‘‘(I) documentation that the fish,

16 wildlife, or plant that is the subject of

17 the petition is a species as defined in

18 section 3;

19 ‘‘(II) a description of the avail20 able data on the historical and current

21 range and distribution of the species;

22 ‘‘(III) an appraisal of the avail23 able data on the status and trends of

24 populations of the species;
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1 ‘‘(IV) an appraisal of the avail2 able data on the threats to the spe3 cies; and

4 ‘‘(V) an identification of the in5 formation contained or referred to in

6 the petition that has been peer-re7 viewed or field-tested.

8 ‘‘(iii) NOTIFICATION TO THE

9 STATES.—

10 ‘‘(I) PETITIONED ACTIONS.—If

11 the petition is found to present the in12 formation described in clause (i), the

13 Secretary shall notify and provide a

14 copy of the petition to the State agen15 cy in each State in which the species

16 is believed to occur and solicit the as17 sessment of the agency, to be submit18 ted to the Secretary within 90 days of

19 notification, as to whether the peti20 tioned action is warranted.

21 ‘‘(II) OTHER ACTIONS.—If the

22 Secretary has not received a petition

23 for a species and the Secretary is con24 sidering proposing to list such species

25 as either threatened or endangered
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1 under subsection (a), the Secretary

2 shall notify the State agency in each

3 State in which the species is believed

4 to occur and solicit the assessment of

5 the agency, to be submitted to the

6 Secretary within 90 days of the notifi7 cation, as to whether the listing would

8 be in accordance with the provisions

9 of subsection (a).

10 ‘‘(III) CONSIDERATION OF STATE

11 ASSESSMENTS.—Prior to publication

12 of a determination that a petitioned

13 action is warranted or a proposed reg14 ulation, the Secretary shall consider

15 any State assessments submitted

16 within the comment period established

17 by subclause (I) or (II).

18 ‘‘(B) PETITION TO CHANGE STATUS OR

19 DELIST.—A petition may be submitted to the

20 Secretary under subparagraph (A) to change

21 the status of or to remove a species from either

22 of the lists published under subsection (c) in ac23 cordance with subsection (a)(1), if—
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1 ‘‘(i) the current listing is no longer

2 appropriate because of a change in the fac3 tors identified in subsection (a)(1); or

4 ‘‘(ii) with respect to a petition to re5 move a species from either of the lists—

6 ‘‘(I) new data or a reinterpreta7 tion of prior data indicates that re8 moval is appropriate;

9 ‘‘(II) the species is extinct; or

10 ‘‘(III) the recovery goals estab11 lished

12 for the species in a recovery plan approved

13 under section 5(h) have been achieved.

14 ‘‘(C) DETERMINATION.—Within 12 months

15 after receiving a petition that is found under

16 subparagraph (A)(i) to present substantial in17 formation indicating that the petitioned action

18 may be warranted, the Secretary shall make

19 one of the following findings:

20 ‘‘(i) NOT WARRANTED.—The peti21 tioned action is not warranted, in which

22 case the Secretary shall promptly publish

23 the finding in the Federal Register.

24 ‘‘(ii) WARRANTED.—The petitioned

25 action is warranted, in which case the Sec-
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1 retary shall promptly publish in the Fed2 eral Register a general notice and the com3 plete text of a proposed regulation to im4 plement the action in accordance with

5 paragraph (5).

6 ‘‘(iii) WARRANTED BUT PRE7 CLUDED.—The petitioned action is war8 ranted, but that—

9 ‘‘(I) the immediate proposal and

10 timely promulgation of a final regula11 tion implementing the petitioned ac12 tion in accordance with paragraphs

13 (5) and (6) is precluded by pending

14 proposals to determine whether any

15 species is an endangered species or a

16 threatened species; and

17 ‘‘(II) expeditious progress is

18 being made to add qualified species to

19 either of the lists published under

20 subsection (c) and to remove from the

21 lists species for which the protections

22 of the Act are no longer necessary,

23 in which case the Secretary shall promptly

24 publish the finding in the Federal Register,

25 together with a description and evaluation
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1 of the reasons and data on which the find2 ing is based.

3 ‘‘(D) SUBSEQUENT DETERMINATION.—A

4 petition with respect to which a finding is made

5 under subparagraph (C)(iii) shall be treated as

6 a petition that is resubmitted to the Secretary

7 under subparagraph (A) on the date of such

8 finding and that presents substantial scientific

9 or commercial information that the petitioned

10 action may be warranted.

11 ‘‘(E) JUDICIAL REVIEW.—Any negative

12 finding described in subparagraph (A)(i) and

13 any finding described in subparagraph (C)(i) or

14 (iii) shall be subject to judicial review.

15 ‘‘(F) MONITORING AND EMERGENCY LIST16 ING.—The Secretary shall implement a system

17 to monitor effectively the status of all species

18 with respect to which a finding is made under

19 subparagraph (C)(iii) and shall make prompt

20 use of the authority under paragraph (7) to

21 prevent a significant risk to the well-being of

22 any such species.’’.

23 (5) PROPOSED REGULATIONS.—Section 4(b)(5)

24 is amended by—
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1 (A) striking ‘‘(5) With respect to any regu2 lation’’ and inserting the following:

3 ‘‘(5) PROPOSED REGULATIONS AND REVIEW.—

4 With respect to any regulation’’;

5 (B) striking ‘‘a determination, designation,

6 or revision’’ and inserting ‘‘a determination or

7 change in status’’;

8 (C) striking ‘‘(a)(1) or (3),’’ and inserting

9 ‘‘(a)(1),’’;

10 (D) striking ‘‘in the Federal Register,’’

11 and inserting ‘‘in the Federal Register as pro12 vided by paragraph (8),’’; and

13 (E) striking subparagraph (E) and insert14 ing the following:

15 ‘‘(E) at the request of any person within

16 45 days after the date of publication of general

17 notice, promptly hold at least 1 public hearing

18 in each State that would be affected by the pro19 posed regulation (including at least 1 hearing in

20 an affected rural area, if any) except that the

21 Secretary may not be required to hold more

22 than 5 hearings under this clause.’’.

23 (7) FINAL REGULATIONS.—

24 (A) SCHEDULE.—Section 4(b)(6)(A) is

25 amended to read as follows:
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1 ‘‘(A) IN GENERAL.—Within the 1-year pe2 riod beginning on the date on which general no3 tice is published in accordance with paragraph

4 (5)(A)(i) regarding a proposed regulation, the

5 Secretary shall publish in the Federal Reg6 ister—

7 ‘‘(i) a final regulation to implement

8 the determination,

9 ‘‘(ii) notice that the 1-year period is

10 being extended under subparagraph (B)(i),

11 or

12 ‘‘(iii) notice that the proposed regula13 tion is being withdrawn under subpara14 graph (B)(ii), together with the finding on

15 which such withdrawal is based.’’.

16 (B) CONFORMING AMENDMENTS.—Section

17 4(b)(6) is amended—

18 (i) in subparagraph (B)(i) by striking

19 ‘‘or revision’’;

20 (ii) in subparagraph (B)(iii), by strik21 ing ‘‘or revision concerned, a finding that

22 the revision should not be made,’’; and

23 (iii) by striking subparagraph (C).

24 (8) PUBLICATION OF DATA AND INFORMA25 TION.—Section 4(b)(8) is amended by—
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1 (A) striking ‘‘a summary by the Secretary

2 of the data’’ and inserting ‘‘a summary by the

3 Secretary of the best scientific and commercial

4 data available’’;

5 (B) striking ‘‘is based and shall’’ and in6 serting ‘‘is based, shall’’; and

7 (C) striking ‘‘regulation; and if such regu8 lation designates or revises critical habitat, such

9 summary shall, to the maximum extent prac10 ticable, also include a brief description and eval11 uation of those activities (whether public or pri12 vate) which, in the opinion of the Secretary, if

13 undertaken may adversely modify such habitat,

14 or may be affected by such designation.’’ and

15 inserting ‘‘regulation, and shall provide, to the

16 degree that it is relevant and available, infor17 mation regarding the status of the affected spe18 cies, including current population, population

19 trends, current habitat, food sources, predators,

20 breeding habits, captive breeding efforts, gov21 ernmental and non-governmental conservation

22 efforts, or other pertinent information.’’.

23 (9) SOUND SCIENCE.—Section 4(b) is amended

24 by adding at the end the following:

25 ‘‘(9) ADDITIONAL DATA.—
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1 ‘‘(A) IN GENERAL.—The Secretary shall

2 identify and publish in the Federal Register

3 with the notice of a proposed regulation pursu4 ant to paragraph (5)(A)(i) a description of ad5 ditional scientific and commercial data that

6 would assist in the preparation of a recovery

7 plan and—

8 ‘‘(i) invite any person to submit the

9 data to the Secretary; and

10 ‘‘(ii) describe the steps that the Sec11 retary plans to take for acquiring addi12 tional data.

13 ‘‘(B) RECOVERY PLANNING.—Data identi14 fied and obtained under subparagraph (A) shall

15 be considered by the recovery team and the Sec16 retary in the preparation of the recovery plan in

17 accordance with section 5.

18 ‘‘(C) NO DELAY AUTHORIZED.—Nothing in

19 this paragraph shall be deemed to waive or ex20 tend any deadline for publishing a final rule to

21 implement a determination (except for the ex22 tension provided in paragraph (6)(B)(i)) or any

23 deadline under section 5.

24 ‘‘(10) INDEPENDENT SCIENTIFIC REVIEW.—
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1 ‘‘(A) IN GENERAL.—In the case of a regu2 lation proposed by the Secretary to implement

3 a determination under subsection (a)(1) that

4 any species is an endangered species or a

5 threatened species or that any species currently

6 listed as an endangered species or a threatened

7 species should be removed from any list pub8 lished pursuant to subsection (c), the Secretary

9 shall provide for independent scientific peer re10 view by—

11 ‘‘(i) selecting independent referees

12 pursuant to subparagraph (B);

13 ‘‘(ii) requesting the referees to con14 duct the review, considering all relevant in15 formation, and make a recommendation to

16 the Secretary in accordance with this para17 graph not later than 150 days after the

18 general notice is published pursuant to

19 paragraph (5)(A)(i).

20 ‘‘(B) SELECTION OF REFEREES.—For

21 each independent scientific review to be con22 ducted pursuant to subparagraph (A), the Sec23 retary shall select 3 independent referees from

24 a list provided by the National Academy of

25 Sciences, who—
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1 ‘‘(i) through publication of peer-re2 viewed scientific literature or other means,

3 have demonstrated scientific expertise on

4 the species or a similar species or other

5 scientific expertise relevant to the decision

6 of the Secretary under subsection (a);

7 ‘‘(ii) do not have, or represent any

8 person with, a conflict of interest with re9 spect to the determination that is the sub10 ject of the review; and

11 ‘‘(iii) are not participants in a petition

12 to list, change the status of, or remove the

13 species under paragraph (3)(A)(i), the as14 sessment of a State for the species under

15 paragraph (3)(A)(iii), or the proposed or

16 final determination of the Secretary.

17 ‘‘(C) FINAL DETERMINATION.—The Sec18 retary shall take one of the actions under para19 graph (6)(A) of this subsection not later than

20 1 year after the date of publication of the gen21 eral notice of the proposed determination. If the

22 referees have made a recommendation in ac23 cordance with clause (ii) of subparagraph (A),

24 the Secretary shall evaluate and consider the in25 formation that results from the independent sci-
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1 entific review and include in the final deter2 mination—

3 ‘‘(i) a summary of the results of the

4 independent scientific review; and

5 ‘‘(ii) in cases where the recommenda6 tion of a majority of the referees who con7 ducted the independent scientific review

8 under subparagraph (A) are not followed,

9 an explanation as to why the recommenda10 tion was not followed.

11 ‘‘(D) FEDERAL ADVISORY COMMITTEE

12 ACT.—The referees selected pursuant to this

13 paragraph shall not be subject to the Federal

14 Advisory Committee Act (5 U.S.C. App.).’’.

15 (10) LISTS.—Section 4(c) is amended by—

16 (A) inserting ‘‘designated’’ before ‘‘critical

17 habitat’’; and

18 (B) striking ‘‘determinations, designations

19 and revisions’’ and inserting ‘‘determinations’’.

20 (11) PROTECTIVE REGULATION.—Section 4(d)

21 is amended by—

22 (A) striking ‘‘Whenever any species is list23 ed’’ and inserting the following:

24 ‘‘(1) IN GENERAL.—Whenever any species is

25 listed’’; and
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1 (B) adding at the end the following:

2 ‘‘(2) NEW LISTINGS.—With respect to each spe3 cies listed as a threatened species after the date of

4 enactment of the Endangered Species Recovery Act

5 of 1997, regulations applicable under paragraph (1)

6 to the species shall be specific to that species by the

7 date on which the Secretary is required to approve

8 a recovery plan for the species pursuant to section

9 5(c) and may be subsequently revised.’’.

10 (12) RECOVERY PLANS.—Section 4 is amended

11 by striking subsection (f) and redesignating sub12 sections (g) through (i) as subsections (f) through

13 (h), respectively.

14 (13) CONFORMING AMENDMENT.—Section 4(g)

15 (as redesignated by paragraph (12)) is amended in

16 paragraph (4) by striking ‘‘subsection (f) of this sec17 tion’’ and inserting ‘‘section 5’’.

18 (d) PUBLIC AVAILABILITY OF DATA.—Section 3(b),

19 as amended by subsection (a), is amended by adding at

20 the end the following:

21 ‘‘(2) FREEDOM OF INFORMATION ACT EXEMPTION.—

22 The Secretary, and the head of any other Federal agency

23 upon the recommendation of the Secretary, may withhold

24 or limit the availability of data requested to be released

25 pursuant to section 552 of title 5, United States Code,
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1 if the data describes or identifies the location of an endan2 gered species, a threatened species, or a species that has

3 been proposed to be listed as threatened or endangered,

4 and release of the data would be likely to result in in5 creased take of the species.’’.

6 SEC. 3. ENHANCED RECOVERY PLANNING.

7 (a) REDESIGNATION.—Section 5 of the Act is redes8 ignated as section 5A.

9 (b) RECOVERY PLANS.—The Act is amended by in10 serting prior to section 5A (as redesignated by subsection

11 (a)) the following:

12 ‘‘RECOVERY PLANS

13 ‘‘SEC. 5. (a) IN GENERAL.—The Secretary, in co14 operation with the States, and on the basis of the best

15 scientific and commercial data available, shall develop and

16 implement plans (referred to in this Act as ‘‘recovery

17 plans’’) for the conservation and recovery of endangered

18 species and threatened species that are indigenous to the

19 United States or in waters under the jurisdiction of the

20 United States in accordance with the requirements and

21 schedules described in this section, unless the Secretary

22 finds, after notice and opportunity for public comment,

23 that a plan will not promote the conservation of the spe24 cies or because an existing plan or strategy to conserve

25 the species already serves as the functional equivalent to

26 a recovery plan. The Secretary may authorize a State
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1 agency to develop recovery plans pursuant to subsection

2 (m).

3 ‘‘(b) PRIORITIES.—To the maximum extent prac4 ticable, the Secretary, in developing recovery plans, shall

5 give priority, without regard to taxonomic classification,

6 to recovery plans that—

7 ‘‘(1) address significant and immediate threats

8 to the survival of an endangered species or a threat9 ened species, have the greatest likelihood of achiev10 ing recovery of the endangered species or the threat11 ened species, and will benefit species that are more

12 taxonomically distinct;

13 ‘‘(2) address multiple species including (A) en14 dangered species, (B) threatened species, or (C) spe15 cies that the Secretary has identified as candidates

16 or proposed for listing under section 4 and that are

17 dependent on the same habitat as the endangered

18 species or threatened species covered by the plan;

19 ‘‘(3) reduce conflicts with construction, develop20 ment projects, jobs or other economic activities; and

21 ‘‘(4) reduce conflicts with military training and

22 operations.

23 ‘‘(c) SCHEDULE.—For each species determined to be

24 an endangered species or a threatened species after the

25 date of enactment of the Endangered Species Recovery
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1 Act of 1997 for which the Secretary is required to develop

2 a recovery plan under subsection (a), the Secretary shall

3 publish—

4 ‘‘(1) not later than 18 months after the date of

5 the publication under section 4 of the final regula6 tion containing the listing determination, a draft re7 covery plan; and

8 ‘‘(2) not later than 30 months after the date of

9 publication under section 4 of the final regulation

10 containing the listing determination, a final recovery

11 plan.

12 ‘‘(d) APPOINTMENT AND ROLE OF RECOVERY

13 TEAM.—

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

15 after the date of the publication under section 4 of

16 the final regulation containing the listing determina17 tion for a species, the Secretary, in cooperation with

18 the affected States, shall either appoint a recovery

19 team to develop a recovery plan for the species or

20 publish a notice pursuant to paragraph (3) that a

21 recovery team shall not be appointed. Recovery

22 teams shall include the Secretary and at least one

23 representative from the State agency of each of the

24 affected States choosing to participate and be broad25 ly representative of the constituencies with an inter-
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1 est in the species and its recovery and in the eco2 nomic or social impacts of recovery including rep3 resentatives of Federal agencies, tribal governments,

4 local governments, academic institutions, private in5 dividuals and organizations, and commercial enter6 prises. The recovery team members shall be selected

7 for their knowledge of the species or for their exper8 tise in the elements of the recovery plan or its imple9 mentation.

10 ‘‘(2) DUTIES OF THE RECOVERY TEAM.—Each

11 recovery team shall prepare and submit to the Sec12 retary the draft recovery plan that shall include the

13 team’s recommended recovery measures and alter14 natives, if any, to meet the recovery goal under sub15 section (e)(1). The recovery team may also be called

16 upon by the Secretary to assist in the implementa17 tion, review and revision of recovery plans. The re18 covery team shall also advise the Secretary concern19 ing the designation of critical habitat, if any.

20 ‘‘(3) EXCEPTION.—

21 ‘‘(A) IN GENERAL.—Notwithstanding para22 graph (1), the Secretary may, after notice and

23 opportunity for public comment, establish cri24 teria to identify species for which the appoint25 ment of a recovery team would not be required
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1 under this subsection, taking into account the

2 availability of resources for recovery planning,

3 the extent and complexity of the expected recov4 ery activities and the degree of scientific uncer5 tainty associated with the threats to the species.

6 ‘‘(B) STATE OPTION.—If the Secretary

7 elects not to appoint a recovery team, the Sec8 retary shall provide notice to each affected

9 State and shall provide the affected States the

10 opportunity to appoint a recovery team and de11 velop a recovery plan, in accordance with the

12 requirements and procedures set out in sub13 section (m).

14 ‘‘(C) SECRETARIAL DUTY.—In the event

15 that a recovery team is not appointed, the Sec16 retary shall perform all duties of the recovery

17 team required by this section.

18 ‘‘(4) TRAVEL EXPENSES.—The Secretary is au19 thorized to provide travel expenses (including per

20 diem in lieu of subsistence at the same level as au21 thorized by section 5703 of title 5, United States

22 Code) to recovery team members.

23 ‘‘(5) FEDERAL ADVISORY COMMITTEE ACT.—

24 The Federal Advisory Committee Act (5 U.S.C.

25 App.) shall not apply to the selection or activities of
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1 a recovery team appointed pursuant to this sub2 section or subsection (m).

3 ‘‘(e) CONTENTS OF RECOVERY PLANS.—Each recov4 ery plan shall contain:

5 ‘‘(1) BIOLOGICAL RECOVERY GOAL.—

6 ‘‘(A) IN GENERAL.—Not later than 6

7 months after the appointment of a recovery

8 team under this section, those members of the

9 recovery team with relevant scientific expertise

10 shall establish and submit to the Secretary of

11 recommended biological recovery goal to con12 serve and recover the species that, when met,

13 would result in the determination, in accordance

14 with the provisions of section 4, that the species

15 be removed from the list. The goal shall be

16 based solely on the best scientific and commer17 cial data available. The recovery goal shall be

18 expressed as objective and measurable biological

19 criteria. When the goal is met, the Secretary

20 shall be required to initiate the procedures for

21 determining whether, in accordance with section

22 4(a)(1), to remove the species from the list.

23 ‘‘(B) PEER REVIEW.—The recovery team

24 shall promptly obtain independent scientific re-
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1 view of the recommended biological recovery

2 goal.

3 ‘‘(2) RECOVERY MEASURES.—The recovery plan

4 shall incorporate recovery measures that will meet

5 the recovery goal.

6 ‘‘(A) MEASURES.—The recovery measures

7 may incorporate general and site-specific meas8 ures for the conservation and recovery of the

9 species such as—

10 ‘‘(i) actions to protect and restore

11 habitat;

12 ‘‘(ii) research;

13 ‘‘(iii) establishment of refugia, captive

14 breeding, releases of experimental popu15 lations;

16 ‘‘(iv) actions that may be taken by

17 Federal agencies, including actions that

18 use, to the maximum extent practicable,

19 Federal lands; and

20 ‘‘(v) opportunities to cooperate with

21 State and local governments and other per22 sons to recover species, including through

23 the development and implementation of

24 conservation plans under section 10.

25 ‘‘(B) DRAFT RECOVERY PLANS.—
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1 ‘‘(i) IN GENERAL.—In developing a

2 draft recovery plan, the recovery team or,

3 if there is no recovery team, the Secretary,

4 shall consider alternative measures and

5 recommend measures to meet the recovery

6 goal including the benchmarks. The recov7 ery measures shall achieve an appropriate

8 balance among the following factors—

9 ‘‘(I) the effectiveness of the

10 measures in meeting the recovery

11 goal;

12 ‘‘(II) the period of time in which

13 the recovery goal is likely to be

14 achieved, provided that the time pe15 riod within which the recovery goal is

16 to be achieved will not pose a signifi17 cant risk to recovery of the species;

18 and

19 ‘‘(III) the social and economic

20 impacts (both quantitative and quali21 tative) of the measures and their dis22 tribution across regions and indus23 tries.

24 ‘‘(ii) DESCRIPTION OF ALTER25 NATIVES.—The draft plan shall include a
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1 description of any alternative recovery

2 measures considered, but not included in

3 the recommended measures, and an expla4 nation of how any such measures consid5 ered were assessed and the reasons for

6 their selection or rejection.

7 ‘‘(iii) DESCRIPTION OF ECONOMIC EF8 FECTS.—If the recommended recovery

9 measures identified in clause (i) would im10 pose significant costs on a municipality,

11 county, region or industry, the recovery

12 team shall prepare a description of the

13 overall economic effects on the public and

14 private sections including, as appropriate,

15 effects on employment public revenues, and

16 value of property as a result of the imple17 mentation of the recovery plan.

18 ‘‘(3) BENCHMARKS.—The recovery plan shall

19 include objective, measurable benchmarks expected

20 to be achieved over the course of the recovery plan

21 to determine whether progress is being made to22 wards the recovery goal.

23 ‘‘(4) FEDERAL AGENCIES.—Each recovery plan

24 for an endangered species or a threatened species

25 shall identify Federal agencies that authorize, fund,
28

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1 or carry out actions that are likely to have a signifi2 cant impact on the prospects for recovering the spe3 cies.

4 ‘‘(f) PUBLIC NOTICE AND COMMENT.—

5 ‘‘(1) IN GENERAL.—If the Secretary makes a

6 preliminary determination that the draft recovery

7 plan meets the requirements of this section, the Sec8 retary shall publish in the Federal Register and a

9 newspaper of general circulation in each affected

10 State a notice of availability and a summary of, and

11 a request for public comment on, the draft recovery

12 plan including a description of the economic effects

13 prepared under subsection (e)(2)(B)(iii) and the rec14 ommendations of the independent referees on the re15 covery goal.

