II

105TH CONGRESS

1ST SESSION S. 1180

To reauthorize the Endangered Species Act.

IN THE SENATE OF THE UNITED STATES

SEPTEMBER 16, 1997

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

introduced the following bill; which was read twice and referred to the

Committee on Environment and Public Works

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’’.

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

7 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.
2

S 1180 IS

1 (c) REFERENCES TO ENDANGERED SPECIES ACT.—

2 Except as otherwise expressly provided, whenever in this

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

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

5 the reference shall be considered to be made to that sec6 tion or provision of the Endangered Species Act (16

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

8 SEC. 2. LISTING AND DELISTING SPECIES.

9 (a) BEST SCIENTIFIC AND COMMERCIAL DATA

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

11 amended—

12 (1) by striking the title and inserting the fol13 lowing:

14 ‘‘DEFINITIONS AND GENERAL PROVISIONS’’;

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

16 Act—’’ and inserting the following:

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

18 and

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

21 ‘‘(b) GENERAL PROVISIONS.—

22 ‘‘(1) BEST SCIENTIFIC AND COMMERCIAL DATA

23 AVAILABLE.—Where this Act requires the Secretary

24 to use the best scientific and commercial data avail25 able, the Secretary shall when evaluating comparable

26 data give greater weight to scientific or commercial
3

S 1180 IS

1 data that is empirical, field-tested or peer-re2 viewed.’’.

3 (b) CONFORMING AMENDMENT.—The table of con4 tents in the first section (16 U.S.C. 1531) is amended by

5 striking the item relating to section 3 and inserting the

6 following:

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

7 (c) LISTING AND DELISTING.—

8 (1) FACTORS CONSIDERED FOR LISTING.—Sec9 tion 4(a)(1) is amended—

10 (A) in subparagraph (C) by inserting ‘‘in11 troduced species, competition,’’ prior to ‘‘dis12 ease or predation’’; and

13 (B) in subparagraph (D) by inserting

14 ‘‘Federal, State and local government and inter15 national’’ prior to ‘‘regulatory mechanisms’’.

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

17 amended by striking paragraph (3).

18 (3) DELISTING.—Section 4(b)(2) is amended to

19 read as follows:

20 ‘‘(2) DELISTING.—The Secretary shall, in ac21 cordance with section 5 and upon a determination

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

23 been met, initiate the procedures for determining, in

24 accordance with subsection (a)(1), whether to re-
4

S 1180 IS

1 move a species form a list published under sub2 section (c).’’

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

4 is amended to read as follows:

5 ‘‘(3) RESPONSE TO PETITIONS.—

6 ‘‘(A) ACTION MAY BE WARRANTED.—

7 ‘‘(i) IN GENERAL.—To the maximum

8 extent practicable, within 90 days after re9 ceiving the petition of an interested person

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

11 States Code, to—

12 ‘‘(I) add a species to,

13 