16 ‘‘(2) HEARINGS.—At the request of any person,

17 the Secretary shall hold at least 1 public hearing on

18 each draft recovery plan in each State to which the

19 plan would apply (including at least 1 hearing in an

20 affected rural area, if any), except that the Sec21 retary may not be required to hold more than 5

22 hearings under this paragraph.

23 ‘‘(g) PROCUREMENT AUTHORITY.—The Secretary, in

24 developing and implementing recovery plans, may procure
29

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1 the services of appropriate public and private agencies and

2 institutions and other qualified persons.

3 ‘‘(h) REVIEW AND SELECTION BY THE SEC4 RETARY.—

5 ‘‘(1) REVIEW AND APPROVAL.—The Secretary

6 shall review each plan submitted by a recovery team,

7 including a recovery team appointed by a State pur8 suant to the authority of subsection (m), to deter9 mine whether the plan was developed in accordance

10 with the requirements of this section. If the Sec11 retary determines that the plan does not satisfy such

12 requirements, the Secretary shall notify the recovery

13 team and give the team an opportunity to address

14 the concerns of the Secretary and resubmit a plan

15 that satisfies the requirements of this section. After

16 notice and opportunity for public comment on the

17 recommendations of the recovery team, the Sec18 retary shall adopt a final recovery plan that is con19 sistent with the requirements of this section.

20 ‘‘(2) SECTION OF RECOVERY MEASURES.—In

21 each final plan the Secretary shall select recovery

22 measures that meet the recovery goal and the bench23 marks. The recovery measures shall achieve an ap24 propriate balance among the factors in subclauses

25 (I) through (III) of subsection (e)(2)(B)(i).
30

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1 ‘‘(3) MEASURES RECOMMENDED BY RECOVERY

2 TEAM.—If the Secretary selects measures other than

3 those recommended by the recovery team, the Sec4 retary shall publish with the final plan an expla5 nation of why the measures recommended by the re6 covery team were not selected for the final recovery

7 plan.

8 ‘‘(4) PUBLICATION OF NOTICE ON FINAL

9 PLANS.—The Secretary shall publish in the Federal

10 Register a notice of availability, and a summary, of

11 the final recovery plan, and include in the final re12 covery plan a response to significant comments that

13 the Secretary received on the draft recovery plan.

14 ‘‘(i) REVIEW.—

15 ‘‘(1) EXISTING PLANS—Not later than 5 years

16 after date of enactment of Endangered Species re17 covery Act of 1997, the Secretary shall review recov18 ery plans published prior to such date.

19 ‘‘(2) SUBSEQUENT PLANS.—The Secretary shall

20 review each recovery plan first approved or revised

21 under this section subsequent to the enactment of

22 the Endangered Species Recovery Act of 1997, not

23 later than 10 years after the date of approval or re24 vision of the plan and every 10 years thereafter.
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•S 1180 RS

1 ‘‘(j) REVISION OF RECOVERY PLANS.—Notwith2 standing any other provisions of this section,the Secretary

3 shall revise a recovery plan if the Secretary finds that sub4 stantial new information, that may include the failure to

5 meet the benchmarks included in the plan, based upon the

6 best scientific and commercial data available, indicates

7 that the recovery goals contained in the recovery plan will

8 not achieve the conservation and recovery of the endan9 gered species or threatened species covered by the plan.

10 The Secretary shall convene a recovery team to develop

11 the revisions required by this subsection, unless the Sec12 retary has established an exception for the species pursu13 ant to subsection (d)(3).

14 ‘‘(k) EXISTING PLANS.—Nothing in this section shall

15 be interpreted to require the modification of—

16 ‘‘(1) a recovery plan approved, or

17 ‘‘(2) a recovery plan on which public notice and

18 comment has been initiated,

19 prior to the date of enactment of the Endangered Species

20 Recovery Act of 1997 until revised by the Secretary in

21 accordance with this section.

22 ‘‘(l) IMPLEMENTATION OF RECOVERY PLANS.—

23 ‘‘(1) IMPLEMENTATION AGREEMENTS.—The

24 Secretary is authorized to enter into agreements

25 with Federal agencies, affected States, Indian tribes,
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•S 1180 RS

1 local governments, private landowners and organiza2 tions to implement specified conservation measures

3 identified by an approved recovery plan that promote

4 the recovery of the species on lands or waters owned

5 by, or within the jurisdiction of, each such party.

6 The Secretary may enter into such agreements, if

7 the Secretary, after notice and opportunity for pub8 lic comment, determines that—

9 ‘‘(A) each party to the agreement has the

10 legal authority and capability to carry out the

11 agreement;

12 ‘‘(B) the agreement shall be reviewed and

13 revised as necessary on a regular basis by the

14 parties to the agreement to ensure that it meets

15 the requirements of this section; and

16 (C) the agreement establishes a mechanism

17 for the Secretary to monitor and evaluate im18 plementation of the agreement.

19 ‘‘(2) DUTY OF FEDERAL AGENCIES.—Each

20 Federal agency identified under subsection (e)(4)

21 shall enter into an implementation agreement with

22 the Secretary not later than 2 years after the date

23 on which the Secretary approves the recovery plan

24 for the species. For purposes of satisfying this sec25 tion, the substantive provisions of the agreement
33

•S 1180 RS

1 shall be within the sole discretion of the Secretary

2 and the head of the Federal agency entering into the

3 agreement.

4 ‘‘(3) OTHER REQUIREMENTS.—

5 ‘‘(A) AGENCY ACTIONS.—Any action au6 thorized, funded or carried out by a Federal

7 agency that is specified in a recovery plan im8 plementation agreement between the Federal

9 agency and the Secretary to promote the recov10 ery of the species and for which the agreement

11 provides sufficient information on the nature,

12 scope and duration of the action to determine

13 the effect of the action on any endangered spe14 cies, threatened species, or critical habitat shall

15 not be subject to the requirements of section

16 7(a)(2) for that species, provided the action is

17 to be carried out during the term of such agree18 ment and the Federal agency is in compliance

19 with the agreement.

20 ‘‘(B) COMPREHENSIVE AGREEMENTS.—If

21 a non-Federal person proposes to include in an

22 implementation agreement a site-specific action

23 that the Secretary determines meets the re24 quirements of subparagraph (A) and that action

25 would require authorization or funding by one
34

•S 1180 RS

1 or more Federal agencies, the agencies author2 izing or funding the action shall participate in

3 the development of the agreement and shall

4 identify, at that time, all measures for the spe5 cies that would be required under this Act as a

6 condition of the authorization or funding.

7 ‘‘(4) FINANCIAL ASSISTANCE—

8 ‘‘(A) IN GENERAL.—In cooperation with

9 the States and subject to the availability of ap10 propriations under section 13(f), the Secretary

11 may provide a grant of up to $25,000 to any

12 individual private landowner to assist the land13 owner in carrying out a recovery plan imple14 mentation agreement under this subsection.

15 ‘‘(B) PROHIBITION ON ASSISTANCE FOR

16 REQUIRED ACTIVITIES.—The Secretary may not

17 provide assistance under this paragraph for any

18 action that is required by a permit issued under

19 this Act or that is otherwise required under this

20 Act or other Federal law.

21 ‘‘(C) OTHER PAYMENTS.—Grants provided

22 to an individual private landowner under this

23 paragraph shall be in addition to, and not af24 fect, the total amount of payments the land25 owner is otherwise eligible to receive under the
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1 Conservation Reserve Program (16 U.S.C. 3831

2 et seq.), the Wetlands Reserve Program (16

3 U.S.C. 3837 et seq.), or the Wildlife Habitat

4 Incentives Program (16 U.S.C. 3836a).

5 ‘‘(m) STATE AUTHORITY FOR RECOVERY PLAN6 NING.—

7 ‘‘(1) IN GENERAL.—At the request of the Gov8 ernor of a State, or the Governors of several States

9 in cooperation, the Secretary may authorize the re10 spective State agency to develop the recovery plan

11 for an endangered species or a threatened species

12 in accordance with the requirements and schedules

13 of subsections (c), (d)(1), (d)(2), and (e) and this

14 subsection if the Secretary finds that—

15 ‘‘(A) the State or States have entered into

16 a cooperative agreement with the Secretary pur17 suant to section 6(c); and

18 ‘‘(B) the State agency has submitted a

19 statement to the Secretary demonstrating ade20 quate authority and capability to carry out the

21 requirements and schedules of subsections (c),

22 (d)(1), (d)(2), and (e) of this subsection.

23 ‘‘(2) STANDARDS AND GUIDELINES.—The Sec24 retary, in cooperation with the States, shall publish

25 standards and guidelines for the development of re-
36

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1 covery plans by a State agency under this sub2 section, including standards and guidelines for inter3 state cooperation and for the grant and withdrawal

4 of authorization under this subsection by the Sec5 retary.

6 ‘‘(3) MEMBERS AND DUTIES OF RECOVERY

7 TEAM.—Each recovery team appointed by a State

8 agency under this subsection shall include the Sec9 retary. The recovery team shall prepare a draft re10 covery plan in accordance with the requirements of

11 this section and shall transmit the draft plan to the

12 Secretary through the State agency authorized to

13 develop the recovery plan.

14 ‘‘(4) REVIEW OF DRAFT PLANS.—Prior to pub15 lication of a notice of availability of a draft recovery

16 plan, the Secretary shall review each draft recovery

17 plan developed pursuant to this subsection to deter18 mine whether it meets the requirements of this sec19 tion. If the Secretary determines that the plan does

20 not meet such requirements, the Secretary shall no21 tify the State agency and, in cooperation with such

22 State agency, develop a recovery plan in accordance

23 with the requirements of this section.

24 ‘‘(5) REVIEW AND APPROVAL OF FINAL

25 PLANS.—Upon receipt of a draft recovery plan
37

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1 transmitted by a State agency, the Secretary shall

2 review and approve the plan in accordance with sub3 section (h).

4 ‘‘(6) WITHDRAWAL OF AUTHORITY.—

5 ‘‘(A) IN GENERAL.—The Secretary may

6 withdraw the authority from a State that has

7 been authorized to develop a recovery plan pur8 suant to this subsection if the actions of the

9 State agency are not in accordance with the

10 substantive and procedural requirements of sub11 sections (c), (d)(1), (d)(2), and (e) of this sub12 section. The Secretary shall give the State

13 agency an opportunity to correct any defi14 ciencies identified by the Secretary and shall

15 withdraw the authority from the State unless

16 the State agency within 60 days has corrected

17 the deficiencies identified by the Secretary.

18 Upon withdrawal of State authority pursuant to

19 this subsection, the Secretary shall have an ad20 ditional 18 months to publish a draft recovery

21 plan and an additional 12 months to publish a

22 final recovery plan under subsection 5(c).

23 ‘‘(B) PETITIONS TO WITHDRAW.—Any per24 son may submit a petition requesting the Sec25 retary to withdraw the authority from a State
38

•S 1180 RS

1 on the basis that the actions of the State agen2 cy are not in accordance with the substantive

3 and procedural requirements identified in sub4 paragraph (A). If the Secretary has not acted

5 on the petition pursuant to subparagraph (A)

6 within 90 days, the petition shall be deemed de7 nied and the denial shall be a final agency ac8 tion for the purposes of judicial review.

9 ‘‘(7) STATE AGENCY.—For purposes of this

10 subsection, the term ‘State agency’ includes—

11 ‘‘(A) State agencies (as defined in section

12 3) of the several States submitting a coopera13 tive request under paragraph (1); and

14 ‘‘(B) for fish and wildlife, including related

15 spawning grounds and habitat, on the Columbia

16 River and its tributaries, the Pacific Northwest

17 Electric Power and Conservation Planning

18 Council established under the Pacific Northwest

19 Electric Power Planning and Conservation Act

20 (16 U.S.C. 839 et seq.).

21 ‘‘(n) CRITICAL HABITAT DESIGNATION.—

22 ‘‘(1) RECOMMENDATION OF THE RECOVERY

23 TEAM.—Not later than 9 months after the date of

24 publication under section 4 of a final regulation con25 taining a listing determination for a species, the re-
39

•S 1180 RS

1 covery team appointed for the species shall provide

2 the Secretary with a description of any habitat of

3 the species that is recommended for designation as

4 critical habitat pursuant to this subsection and any

5 recommendations for special management consider6 ations or protection that are specific to such habitat.

7 ‘‘(2) DESIGNATION BY THE SECRETARY.—The

8 Secretary, to the maximum extent prudent and de9 terminable, shall be regulation designate any habitat

10 of an endangered species or a threatened species

11 that is indigenous to the United States or waters

12 under the jurisdiction of the United States that is

13 considered to be critical habitat.

14 ‘‘(A) DESIGNATION.—

15 ‘‘(i) PROPOSAL.—Not later than 18

16 months after the date on which a final list17 ing determination is made under section 4

18 for a species, the Secretary, after consulta19 tion and in cooperation with the recovery

20 team, shall publish in the Federal Register

21 a proposed regulation designating critical

22 habitat for the species.

23 ‘‘(ii) PROMULGATION.—The Secretary

24 shall, after consultation and in cooperation

25 with the recovery team, publish a final reg-
40

•S 1180 RS

1 ulation designating critical habitat for a

2 species not later than 30 months after the

3 date on which a final listing determination

4 is made under section 4 for the species.

5 ‘‘(B) OTHER DESIGNATIONS.—If a recov6 ery plan is not developed under this section for

7 an endangered species or a threatened species,

8 the Secretary shall publish a final critical habi9 tat determination for that endangered species

10 or threatened species within 36 months after

11 making a determination that the species is an

12 endangered species or a threatened species.

13 ‘‘(C) ADDITIONAL AUTHORITY.—The Sec14 retary may publish a regulation designating

15 critical habitat for an endangered species or a

16 threatened species concurrently with the final

17 regulation implementing the determination that

18 the species is endangered or threatened if the

19 Secretary determines that designation of such

20 habitat at the time of listing is essential to

21 avoid the imminent extinction of the species.

22 ‘‘(3) FACTORS TO BE CONSIDERED.—The des23 ignation of critical habitat shall be made on the

24 basis of the best scientific and commercial data

25 available and after taking into consideration the eco-
41

•S 1180 RS

1 nomic impact, impacts to military training and oper2 ations, and any other relevant impact, of specifying

3 any particular area as critical habitat. The Secretary

4 shall describe the economic impacts and other rel5 evant impacts that are to be considered under this

6 subsection in the publication of any proposed regula7 tion designating critical habitat.

8 ‘‘(4) EXCLUSIONS.—The Secretary may exclude

9 any area from critical habitat for a species if the

10 Secretary determines that the benefits of the exclu11 sion outweigh the benefits of designating the area as

12 part of the critical habitat, unless the Secretary de13 termines that the failure to designate the area as

14 critical habitat will result in the extinction of the

15 species.

16 ‘‘(5) REVISIONS.—The Secretary may, from

17 time-to-time and as appropriate, revise a designa18 tion. Each area designated as critical habitat before

19 the date of enactment of the Endangered Species

20 Recovery Act of 1997 shall continue to be considered

21 so designated, until the designation is revised in ac22 cordance with this subsection.

23 ‘‘(6) PETITIONS.—

24 ‘‘(A) DETERMINATION THAT REVISION

25 MAY BE WARRANTED.—To the maximum extent
42

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1 practicable, within 90 days after receiving the

2 petition of an interested person under section

3 553(e) of title 5, United States Code, to revise

4 a critical habitat designation, the Secretary

5 shall make a finding as to whether the petition

6 presents substantial scientific or commercial in7 formation indicating that the revision may be

8 warranted. The Secretary shall promptly pub9 lish such finding in the Federal Register.

10 ‘‘(B) NOTICE OF PROPOSED ACTION.—

11 Within 12 months after receiving a petition

12 that is found under subparagraph (A) to

13 present substantial information indicating that

14 the requested revision may be warranted, the

15 Secretary shall determine how to proceed with

16 the requested revision, and shall promptly pub17 lish notice of such intention in the Federal Reg18 ister.

19 ‘‘(7) PROPOSED AND FINAL REGULATIONS.—

20 Any regulation to designate critical habitat or imple21 ment a requested revision shall be proposed and pro22 mulgated in accordance with paragraphs (4), (5)

23 and (6) of section 4(b) in the same manner as a reg24 ulation to implement a determination with respect to

25 listing a species.
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1 ‘‘(o) REPORTS.—The Secretary shall report every two

2 years to the Committee on Environment and Public Works

3 of the Senate and the Committee on Resources of the

4 House of Representatives on the status of efforts to de5 velop and implement recovery plans for all species listed

6 pursuant to section 4 and on the status of all species for

7 which such plans have been developed.’’.

8 (c) CITIZEN SUITS.—Section 11(g)(1)(C) of the Act

9 (16 U.S.C. 1540(g)(1)(C)) is amended by inserting ‘‘or

10 section 5’’ after ‘‘section 4’’.

11 (d) CONFORMING AMENDMENTS FOR RECOVERY

12 PLANNING.—

13 (1) Section 6(d)(1) is amended by striking ‘‘sec14 tion 4(g)’’ and inserting ‘‘section 4(f)’’.

15 (2) Section 10(f)(5) is amended by striking the

16 last sentence.

17 (3) Sections 104(c)(4)(A)(ii)(I), 115(b)(2), and

18 118(f)(11) of the Marine Mammal Protection Act

19 are amended by striking ‘‘section 4(f)’’ each place it

20 occurs and inserting ‘‘section 5’’.

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

22 U.S.C. 1531) is amended by striking the item relat23 ed to section 5 and inserting the following:

‘‘Sec. 5. Recovery plans.

Sec. 5A. Land acquisition.’’.
44

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1 (e) PLANS FOR PREVIOUSLY LISTED SPECIES.—In

2 the case of species included in the list published under

3 section 4(c) before the date of enactment of this Act, and

4 for which no recovery plan was developed before that date,

5 the Secretary shall develop a final recovery plan in accord6 ance with the requirements of section 5 (including the pri7 orities of section 5(b)) of the Endangered Species Act (16

8 U.S.C. 1531 et seq.), as amended by this Act, for not less

9 than one-half of the species not later than 36 months after

10 the date of enactment of this Act and for all species not

11 later than 60 months after such date.

12 SEC. 4. INTERAGENCY CONSULTATION AND COOPERATION.

13 (a) REASONABLE AND PRUDENT ALTERNATIVES.—

14 Section 3 (16 U.S.C. 1532) is amended by redesignating

15 paragraphs (15) through (21) as paragraphs (16) through

16 (22), respectively, and inserting the following new para17 graph after paragraph (14):

18 ‘‘(15) REASONABLE AND PRUDENT ALTER19 NATIVES.—The term ‘reasonable and prudent alternatives’

20 means alternative actions identified during consultation

21 that can be implemented in a manner consistent with the

22 intended purpose of the action, that can be implemented

23 consistent with the scope of the Federal agency’s legal au24 thority and jurisdiction, that are economically and techno25 logically feasible, and that the Secretary believes would
45

•S 1180 RS

1 avoid the likelihood of jeopardizing the continued existence

2 of listed species or resulting in the destruction or adverse

3 modification of critical habitat.’’.

4 (b) INVENTORY OF SPECIES ON FEDERAL LANDS.—

5 Section 7(a)(1)(16 U.S.C. 1536(a)(1)) is amended by—

6 (1) inserting ‘‘(A)’’ after ‘‘(1)’’; and

7 (2) adding the following at the end thereof:

8 ‘‘(B) INVENTORY OF SPECIES ON FEDERAL

9 LANDS.—The head of each Federal agency that is

10 responsible for the management of lands and wa11 ters—

12 ‘‘(i) shall by not later than December 31,

13 2003, prepare and provide to the Secretary an

14 inventory of the presence or occurrence of en15 dangered species, threatened species, species

16 that have been proposed for listing, and species

17 that the Secretary has identified as candidates

18 for listing under section(4), that are located on

19 lands or waters owned or under control of the

20 agency; and

21 ‘‘(ii) shall at least once every 5 years

22 thereafter update the inventory required by

23 clause (1) including newly listed, proposed and

24 candidate species.’’.
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1 (c) CONSULTATION.—Section 7(a)(3) (16 U.S.C.

2 1536(a)(3)) is amended to read as follows:

3 ‘‘(3) CONSULTATION.—

4 ‘‘(A) NOTIFICATION OF ACTIONS.—Prior

5 to commencing any action, each Federal agency

6 shall notify the Secretary if the agency deter7 mines that the action may affect an endangered

8 species or a threatened species or critical habi9 tat.

10 (B) AGENCY DETERMINATION.—

11 ‘‘(i) IN GENERAL.—Each Federal

12 agency shall consult with the Secretary as

13 required by paragraph (2) on each action

14 for which notification is required under

15 subparagraph (A) unless—

16 ‘‘(I) the Federal agency makes a

17 determination based on the opinion of

18 a qualified biologist that the action is

19 not likely to adversely affect an en20 dangered species, a threatened species

21 or critical habitat;

22 ‘‘(II) the Federal agency notifies

23 the Secretary that it has determined

24 that the action is not likely to ad25 versely affect any listed species or
47

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1 critical habitat and provides the Sec2 retary, along with the notice, a copy

3 of the information on which the agen4 cy based the determination; and

5 ‘‘(III) the Secretary does not ob6 ject in writing to the agency’s deter7 mination within 60 days from the

8 date such notice is received.

9 ‘‘(ii) ACTIONS EXCLUDED.—The Sec10 retary may by regulation identify cat11 egories of actions with respect to specific

12 endangered species or threatened species

13 that the Secretary determines are likely to

14 have an adverse effect on the species or its

15 critical habitat and, for which, the proce16 dures of clause (i) shall not apply.

17 ‘‘(iii) BASIS FOR OBJECTION.—The

18 Secretary shall object to a determination

19 made by a Federal agency pursuant to

20 clause (i), if—

21 ‘‘(I) the Secretary determines

22 that the action may have an adverse

23 effect on an endangered species, a

24 threatened species or critical habitat;

25 or
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1 ‘‘(II) the Secretary finds that

2 there is insufficient information in the

3 documentation accompanying the de4 termination to evaluate the impact of

5 the proposed action on endangered

6 species, threatened species, or critical

7 habitat; or

8 ‘‘(III) the Secretary finds that,

9 because of the nature of the action

10 and its potential impact on an endan11 gered species, a threatened species or

12 critical habitat, review cannot be com13 pleted in 60 days.

14 ‘‘(iv) NAS REVIEW.—Not later than 3

15 years after the date of enactment of this

16 clause, the Secretary shall enter into ap17 propriate arrangements with the National

18 Academy of Sciences to conduct a review

19 of and prepare a report on the determina20 tions made by Federal agencies pursuant

21 to clause (i). The report shall be transmit22 ted to the Congress not later than 5 years

23 after the date of enactment of this clause.

24 ‘‘(v) REPORTS.—The Secretary shall

25 report to the Congress not less often than
49

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1 bienally with respect to the implementation

2 of this subparagraph including in the re3 port information on the circumstances that

4 resulted in the Secretary making any ob5 jection to a determination made by a Fed6 eral agency under clause (i) and the avail7 ability of resources to carry out the re8 quirements of this section.

9 ‘‘(C) CONSULTATION AT REQUEST OF AP10 PLICANT.—Subject to such guidelines as the

11 Secretary may establish, a Federal agency shall

12 consult with the Secretary on any prospective

13 agency action at the request of, and in coopera14 tion with, the prospective permit or license ap15 plicant if the applicant has reason to believe

16 that an endangered species or a threatened spe17 cies may be present in the area affected by the

18 applicant’s project and that implementation of

19 the action will likely affect the species.’’.

20 (d) GAO REPORT.—The Comptroller General of the

21 United States shall report to the Committee on Environ22 ment and Public Works of the Senate and to the Commit23 tee on Resources of the House of Representatives not later

24 than 3 years after the date of enactment of this Act, and

25 2 years thereafter, on the cost of formal consultation to
50

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1 Federal agencies and other persons carrying out actions

2 subject to the requirements of section 7 of the Endangered

3 Species Act (16 U.S.C. 1536), including the cost of rea4 sonable and prudent measures imposed.

5 (e) NEW LISTINGS.—Section 7(a) (16 U.S.C.

6 1536(a)) is amended by adding at the end the following:

7 ‘‘(5) EFFECT OF LISTING ON EXISTING

8 PLANS.—

9 ‘‘(A) ACTIONS.—For the purposes of para10 graph (2), the term ‘action’ includes land use

11 plans under the Federal Land Policy and Man12 agement Act (43 U.S.C. 1701 et seq.) and re13 source management plans under the Forest and

14 Rangeland Renewable Resources Planning Act

15 (16 U.S.C. 1600 et seq.), as amended by the

16 National Forest Management Act (16 U.S.C.

17 1600 et seq.).

18 ‘‘(B) RE-INITIATION OF CONSULTATION.—

19 Whenever a determination to list a species as

20 an endangered species or a threatened species

21 or designation of critical habitat requires re-ini22 tiation of consultation under section 7(a)(2) on

23 an already approved action as defined under

24 subparagraph (A), the consultation shall com25 mence promptly, but no later than 90 days
51

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1 after the date of the determination or designa2 tion, and be completed within 12 months of the

3 date on which the consultation is commenced.

4 ‘‘(C) SITE-SPECIFIC ACTIONS DURING CON5 SULTATION.—Notwithstanding subsection (d),

6 the Federal agency implementing the land use

7 plan or resource management plan under sub8 paragraph (B) may authorize, fund, or carry

9 out a site-specific ongoing or previously sched10 uled action with the scope of the plan on such

11 lands prior to completing consultation on the

12 plan under subparagraph (B) pursuant to the

13 consultation procedures of this section and re14 lated regulations, if—

15 ‘‘(i) no consultation on the action is

16 required; or

17 ‘‘(ii) consultation on the action is re18 quired and the Secretary issues a biological

19 opinion and the action satisfies the re20 quirements of this section.’’.

21 (f) IMPROVED FEDERAL AGENCY COORDINATION.—

22 Section 7(a) (16 U.S.C. 1536(a)) is amended by adding

23 at the end the following:

24 ‘‘(6) CONSOLIDATION OF CONSULTATION AND CON25 FERENCING.—
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1 ‘‘(A) CONSULTATION WITH A SINGLE AGEN2 CY.—Consultation and conferencing under this sub3 section between the Secretary and a Federal agency

4 may, with the approval of the Secretary, encompass

5 a number of related or similar actions by the agency

6 to be carried out within a particular geographic

7 area.

8 ‘‘(B) CONSULTATION WITH SEVERAL AGEN9 CIES.—The Secretary may consolidate requests for

10 consultation or conferencing from various Federal

11 agencies the proposed actions of which may affect

12 the same endangered species, threatened species, or

13 species that have been proposed for listing under

14 section 4, within a particular geographic area.’’.

15 (g) USE OF INFORMATION PROVIDED BY STATES.—

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

17 adding at the end the following:

18 ‘‘(C) USE OF STATE INFORMATION.—In conducting

19 a consultation under subsection (a)(2), the Secretary shall

20 actively solicit and consider information from the State

21 agency in each affected State.’’.

22 (h) OPPORTUNITY TO PARTICIPATE IN CONSULTA23 TIONS.—Section 7(b)(1) (16 U.S.C. 1536(b)(1)) (as

24 amended by subsection (g)) is further amended by adding

25 at the end the following:
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1 ‘‘(D) OPPORTUNITY TO PARTICIPATE IN CONSULTA2 TIONS.—

3 ‘‘(i) IN GENERAL.—In conducting a consulta4 tion under subsection (a)(2), the Secretary shall pro5 vide any person who has sought authorization or

6 funding for an action from a Federal agency and

7 that authorization or funding is the subject of the

8 consultation, the opportunity to—

9 ‘‘(I) prior to the development of a draft bi10 ological opinion, submit and discuss with the

11 Secretary and the Federal agency information

12 relevant to the effect of the proposed action on

13 the species and the availability of reasonable

14 and prudent alternatives (if a jeopardy opinion

15 is to be issued) that the Federal agency and the

16 person can take to avoid violation of section

17 7(a)(2);

18 ‘‘(II) receive information, upon request

19 subject to the exemptions of the Freedom of In20 formation Act (5 U.S.C. 552(b)) on the status

21 of the species, threats to the species, and con22 servation measures, used by the Secretary to

23 develop the draft biological opinion and the

24 final biological opinion, including the associated

25 incidental take statements; and
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1 ‘‘(III) received a copy of the draft biologi2 cal opinion from the Federal agency and, prior

3 to issuance of the final biological opinion, sub4 mit comments on the draft biological opinion

5 and discuss with the Secretary and the Federal

6 agency the basis for any finding in the draft bi7 ological opinion.

8 ‘‘(ii) EXPLANATION.—If reasonable and pru9 dent alternatives are proposed by a person under

10 clause (i) and the Secretary does not include the al11 ternatives in the final biological opinion, the Sec12 retary shall explain to such person why those alter13 natives were not included in the opinion.’’.

14 (i) INCIDENTAL TAKING STANDARDS FOR FEDERAL

15 AGENCIES.—Section 7(b)(4) (16 U.S.C. 1536 (b)(4)) is

16 amended—

17 (1) in clause (ii), by inserting ‘‘and mitigate’’

18 after ‘‘to minimize’’; and

19 (2) by adding at the end the following: ‘‘For

20 purposes of this subsection, reasonable and prudent

21 measures shall be related both in nature and extent

22 to the effect of the proposed activity that is the sub23 ject of the consultation.’’.

24 (j) REVISION OF REGULATIONS.—Not later than 1

25 year after the date of enactment of the Endangered Spe-
55

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1 cies Recovery Act of 1997, the Secretary shall promulgate

2 modifications to part 402 of title 50, Code of Federal Reg3 ulations, to implement the provisions of this section.

4 SEC. 5. CONSERVATION PLANS.

5 (a) PERMIT FOR TAKE ON THE HIGH SEAS.—Section

6 10(a)(1)(B) (16 U.S.C. 1539(a)(1)(B)) is amended by

7 striking ‘‘section 9(a)(1)(B)’’ and inserting in lieu thereof

8 ‘‘subparagraph (B) or (C) of section 9(a)(1)’’.

9 (b) MONITORING.—Section 10(a)(2)(B) (16 U.S.C.

10 1539(a)(2)(B)) is amended by striking ‘‘reporting’’ and

11 inserting in lieu thereof ‘‘monitoring and reporting’’.

12 (c) OTHER PLANS.—Section 10(a) (16 U.S.C.

13 1539(a)) is amended by striking paragraph (2)(C) and in14 serting the following new paragraphs:

15 ‘‘(3) MULTIPLE SPECIES CONSERVATION PLANS.—

16 ‘‘(A) IN GENERAL.—In addition to one or more

17 listed species, a conservation plan developed under

18 paragraph (2) may, at the request of the applicant,

19 include species proposed for listing under section

20 4(c), candidate species, or other species found on

21 lands or waters owned or within the jurisdiction of

22 the applicant covered by the plan.

23 ‘‘(B) APPROVAL CRITERIA.—The Secretary

24 shall approve an application for a permit under

25 paragraph (1)(B) that includes species other than
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1 species listed as endangered species or threatened

2 species if, after notice and opportunity for public

3 comment, the Secretary finds that the permit appli4 cation and the related conservation plan satisfy the

5 criteria of paragraphs (2)(A) and (2)(B) with re6 spect to listed species, and that the permit applica7 tion and the related conservation plan with respect

8 to other species satisfy the following requirements:

9 ‘‘(i) The impact on non-listed species in10 cluded in the plan will be incidental;

11 ‘‘(ii) The applicant will, to the maximum

12 extent practicable, minimize and mitigate such

13 impacts;

14 ‘‘(iii) The actions taken by the applicant

15 with respect to species proposed for listing or

16 candidates for listing included in the plan, if

17 undertaken by all similarly situated persons

18 within the range of such species, are likely to

19 eliminate the need to list the species as an en20 dangered species or a threatened species for the

21 duration of the agreement as a result of the ac22 tivities conducted by those persons;

23 ‘‘(iv) The actions taken by the applicant

24 with respect to other non-listed species included

25 in the plan, if undertaken by all similarly situ-
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1 ated persons within the range of such species,

2 would not be likely to contribute to a deter3 mination to list the species as an endangered

4 species or a threatened species for the duration

5 of the agreement;

6 ‘‘(v) The criteria of paragraphs (2)(A)(iv),

7 (2)(B)(iii) and (2)(B)(v); and

8 the Secretary has received such other assurances as

9 the Secretary may require that the plan will be im10 plemented. The permit shall contain such terms and

11 conditions as the Secretary deems necessary or ap12 propriate to carry out the purposes of this para13 graph, including, but not limited to, such monitoring

14 and reporting requirements as the Secretary deems

15 necessary for determining whether such terms and

16 conditions are being complied with.

17 ‘‘(C) TECHNICAL ASSISTANCE AND GUID18 ANCE.—To the maximum extent practicable, the

19 Secretary and the heads of other Federal agencies,

20 in cooperation with the States, are authorized and

21 encouraged to provide technical assistance or guid22 ance to any State or person that is developing a

23 multiple species conservation plan under this para24 graph. In providing technical assistance or guidance,
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1 priority shall be given to landowners that might oth2 erwise encounter difficulty in developing such a plan.

3 ‘‘(D) DEADLINES.—A conservation plan devel4 oped pursuant to this paragraph shall be reviewed

5 and approved or disapproved not later than 1 year

6 after the date of submission, or within such other

7 period of time as is mutually agreeable to the Sec8 retary and the applicant.

9 ‘‘(E) STATE AND LOCAL LAW.—

10 ‘‘(i) OTHER SPECIES.—Nothing in this

11 paragraph shall limit the authority of a State or

12 local government with respect to fish, wildlife or

13 plants that have not been listed as an endan14 gered species or a threatened species under sec15 tion 4.

16 ‘‘(ii) COMPLIANCE.—An action by the Sec17 retary, the Attorney General, or a person under

18 section 11(g) to ensure compliance with a mul19 tiple species conservation plan and permit

20 under this paragraph may only be brought

21 against a permittee or the Secretary.

22 ‘‘(F) EFFECTIVE DATE OF PERMIT FOR NON23 LISTED SPECIES.—For any species not listed as an

24 endangered species or a threatened species, but cov25 ered by an approved multiple species conservation
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1 plan, the permit issued under paragraph (1)(B) shall

2 take effect without further action by the Secretary

3 at the time the species is listed pursuant to section

4 4(c), and to the extent that the taking is otherwise

5 prohibited by subparagraphs (B) or (C) of section

6 9(a)(1).

7 ‘‘(4) LOW EFFECT ACTIVITIES.—

8 ‘‘(A) IN GENERAL.—Notwithstanding para9 graph (2)(A), the Secretary may issue a permit for

10 a low effect activity authorizing any taking referred

11 to in paragraph (1)(B), if the Secretary determines

12 that the activity will have no more than a negligible

13 effect, both individually and cumulatively, on the

14 species, any taking associated with the activity will

15 be incidental, and the taking will not appreciably re16 duce the likelihood of the survival and recovery of

17 the species in the wild. The permit shall require, to

18 the extent appropriate, actions to be taken by the

19 permittee to offset the effects of the activity on the

20 species.

21 ‘‘(B) APPLICATIONS.—The Secretary shall min22 imize the costs of permitting to the applicant by de23 veloping, in cooperation with the States, model per24 mit applications that would constitute conservation

25 plans for low effect activities.
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1 ‘‘(C) PUBLIC COMMENT; EFFECTIVE DATE.—

2 Upon receipt of a permit application for an activity

3 that meets the requirements of subparagraph (A),

4 the Secretary shall provide notice in a newspaper of

5 general circulation in the area of the activity not

6 later than 30 days after receipt and an opportunity

7 for comment on the permit. If the Secretary does

8 not receive significant adverse comment within 30

9 days of the notice, the permit shall take effect with10 out further action by the Secretary 45 days after the

11 notice is published.

12 ‘‘(5) NO SURPRISES.—

13 ‘‘(A) IN GENERAL.—Each conservation plan de14 veloped under this subsection shall include a no sur15 prises provision, as described in this paragraph.

16 ‘‘(B) NO SURPRISES.—A person who has en17 tered into, and is in compliance with, a conservation

18 plan under this subsection may not be required to

19 undertake any additional mitigation measures for

20 species covered by such plan if such measures would

21 require the payment of additional money, or the

22 adoption of additional use, development or manage23 ment restrictions on any land, waters or water-relat24 ed rights that would otherwise be available under the

25 terms of the plan without the consent of the permit-
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1 tee. The Secretary and the applicant, by the terms

2 of the conservation plan, shall identify—

3 ‘‘(i) other modifications to the plan; or

4 ‘‘(ii) other additional measures,

5 if any, that the Secretary may require under ex6 traordinary circumstances.

7 ‘‘(6) PERMIT REVOCATION.—After notice and an op8 portunity for correction, as appropriate, the Secretary

9 shall revoke a permit issued under this subsection if the

10 Secretary finds that the permittee is not complying with

11 the terms and conditions of the permit or the conservation

12 plan.’’.

13 (d) CANDIDATE CONSERVATION AGREEMENTS.—

14 (1) PERMITS.—Section 10(a)(1) (16 U.S.C.

15 1539(a)(1)) is amended by—

16 (A) deleting ‘‘or’’ at the end of subpara17 graph (A);

18 (B) striking the period at the end of sub19 paragraph (B) and inserting ‘‘; or’’; and

20 (C) adding the following subparagraph at

21 the end—

22 ‘‘(C) any taking incidental to, and not the

23 purpose of, the carrying out of an otherwise

24 lawful activity pursuant to a candidate con25 servation agreement.’’.
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1 (2) AGREEMENTS.—Section 10 (16 U.S.C.

2 1539) is amended by adding at the end thereof the

3 following:

4 ‘‘(k) CANDIDATE CONSERVATION AGREEMENTS.—

5 ‘‘(1) IN GENERAL.—At the request of any non6 Federal person, the Secretary may enter into a can7 didate conservation agreement with that person for

8 a species that has been proposed for listing under

9 section 4(c)(1), is a candidate species, or is likely to

10 become a candidate species in the near future on

11 property owned or under the jurisdiction of the per12 son requesting such an agreement.

13 ‘‘(2) REVIEW BY THE SECRETARY.—

14 ‘‘(A) SUBMISSION TO THE SECRETARY.—A

15 non-Federal person may submit a candidate

16 conservation agreement developed under para17 graph (1) to the Secretary for review at any

18 time prior to the listing described in section

19 4(c)(1) of a species that is the subject of the

20 agreement.

21 ‘‘(B) CRITERIA FOR APPROVAL.—The Sec22 retary may approve an agreement and issue a

23 permit under subsection (a)(1)(C) for the

24 agreement if, after notice and opportunity for

25 public comment, the Secretary finds that—
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1 ‘‘(i) for species proposed for listing,

2 candidates for listing, or species that are

3 likely to become a candidate species in the

4 near future, that are included in the agree5 ment, the actions taken under the agree6 ment, if undertaken by all similarly situ7 ated persons, would produce a conservation

8 benefit that would be likely to eliminate

9 the need to list the species under section

10 4(c) as a result of the activities of those

11 persons during the duration of the agree12 ment;

13 ‘‘(ii) the actions taken under the

14 agreement will not adversely affect an en15 dangered species or a threatened species;

16 ‘‘(iii) the agreement contains such

17 other measures that the Secretary may re18 quire as being necessary or appropriate for

19 the purposes of the agreement;

20 ‘‘(iv) the person will ensure adequate

21 funding to implement the agreement; and

22 ‘‘(v) the agreement includes such

23 monitoring and reporting requirements as

24 the Secretary deems necessary for deter-
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•S 1180 RS

1 mining whether the terms and conditions

2 of the agreement are being complied with.

3 ‘‘(3) EFFECTIVE DATE OF PERMIT.—A permit

4 issued under subsection (a)(1)(C) shall take effect at

5 the time the species is listed pursuant to section

6 4(c), provided that the permittee is in full compli7 ance with the terms and conditions of the agree8 ment.

9 ‘‘(4) ASSURANCES.—A person who has entered

10 into a candidate conservation agreement under this

11 subsection, and is in compliance with the agreement,

12 may not be required to undertake any additional

13 measures for species covered by such agreement if

14 such measures would require the payment of addi15 tional money, or the adoption of additional use, de16 velopment or management restrictions on any land,

17 waters, or water-related rights that would otherwise

18 be available under the terms of the agreement with19 out the consent of the person entering into the

20 agreement. The Secretary and the person entering

21 into a candidate conservation agreement, by the

22 terms of the agreement, shall identify—

23 ‘‘(A) other modifications to the agree24 ments; or

25 ‘‘(B) other additional measures,
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1 if any, that the Secretary may require under ex2 traordinary circumstance.

3 (e) PUBLIC NOTICE.—Section 10(c) (16 U.S.C.

4 1539(c)) is amended by—

5 (1) striking ‘‘thirty’’ each place that it appears

6 and inserting in lieu thereof ‘‘60’’; and

7 (2) inserting before the final sentence the fol8 lowing: ‘‘The Secretary may, with approval of the

9 applicant, provide an opportunity, as early as prac10 ticable, for public participation in the development of

11 a multiple species conservation plan and permit ap12 plication. If a multiple species conservation plan and

13 permit application has been developed without the

14 opportunity for public participation, the Secretary

15 shall extend the public comment period for an addi16 tional 30 days for interested parties to submit writ17 ten data, views, or arguments on the plan and appli18 cation.’’.

19 (f) SAFE HARBOR AGREEMENTS.—Section 10 (16

20 U.S.C. 1539) is amended by adding at the end thereof

21 the following new subsection:

22 ‘‘(l) SAFE HARBOR AGREEMENTS.—

23 ‘‘(1) AGREEMENTS.—

24 ‘‘(A) IN GENERAL.—The Secretary may

25 enter into agreements with non-Federal persons
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1 to benefit the conservation of endangered spe2 cies or threatened species by creating, restoring,

3 or improving habitat or by maintaining cur4 rently unoccupied habitat for endangered spe5 cies or threatened species. Under an agreement,

6 the Secretary shall permit the person to take

7 endangered species or threatened species in8 cluded under the agreement on lands or waters

9 that are subject to the agreement if the taking

10 is incidental to, and not the purpose of, carry11 ing out of an otherwise lawful activity, provided

12 that the Secretary may not permit through such

13 agreements any incidental take below the base14 line requirement specified pursuant to subpara15 graph (B).

16 ‘‘(B) BASELINE.—For each agreement

17 under this subsection, the Secretary shall estab18 lish a baseline requirement that is mutually

19 agreed upon by the applicant and the Secretary

20 at the time of the agreement that will, at a

21 minimum, maintain existing conditions for the

22 species covered by the agreement on lands and

23 waters that are subject to the agreement. The

24 baseline may be expressed in terms of the abun25 dance or distribution of endangered or threat-
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1 ened species, quantity or quality of habitat, or

2 such other indicators as appropriate.

3 ‘‘(2) STANDARDS AND GUIDELINES.—the Sec4 retary shall issue standards and guidelines for the

5 development and approval of safe harbor agreements

6 in accordance with this subsection.

7 ‘‘(3) FINANCIAL ASSISTANCE.—

8 ‘‘(A) IN GENERAL.—In cooperation with

9 the States and subject to the availability of ap10 propriations under section 15(d), the Secretary

11 may provide a grant of up to $10,000 to any

12 individual private landowner to assist the land13 owner in carrying out a safe harbor agreement

14 under this subsection.

15 ‘‘(B) PROHIBITION ON ASSISTANCE FOR

16 REQUIRED ACTIVITIES.—The Secretary may not

17 provide assistance under this paragraph for any

18 action that is required by a permit issued under

19 this Act or that is otherwise required under this

20 Act or other Federal law.

21 ‘‘(C) OTHER PAYMENTS.—Grants provided

22 to an individual private landowner under this

23 paragraph shall be in addition to, and not af24 fect, the total amount of payments that the

25 landowner is otherwise eligible to receive under
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1 the Conservation Reserve Program (16 U.S.C.

2 3831 et seq.), the Wetlands Reserve Program

3 (16 U.S.C. 3837 et seq.), or the Wildlife Habi4 tat Incentives Program (16 U.S.C. 3836a).’’.

5 (g) HABITAT RESERVE AGREEMENTS.—Section 10

6 (16 U.S.C. 1539) is amended by adding at the end thereof

7 the following new subsection:

8 ‘‘(m) HABITAT RESERVE AGREEMENTS.—

9 ‘‘(1) PROGRAM.—The Secretary shall establish

10 a habitat reserve program to be implemented

11 through contracts or easements of a mutually agreed

12 upon duration to assist non-Federal property owners

13 to preserve and mange suitable habitat for endan14 gered species and threatened species.

15 ‘‘(2) AGREEMENTS.—The Secretary may enter

16 into a habitat reserve agreement with a non-Federal

17 property owner to protect, manage or enhance suit18 able habitat on private property for the benefit of

19 endangered species or threatened species. Under an

20 agreement, the Secretary shall make payments in an

21 agreed upon amount to the property owner for car22 rying out the terms of the habitat reserve agree23 ment, provided that the activities undertaken pursu24 ant to the agreement are not otherwise required by

25 this Act.
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1 ‘‘(3) STANDARDS AND GUIDELINES.—The Sec2 retary shall issue standards and guidelines for the

3 development and approval of habitat reserve agree4 ments in accordance with this subsection. Agree5 ments shall, at a minimum, specify the management

6 measures, if any, that the property owner will imple7 ment for the benefit of endangered species or threat8 ened species, the conditions under which the prop9 erty may be used, the nature and schedule for any

10 payments agreed upon by the parties to the agree11 ment, and the duration of the agreement.

12 ‘‘(4) PAYMENTS.—Any payment received by a

13 property owner under a habitat reserve agreement

14 shall be in addition to and shall not affect the total

15 amount of payments that the property owner is oth16 erwise entitled to receive under the Agricultural Act

17 of 1949 (7 U.S.C. 1421 et seq.), as amended by the

18 Federal Agriculture Improvement and Reform Act of

19 1996.

20 ‘‘(5) AUTHORIZATION OF APPROPRIATIONS.—

21 There are authorized to be appropriated to the Sec22 retary of Interior $10,000,000 and the Secretary of

23 Commerce $5,000,000 for each of fiscal years 1998

24 through 2003 to assist non-Federal property owners
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1 to carry out the terms of habitat reserve programs

2 under this subsection.’’.

3 (h) HABITAT CONSERVATION PLANNING FUND.—

4 Section 10(a) (16 U.S.C. 1539(a)) is further amended by

5 adding at the end thereof the following new paragraph:

6 ‘‘(7) HABITAT CONSERVATION PLANNING FUND.—

7 ‘‘(A) ESTABLISHMENT.—There is established in

8 the Treasury of the United States a revolving fund,

9 to be known as the ‘Habitat Conservation Planning

10 Fund’, to be used in carrying out this subsection

11 (referred to in this paragraph as the ‘Fund’), con12 sisting of—

13 ‘‘(i) amounts made available under section

14 15(f);

15 ‘‘(ii) repayments of advances from the

16 Fund under subparagraph (C); and

17 ‘‘(iii) any interest earned on investment of

18 amounts in the Fund under subparagraph (D).

19 ‘‘(B) EXPENDITURES FROM FUND.—

20 ‘‘(i) IN GENERAL.—On request by the Sec21 retary, the Secretary of the Treasury shall

22 transfer from the Fund to the Secretary such

23 amounts as the Secretary determines necessary

24 to make interest-fire advances under clause (ii).
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1 ‘‘(ii) AUTHORITY TO MAKE GRANTS AND

2 ADVANCES.—The Secretary may make an inter3 est-free advance from the Fund to any State,

4 county, municipality, or other political subdivi5 sion of a State to assist in the development of

6 a conservation plan under this subsection. The

7 amount of the advance under this clause may

8 not exceed the total financial contribution of the

9 other parties participating in the development

10 of the plan.

11 ‘‘(iii) CRITERIA FOR ADVANCES.—In deter12 mining whether to make an advance from the

13 Fund, the Secretary shall consider—

14 ‘‘(I) the number of species covered by

15 the plan;

16 ‘‘(II) the extent to which there is a

17 commitment to participate in the planning

18 process from a diversity of interests (in19 cluding local governmental, business, envi20 ronmental, and landowner interests);

21 ‘‘(III) the likely benefits of the plan;

22 ‘‘(IV) such other factors as the Sec23 retary considers appropriate.

24 ‘‘(C) REPAYMENTS OF ADVANCES FROM THE

25 FUND.—
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1 ‘‘(i) IN GENERAL.—Except as provided in

2 clause (ii) amounts advanced from the Fund

3 shall be repaid not later than 10 years after the

4 date of the advance.

5 ‘‘(ii) ACCELERATED REPAYMENT.—

6 Amounts advanced from the Fund shall be re7 paid—

8 ‘‘(I) not later than 4 years after the

9 date of the advance if no conservation plan

10 is developed within 3 years of the date of

11 the advance; or

12 ‘‘(II) not later than 5 years after the

13 date of the advance if no permit is issued

14 under paragraph (1)(B) with respect to the

15 conservation plan within 4 years of the

16 date of the advance.

17 ‘‘(iii) CREDITING OF REPAYMENTS.—

18 Amounts received by the United States as re19 payment of advances from the Fund shall be

20 credited to the Fund and made available for

21 further advances in accordance with this para22 graph without further appropriation.

23 ‘‘(D) INVESTMENT OF FUND BALANCE.—

24 ‘‘(i) IN GENERAL.—The Secretary of the

25 Treasury shall invest such portion of the Fund
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1 as is not, in the judgment of the Secretary, re2 quired to meet current withdrawals. Invest3 ments may be made only in interest-bearing ob4 ligations of the United States.

5 ‘‘(ii) ACQUISITION OF OBLIGATIONS.—For

6 the purpose of investments under clause (i), ob7 ligations may be acquired—

8 ‘‘(I) on original issue at the issue

9 price; or

10 ‘‘(II) by purchase of outstanding obli11 gations at the market price.

12 ‘‘(iii) SALE OF OBLIGATIONS.—Any obliga13 tion acquired by the Fund may be sold by the

14 Secretary of the Treasury at market price.

15 ‘‘(iv) CREDITS TO THE FUND.—The inter16 est on, and the proceeds from the sale or re17 demption of, any obligations held in the Fund

18 shall be credited to and form a part of the

19 Fund.

20 ‘‘(E) TRANSFERS OF AMOUNTS.—

21 ‘‘(i) IN GENERAL.—The amounts required

22 to be transferred to the Fund under this para23 graph shall be transferred at least monthly

24 from the general fund of the Treasury to the
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1 Fund on the basis of estimates made by the

2 Secretary of the Treasury.

3 ‘‘(ii) ADJUSTMENTS.—Proper adjustments

4 shall be made in amounts subsequently trans5 ferred to the extent prior estimates were in ex6 cess of or less than the amounts required to be

7 transferred.’’.

8 (i) EFFECT ON PERMITS AND PROPOSED PLANS.—

9 No amendment made by this section shall be interpreted

10 to require the modification of—

11 (1) a permit issued under section 10 of the En12 dangered Species Act (16 U.S.C. 1539); or

13 (2) a conservation plan submitted for approval

14 pursuant to such section prior to the date of enact15 ment of this Act.

16 (j) RULE-MAKING.—Not later than 1 year after the

17 date of enactment of this Act, the Secretary shall, after

18 consultation with the States and notice and opportunity

19 for public comment, publish final regulations implement20 ing the provisions of section 10(a) of the Endangered Spe21 cies Act (16 U.S.C. 1539(a)), as amended by this section.

22 (k) NAS REPORT.—Not later than 2 years after the

23 date of enactment of this Act, the Secretary shall enter

24 into appropriate arrangements with the National Academy

25 of Sciences to conduct a review of and prepare a report
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1 on the development and implementation of conservation

2 plans under section 10(a) of the Endangered Species Act

3 (16 U.S.C. 1531 et seq.). The report shall assess the ex4 tent to which those plans comply with the requirements

5 of that Act, the role of multiple species conservation plans

6 in preventing the need to list species covered by those

7 plans, and the relationship of conservation plans for listed

8 species to implementation of recovery plans. The report

9 shall be transmitted to the Congress not later than 5 years

10 after the date of enactment of this Act.

11 SEC. 6. ENFORCEMENT.

12 (a) ENFORCEMENT FOR INCIDENTAL TAKE.—Sec13 tion 11 (16 U.S.C. 1540) is amended by adding after sub14 section (g) the following new subsection and redesignating

15 the subsequent subsection accordingly:

16 ‘‘(h) INCIDENTAL TAKE.—In any action under sub17 section (a), (b), or (e)(6) of this section against any person

18 for an alleged take incidental to the carrying out of an

19 otherwise lawful activity, the Secretary or the Attorney

20 General must establish, using scientifically valid prin21 ciples, that the acts of such person have caused, or will

22 cause, the take, of—

23 ‘‘(1) an endangered species, or
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1 ‘‘(2) a threatened species the take of which is

2 prohibited pursuant to a regulation under section

3 4(d).’’.

4 (b) CITIZEN SUIT FOR INCIDENTAL TAKE.—Section

5 11(g) (16 U.S.C. 1540(g)) is amended by adding the fol6 lowing new paragraph after paragraph (2) and redesignat7 ing the subsequent paragraphs accordingly:

8 ‘‘(3) INCIDENTAL TAKE.—In any suit under this sub9 section against any person for an alleged take incidental

10 to the carrying out of an otherwise lawful activity, the per11 son commencing the suit must establish, using scientif12 ically valid principles, that the acts of the person alleged

13 to be in violation of section 9(a)(1) have caused, or will

14 cause, the take, of—

15 ‘‘(1) an endangered species, or

16 ‘‘(2) a threatened species the take of which is

17 prohibited pursuant to a regulation under section

18 4(d).’’.

19 SEC. 7. EDUCATION AND TECHNICAL ASSISTANCE.

20 (a) IN GENERAL.—Section 13 (16 U.S.C. 1542) is

21 amended to read as follows:

22 ‘‘PROPERTY OWNERS EDUCATION AND TECHNICAL

23 ASSISTANCE PROGRAM

24 ‘‘SEC. 13. (a) IN GENERAL.—In cooperation with the

25 States, the Secretary shall develop and implement a pri-
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1 vate landowners education and technical assistance pro2 gram to—

3 ‘‘(1) inform the public about this Act;

4 ‘‘(2) respond to requests for technical assist5 ance from property owners interested in conserving

6 species listed or proposed for listing under section

7 4(c)(1) and candidate species on the land of the

8 landowners; and

9 ‘‘(3) recognize exemplary efforts to conserve

10 species on private land.

11 ‘‘(b) ELEMENTS OF THE PROGRAM.—Under the pro12 gram, the Secretary shall—

13 ‘‘(1) publish educational materials and conduct

14 workshops for property owners and other members

15 of the public on the role of this Act in conserving

16 endangered species and threatened species, the prin17 cipal mechanisms of this Act for achieving species

18 recovery, and potential sources of technical and fi19 nancial assistance;

20 ‘‘(2) assist field offices in providing timely ad21 vice to property owners on how to comply with this

22 Act;

23 ‘‘(3) provide technical assistance to State and

24 local governments and property owners interested in

25 developing and implementing recovery plan imple-
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1 mentation agreements, conservation plans, and safe

2 harbor agreements;

3 ‘‘(4) serve as a focal point for questions, re4 quests, and suggestions from property owners and

5 local governments concerning policies and actions of

6 the Secretary in the implementation of this Act;

7 ‘‘(5) provide training for Federal personnel re8 sponsible for implementing this Act on concerns of

9 property owners, to avoid unnecessary conflicts, and

10 improving implementation of this Act on private

11 land; and

12 ‘‘(6) nominate for national recognition by the

13 Secretary property owners that are exemplary man14 agers of land for the benefit of species listed or pro15 posed for listing under section 4(c)(1) or candidate

16 species.’’.

17 (b) CONFORMING AMENDMENT.—The table of con18 tents in the first section is amended by striking the item

19 related to section 13 and inserting the following:

‘‘Sec. 13. Private landowners education and technical assistance program.’’.

20 (c) EFFECT ON PRIOR AMENDMENTS.—Nothing in

21 this section or the amendments made by this section af22 fects the amendments made by section 13 of the Endan23 gered Species Act of 1973 (87 State. 902), as in effect

24 on the day before the date of enactment of this Act.
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1 SEC. 8. AUTHORIZATION OF APPROPRIATIONS.

2 (a) IN GENERAL.—Section 15(a) (16 U.S.C.

3 1542(a)) is amended—

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

5 $41,500,000 for fiscal year 1992’’ and inserting

6 ‘‘$41,500,000 for fiscal year 1992, $135,000,000 for

7 fiscal year 1998, $150,000,000 for fiscal year 1999,

8 and $165,000,000 for each of fiscal years 2000

9 through 2003’’;

10 (2) in paragraph (2), by striking ‘‘and

11 $6,750,000’’ and inserting ‘‘$6,750,000’’; and in12 serting ‘‘,$50,000,000 for fiscal year 1998,

13 $60,000,000 for fiscal year 1999, and $70,000,000

14 for each of fiscal years 2000 through 2003’’ after

15 ‘‘and 1992’’; and

16 (3) in paragraph (3), by striking ‘‘and

17 $2,600,000’’ and inserting $2,600,000’’; and insert18 ing ‘‘, and $4,000,000 for each of fiscal years 1998

19 through 2003’’ after ‘‘and 1992’’.

20 (b) EXEMPTIONS FROM ACT.—Section 15(b) (16

21 U.S.C. 1542(b)) is amended by inserting ‘‘and $625,000

22 for each of fiscal years 1998 through 2003’’ after ‘‘and

23 1992’’.

24 (c) CONVENTION IMPLEMENTATION.—Section 15(c)

25 (16 U.S.C. 1542(c)) is amended by striking ‘‘and

26 $500,000’’ and inserting $500,000,’’ and by inserting
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1 ‘‘and $1,000,000 for each fiscal year 1998 through 2003’’

2 after ‘‘and 1992,’’.

3 (d) ADDITIONAL AUTHORIZATIONS.—Section 15 (16

4 U.S.C. 1542) is further amended by adding the following

5 at the end:

6 ‘‘(d) FINANCIAL ASSISTANCE FOR SAFE HARBOR

7 AGREEMENTS.—There are authorized to be appropriated

8 to the Secretary of the Interior $10,000,000 and the Sec9 retary of Commerce $5,000,000 for each of fiscal years

10 1998 through 2003 to carry out section 10(l).

11 ‘‘(e) HABITAT CONSERVATION PLANNING FUND.—

12 There are authorized to be appropriated to the Habitat

13 Conservation Planning Fund established by section

14 10(a)(7) $10,000,000 for each of fiscal years 1998

15 through 2000 and $5,000,000 for each of fiscal years

16 2001 and 2002 to assist in the development of conserva17 tion plans.

18 ‘‘(f) FINANCIAL ASSISTANCE FOR RECOVERY PLAN

19 IMPLEMENTATION.—There are authorized to be appro20 priated to the Secretary of Interior $30,000,000 and the

21 Secretary of Commerce $15,000,000 for each of the fiscal

22 years 1998 through 2003 to carry out section 5(l)(4).

23 ‘‘(g) AVAILABILITY.—Amounts made available under

24 this section shall remain available until expended.
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1 ‘‘(h) LIMITATION ON USE OF FUNDS.—Of the funds

2 made available to carry out section 5 for any fiscal year,

3 not less than $32,000,000 shall be available to the Sec4 retary of Interior and not less than $13,500,000 to the

5 Secretary of Commerce to implement actions to recover

6 listed species. Of the funds made available to the Sec7 retary of Interior and the Secretary of Commerce in each

8 fiscal year to list species, the Secretary of Interior and

9 the Secretary of Commerce shall use not less than 10%

10 of those funds in each fiscal year for delisting species. If

11 any of the funds made available by the previous sentence

12 are not needed in that fiscal year for delisting eligible spe13 cies, those funds shall be available for listing.’’.

14 (e) ASSISTANCE TO STATES FOR CONSERVATION AC15 TIVITIES.—Section 6(i) (16 U.S.C. 1535(i)) is amended

16 by adding at the end the following:

17 ‘‘(3) ASSISTANCE TO STATES FOR CONSERVATION AC18 TIVITIES.—There are authorized to be appropriated to the

19 Secretary such sums as are necessary for each of fiscal

20 years 1998 through 2003 to provide financial assistance

21 to State agencies to carry out conservation activities under

22 other sections of this Act, including the provision of tech23 nical assistance for the development and implementation

24 of recovery plans.’’.
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1 SEC. 9. OTHER AMENDMENTS.

2 (a) DEFINITIONS.—

3 (1) CANDIDATE SPECIES.—Section 3 is amend4 ed by inserting the following paragraph after para5 graph (1) and redesignating the subsequent para6 graphs accordingly:

7 ‘‘(2) CANDIDATE SPECIES.—The term ‘can8 didate species’ means a species for which the Sec9 retary has on file sufficient information on biological

10 vulnerability and threats to support a proposal to

11 list the species as an endangered species or a threat12 ened species, but for which listing is precluded be13 cause of pending proposals to list species that are of

14 a higher priority. This definition shall not apply to

15 any species defined as a ‘candidate species’ by the

16 Secretary of Commerce prior to the date of enact17 ment of the Endangered Species Recovery Act of

18 1997.’’.

19 (2) IN COOPERATION WITH THE STATES.—Sec20 tion 3 (16 U.S.C. 1532) is amended by inserting the

21 following paragraph after paragraph (11) (as redes22 ignated by this subsection):

23 ‘‘(12) IN COOPERATION WITH THE STATES.—

24 The term ‘in cooperation with the States’ means a

25 process in which—
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1 ‘‘(A) the State agency in each of the af2 fected States, or the State agency’s representa3 tive, is given an opportunity to participate in a

4 meaningful and timely manner in the develop5 ment of the standards, guidelines, and regula6 tions to implement the applicable provisions of

7 this Act; and

8 ‘‘(B) the Secretary carefully considers all

9 substantive concerns raised by the State agen10 cy, or the State agency’s representative, and, to

11 the maximum extent practicable consistent with

12 this Act, incorporates their suggestions and rec13 ommendations, while retaining final decision

14 making authority.’’.

15 (3) RURAL AREA.—Section 3 (16 U.S.C. 1532)

16 is amended by inserting the following new paragraph

17 after paragraph (16) (redesignated by this sub18 section and section 4(a)) and redesignating the sub19 sequent paragraphs accordingly:

20 ‘‘(17) RURAL AREA.—The term ‘rural area’

21 means a county or unincorporated area that has no

22 city or town that has a population of more than

23 10,000 inhabitants.’’.

24 (4) COMMONWEALTH OF THE NORTHERN MARI25 ANA ISLANDS.—Section 3(20) (16 U.S.C. 1532(18))
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1 (as redesignated by this subsection and section 4(a))

2 is amended by striking ‘‘Trust Territories of the Pa3 cific Islands’’ and inserting ‘‘Commonwealth of the

4 Northern Mariana Islands’’.

5 (b) FINDINGS, PURPOSES, AND POLICY.—Section

6 2(a)(3) (16 U.S.C. 1531(a)(3)) is amended by inserting

7 ‘‘commercial,’’ after ‘‘recreational,’’.

8 (c) NO TAKE AGREEMENTS.—Section 9 (16 U.S.C.

9 1538) is amended by adding at the end thereof the follow10 ing new subsection:

11 ‘‘(h) NO TAKE AGREEMENTS.—The Secretary and a

12 non-Federal property owner may, at the request of the

13 property owner, enter into an agreement identifying activi14 ties of the property owner that will not result in a violation

15 of the prohibitions of paragraphs (1)(B), (1)(C), and

16 (2)(B) of section 9(a). The Secretary shall respond to a

17 request for an agreement submitted by a property owner

18 within 90 days of receipt.’’.

19 (d) CONFORMING AMENDMENTS.—

20 (1) TITLE.—The title of section 10 (16 U.S.C.

21 1539) is amended to read as follows:

22 ‘‘CONSERVATION MEASURES AND EXCEPTIONS’’.
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1 (2) TABLE OF CONTENTS.—The table of con2 tents in the first section of the Act is amended with

3 respect to the item relating to section 10 to read as

4 follows:

‘‘Sec. 10. Conservation measures and exceptions.’’.

5 SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

6 (a) SHORT TITLE.—This Act may be cited as the ‘‘En7 dangered Species Recovery Act of 1997’’.

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

9 Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Listing and delisting species.

Sec. 3. Enhanced recovery planning.

Sec. 4. Interagency consultation and cooperation.

Sec. 5. Conservation plans.

Sec. 6. Enforcement.

Sec. 7. Education and technical assistance.

Sec. 8. Authorization of appropriations.

Sec. 9. Other amendments.

10 (c) REFERENCES TO ENDANGERED SPECIES ACT OF

11 1973.—Except as otherwise expressly provided, whenever in

12 this Act an amendment or repeal is expressed in terms of

13 an amendment to, or repeal of, a section or other provision,

14 the reference shall be considered to be made to that section

15 or provision of the Endangered Species Act of 1973 (16

16 U.S.C. 1531 et seq.).

17 SEC. 2. LISTING AND DELISTING SPECIES.

18 (a) BEST SCIENTIFIC AND COMMERCIAL DATA AVAIL19 ABLE.—Section 3 (16 U.S.C. 1532) is amended—
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1 (1) by striking the section heading and inserting

2 the following:

3 ‘‘DEFINITIONS AND GENERAL PROVISIONS’’;

4 (2) by striking ‘‘For the purposes of this

5 Act—’’ and inserting the following:

6 ‘‘(a) DEFINITIONS.—In this Act:’’; and

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

8 ‘‘(b) GENERAL PROVISIONS.—

9 ‘‘(1) BEST SCIENTIFIC AND COMMERCIAL DATA

10 AVAILABLE.—Where this Act requires the Secretary to

11 use the best scientific and commercial data available,

12 the Secretary, when evaluating comparable data, shall

13 give greater weight to scientific or commercial data

14 that is empirical or has been field-tested or peer-re15 viewed.’’.

16 (b) CONFORMING AMENDMENT.—The table of contents

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

18 striking the item relating to section 3 and inserting the fol19 lowing:

‘‘Sec. 3. Definitions and general provisions.’’.

20 (c) LISTING AND DELISTING.—

21 (1) FACTORS CONSIDERED FOR LISTING.—Sec22 tion 4(a)(1) (16 U.S.C. 1533(a)(1)) is amended—

23 (A) in subparagraph (C), by inserting ‘‘in24 troduced species, competition,’’ before ‘‘disease or

25 predation’’; and
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1 (B) in subparagraph (D), by inserting

2 ‘‘Federal, State, and local government and inter3 national’’ before ‘‘regulatory mechanisms’’.

4 (2) CRITICAL HABITAT.—Section 4(a) (16 U.S.C.

5 1533(a)) is amended by striking paragraph (3).

6 (3) DELISTING.—Section 4(b)(2) (16 U.S.C.

7 1533(b)(2)) is amended to read as follows:

8 ‘‘(2) DELISTING.—The Secretary shall, in ac9 cordance with section 5 and on a determination that

10 the goals of the recovery plan for a species have been

11 met, initiate the procedures for determining, in ac12 cordance with subsection (a)(1), whether to remove the

13 species from a list published under subsection (c).’’

14 (4) RESPONSE TO PETITIONS.—

15 (A) IN GENERAL.—Section 4(b)(3) (16

16 U.S.C. 1533(b)(3)) is amended to read as follows:

17 ‘‘(3) RESPONSE TO PETITIONS.—

18 ‘‘(A) ACTION MAY BE WARRANTED.—

19 ‘‘(i) IN GENERAL.—To the maximum

20 extent practicable, not later than 90 days

21 after receiving the petition of an interested

22 person under section 553(e) of title 5, Unit23 ed States Code, to—

24 ‘‘(I) add a species to;

25 ‘‘(II) remove a species from; or
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1 ‘‘(III) change the status of a spe2 cies from a previous determination

3 with respect to;

4 either of the lists published under subsection

5 (c), the Secretary shall make a finding as to

6 whether the petition presents substantial

7 scientific or commercial information indi8 cating that the petitioned action may be

9 warranted. If a petition is found to present

10 such information, the Secretary shall

11 promptly commence a review of the status

12 of the species concerned. The Secretary shall

13 promptly publish each finding made under

14 this subparagraph in the Federal Register.

15 ‘‘(ii) MINIMUM DOCUMENTATION.—A

16 finding that the petition presents the infor17 mation described in clause (i) shall not be

18 made unless the petition provides—

19 ‘‘(I) documentation that the fish,

20 wildlife, or plant that is the subject of

21 the petition is a species;

22 ‘‘(II) a description of the avail23 able data on the historical and current

24 range and distribution of the species;
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1 ‘‘(III) an appraisal of the avail2 able data on the status and trends of

3 populations of the species;

4 ‘‘(IV) an appraisal of the avail5 able data on the threats to the species;

6 and

7 ‘‘(V) an identification of the in8 formation contained or referred to in

9 the petition that has been peer-re10 viewed or field-tested.

11 ‘‘(iii) NOTIFICATION TO THE

12 STATES.—

13 ‘‘(I) PETITIONED ACTIONS.—If the

14 petition is found to present the infor15 mation described in clause (i), the Sec16 retary shall notify and provide a copy

17 of the petition to the State agency in

18 each State in which the species is be19 lieved to occur and solicit the assess20 ment of the agency, to be submitted to

21 the Secretary not later than 90 days

22 after the notification, as to whether the

23 petitioned action is warranted.

24 ‘‘(II) OTHER ACTIONS.—If the

25 Secretary has not received a petition
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1 for a species and the Secretary is con2 sidering proposing to list such species

3 as either threatened or endangered

4 under subsection (a), the Secretary

5 shall notify the State agency in each

6 State in which the species is believed to

7 occur and solicit the assessment of the

8 agency, to be submitted to the Sec9 retary not later than 90 days after the

10 notification, as to whether the listing

11 would be in accordance with subsection

12 (a).

13 ‘‘(III) CONSIDERATION OF STATE

14 ASSESSMENTS.—Prior to publication

15 of a determination that a petitioned

16 action is warranted or the issuance of

17 a proposed regulation, the Secretary

18 shall consider any State assessments

19 submitted within the comment period

20 established by subclause (I) or (II).

21 ‘‘(B) PETITION TO CHANGE STATUS OR

22 DELIST.—A petition may be submitted to the

23 Secretary under subparagraph (A) to change the

24 status of a species or to remove a species from
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1 either of the lists published under subsection (c)

2 in accordance with subsection (a)(1), if—

3 ‘‘(i) the current listing is no longer ap4 propriate because of a change in the factors

5 identified under subsection (a)(1); or

6 ‘‘(ii) with respect to a petition to re7 move a species from either of the lists—

8 ‘‘(I) new data or a reinterpreta9 tion of prior data indicate that re10 moval is appropriate;

11 ‘‘(II) the species is extinct; or

12 ‘‘(III) the recovery goals estab13 lished for the species in a recovery plan

14 approved under section 5(h) have been

15 achieved.

16 ‘‘(C) DETERMINATION.—Not later than one

17 year after receiving a petition that is found

18 under subparagraph (A)(i) to present substantial

19 information indicating that the petitioned action

20 may be warranted, the Secretary shall make one

21 of the following findings:

22 ‘‘(i) NOT WARRANTED.—The petitioned

23 action is not warranted, in which case the

24 Secretary shall promptly publish the find25 ing in the Federal Register.
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1 ‘‘(ii) WARRANTED.—The petitioned ac2 tion is warranted, in which case the Sec3 retary shall promptly publish in the Fed4 eral Register a general notice and the com5 plete text of a proposed regulation to imple6 ment the action in accordance with para7 graph (5).

8 ‘‘(iii) WARRANTED BUT PRECLUDED.—

9 The petitioned action is warranted, but—

10 ‘‘(I) the immediate proposal and

11 timely promulgation of a final regula12 tion implementing the petitioned ac13 tion in accordance with paragraphs

14 (5) and (6) is precluded by pending

15 proposals to determine whether any

16 species is an endangered species or a

17 threatened species; and

18 ‘‘(II) expeditious progress is being

19 made to add qualified species to either

20 of the lists published under subsection

21 (c) and to remove from the lists species

22 for which the protections of this Act

23 are no longer necessary;

24 in which case the Secretary shall promptly

25 publish the finding in the Federal Register,
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1 together with a description and evaluation

2 of the reasons and data on which the find3 ing is based.

4 ‘‘(D) SUBSEQUENT DETERMINATION.—A pe5 tition with respect to which a finding is made

6 under subparagraph (C)(iii) shall be treated as

7 a petition that is resubmitted to the Secretary

8 under subparagraph (A) on the date of the find9 ing and that presents substantial scientific or

10 commercial information that the petitioned ac11 tion may be warranted.

12 ‘‘(E) JUDICIAL REVIEW.—Any negative

13 finding described in subparagraph (A)(i) and

14 any finding described in clause (i) or (iii) of

15 subparagraph (C) shall be subject to judicial re16 view.

17 ‘‘(F) MONITORING AND EMERGENCY LIST18 ING.—The Secretary shall implement a system to

19 monitor effectively the status of each species with

20 respect to which a finding is made under sub21 paragraph (C)(iii) and shall make prompt use of

22 the authority under paragraph (7) to prevent a

23 significant risk to the well-being of the species.’’.

24 (B) CONFORMING AMENDMENT.—Section

25 6(d)(1) (16 U.S.C. 1535(d)(1)) is amended in the
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1 first sentence by striking ‘‘subparagraph (C)’’

2 and inserting ‘‘subparagraph (F)’’.

3 (5) PROPOSED REGULATIONS.—Section 4(b)(5)

4 (16 U.S.C. 1533(b)(5)) is amended—

5 (A) by striking ‘‘(5) With respect to any

6 regulation’’ and inserting the following:

7 ‘‘(5) PROPOSED REGULATIONS AND REVIEW.—

8 With respect to any regulation’’;

9 (B) by striking ‘‘a determination, designa10 tion, or revision’’ and inserting ‘‘a determina11 tion or change in status’’;

12 (C) by striking ‘‘(a)(1) or (3),’’ and insert13 ing ‘‘(a)(1),’’;

14 (D) by striking ‘‘in the Federal Register,’’

15 and inserting ‘‘in the Federal Register as pro16 vided by paragraph (8),’’; and

17 (E) by striking subparagraph (E) and in18 serting the following:

19 ‘‘(E) at the request of any person not later

20 than 45 days after the date of publication of gen21 eral notice, promptly hold at least one public

22 hearing in each State that would be affected by

23 the proposed regulation (including at least one

24 hearing in an affected rural area, if any) except

25 that the Secretary shall not be required to hold
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1 more than five hearings under this subpara2 graph.’’.

3 (6) FINAL REGULATIONS.—

4 (A) SCHEDULE.—Section 4(b)(6) (16

5 U.S.C. 1533(b)(6)) is amended by striking

6 ‘‘(6)(A)’’ and all that follows through the end of

7 subparagraph (A) and inserting the following:

8 ‘‘(6) FINAL REGULATIONS.—

9 ‘‘(A) IN GENERAL.—Within the one-year pe10 riod beginning on the date on which general no11 tice is published in accordance with paragraph

12 (5)(A)(i) regarding a proposed regulation, the

13 Secretary shall publish in the Federal Register—

14 ‘‘(i) a final regulation to implement

15 the determination;

16 ‘‘(ii) notice that the one-year period is

17 being extended under subparagraph (B)(i);

18 or

19 ‘‘(iii) notice that the proposed regula20 tion is being withdrawn under subpara21 graph (B)(ii), together with the finding on

22 which the withdrawal is based.’’.

23 (B) CONFORMING AMENDMENTS.—Section

24 4(b)(6) (16 U.S.C. 1533(b)(6)) is amended—
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1 (i) in subparagraph (B)(i), by striking

2 ‘‘or revision’’;

3 (ii) in subparagraph (B)(iii), by strik4 ing ‘‘or revision concerned, a finding that

5 the revision should not be made,’’; and

6 (iii) by striking subparagraph (C).

7 (7) PUBLICATION OF DATA AND INFORMATION.—

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

9 (A) by striking ‘‘a summary by the Sec10 retary of the data’’ and inserting ‘‘a summary

11 by the Secretary of the best scientific and com12 mercial data available’’;

13 (B) by striking ‘‘is based and shall’’ and in14 serting ‘‘is based, shall’’; and

15 (C) by striking ‘‘regulation; and if such reg16 ulation designates or revises critical habitat,

17 such summary shall, to the maximum extent

18 practicable, also include a brief description and

19 evaluation of those activities (whether public or

20 private) which, in the opinion of the Secretary,

21 if undertaken may adversely modify such habi22 tat, or may be affected by such designation.’’ and

23 inserting ‘‘regulation, and shall provide, to the

24 degree that it is relevant and available, informa25 tion regarding the status of the affected species,
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1 including current population, population trends,

2 current habitat, food sources, predators, breeding

3 habits, captive breeding efforts, governmental

4 and nongovernmental conservation efforts, or

5 other pertinent information.’’.

6 (8) SOUND SCIENCE.—Section 4(b) (16 U.S.C.

7 1533(b)) is amended by adding at the end the follow8 ing:

9 ‘‘(9) ADDITIONAL DATA.—

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

11 identify and publish in the Federal Register with

12 the notice of a proposed regulation pursuant to

13 paragraph (5)(A)(i) a description of additional

14 scientific and commercial data that would assist

15 in the preparation of a recovery plan and—

16 ‘‘(i) invite any person to submit the

17 data to the Secretary; and

18 ‘‘(ii) describe the steps that the Sec19 retary plans to take for acquiring addi20 tional data.

21 ‘‘(B) RECOVERY PLANNING.—Data identi22 fied and obtained under subparagraph (A) shall

23 be considered by the recovery team and the Sec24 retary in the preparation of the recovery plan in

25 accordance with section 5.
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1 ‘‘(C) NO DELAY AUTHORIZED.—Nothing in

2 this paragraph waives or extends any deadline

3 for publishing a final rule to implement a deter4 mination (except for the extension provided in

5 paragraph (6)(B)(i)) or any deadline under sec6 tion 5.

7 ‘‘(10) INDEPENDENT SCIENTIFIC REVIEW.—

8 ‘‘(A) IN GENERAL.—In the case of a regula9 tion proposed by the Secretary to implement a

10 determination under subsection (a)(1) that any

11 species is an endangered species or a threatened

12 species or that any species currently listed as an

13 endangered species or a threatened species should

14 be removed from any list published pursuant to

15 subsection (c), the Secretary shall provide for

16 independent scientific peer review by—

17 ‘‘(i) selecting independent referees pur18 suant to subparagraph (B); and

19 ‘‘(ii) requesting the referees to conduct

20 the review, considering all relevant informa21 tion, and make a recommendation to the

22 Secretary in accordance with this para23 graph not later than 150 days after the gen24 eral notice is published pursuant to para25 graph (5)(A)(i).
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1 ‘‘(B) SELECTION OF REFEREES.—For each

2 independent scientific review to be conducted

3 pursuant to subparagraph (A), the Secretary

4 shall select three independent referees from a list

5 provided by the National Academy of Sciences,

6 who—

7 ‘‘(i) through publication of peer-re8 viewed scientific literature or other means,

9 have demonstrated scientific expertise on the

10 species or a similar species or other sci11 entific expertise relevant to the decision of

12 the Secretary under subsection (a);

13 ‘‘(ii) do not have, or represent any per14 son with, a conflict of interest with respect

15 to the determination that is the subject of

16 the review; and

17 ‘‘(iii) are not participants in a peti18 tion to list, change the status of, or remove

19 the species under paragraph (3)(A)(i), the

20 assessment of a State for the species under

21 paragraph (3)(A)(iii), or the proposed or

22 final determination of the Secretary.

23 ‘‘(C) FINAL DETERMINATION.—The Sec24 retary shall take one of the actions under para25 graph (6)(A) not later than one year after the
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1 date of publication of the general notice of the

2 proposed determination. If the referees have

3 made a recommendation in accordance with sub4 paragraph (A)(ii), the Secretary shall evaluate

5 and consider the information that results from

6 the independent scientific review and include in

7 the final determination—

8 ‘‘(i) a summary of the results of the

9 independent scientific review; and

10 ‘‘(ii) in a case in which the rec11 ommendation of a majority of the referees

12 who conducted the independent scientific re13 view under subparagraph (A) is not fol14 lowed, an explanation as to why the rec15 ommendation was not followed.

16 ‘‘(D) FEDERAL ADVISORY COMMITTEE

17 ACT.—The selection and activities of referees se18 lected pursuant to this Act shall not be subject to

19 the Federal Advisory Committee Act (5 U.S.C.

20 App.).’’.

21 (9) LISTS.—Section 4(c)(1) (16 U.S.C.

22 1533(c)(1)) is amended—

23 (A) in the second sentence, by inserting

24 ‘‘designated’’ before ‘‘critical habitat’’; and
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1 (B) in the third sentence, by striking ‘‘deter2 minations, designations, and revisions’’ and in3 serting ‘‘determinations’’.

4 (10) PROTECTIVE REGULATION.—Section 4(d)

5 (16 U.S.C. 1533(d)) is amended—

6 (A) by striking ‘‘Whenever any species is

7 listed’’ and inserting the following:

8 ‘‘(1) IN GENERAL.—Whenever any species is list9 ed’’; and

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

11 ‘‘(2) NEW LISTINGS.—With respect to each spe12 cies listed as a threatened species after the date of en13 actment of this paragraph, regulations applicable

14 under paragraph (1) to the species shall be specific to

15 that species by the date on which the Secretary is re16 quired to approve a recovery plan for the species pur17 suant to section 5(c) and may be subsequently re18 vised.’’.

19 (11) RECOVERY PLANS.—Section 4 (16 U.S.C.

20 1533) is amended by striking subsection (f) and redes21 ignating subsections (g) through (i) as subsections (f)

22 through (h), respectively.

23 (12) STATE CONSERVATION AGREEMENTS.—Sec24 tion 4 (16 U.S.C. 1533) (as amended by paragraph

25 (11)) is amended by adding at the end the following:
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1 ‘‘(i) STATE CONSERVATION AGREEMENTS.—The Sec2 retary may enter into a conservation agreement with one

3 or more States for a species that has been proposed for list4 ing, is a candidate species, or is likely to become a can5 didate species in the near future within the State. The Sec6 retary may approve an agreement if, after notice and op7 portunity for public comment, the Secretary finds that—

8 ‘‘(1) for species covered by the agreement, the ac9 tions taken under the agreement, if undertaken by all

10 States within the range of the species, would produce

11 a conservation benefit that would be likely to elimi12 nate the need to list the species as threatened or en13 dangered under this section for the duration of the

14 agreement;

15 ‘‘(2) the actions taken under the agreement will

16 not adversely affect an endangered species or a threat17 ened species;

18 ‘‘(3) the agreement contains such other measures

19 as the Secretary may require as being necessary or

20 appropriate for the purposes of the agreement;

21 ‘‘(4) the State will ensure adequate funding and

22 enforcement to implement the agreement; and

23 ‘‘(5) the agreement includes such monitoring and

24 reporting requirements as the Secretary considers nec-
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1 essary for determining whether the terms and condi2 tions of the agreement are being complied with.’’.

3 (13) CONFORMING AMENDMENT.—Section 4(g)

4 (as redesignated by paragraph (11)) is amended in

5 paragraph (4) by striking ‘‘subsection (f) of this sec6 tion’’ and inserting ‘‘section 5’’.

7 (d) PUBLIC AVAILABILITY OF DATA.—Section 3(b) (as

8 amended by subsection (a)) is amended by adding at the

9 end the following:

10 ‘‘(2) FREEDOM OF INFORMATION ACT EXEMP11 TION.—The Secretary, and the head of any other Fed12 eral agency on the recommendation of the Secretary,

13 may withhold or limit the availability of data re14 quested to be released pursuant to section 552 of title

15 5, United States Code, if the data describe or identify

16 the location of an endangered species, a threatened

17 species, or a species that has been proposed to be list18 ed as threatened or endangered, and release of the

19 data would be likely to result in an increased taking

20 of the species, except that data shall not be withheld

21 pursuant to this paragraph in response to a request

22 regarding the presence of those species on private land

23 by the owner of that land.’’.
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1 SEC. 3. ENHANCED RECOVERY PLANNING.

2 (a) REDESIGNATION.—Section 5 (16 U.S.C. 1534) is

3 redesignated as section 5A.

4 (b) RECOVERY PLANS.—The Act is amended by insert5 ing before section 5A (as redesignated by subsection (a)) the

6 following:

7 ‘‘RECOVERY PLANS

8 ‘‘SEC. 5. (a) IN GENERAL.—The Secretary, in coopera9 tion with the States, and on the basis of the best scientific

10 and commercial data available, shall develop and imple11 ment plans (referred to in this Act as ‘recovery plans’) for

12 the conservation and recovery of endangered species and

13 threatened species that are indigenous to the United States

14 or in waters with respect to which the United States exer15 cises sovereign rights or jurisdiction, in accordance with the

16 requirements and schedules described in this section, unless

17 the Secretary finds, after notice and opportunity for public

18 comment, that a plan will not promote the conservation of

19 the species or because an existing plan or strategy to con20 serve the species already serves as the functional equivalent

21 to a recovery plan. The Secretary may authorize a State

22 agency to develop recovery plans pursuant to subsection

23 (m).

24 ‘‘(b) PRIORITIES.—

25 ‘‘(1) CRITERIA.—To the maximum extent prac26 ticable, the Secretary, in developing recovery plans,
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1 shall give priority, without regard to taxonomic clas2 sification, to recovery plans that—

3 ‘‘(A) address significant and immediate

4 threats to the survival of an endangered species

5 or a threatened species, have the greatest likeli6 hood of achieving recovery of the endangered spe7 cies or the threatened species, and will benefit

8 species that are more taxonomically distinct;

9 ‘‘(B) address multiple species including (i)

10 endangered species, (ii) threatened species, or

11 (iii) species that the Secretary has identified as

12 candidates or proposed for listing under section

13 4 and that are dependent on the same habitat as

14 the endangered species or threatened species cov15 ered by the plan;

16 ‘‘(C) reduce conflicts with construction, de17 velopment projects, jobs, private property, or

18 other economic activities; and

19 ‘‘(D) reduce conflicts with military training

20 and operations.

21 ‘‘(2) PRIORITY SYSTEM.—To carry out subsection

22 (c) of this section and section 3(e) of the Endangered

23 Species Recovery Act of 1997 in the most efficient and

24 effective manner practicable, the Secretary shall de25 velop and implement a priority ranking system for
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1 the preparation of recovery plans based on all of the

2 factors described in subparagraphs (A) through (D) of

3 paragraph (1).

4 ‘‘(c) SCHEDULE.—For each species determined to be

5 an endangered species or a threatened species after the date

6 of enactment of this subsection for which the Secretary is

7 required to develop a recovery plan under subsection (a),

8 the Secretary shall publish—

9 ‘‘(1) not later than 18 months after the date of

10 the publication under section 4 of the final regulation

11 containing the listing determination, a draft recovery

12 plan; and

13 ‘‘(2) not later than 30 months after the date of

14 publication under section 4 of the final regulation

15 containing the listing determination, a final recovery

16 plan.

17 ‘‘(d) APPOINTMENT AND ROLE OF RECOVERY TEAM.—

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

19 the date of the publication under section 4 of the final

20 regulation containing the listing determination for a

21 species, the Secretary, in cooperation with the affected

22 States, shall either appoint a recovery team to develop

23 a recovery plan for the species or publish a notice

24 pursuant to paragraph (3) that a recovery team shall

25 not be appointed. Recovery teams shall include the
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1 Secretary and at least one representative from the

2 State agency of each of the affected States choosing to

3 participate and be broadly representative of the con4 stituencies with an interest in the species and its re5 covery and in the economic or social impacts of recov6 ery including representatives of Federal agencies,

7 tribal governments, local governments, academic insti8 tutions, private individuals and organizations, and

9 commercial enterprises. The recovery team members

10 shall be selected for their knowledge of the species or

11 for their expertise in the elements of the recovery plan

12 or its implementation.

13 ‘‘(2) DUTIES OF THE RECOVERY TEAM.—Each

14 recovery team shall prepare and submit to the Sec15 retary the draft recovery plan that shall include re16 covery measures recommended by the team and alter17 natives, if any, to meet the recovery goal under sub18 section (e)(1). The recovery team may also be called

19 on by the Secretary to assist in the implementation,

20 review, and revision of recovery plans. The recovery

21 team shall also advise the Secretary concerning the

22 designation of critical habitat, if any.

23 ‘‘(3) EXCEPTION.—

24 ‘‘(A) IN GENERAL.—Notwithstanding para25 graph (1), the Secretary may, after notice and
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1 opportunity for public comment, establish cri2 teria to identify species for which the appoint3 ment of a recovery team would not be required

4 under this subsection, taking into account the

5 availability of resources for recovery planning,

6 the extent and complexity of the expected recov7 ery activities, and the degree of scientific uncer8 tainty associated with the threats to the species.

9 ‘‘(B) STATE OPTION.—If the Secretary elects

10 not to appoint a recovery team, the Secretary

11 shall provide notice to each affected State and

12 shall provide the affected States the opportunity

13 to appoint a recovery team and develop a recov14 ery plan, in accordance with subsection (m).

15 ‘‘(C) SECRETARIAL DUTY.—If a recovery

16 team is not appointed, the Secretary shall per17 form all duties of the recovery team required by

18 this section.

19 ‘‘(4) TRAVEL EXPENSES.—The Secretary is au20 thorized to provide travel expenses (including per

21 diem in lieu of subsistence at the same level as au22 thorized by section 5703 of title 5, United States

23 Code) to recovery team members.

24 ‘‘(5) FEDERAL ADVISORY COMMITTEE ACT.—The

25 Federal Advisory Committee Act (5 U.S.C. App.)
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1 shall not apply to the selection or activities of a re2 covery team appointed pursuant to this subsection or

3 subsection (m).

4 ‘‘(e) CONTENTS OF RECOVERY PLANS.—Each recovery

5 plan shall contain:

6 ‘‘(1) BIOLOGICAL RECOVERY GOAL.—

7 ‘‘(A) IN GENERAL.—Not later than 180

8 days after the appointment of a recovery team

9 under this section, those members of the recovery

10 team with relevant scientific expertise shall es11 tablish and submit to the Secretary a rec12 ommended biological recovery goal to conserve

13 and recover the species that, when met, would re14 sult in the determination, in accordance with

15 section 4, that the species be removed from the

16 list. The goal shall be based solely on the best sci17 entific and commercial data available. The re18 covery goal shall be expressed as objective and

19 measurable biological criteria. When the goal is

20 met, the Secretary shall initiate the procedures

21 for determining whether, in accordance with sec22 tion 4(a)(1), to remove the species from the list.

23 ‘‘(B) PEER REVIEW.—The recovery team

24 shall promptly obtain independent scientific re25 view of the recommended biological recovery goal.
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1 ‘‘(2) RECOVERY MEASURES.—The recovery plan

2 shall incorporate recovery measures that will meet the

3 recovery goal.

4 ‘‘(A) MEASURES.—The recovery measures

5 may incorporate general and site-specific meas6 ures for the conservation and recovery of the spe7 cies such as—

8 ‘‘(i) actions to protect and restore habi9 tat;

10 ‘‘(ii) research;

11 ‘‘(iii) establishment of refugia, captive

12 breeding, and releases of experimental popu13 lations;

14 ‘‘(iv) actions that may be taken by

15 Federal agencies, including actions that use,

16 to the maximum extent practicable, Federal

17 lands; and

18 ‘‘(v) opportunities to cooperate with

19 State and local governments and other per20 sons to recover species, including through

21 the development and implementation of con22 servation plans under section 10.

23 ‘‘(B) DRAFT RECOVERY PLANS.—

24 ‘‘(i) IN GENERAL.—In developing a

25 draft recovery plan, the recovery team or, if
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1 there is no recovery team, the Secretary,

2 shall consider alternative measures and rec3 ommend measures to meet the recovery goal

4 and the benchmarks. The recovery measures

5 shall achieve an appropriate balance among

6 the following factors—

7 ‘‘(I) the effectiveness of the meas8 ures in meeting the recovery goal;

9 ‘‘(II) the period of time in which

10 the recovery goal is likely to be

11 achieved, provided that the time period

12 within which the recovery goal is to be

13 achieved will not pose a significant

14 risk to recovery of the species; and

15 ‘‘(III) the social and economic im16 pacts (both quantitative and quali17 tative) of the measures and the dis18 tribution of the impacts across regions

19 and industries.

20 ‘‘(ii) DESCRIPTION OF ALTER21 NATIVES.—The draft plan shall include a

22 description of any alternative recovery

23 measures considered, but not included in the

24 recommended measures, and an explanation

25 of how any such measures considered were
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1 assessed and the reasons for their selection

2 or rejection.

3 ‘‘(iii) DESCRIPTION OF ECONOMIC EF4 FECTS.—If the recommended recovery meas5 ures identified in clause (i) would impose

6 significant costs on a municipality, county,

7 region, or industry, the recovery team shall

8 prepare a description of the overall eco9 nomic effects on the public and private sec10 tors including, as appropriate, effects on

11 employment, public revenues, and value of

12 property as a result of the implementation

13 of the recovery plan.

14 ‘‘(3) BENCHMARKS.—The recovery plan shall in15 clude objective, measurable benchmarks expected to be

16 achieved over the course of the recovery plan to deter17 mine whether progress is being made toward the re18 covery goal. To the extent possible, current and histor19 ical population estimates, along with other relevant

20 factors, should be considered in determining whether

21 progress is being made toward meeting the recovery

22 goal.

23 ‘‘(4) FEDERAL AGENCIES.—Each recovery plan

24 for an endangered species or a threatened species shall

25 identify Federal agencies that authorize, fund, or
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1 carry out actions that are likely to have a significant

2 impact on recovery of the species.

3 ‘‘(f) PUBLIC NOTICE AND COMMENT.—

4 ‘‘(1) IN GENERAL.—If the Secretary makes a

5 preliminary determination that the draft recovery

6 plan meets the requirements of this section, the Sec7 retary shall publish in the Federal Register and a

8 newspaper of general circulation in each affected

9 State a notice of availability and a summary of, and

10 a request for public comment on, the draft recovery

11 plan including a description of the economic effects

12 prepared under subsection (e)(2)(B)(iii) and the rec13 ommendations of the independent referees on the re14 covery goal.

15 ‘‘(2) HEARINGS.—At the request of any person,

16 the Secretary shall hold at least one public hearing on

17 each draft recovery plan in each State to which the

18 plan would apply (including at least one hearing in

19 an affected rural area, if any), except that the Sec20 retary may not be required to hold more than five

21 hearings under this paragraph.

22 ‘‘(g) PROCUREMENT AUTHORITY.—In developing and

23 implementing recovery plans, the Secretary may procure

24 the services of appropriate public and private agencies and

25 institutions and other qualified persons.
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1 ‘‘(h) REVIEW AND SELECTION BY THE SECRETARY.—

2 ‘‘(1) REVIEW AND APPROVAL.—The Secretary

3 shall review each plan submitted by a recovery team,

4 including a recovery team appointed by a State pur5 suant to the authority of subsection (m), to determine

6 whether the plan was developed in accordance with

7 the requirements of this section. If the Secretary deter8 mines that the plan does not satisfy such require9 ments, the Secretary shall notify the recovery team

10 and give the team an opportunity to address the con11 cerns of the Secretary and resubmit a plan that satis12 fies the requirements of this section. After notice and

13 opportunity for public comment on the recommenda14 tions of the recovery team, the Secretary shall adopt

15 a final recovery plan that is consistent with the re16 quirements of this section.

17 ‘‘(2) SELECTION OF RECOVERY MEASURES.—In

18 each final plan the Secretary shall select recovery

19 measures that meet the recovery goal and the bench20 marks. The recovery measures shall achieve an appro21 priate balance among the factors described in sub22 clauses (I) through (III) of subsection (e)(2)(B)(i).

23 ‘‘(3) MEASURES RECOMMENDED BY RECOVERY

24 TEAM.—If the Secretary selects measures other than

25 the measures recommended by the recovery team, the
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1 Secretary shall publish with the final plan an expla2 nation of why the measures recommended by the re3 covery team were not selected for the final recovery

4 plan.

5 ‘‘(4) PUBLICATION OF NOTICE ON FINAL

6 PLANS.—The Secretary shall publish in the Federal

7 Register a notice of availability, and a summary, of

8 the final recovery plan, and include in the final re9 covery plan a response to significant comments that

10 the Secretary received on the draft recovery plan.

11 ‘‘(i) REVIEW.—

12 ‘‘(1) EXISTING PLANS.—Not later than five years

13 after date of enactment of this subsection, the Sec14 retary shall review recovery plans published prior to

15 such date.

16 ‘‘(2) SUBSEQUENT PLANS.—The Secretary shall

17 review each recovery plan first approved or revised

18 under this section after the date of enactment of this

19 subsection, not later than ten years after the date of

20 approval or revision of the plan and every ten years

21 thereafter.

22 ‘‘(j) REVISION OF RECOVERY PLANS.—Notwithstand23 ing any other provision of this section, the Secretary shall

24 revise a recovery plan if the Secretary finds that substantial

25 new information, which may include failure to meet the
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1 benchmarks included in the plan, based on the best scientific

2 and commercial data available, indicates that the recovery

3 goal contained in the recovery plan will not achieve the con4 servation and recovery of the endangered species or threat5 ened species covered by the plan. The Secretary shall con6 vene a recovery team to develop the revisions required by

7 this subsection, unless the Secretary has established an ex8 ception for the species pursuant to subsection (d)(3).

9 ‘‘(k) EXISTING PLANS.—Nothing in this section shall

10 require the modification of—

11 ‘‘(1) a recovery plan approved;

12 ‘‘(2) a recovery plan on which public notice and

13 comment has been initiated; or

14 ‘‘(3) a draft recovery plan on which significant

15 progress has been made;

16 prior to the date of enactment of this subsection until the

17 recovery plan is revised by the Secretary in accordance with

18 this section.

19 ‘‘(l) IMPLEMENTATION OF RECOVERY PLANS.—

20 ‘‘(1) IMPLEMENTATION AGREEMENTS.—The Sec21 retary is authorized to enter into agreements with

22 Federal agencies, affected States, Indian tribes, local

23 governments, private landowners, and organizations

24 to implement specified conservation measures identi25 fied by an approved recovery plan that promote the
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1 recovery of the species with respect to land or water

2 owned by, or within the jurisdiction of, each such

3 party. The Secretary may enter into such agreements,

4 if the Secretary, after notice and opportunity for pub5 lic comment, determines that—

6 ‘‘(A) each non-Federal party to the agree7 ment has the legal authority and capability to

8 carry out the agreement;

9 ‘‘(B) the agreement will be reviewed and re10 vised as necessary on a regular basis (which

11 shall be not less often than every five years) by

12 the parties to the agreement to ensure that it

13 meets the requirements of this section; and

14 ‘‘(C) the agreement establishes a mechanism

15 for the Secretary to monitor and evaluate imple16 mentation of the agreement.

17 ‘‘(2) DUTY OF FEDERAL AGENCIES.—Each Fed18 eral agency identified under subsection (e)(4) shall

19 enter into an implementation agreement with the Sec20 retary not later than two years after the date on

21 which the Secretary approves the recovery plan for

22 the species. For purposes of satisfying this section, the

23 substantive provisions of the agreement shall be with24 in the sole discretion of the Secretary and the head

25 of the Federal agency entering into the agreement.
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1 ‘‘(3) OTHER REQUIREMENTS.—

2 ‘‘(A) AGENCY ACTIONS.—Any action au3 thorized, funded, or carried out by a Federal

4 agency that is specified in a recovery plan im5 plementation agreement between the Federal

6 agency and the Secretary to promote the recovery

7 of the species and for which the agreement pro8 vides sufficient information on the nature, scope,

9 and duration of the action to determine the effect

10 of the action on any endangered species, threat11 ened species, or critical habitat shall not be sub12 ject to the requirements of section 7(a)(2) for

13 that species, if the action is to be carried out

14 during the term of the agreement and the Fed15 eral agency is in compliance with the agreement.

16 ‘‘(B) COMPREHENSIVE AGREEMENTS.—If a

17 non-Federal person proposes to include in an

18 implementation agreement a site-specific action

19 that the Secretary determines meets the require20 ments of subparagraph (A) and that action

21 would require authorization or funding by one or

22 more Federal agencies, the agencies authorizing

23 or funding the action shall participate in the de24 velopment of the agreement and shall identify, at

25 that time, all measures for the species that would
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1 be required under this Act as a condition of the

2 authorization or funding.

3 ‘‘(4) FINANCIAL ASSISTANCE.—

4 ‘‘(A) IN GENERAL.—In cooperation with the

5 States and subject to the availability of appro6 priations under section 15(f), the Secretary may

7 provide a grant of up to $25,000 to a private

8 landowner to assist the landowner in carrying

9 out a recovery plan implementation agreement

10 under this subsection.

11 ‘‘(B) PROHIBITION ON ASSISTANCE FOR RE12 QUIRED ACTIVITIES.—The Secretary may not

13 provide assistance under this paragraph for any

14 action that is required by a permit issued under

15 this Act or that is otherwise required under this

16 Act or other Federal law.

17 ‘‘(C) OTHER PAYMENTS.—A grant provided

18 to an individual private landowner under this

19 paragraph shall be in addition to, and not affect,

20 the total amount of payments the landowner is

21 otherwise eligible to receive under the conserva22 tion reserve program established under sub23 chapter B of chapter 1 of subtitle D of title XII

24 of the Food Security Act of 1985 (16 U.S.C.

25 3831 et seq.), the wetlands reserve program es-
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1 tablished under subchapter C of that chapter (16

2 U.S.C. 3837 et seq.), or the Wildlife Habitat In3 centives Program established under section 387

4 of the Federal Agriculture Improvement and Re5 form Act of 1996 (16 U.S.C. 3836a).

6 ‘‘(m) STATE AUTHORITY FOR RECOVERY PLANNING.—

7 ‘‘(1) IN GENERAL.—At the request of the Gov8 ernor of a State, or the Governors of several States in

9 cooperation, the Secretary may authorize the respec10 tive State agency to develop the recovery plan for an

11 endangered species or a threatened species in accord12 ance with the requirements and schedules of sub13 sections (c), (d)(1), (d)(2), and (e) and this subsection

14 if the Secretary finds that—

15 ‘‘(A) the State or States have entered into

16 a cooperative agreement with the Secretary pur17 suant to section 6(c); and

18 ‘‘(B) the State agency has submitted a

19 statement to the Secretary demonstrating ade20 quate authority and capability to carry out the

21 requirements and schedules of subsections (c),

22 (d)(1), (d)(2), and (e) and this subsection.

23 ‘‘(2) STANDARDS AND GUIDELINES.—The Sec24 retary, in cooperation with the States, shall publish

25 standards and guidelines for the development of recov-
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1 ery plans by a State agency under this subsection, in2 cluding standards and guidelines for interstate co3 operation and for the grant and withdrawal of au4 thorization by the Secretary under this subsection.

5 ‘‘(3) DUTIES OF RECOVERY TEAM.—The recovery

6 team shall prepare a draft recovery plan in accord7 ance with this section and shall transmit the draft

8 plan to the Secretary through the State agency au9 thorized to develop the recovery plan.

10 ‘‘(4) REVIEW OF DRAFT PLANS.—Prior to publi11 cation of a notice of availability of a draft recovery

12 plan, the Secretary shall review each draft recovery

13 plan developed pursuant to this subsection to deter14 mine whether the plan meets the requirements of this

15 section. If the Secretary determines that the plan does

16 not meet such requirements, the Secretary shall notify

17 the State agency and, in cooperation with the State

18 agency, develop a recovery plan in accordance with

19 this section.

20 ‘‘(5) REVIEW AND APPROVAL OF FINAL PLANS.—

21 On receipt of a draft recovery plan transmitted by a

22 State agency, the Secretary shall review and approve

23 the plan in accordance with subsection (h).

24 ‘‘(6) WITHDRAWAL OF AUTHORITY.—
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1 ‘‘(A) IN GENERAL.—The Secretary may

2 withdraw the authority from a State that has

3 been authorized to develop a recovery plan pur4 suant to this subsection if the actions of the State

5 agency are not in accordance with the sub6 stantive and procedural requirements of sub7 sections (c), (d)(1), (d)(2), and (e) and this sub8 section. The Secretary shall give the State agency

9 an opportunity to correct any deficiencies identi10 fied by the Secretary and shall withdraw the au11 thority from the State unless the State agency

12 within 60 days has corrected the deficiencies

13 identified by the Secretary. On withdrawal of

14 State authority pursuant to this subsection, the

15 Secretary shall have an additional 18 months to

16 publish a draft recovery plan and an additional

17 12 months to publish a final recovery plan under

18 subsection 5(c).

19 ‘‘(B) PETITIONS TO WITHDRAW.—Any per20 son may submit a petition requesting the Sec21 retary to withdraw the authority from a State

22 on the basis that the actions of the State agency

23 are not in accordance with the substantive and

24 procedural requirements described in subpara25 graph (A). If the Secretary has not acted on the
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1 petition pursuant to subparagraph (A) within

2 90 days, the petition shall be deemed to be denied

3 and the denial shall be a final agency action for

4 the purposes of judicial review.

5 ‘‘(7) DEFINITION OF STATE AGENCY.—For pur6 poses of this subsection, the term ‘State agency’

7 means—

8 ‘‘(A) a State agency (as defined in section

9 3) of each State entering into a cooperative re10 quest under paragraph (1); and

11 ‘‘(B) for fish and wildlife, including related

12 spawning grounds and habitat, on the Columbia

13 River and its tributaries, the Pacific Northwest

14 Electric Power and Conservation Planning

15 Council established under the Pacific Northwest

16 Electric Power Planning and Conservation Act

17 (16 U.S.C. 839 et seq.).

18 ‘‘(n) CRITICAL HABITAT DESIGNATION.—

19 ‘‘(1) RECOMMENDATION OF THE RECOVERY

20 TEAM.—Not later than nine months after the date of

21 publication under section 4 of a final regulation con22 taining a listing determination for a species, the re23 covery team appointed for the species shall provide

24 the Secretary with a description of any habitat of the

25 species that is recommended for designation as criti-
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1 cal habitat pursuant to this subsection and any rec2 ommendations for special management considerations

3 or protection that are specific to the habitat.

4 ‘‘(2) DESIGNATION BY THE SECRETARY.—The

5 Secretary, to the maximum extent prudent and deter6 minable, shall by regulation designate any habitat

7 that is considered to be critical habitat of an endan8 gered species or a threatened species that is indige9 nous to the United States or waters with respect to

10 which the United States exercises sovereign rights or

11 jurisdiction.

12 ‘‘(A) DESIGNATION.—

13 ‘‘(i) PROPOSAL.—Not later than 18

14 months after the date on which a final list15 ing determination is made under section 4

16 for a species, the Secretary, after consulta17 tion and in cooperation with the recovery

18 team, shall publish in the Federal Register

19 a proposed regulation designating critical

20 habitat for the species.

21 ‘‘(ii) PROMULGATION.—The Secretary

22 shall, after consultation and in cooperation

23 with the recovery team, publish a final reg24 ulation designating critical habitat for a

25 species not later than 30 months after the
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1 date on which a final listing determination

2 is made under section 4 for the species.

3 ‘‘(B) OTHER DESIGNATIONS.—If a recovery

4 plan is not developed under this section for an

5 endangered species or a threatened species, the

6 Secretary shall publish a final critical habitat

7 determination for the endangered species or

8 threatened species not later than three years after

9 making a determination that the species is an

10 endangered species or a threatened species.

11 ‘‘(C) ADDITIONAL AUTHORITY.—The Sec12 retary may publish a regulation designating

13 critical habitat for an endangered species or a

14 threatened species concurrently with the final

15 regulation implementing the determination that

16 the species is endangered or threatened if the

17 Secretary determines that designation of such

18 habitat at the time of listing is essential to avoid

19 the imminent extinction of the species.

20 ‘‘(3) FACTORS TO BE CONSIDERED.—The des21 ignation of critical habitat shall be made on the basis

22 of the best scientific and commercial data available

23 and after taking into consideration the economic im24 pact, impacts to military training and operations,

25 and any other relevant impact, of specifying any par-
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1 ticular area as critical habitat. The Secretary shall

2 describe the economic impacts and other relevant im3 pacts that are to be considered under this subsection

4 in the publication of any proposed regulation des5 ignating critical habitat.

6 ‘‘(4) EXCLUSIONS.—The Secretary may exclude

7 any area from critical habitat for a species if the Sec8 retary determines that the benefits of the exclusion

9 outweigh the benefits of designating the area as part

10 of the critical habitat, unless the Secretary determines

11 that the failure to designate the area as critical habi12 tat will result in the extinction of the species.

13 ‘‘(5) REVISIONS.—The Secretary may, from

14 time-to-time and as appropriate, revise a designation.

15 Each area designated as critical habitat before the

16 date of enactment of this subsection shall continue to

17 be considered so designated, until the designation is

18 revised in accordance with this subsection.

19 ‘‘(6) PETITIONS.—

20 ‘‘(A) DETERMINATION THAT REVISION MAY

21 BE WARRANTED.—To the maximum extent prac22 ticable, not later than 90 days after receiving the

23 petition of an interested person under section

24 553(e) of title 5, United States Code, to revise a

25 critical habitat designation, the Secretary shall
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1 make a finding as to whether the petition pre2 sents substantial scientific or commercial infor3 mation indicating that the revision may be war4 ranted. The Secretary shall promptly publish the

5 finding in the Federal Register.

6 ‘‘(B) NOTICE OF PROPOSED ACTION.—Not

7 later than one year after receiving a petition

8 that is found under subparagraph (A) to present

9 substantial information indicating that the re10 quested revision may be warranted, the Secretary

11 shall determine how to proceed with the requested

12 revision, and shall promptly publish notice of the

13 intention in the Federal Register.

14 ‘‘(7) PROPOSED AND FINAL REGULATIONS.—Any

15 regulation to designate critical habitat or implement

16 a requested revision shall be proposed and promul17 gated in accordance with paragraphs (4), (5), and (6)

18 of section 4(b) in the same manner as a regulation

19 to implement a determination with respect to listing

20 a species.

21 ‘‘(o) REPORTS.—The Secretary shall report every two

22 years to the Committee on Environment and Public Works

23 of the Senate and the Committee on Resources of the House

24 of Representatives on the status of efforts to develop and

25 implement recovery plans for all species listed pursuant to
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1 section 4 and on the status of all species for which the plans

2 have been developed.’’.

3 (c) CITIZEN SUITS.—Section 11(g)(1)(C) (16 U.S.C.

4 1540(g)(1)(C)) is amended by inserting ‘‘or section 5’’ after

5 ‘‘section 4’’.

6 (d) CONFORMING AMENDMENTS FOR RECOVERY PLAN7 NING.—

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

9 amended in the first sentence by striking ‘‘section

10 4(g)’’ and inserting ‘‘section 4(f)’’.

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

12 amended by striking the last sentence.

13 (3) Section 7(a)(1) of the Land and Water Con14 servation Fund Act of 1965 (16 U.S.C. 460l–9) is

15 amended in the undesignated paragraph relating to

16 the National Wildlife Refuge System by striking ‘‘sec17 tion 5(a)’’ and inserting ‘‘section 5A(a)’’.

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

19 U.S.C. 460iii–4(b)) is amended by striking ‘‘section

20 5(b) of the Endangered Species Act of 1973 (16

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

22 Endangered Species Act of 1973’’.

23 (5) Section 104(c)(4)(A)(ii)(I) of the Marine

24 Mammal Protection Act of 1972 (16 U.S.C.
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1 1347(c)(4)(A)(ii)(I)) is amended by striking ‘‘section

2 4(f)’’ and inserting ‘‘section 5’’.

3 (6) Section 115(b)(2) of the Marine Mammal

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

5 amended by striking ‘‘section 4(f) of the Endangered

6 Species Act of 1973 (16 U.S.C. 1533(f))’’ and insert7 ing ‘‘section 5 of the Endangered Species Act of

8 1973’’.

9 (7) Section 118(f)(11) of the Marine Mammal

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

11 amended by striking ‘‘section 4’’ and inserting ‘‘sec12 tion 5’’.

13 (8) The table of contents in the first section (16

14 U.S.C. prec. 1531) is amended—

15 (A) by striking the item relating to section

16 5 and inserting the following:

‘‘Sec. 5. Recovery plans.

‘‘Sec. 5A. Land acquisition.’’;

17 and

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

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

19 (e) PLANS FOR PREVIOUSLY LISTED SPECIES.—In the

20 case of species included in the list published under section

21 4(c) before the date of enactment of this Act, and for which

22 no recovery plan was developed before that date, the Sec23 retary of the Interior or the Secretary of Commerce, as ap-
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1 propriate, shall develop a final recovery plan in accordance

2 with the requirements of section 5 (including the priorities

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

4 U.S.C. 1531 et seq.) (as amended by this section) for not

5 less than one-half of the species not later than 36 months

6 after the date of enactment of this Act and for all species

7 not later than 60 months after such date.

8 SEC. 4. INTERAGENCY CONSULTATION AND COOPERATION.

9 (a) REASONABLE AND PRUDENT ALTERNATIVES.—

10 (1) DEFINITION.—Subsection (a) of section 3 (16

11 U.S.C. 1532) (as amended by section 2(a)(2)) is

12 amended by inserting the following after the para13 graph defining the term ‘‘plant’’ and redesignating

14 the subsequent paragraphs accordingly:

15 ‘‘(15) REASONABLE AND PRUDENT ALTER16 NATIVES.—The term ‘reasonable and prudent alter17 natives’ means alternative actions identified during

18 consultation that can be implemented in a manner

19 consistent with the intended purpose of the action,

20 that can be implemented consistent with the scope of

21 the legal authority and jurisdiction of the Federal

22 agency, that are economically and technologically fea23 sible, and that the Secretary believes would avoid the

24 likelihood of jeopardizing the continued existence of
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1 listed species or resulting in the destruction or adverse

2 modification of critical habitat.’’.

3 (2) CONFORMING AMENDMENT.—Section 7(n) (16

4 U.S.C. 1536(n)) is amended in the first sentence by

5 striking ‘‘, as defined by section 3(13) of this Act,’’.

6 (b) INVENTORY OF SPECIES ON FEDERAL LANDS.—

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

8 (1) by striking ‘‘CONSULTATIONS.—(1) The’’ and

9 inserting:‘‘CONSULTATIONS.—

10 ‘‘(1) IN GENERAL.—

11 ‘‘(A) OTHER PROGRAMS.—The’’; and

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

13 ‘‘(B) INVENTORY OF SPECIES ON FEDERAL

14 LANDS.—The head of each Federal agency that is

15 responsible for the management of land and

16 water—

17 ‘‘(i) shall, to the maximum extent

18 practicable, by not later than December 31,

19 2003, prepare and provide to the Secretary

20 an inventory of the presence or occurrence

21 of endangered species, threatened species,

22 species that have been proposed for listing,

23 and species that the Secretary has identified

24 as candidates for listing under section 4,
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1 that are located on land or water owned or

2 under the control of the agency; and

3 ‘‘(ii) shall, at least once every ten years

4 thereafter, update the inventory required by

5 clause (i) including newly listed species,

6 species proposed for listing, and candidate

7 species.’’.

8 (c) CONSULTATION.—Section 7(a)(3) (16 U.S.C.

9 1536(a)(3)) is amended to read as follows:

10 ‘‘(3) CONSULTATION.—

11 ‘‘(A) NOTIFICATION OF ACTIONS.—Prior to

12 commencing any action, each Federal agency

13 shall notify the Secretary if the agency deter14 mines that the action may affect an endangered

15 species or a threatened species, or critical habi16 tat.

17 ‘‘(B) AGENCY DETERMINATION.—

18 ‘‘(i) IN GENERAL.—Each Federal agen19 cy shall consult with the Secretary as re20 quired by paragraph (2) on each action for

21 which notification is required under sub22 paragraph (A) unless—

23 ‘‘(I) the Federal agency makes a

24 determination based on the opinion of

25 a qualified biologist that the action is
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1 not likely to adversely affect an endan2 gered species, a threatened species, or

3 critical habitat;

4 ‘‘(II) the Federal agency notifies

5 the Secretary that it has determined

6 that the action is not likely to ad7 versely affect any listed species or criti8 cal habitat and provides the Secretary,

9 along with the notice, a copy of the in10 formation on which the agency based

11 the determination; and

12 ‘‘(III) the Secretary does not ob13 ject in writing to the agency’s deter14 mination within 60 days after the date

15 such notice is received.

16 ‘‘(ii) PUBLIC ACCESS TO INFORMA17 TION.—The Secretary shall maintain a list

18 of notices received from Federal agencies

19 under clause (i)(II) and shall make avail20 able to the public the list and, on request

21 (subject to the exemptions specified in sec22 tion 552(b) of title 5, United States Code),

23 the information received by the Secretary on

24 which the agency based its determination.
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1 ‘‘(iii) ACTIONS EXCLUDED.—The Sec2 retary may by regulation identify categories

3 of actions with respect to specific endan4 gered species or threatened species that the

5 Secretary determines are likely to have an

6 adverse effect on the species or its critical

7 habitat and, for which, the procedures of

8 clause (i) shall not apply.

9 ‘‘(iv) BASIS FOR OBJECTION.—The

10 Secretary shall object to a determination

11 made by a Federal agency pursuant to

12 clause (i), if—

13 ‘‘(I) the Secretary determines that

14 the action may have an adverse effect

15 on an endangered species, a threatened

16 species or critical habitat;

17 ‘‘(II) the Secretary finds that

18 there is insufficient information in the

19 documentation accompanying the de20 termination to evaluate the impact of

21 the proposed action on endangered spe22 cies, threatened species, or critical

23 habitat; or

24 ‘‘(III) the Secretary finds that, be25 cause of the nature of the action and
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1 its potential impact on an endangered

2 species, a threatened species, or critical

3 habitat, review cannot be completed in

4 60 days.

5 ‘‘(v) REPORTS.—The Secretary shall

6 report to the Congress not less often than bi7 ennially with respect to the implementation

8 of this subparagraph including in the re9 port information on the circumstances that

10 resulted in the Secretary making any objec11 tion to a determination made by a Federal

12 agency under clause (i) and the availability

13 of resources to carry out this section.

14 ‘‘(C) CONSULTATION AT REQUEST OF APPLI15 CANT.—Subject to such guidelines as the Sec16 retary may establish, a Federal agency shall con17 sult with the Secretary on any prospective agen18 cy action at the request of, and in cooperation

19 with, the prospective permit or license applicant

20 if the applicant has reason to believe that an en21 dangered species or a threatened species may be

22 present in the area affected by the applicant’s

23 project and that implementation of the action

24 will likely affect the species.’’.
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1 (d) GAO REPORT.—The Comptroller General of the

2 United States shall report to the Committee on Environ3 ment and Public Works of the Senate and to the Committee

4 on Resources of the House of Representatives not later than

5 three years after the date of enactment of this Act, and two

6 years thereafter, on the cost of formal consultation to Fed7 eral agencies and other persons carrying out actions subject

8 to the requirements of section 7 of the Endangered Species

9 Act of 1973 (16 U.S.C. 1536), including the costs of reason10 able and prudent measures imposed.

11 (e) NEW LISTINGS.—Section 7(a) (16 U.S.C. 1536(a))

12 is amended by adding at the end the following:

13 ‘‘(5) EFFECT OF LISTING ON EXISTING PLANS.—

14 ‘‘(A) DEFINITION OF ACTION.—For the pur15 poses of paragraph (2) and this paragraph, the

16 term ‘action’ includes land use plans under the

17 Federal Land Policy and Management Act of

18 1976 (43 U.S.C. 1701 et seq.) and land and re19 source management plans under the Forest and

20 Rangeland Renewable Resources Planning Act of

21 1974 (16 U.S.C. 1600 et seq.), as amended by the

22 National Forest Management Act of 1976 (16

23 U.S.C. 1600 (note)).

24 ‘‘(B) REINITIATION OF CONSULTATION.—

25 Whenever a determination to list a species as an
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1 endangered species or a threatened species or des2 ignation of critical habitat requires reinitiation

3 of consultation under paragraph (2) on an al4 ready approved action as defined under subpara5 graph (A), the consultation shall commence

6 promptly, but not later than 90 days after the

7 date of the determination or designation, and

8 shall be completed not later than one year after

9 the date on which the consultation is commenced.

10 ‘‘(C) SITE-SPECIFIC ACTIONS DURING CON11 SULTATION.—Notwithstanding subsection (d), the

12 Federal agency implementing the land use plan

13 or land and resource management plan under

14 subparagraph (B) may authorize, fund, or carry

15 out a site-specific ongoing or previously sched16 uled action within the scope of the plan on the

17 lands prior to completing consultation on the

18 plan under subparagraph (B) pursuant to the

19 consultation procedures of this section and relat20 ed regulations, if—

21 ‘‘(i) no consultation on the action is

22 required; or

23 ‘‘(ii) consultation on the action is re24 quired, the Secretary issues a biological
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1 opinion and the action satisfies the require2 ments of this section.’’.

3 (f) IMPROVED FEDERAL AGENCY COORDINATION.—

4 Section 7(a) (16 U.S.C. 1536(a)) (as amended by subsection

5 (e)) is amended by adding at the end the following:

6 ‘‘(6) CONSOLIDATION OF CONSULTATION AND

7 CONFERENCING.—

8 ‘‘(A) CONSULTATION WITH A SINGLE AGEN9 CY.—Consultation and conferencing under this

10 subsection between the Secretary and a Federal

11 agency may, with the approval of the Secretary,

12 encompass a number of related or similar ac13 tions by the agency to be carried out within a

14 particular geographic area.

15 ‘‘(B) CONSULTATION WITH SEVERAL AGEN16 CIES.—The Secretary may consolidate requests

17 for consultation or conferencing from various

18 Federal agencies the proposed actions of which

19 may affect the same endangered species, threat20 ened species, or species that have been proposed

21 for listing under section 4, within a particular

22 geographic area.’’.

23 (g) USE OF INFORMATION PROVIDED BY STATES.—

24 Section 7(b)(1) (16 U.S.C. 1536(b)(1)) is amended by add25 ing at the end the following:
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1 ‘‘(C) USE OF STATE INFORMATION.—In con2 ducting a consultation under subsection (a)(2),

3 the Secretary shall actively solicit and consider

4 information from the State agency in each af5 fected State.’’.

6 (h) OPPORTUNITY TO PARTICIPATE IN CONSULTA7 TIONS.—Section 7(b)(1) (16 U.S.C. 1536(b)(1)) (as amend8 ed by subsection (g)) is amended by adding at the end the

9 following:

10 ‘‘(D) OPPORTUNITY TO PARTICIPATE IN

11 CONSULTATIONS.—

12 ‘‘(i) IN GENERAL.—In conducting a

13 consultation under subsection (a)(2), the

14 Secretary shall provide any person who has

15 sought authorization or funding from a

16 Federal agency for an action that is the

17 subject of the consultation, the opportunity

18 to—

19 ‘‘(I) prior to the development of a

20 draft biological opinion, submit and

21 discuss with the Secretary and the

22 Federal agency information relevant to

23 the effect of the proposed action on the

24 species and the availability of reason25 able and prudent alternatives (if a
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1 jeopardy opinion is to be issued) that

2 the Federal agency and the person can

3 take to avoid violation of subsection

4 (a)(2);

5 ‘‘(II) receive information, on re6 quest, subject to the exemptions speci7 fied in section 552(b) of title 5, United

8 States Code, on the status of the spe9 cies, threats to the species, and con10 servation measures, used by the Sec11 retary to develop the draft biological

12 opinion and the final biological opin13 ion, including the associated incidental

14 taking statements; and

15 ‘‘(III) receive a copy of the draft

16 biological opinion from the Federal

17 agency and, prior to issuance of the

18 final biological opinion, submit com19 ments on the draft biological opinion

20 and discuss with the Secretary and the

21 Federal agency the basis for any find22 ing in the draft biological opinion.

23 ‘‘(ii) EXPLANATION.—If reasonable

24 and prudent alternatives are proposed by a

25 person under clause (i) and the Secretary
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1 does not include the alternatives in the final

2 biological opinion, the Secretary shall ex3 plain to the person why those alternatives

4 were not included in the opinion.

5 ‘‘(iii) PUBLIC ACCESS TO INFORMA6 TION.—Comments and other information

7 submitted to, or received from, any person

8 (pursuant to clause (i)) who seeks author9 ization or funding for an action shall be

10 maintained in a file for that action by the

11 Secretary and shall be made available to the

12 public (subject to the exemptions specified

13 in section 552(b) of title 5, United States

14 Code).’’.

15 (i) INCIDENTAL TAKING STANDARDS FOR FEDERAL

16 AGENCIES.—Section 7(b)(4) (16 U.S.C. 1536(b)(4)) is

17 amended—

18 (1) in clause (ii), by inserting ‘‘and mitigate’’

19 after ‘‘to minimize’’; and

20 (2) by adding at the end the following: ‘‘For pur21 poses of this subsection, reasonable and prudent meas22 ures shall be related both in nature and extent to the

23 effect of the proposed activity that is the subject of the

24 consultation.’’.
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1 (j) EMERGENCY CONSULTATIONS.—Section 7 (16

2 U.S.C. 1536) is amended by adding the following:

3 ‘‘(q) EMERGENCY CONSULTATIONS.—In response to a

4 natural disaster or other emergency, consultation under

5 subsection (a)(2) may be deferred by a Federal agency for

6 the emergency repair of a natural gas pipeline, hazardous

7 liquid pipeline, or electrical transmission facility, if the re8 pair is necessary to address an imminent threat to human

9 lives or an imminent and significant threat to the environ10 ment. Consultation shall be initiated as soon as practicable

11 after the threat to human lives or the environment has

12 abated.’’.

13 (k) REVISION OF REGULATIONS.—Not later than one

14 year after the date of enactment of this Act, the Secretary

15 of the Interior and the Secretary of Commerce shall promul16 gate modifications to part 402 of title 50, Code of Federal

17 Regulations, to implement this section and the amendments

18 made by this section.

19 SEC. 5. CONSERVATION PLANS.

20 (a) PERMIT FOR TAKING ON THE HIGH SEAS.—Sec21 tion 10(a)(1)(B) (16 U.S.C. 1539(a)(1)(B)) is amended by

22 striking ‘‘section 9(a)(1)(B)’’ and inserting ‘‘subparagraph

23 (B) or (C) of section 9(a)(1)’’.
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1 (b) MONITORING.—Section 10(a)(2)(B) (16 U.S.C.

2 1539(a)(2)(B)) is amended in the last sentence by striking

3 ‘‘reporting’’ and inserting ‘‘monitoring and reporting’’.

4 (c) OTHER PLANS.—Section 10(a) (16 U.S.C. 1539(a))

5 is amended by striking paragraph (2)(C) and inserting the

6 following:

7 ‘‘(3) MULTIPLE SPECIES CONSERVATION

8 PLANS.—

9 ‘‘(A) IN GENERAL.—In addition to one or

10 more listed species, a conservation plan devel11 oped under paragraph (2) may, at the request of

12 the applicant, include species proposed for listing

13 under section 4(c), candidate species, or other

14 species found on lands or waters owned or with15 in the jurisdiction of the applicant covered by

16 the plan.

17 ‘‘(B) APPROVAL CRITERIA.—The Secretary

18 shall approve an application for a permit under

19 paragraph (1)(B) that includes species other

20 than species listed as endangered species or

21 threatened species if, after notice and oppor22 tunity for public comment, the Secretary finds

23 that the permit application and the related con24 servation plan satisfy the criteria of subpara25 graphs (A) and (B) of paragraph (2) with re-
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1 spect to listed species, and that the permit appli2 cation and the related conservation plan with re3 spect to other species satisfy the following re4 quirements—

5 ‘‘(i) the impact on non-listed species

6 included in the plan will be incidental;

7 ‘‘(ii) the applicant will, to the maxi8 mum extent practicable, minimize and

9 mitigate such impacts;

10 ‘‘(iii) the actions taken by the appli11 cant with respect to species proposed for

12 listing or candidates for listing included in

13 the plan, if undertaken by all similarly sit14 uated persons within the range of such spe15 cies, are likely to eliminate the need to list

16 the species as an endangered species or a

17 threatened species for the duration of the

18 agreement as a result of the activities con19 ducted by those persons;

20 ‘‘(iv) the actions taken by the appli21 cant with respect to other non-listed species

22 included in the plan, if undertaken by all

23 similarly situated persons within the range

24 of such species, would not be likely to con25 tribute to a determination to list the species
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1 as an endangered species or a threatened

2 species for the duration of the agreement;

3 and

4 ‘‘(v) the criteria of subparagraphs

5 (A)(iv), (B)(iii), and (B)(v) of paragraph

6 (2);

7 and the Secretary has received such other assur8 ances as the Secretary may require that the plan

9 will be implemented. The permit shall contain

10 such terms and conditions as the Secretary

11 deems necessary or appropriate to carry out the

12 purposes of this paragraph, including such mon13 itoring and reporting requirements as the Sec14 retary deems necessary for determining whether

15 the terms and conditions are being complied

16 with.

17 ‘‘(C) TECHNICAL ASSISTANCE AND GUID18 ANCE.—To the maximum extent practicable, the

19 Secretary and the heads of other Federal agen20 cies, in cooperation with the States, are author21 ized and encouraged to provide technical assist22 ance or guidance to any State or person that is

23 developing a multiple species conservation plan

24 under this paragraph. In providing technical as25 sistance or guidance, priority shall be given to
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1 landowners that might otherwise encounter dif2 ficulty in developing such a plan.

3 ‘‘(D) DEADLINES.—A conservation plan de4 veloped under this paragraph shall be reviewed

5 and approved or disapproved by the Secretary

6 not later than one year after the date of submis7 sion, or within such other period of time as is

8 mutually agreeable to the Secretary and the ap9 plicant.

10 ‘‘(E) STATE AND LOCAL LAW.—

11 ‘‘(i) OTHER SPECIES.—Nothing in this

12 paragraph shall limit the authority of a

13 State or local government with respect to

14 fish, wildlife, or plants that have not been

15 listed as an endangered species or a threat16 ened species under section 4.

17 ‘‘(ii) COMPLIANCE.—An action by the

18 Secretary, the Attorney General, or a person

19 under section 11(g) to ensure compliance

20 with a multiple species conservation plan

21 and permit under this paragraph may be

22 brought only against a permittee or the Sec23 retary.

24 ‘‘(F) EFFECTIVE DATE OF PERMIT FOR NON25 LISTED SPECIES.—In the case of any species not
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1 listed as an endangered species or a threatened

2 species, but covered by an approved multiple spe3 cies conservation plan, the permit issued under

4 paragraph (1)(B) shall take effect without fur5 ther action by the Secretary at the time the spe6 cies is listed pursuant to section 4(c), and to the

7 extent that the taking is otherwise prohibited by

8 subparagraph (B) or (C) of section 9(a)(1).

9 ‘‘(4) LOW EFFECT ACTIVITIES.—

10 ‘‘(A) IN GENERAL.—Notwithstanding para11 graph (2)(A), the Secretary may issue a permit

12 for a low effect activity authorizing any taking

13 referred to in paragraph (1)(B), if the Secretary

14 determines that the activity will have no more

15 than a negligible effect, both individually and

16 cumulatively, on the species, any taking associ17 ated with the activity will be incidental, and the

18 taking will not appreciably reduce the likelihood

19 of the survival and recovery of the species in the

20 wild. The permit shall require, to the extent ap21 propriate, actions to be taken by the permittee to

22 offset the effects of the activity on the species.

23 ‘‘(B) APPLICATIONS.—The Secretary shall

24 minimize the costs of permitting to the applicant

25 by developing, in cooperation with the States,
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1 model permit applications that will constitute

2 conservation plans for low effect activities.

3 ‘‘(C) PUBLIC COMMENT; EFFECTIVE DATE.—

4 On receipt of a permit application for an activ5 ity that meets the requirements of subparagraph

6 (A), the Secretary shall provide notice in a news7 paper of general circulation in the area of the

8 activity not later than 30 days after receipt and

9 provide an opportunity for comment on the per10 mit. If the Secretary does not receive significant

11 adverse comment by the date that is 30 days

12 after the notice is published, the permit shall

13 take effect without further action by the Sec14 retary 60 days after the notice is published.

15 ‘‘(5) NO SURPRISES.—

16 ‘‘(A) IN GENERAL.—Each conservation plan

17 developed under this subsection shall include a

18 no surprises provision, as described in this para19 graph.

20 ‘‘(B) NO SURPRISES.—A person who has

21 entered into, and is in compliance with, a con22 servation plan under this subsection may not be

23 required to undertake any additional mitigation

24 measures for species covered by such plan if such

25 measures would require the payment of addi-
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1 tional money, or the adoption of additional use,

2 development, or management restrictions on any

3 land, waters, or water-related rights that would

4 otherwise be available under the terms of the

5 plan without the consent of the permittee. The

6 Secretary and the applicant, by the terms of the

7 conservation plan, shall identify—

8 ‘‘(i) other modifications to the plan; or

9 ‘‘(ii) other additional measures;

10 if any, that the Secretary may require under ex11 traordinary circumstances.

12 ‘‘(6) PERMIT REVOCATION.—After notice and an

13 opportunity for correction, as appropriate, the Sec14 retary shall revoke a permit issued under this sub15 section if the Secretary finds that the permittee is not

16 complying with the terms and conditions of the per17 mit or the conservation plan.’’.

18 (d) CANDIDATE CONSERVATION AGREEMENTS.—

19 (1) PERMITS.—Section 10(a)(1) (16 U.S.C.

20 1539(a)(1)) is amended—

21 (A) by striking ‘‘or’’ at the end of subpara22 graph (A);

23 (B) by striking the period at the end of sub24 paragraph (B) and inserting ‘‘; or’’; and

25 (C) by adding at the end the following:
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1 ‘‘(C) any taking incidental to, and not the

2 purpose of, the carrying out of an otherwise law3 ful activity pursuant to a candidate conservation

4 agreement entered into under subsection (k).’’.

5 (2) AGREEMENTS.—Section 10 (16 U.S.C. 1539)

6 is amended by adding at the end the following:

7 ‘‘(k) CANDIDATE CONSERVATION AGREEMENTS.—

8 ‘‘(1) IN GENERAL.—At the request of any non9 Federal person, the Secretary may enter into a can10 didate conservation agreement with the person for a

11 species that has been proposed for listing under sec12 tion 4(c)(1), is a candidate species, or is likely to be13 come a candidate species in the near future on prop14 erty owned or under the jurisdiction of the person re15 questing such an agreement.

16 ‘‘(2) REVIEW BY THE SECRETARY.—

17 ‘‘(A) SUBMISSION TO THE SECRETARY.—A

18 non-Federal person may submit a candidate con19 servation agreement developed under paragraph

20 (1) to the Secretary for review at any time prior

21 to the listing described in section 4(c)(1) of a

22 species that is the subject of the agreement.

23 ‘‘(B) CRITERIA FOR APPROVAL.—The Sec24 retary may approve an agreement and issue a

25 permit under subsection (a)(1)(C) for the agree-
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1 ment if, after notice and opportunity for public

2 comment, the Secretary finds that—

3 ‘‘(i) for species proposed for listing,

4 candidates for listing, or species that are

5 likely to become a candidate species in the

6 near future, that are included in the agree7 ment, the actions taken under the agree8 ment, if undertaken by all similarly situ9 ated persons, would produce a conservation

10 benefit that would be likely to eliminate the

11 need to list the species under section 4(c) as

12 a result of the activities of those persons

13 during the duration of the agreement;

14 ‘‘(ii) the actions taken under the agree15 ment will not adversely affect an endan16 gered species or a threatened species;

17 ‘‘(iii) the agreement contains such

18 other measures that the Secretary may re19 quire as being necessary or appropriate for

20 the purposes of the agreement;

21 ‘‘(iv) the person will ensure adequate

22 funding to implement the agreement; and

23 ‘‘(v) the agreement includes such mon24 itoring and reporting requirements as the

25 Secretary deems necessary for determining
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1 whether the terms and conditions of the

2 agreement are being complied with.

3 ‘‘(3) EFFECTIVE DATE OF PERMIT.—A permit is4 sued under subsection (a)(1)(C) shall take effect at the

5 time the species is listed pursuant to section 4(c), if

6 the permittee is in full compliance with the terms and

7 conditions of the agreement.

8 ‘‘(4) ASSURANCES.—A person who has entered

9 into a candidate conservation agreement under this

10 subsection, and is in compliance with the agreement,

11 may not be required to undertake any additional

12 measures for species covered by such agreement if the

13 measures would require the payment of additional

14 money, or the adoption of additional use, develop15 ment, or management restrictions on any land, wa16 ters, or water-related rights that would otherwise be

17 available under the terms of the agreement without

18 the consent of the person entering into the agreement.

19 The Secretary and the person entering into a can20 didate conservation agreement, by the terms of the

21 agreement, shall identify—

22 ‘‘(A) other modifications to the agreement;

23 or

24 ‘‘(B) other additional measures;
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1 if any, that the Secretary may require under extraor2 dinary circumstances.’’.

3 (e) PUBLIC NOTICE.—Section 10(c) (16 U.S.C.

4 1539(c)) is amended—

5 (1) by striking ‘‘thirty’’ each place that it ap6 pears and inserting ‘‘60’’; and

7 (2) by inserting before the final sentence the fol8 lowing: ‘‘The Secretary may, with approval of the ap9 plicant, provide an opportunity, as early as prac10 ticable, for public participation in the development of

11 a multiple species conservation plan and permit ap12 plication. If a multiple species conservation plan and

13 permit application have been developed without an

14 opportunity for public participation, the Secretary

15 shall extend the public comment period for an addi16 tional 30 days for interested parties to submit written

17 data, views, or arguments on the plan and applica18 tion.’’.

19 (f) SAFE HARBOR AGREEMENTS.—Section 10 (16

20 U.S.C. 1539) (as amended by subsection (d)(2)) is amended

21 by adding at the end the following:

22 ‘‘(l) SAFE HARBOR AGREEMENTS.—

23 ‘‘(1) AGREEMENTS.—

24 ‘‘(A) IN GENERAL.—The Secretary may

25 enter into agreements with non-Federal persons
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1 to benefit the conservation of endangered species

2 or threatened species by creating, restoring, or

3 improving habitat or by maintaining currently

4 unoccupied habitat for endangered species or

5 threatened species. Under an agreement, the Sec6 retary shall permit the person to take endangered

7 species or threatened species included under the

8 agreement on lands or waters that are subject to

9 the agreement if the taking is incidental to, and

10 not the purpose of, carrying out of an otherwise

11 lawful activity, except that the Secretary may

12 not permit through an agreement any incidental

13 taking below the baseline requirement specified

14 pursuant to subparagraph (B).

15 ‘‘(B) BASELINE.—For each agreement

16 under this subsection, the Secretary shall estab17 lish a baseline requirement that is mutually

18 agreed on by the applicant and the Secretary at

19 the time of the agreement that will, at a mini20 mum, maintain existing conditions for the spe21 cies covered by the agreement on lands and wa22 ters that are subject to the agreement. The base23 line may be expressed in terms of the abundance

24 or distribution of endangered or threatened spe-
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1 cies, quantity or quality of habitat, or such other

2 indicators as appropriate.

3 ‘‘(2) STANDARDS AND GUIDELINES.—The Sec4 retary shall issue standards and guidelines for the de5 velopment and approval of safe harbor agreements in

6 accordance with this subsection.

7 ‘‘(3) FINANCIAL ASSISTANCE.—

8 ‘‘(A) IN GENERAL.—In cooperation with the

9 States and subject to the availability of appro10 priations under section 15(d), the Secretary may

11 provide a grant of up to $10,000 to any individ12 ual private landowner to assist the landowner in

13 carrying out a safe harbor agreement under this

14 subsection.

15 ‘‘(B) PROHIBITION ON ASSISTANCE FOR RE16 QUIRED ACTIVITIES.—The Secretary may not

17 provide assistance under this paragraph for any

18 action that is required by a permit issued under

19 this Act or that is otherwise required under this

20 Act or other Federal law.

21 ‘‘(C) OTHER PAYMENTS.—A grant provided

22 to an individual private landowner under this

23 paragraph shall be in addition to, and not affect,

24 the total amount of payments that the landowner

25 is otherwise eligible to receive under the con-
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1 servation reserve program established under sub2 chapter B of chapter 1 of subtitle D of title XII

3 of the Food Security Act of 1985 (16 U.S.C.

4 3831 et seq.), the wetlands reserve program es5 tablished under subchapter C of that chapter (16

6 U.S.C. 3837 et seq.), or the Wildlife Habitat In7 centives Program established under section 387

8 of the Federal Agriculture Improvement and Re9 form Act of 1996 (16 U.S.C. 3836a).’’.

10 (g) HABITAT RESERVE AGREEMENTS.—Section 10 (16

11 U.S.C. 1539) (as amended by subsection (f)) is amended

12 by adding at the end the following:

13 ‘‘(m) HABITAT RESERVE AGREEMENTS.—

14 ‘‘(1) PROGRAM.—The Secretary shall establish a

15 habitat reserve program to be implemented through

16 contracts or easements of a mutually agreed on dura17 tion to assist non-Federal property owners to preserve

18 and manage suitable habitat for endangered species

19 and threatened species.

20 ‘‘(2) AGREEMENTS.—The Secretary may enter

21 into a habitat reserve agreement with a non-Federal

22 property owner to protect, manage, or enhance suit23 able habitat on private property for the benefit of en24 dangered species or threatened species. Under an

25 agreement, the Secretary shall make payments in an
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1 agreed on amount to the property owner for carrying

2 out the terms of the habitat reserve agreement, if the

3 activities undertaken pursuant to the agreement are

4 not otherwise required by this Act.

5 ‘‘(3) STANDARDS AND GUIDELINES.—The Sec6 retary shall issue standards and guidelines for the de7 velopment and approval of habitat reserve agreements

8 in accordance with this subsection. Agreements shall,

9 at a minimum, specify the management measures, if

10 any, that the property owner will implement for the

11 benefit of endangered species or threatened species, the

12 conditions under which the property may be used, the

13 nature and schedule for any payments agreed on by

14 the parties to the agreement, and the duration of the

15 agreement.

16 ‘‘(4) PAYMENTS.—Any payment received by a

17 property owner under a habitat reserve agreement

18 shall be in addition to and shall not affect the total

19 amount of payments that the property owner is other20 wise entitled to receive under the Agricultural Market

21 Transition Act (7 U.S.C. 7201 et seq.) or the Agricul22 tural Act of 1949 (7 U.S.C. 1421 et seq.).

23 ‘‘(5) AUTHORIZATION OF APPROPRIATIONS.—

24 There are authorized to be appropriated to the Sec25 retary of the Interior $27,500,000 and the Secretary
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1 of Commerce $13,333,333 for each of fiscal years 1998

2 through 2003 to assist non-Federal property owners to

3 carry out the terms of habitat reserve programs under

4 this subsection.’’.

5 (h) HABITAT CONSERVATION PLANNING LOAN PRO6 GRAM.—Section 10(a) (16 U.S.C. 1539(a)) (as amended by

7 subsection (c)) is amended by adding at the end the follow8 ing:

9 ‘‘(7) HABITAT CONSERVATION PLANNING LOAN

10 PROGRAM.—

11 ‘‘(A) ESTABLISHMENT.—There is estab12 lished a ‘Habitat Conservation Planning Loan

13 Program’ (referred to in this paragraph as the

14 ‘Program’) under which the Secretary may make

15 no-interest loans to assist in the development of

16 a conservation plan under this section.

17 ‘‘(B) ELIGIBILITY.—Any State, county, mu18 nicipality, or other political subdivision of a

19 State shall be eligible to receive a loan under the

20 Program.

21 ‘‘(C) LOAN LIMITS.—The amount of any

22 loan may not exceed the total financial contribu23 tion of the other parties participating in the de24 velopment of the plan.
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1 ‘‘(D) CRITERIA.—In determining whether to

2 make a loan, the Secretary shall consider—

3 ‘‘(i) the number of species covered by

4 the plan;

5 ‘‘(ii) the extent to which there is a

6 commitment to participate in the planning

7 process from a diversity of interests (includ8 ing local governmental, business, environ9 mental, and landowner interests);

10 ‘‘(iii) the likely benefits of the plan;

11 and

12 ‘‘(iv) such other factors as the Sec13 retary considers appropriate.

14 ‘‘(E) TERM OF THE LOAN.—

15 ‘‘(i) IN GENERAL.—Except as provided

16 in clause (ii), a loan made under this para17 graph shall be for a term of ten years.

18 ‘‘(ii) ADVANCED REPAYMENTS.—If no

19 conservation plan is developed within three

20 years after the date of the loan, the loan

21 shall be for a term of four years. If no per22 mit is issued under paragraph (1)(B) with

23 respect to the conservation plan within four

24 years after the date of the loan, the loan

25 shall be for a term of five years.’’.
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1 (i) EFFECT ON PERMITS AND PROPOSED PLANS.—No

2 amendment made by this section requires the modification

3 of—

4 (1) a permit issued under section 10 of the En5 dangered Species Act of 1973 (16 U.S.C. 1539); or

6 (2) a conservation plan submitted for approval

7 pursuant to such section;

8 prior to the date of enactment of this Act.

9 (j) RULEMAKING.—Not later than 1 year after the date

10 of enactment of this Act, the Secretary of the Interior and

11 the Secretary of Commerce shall, after consultation with the

12 States and notice and opportunity for public comment,

13 publish final regulations implementing the provisions of

14 section 10(a) of the Endangered Species Act of 1973 (16

15 U.S.C. 1539(a)), as amended by this section.

16 (k) NAS REPORT.—Not later than two years after the

17 date of enactment of this Act, the Secretary of the Interior

18 and the Secretary of Commerce shall enter into appropriate

19 arrangements with the National Academy of Sciences to

20 conduct a review of and prepare a report on the develop21 ment and implementation of conservation plans under sec22 tion 10(a) of the Endangered Species Act of 1973 (16 U.S.C.

23 1539(a)). The report shall assess the extent to which those

24 plans comply with the requirements of that Act, the role

25 of multiple species conservation plans in preventing the
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1 need to list species covered by those plans, and the relation2 ship of conservation plans for listed species to implementa3 tion of recovery plans. The report shall be transmitted to

4 the Congress not later than five years after the date of enact5 ment of this Act.

6 (l) SCIENTIFIC PERMITS.—Section 10(d) (16 U.S.C.

7 1539(d)) is amended—

8 (1) by striking ‘‘POLICY.—The’’ and inserting

9 ‘‘POLICY.—

10 ‘‘(1) IN GENERAL.—The’’; and

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

12 ‘‘(2) SCIENTIFIC PERMITS.—In granting permits

13 for scientific purposes or to enhance the propagation

14 or survival of an endangered species or a threatened

15 species listed under section 4(c), the Secretary may

16 authorize a single transaction, a series of trans17 actions, or a number of activities over a specific pe18 riod of time. In issuing or modifying such a permit,

19 the Secretary shall take into consideration the exper20 tise and facilities of the permit applicant and, con21 sistent with the conservation of the affected species,

22 maximize the efficiency of the permitting process.’’.

23 (m) HABITAT CONSERVATION INSURANCE PRO24 GRAM.—Section 10 (16 U.S.C. 1539) (as amended by sub25 section (g)) is amended by adding at the end the following:
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1 ‘‘(n) HABITAT CONSERVATION INSURANCE PRO2 GRAM.—

3 ‘‘(1) ESTABLISHMENT.—There is established a

4 Habitat Conservation Insurance Program.

5 ‘‘(2) USE.—The Program shall be used to pay

6 the cost of additional mitigation measures not other7 wise required under an existing conservation plan

8 under subsection (a) or a candidate conservation

9 agreement under subsection (k) to minimize or miti10 gate adverse effects to a species covered by the plan

11 or agreement, to the extent that the adverse effects

12 were not anticipated and addressed at the time the

13 plan or agreement was approved by the Secretary.

14 ‘‘(3) GRANTS.—In carrying out the Program, the

15 Secretary may make grants to any person who is a

16 party to a conservation plan under subsection (a) or

17 a candidate conservation agreement under subsection

18 (k).’’.

19 SEC. 6. ENFORCEMENT.

20 (a) ENFORCEMENT FOR INCIDENTAL TAKING.—Sec21 tion 11 (16 U.S.C. 1540) is amended by adding after sub22 section (g) the following new subsection and redesignating

23 the subsequent subsection accordingly:

24 ‘‘(h) INCIDENTAL TAKING.—In any action under sub25 section (a), (b), or (e)(6) against any person for an alleged
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1 taking incidental to the carrying out of an otherwise lawful

2 activity, the Secretary or the Attorney General must estab3 lish, using pertinent evidence based on scientifically valid

4 principles, that the acts of such person have caused, or will

5 cause, the taking, of—

6 ‘‘(1) an endangered species; or

7 ‘‘(2) a threatened species the taking of which is

8 prohibited pursuant to a regulation issued under sec9 tion 4(d).’’.

10 (b) CITIZEN SUIT FOR INCIDENTAL TAKING.—Section

11 11(g) (16 U.S.C. 1540(g)) is amended by adding the follow12 ing new paragraph after paragraph (2) and redesignating

13 the subsequent paragraphs accordingly:

14 ‘‘(3) INCIDENTAL TAKING.—In any action under

15 this subsection against any person for an alleged tak16 ing incidental to the carrying out of an otherwise

17 lawful activity, the person commencing the action

18 must establish, using pertinent evidence based on sci19 entifically valid principles, that the acts of the person

20 alleged to be in violation of section 9(a)(1) have

21 caused, or will cause, the taking, of—

22 ‘‘(A) an endangered species; or

23 ‘‘(B) a threatened species the taking of

24 which is prohibited pursuant to a regulation is25 sued under section 4(d).’’.
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1 SEC. 7. EDUCATION AND TECHNICAL ASSISTANCE.

2 (a) IN GENERAL.—Section 13 is amended to read as

3 follows:

4 ‘‘PRIVATE PROPERTY OWNERS EDUCATION AND TECHNICAL

5 ASSISTANCE PROGRAM

6 ‘‘SEC. 13. (a) IN GENERAL.—In cooperation with the

7 States and other Federal agencies, the Secretary shall de8 velop and implement a private property owners education

9 and technical assistance program to—

10 ‘‘(1) inform the public about this Act;

11 ‘‘(2) respond to requests for technical assistance

12 from the private property owners interested in con13 serving species listed or proposed for listing under

14 section 4(c)(1) and candidate species on the property

15 of the property owners; and

16 ‘‘(3) recognize exemplary efforts to conserve spe17 cies on private land.

18 ‘‘(b) ELEMENTS OF THE PROGRAM.—Under the pro19 gram, the Secretary shall—

20 ‘‘(1) publish educational materials and conduct

21 workshops for private property owners and other

22 members of the public on the role of this Act in con23 serving endangered species and threatened species, the

24 principal mechanisms of this Act for achieving species

25 recovery, and potential sources of technical and finan26 cial assistance;
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1 ‘‘(2) assist field offices in providing timely ad2 vice to property owners on how to comply with this

3 Act;

4 ‘‘(3) provide technical assistance to State and

5 local governments and private property owners inter6 ested in developing and implementing recovery plan

7 implementation agreements, conservation plans, and

8 safe harbor agreements;

9 ‘‘(4) serve as a focal point for questions, requests,

10 and suggestions from property owners and local gov11 ernments concerning policies and actions of the Sec12 retary in the implementation of this Act;

13 ‘‘(5) provide training for Federal personnel re14 sponsible for implementing this Act on concerns of

15 private property owners, to avoid unnecessary con16 flicts, and improving implementation of this Act on

17 private property; and

18 ‘‘(6) nominate for national recognition by the

19 Secretary property owners that are exemplary man20 agers of land for the benefit of species listed or pro21 posed for listing under section 4(c)(1) or candidate

22 species.’’.

23 (b) CONFORMING AMENDMENT.—The table of contents

24 in the first section (16 U.S.C. prec. 1531) is amended by
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1 striking the item related to section 13 and inserting the fol2 lowing:

‘‘Sec. 13. Private property owners education and technical assistance program.’’.

3 (c) EFFECT ON PRIOR AMENDMENTS.—Nothing in this

4 section or the amendments made by this section affects the

5 amendments made by section 13 of the Endangered Species

6 Act of 1973 (87 Stat. 902), as in effect on the day before

7 the date of enactment of this Act.

8 SEC. 8. AUTHORIZATION OF APPROPRIATIONS.

9 (a) IN GENERAL.—Section 15(a) (16 U.S.C. 1542(a))

10 is amended—

11 (1) in paragraph (1), by striking ‘‘and

12 $41,500,000 for fiscal year 1992’’ and inserting

13 ‘‘$41,500,000 for fiscal year 1992, $90,000,000 for fis14 cal year 1998, $120,000,000 for fiscal year 1999,

15 $140,000,000 for fiscal year 2000, $160,000,000 for

16 fiscal year 2001, $165,000,000 for fiscal year 2002,

17 and $165,000,000 for fiscal year 2003’’;

18 (2) in paragraph (2)—

19 (A) by striking ‘‘and $6,750,000’’ and in20 serting ‘‘$6,750,000’’; and

21 (B) by inserting after ‘‘and 1992’’ the fol22 lowing: ‘‘, $35,000,000 for fiscal year 1998,

23 $50,000,000 for fiscal year 1999, $60,000,000 for

24 fiscal year 2000, $65,000,000 for fiscal year
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1 2001, $65,000,000 for fiscal year 2002, and

2 $70,000,000 for fiscal year 2003’’; and

3 (3) in paragraph (3)—

4 (A) by striking ‘‘and $2,600,000’’ and in5 serting $2,600,000’’; and

6 (B) by inserting ‘‘, and $4,000,000 for each

7 of fiscal years 1998 through 2003’’ after ‘‘and

8 1992’’.

9 (b) EXEMPTIONS FROM ACT.—Section 15(b) (16

10 U.S.C. 1542(b)) is amended by inserting ‘‘and $625,000 for

11 each of fiscal years 1998 through 2003’’ after ‘‘and 1992’’.

12 (c) CONVENTION IMPLEMENTATION.—Section 15(c) (16

13 U.S.C. 1542(c)) is amended—

14 (1) by striking ‘‘and $500,000’’ and inserting

15 ‘‘$500,000,’’; and

16 (2) by inserting ‘‘and $1,000,000 for each fiscal

17 year 1998 through 2003’’ after ‘‘and 1992,’’.

18 (d) ADDITIONAL AUTHORIZATIONS.—Section 15 (16

19 U.S.C. 1542) is amended by adding at the end the following:

20 ‘‘(d) FINANCIAL ASSISTANCE FOR SAFE HARBOR

21 AGREEMENTS.—There are authorized to be appropriated to

22 the Secretary of the Interior $10,000,000 and the Secretary

23 of Commerce $5,000,000 for each of fiscal years 1998

24 through 2003 to carry out section 10(l).
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1 ‘‘(e) HABITAT CONSERVATION PLANNING LOAN PRO2 GRAM.—There are authorized to be appropriated to the

3 Habitat Conservation Planning Loan Program established

4 by section 10(a)(7) $10,000,000 for each of fiscal years 1998

5 through 2000 and $5,000,000 for each of fiscal years 2001

6 and 2002 to assist in the development of conservation plans.

7 ‘‘(f) FINANCIAL ASSISTANCE FOR RECOVERY PLAN IM8 PLEMENTATION.—There are authorized to be appropriated

9 to the Secretary of the Interior $30,000,000 and the Sec10 retary of Commerce $15,000,000 for each of the fiscal years

11 1998 through 2003 to carry out section 5(l)(4).

12 ‘‘(g) HABITAT CONSERVATION INSURANCE PRO13 GRAM.—

14 ‘‘(1) IN GENERAL.—Of the amounts appro15 priated for a fiscal year under subsections (d), (e),

16 and (f), five percent shall be available for the Habitat

17 Conservation Insurance Program established under

18 section 10(n).

19 ‘‘(2) LIMITATION.—If, at the end of any fiscal

20 year, the balance allocated for the Habitat Conserva21 tion Insurance Program exceeds $10,000,000, para22 graph (1) shall not apply during the subsequent fiscal

23 year.

24 ‘‘(h) AVAILABILITY.—Amounts made available under

25 this section shall remain available until expended.
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1 ‘‘(i) LIMITATION ON USE OF FUNDS.—Of the funds

2 made available to carry out section 5 for any fiscal year,

3 not less than $32,000,000 shall be available to the Secretary

4 of the Interior and not less than $13,500,000 to the Sec5 retary of Commerce to implement actions to recover listed

6 species. Of the funds made available to the Secretary of the

7 Interior and the Secretary of Commerce in each fiscal year

8 to list species, the Secretary of the Interior and the Sec9 retary of Commerce shall use not less than ten percent of

10 those funds in each fiscal year for delisting species. If any

11 of the funds made available by the previous sentence are

12 not needed in that fiscal year for delisting eligible species,

13 those funds shall be available for listing.

14 ‘‘(j) ACCOUNTING AND STRATEGIC MANAGEMENT

15 PLAN.—Not later than November 30, 1998, the Secretary

16 of the Interior and the Secretary of Commerce shall each

17 submit to the Committee on Environment and Public Works

18 of the Senate and the Committee on Resources of the House

19 of Representatives—

20 ‘‘(1) an accounting for fiscal year 1998 of funds

21 expended by the Department of the Interior and the

22 Department of Commerce, respectively, to carry out

23 the Department’s functions and responsibilities under

24 this Act; and
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1 ‘‘(2) a management plan describing the projected

2 future uses by the respective Department of authorized

3 funds for fiscal years 1999 through 2003.’’.

4 (e) ASSISTANCE TO STATES FOR CONSERVATION AC5 TIVITIES.—Section 6(i) (16 U.S.C. 1535(i)) is amended by

6 adding at the end the following:

7 ‘‘(3) ASSISTANCE TO STATES FOR CONSERVATION

8 ACTIVITIES.—There are authorized to be appropriated

9 to the Secretary such sums as are necessary for each

10 of fiscal years 1998 through 2003 to provide financial

11 assistance to State agencies to carry out conservation

12 activities under other sections of this Act, including

13 the provision of technical assistance for the develop14 ment and implementation of recovery plans.’’.

15 SEC. 9. OTHER AMENDMENTS.

16 (a) DEFINITIONS.—

17 (1) CANDIDATE SPECIES.—Subsection (a) of sec18 tion 3 (16 U.S.C. 1532) (as amended by section

19 2(a)(2)) is amended by redesignating paragraphs (2)

20 through (10) as paragraphs (3) through (11), respec21 tively, and inserting the following after paragraph

22 (1):

23 ‘‘(2) CANDIDATE SPECIES.—The term ‘candidate

24 species’ means a species for which the Secretary has

25 on file sufficient information on biological vulner-
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1 ability and threats to support a proposal to list the

2 species as an endangered species or a threatened spe3 cies, but for which listing is precluded because of

4 pending proposals to list species that are of a higher

5 priority. This paragraph shall not apply to any spe6 cies defined as a candidate species by the Secretary

7 of Commerce prior to the date of enactment of this

8 sentence.’’.

9 (2) IN COOPERATION WITH THE STATES.—Sub10 section (a) of section 3 (16 U.S.C. 1532) (as amended

11 by sections 2(a)(2) and 4(a)(1) and this subsection)

12 is amended by inserting the following after the para13 graph defining the term ‘‘import’’ and redesignating

14 the subsequent paragraphs accordingly:

15 ‘‘(12) IN COOPERATION WITH THE STATES.—The

16 term ‘in cooperation with the States’ means a process

17 under which—

18 ‘‘(A) the State agency in each of the affected

19 States, or the representative of the State agency,

20 is given an opportunity to participate in a

21 meaningful and timely manner in the develop22 ment of the standards, guidelines, and regula23 tions to implement the applicable provisions of

24 this Act; and
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1 ‘‘(B) the Secretary carefully considers all

2 substantive concerns raised by the State agency,

3 or the representative of the State agency, and, to

4 the maximum extent practicable consistent with

5 this Act, incorporates their suggestions and rec6 ommendations, while retaining final decision

7 making authority.’’.

8 (3) RURAL AREA.—Subsection (a) of section 3

9 (16 U.S.C. 1532) (as amended by sections 2(a)(2) and

10 4(a)(1) and this subsection) is amended by inserting

11 the following after the paragraph defining the term

12 ‘‘reasonable and prudent alternatives’’ and redesig13 nating the subsequent paragraphs accordingly:

14 ‘‘(17) RURAL AREA.—The term ‘rural area’

15 means a county or unincorporated area that has no

16 city or town that has a population of more than

17 10,000 inhabitants.’’.

18 (4) COMMONWEALTH OF THE NORTHERN MARI19 ANA ISLANDS.—Subsection (a)(20) of section 3 (16

20 U.S.C. 1532) (as amended by sections 2(a)(2) and

21 4(a)(1) and this subsection) is amended by striking

22 ‘‘Trust Territories of the Pacific Islands’’ and insert23 ing ‘‘Commonwealth of the Northern Mariana Is24 lands’’.
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1 (5) TERRITORIAL SEA.—Subsection (a) of section

2 3 (16 U.S.C. 1532) (as amended by sections 2(a)(2)

3 and 4(a)(1) and this subsection) is amended by in4 serting the following after the paragraph defining the

5 term ‘‘take’’ and redesignating the subsequent para6 graphs accordingly:

7 ‘‘(23) TERRITORIAL SEA.—The term ‘territorial

8 sea’ means the 12-nautical-mile maritime zone set

9 forth in Presidential Proclamation 5928, dated De10 cember 27, 1988.’’.

11 (b) FINDINGS, PURPOSES, AND POLICY.—

12 (1) COMMERCIAL VALUE.—Section 2(a)(3) (16

13 U.S.C. 1531(a)(3)) is amended by inserting ‘‘commer14 cial,’’ after ‘‘recreational,’’.

15 (2) AGENCY COORDINATION.—Section 2(c) (16

16 U.S.C. 1531(c)) is amended by adding at the end the

17 following:

18 ‘‘(3) AGENCY COORDINATION.—Federal agencies

19 are encouraged to coordinate and collaborate to fur20 ther the conservation of endangered species and

21 threatened species.’’.

22 (c) NO TAKING AGREEMENTS.—Section 9 (16 U.S.C.

23 1538) is amended by adding at the end the following:

24 ‘‘(h) NO TAKING AGREEMENTS.—The Secretary and a

25 non-Federal property owner may, at the request of the prop-
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1 erty owner, enter into an agreement identifying activities

2 of the property owner that, based on a determination of the

3 Secretary, will not result in a violation of the prohibitions

4 of paragraphs (1)(B), (1)(C), and (2)(B) of subsection (a).

5 The Secretary shall respond to a request for an agreement

6 submitted by a property owner within 90 days after receipt.

7 Nothing in this subsection prevents the Secretary, the Attor8 ney General, or any other person from commencing an en9 forcement action under section 11.’’.

10 (d) CONFORMING AMENDMENTS.—

11 (1) SECTION HEADING.—The section heading of

12 section 10 (16 U.S.C. 1539) is amended to read as

13 follows:

14 ‘‘CONSERVATION MEASURES AND EXCEPTIONS’’.

15 (2) TABLE OF CONTENTS.—The table of contents

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

17 with respect to the item relating to section 10 to read

18 as follows:

‘‘Sec. 10. Conservation measures and exceptions.’’.

Amend the title so as to read: ‘‘A bill to reauthorize

the Endangered Species Act of 1973.’’.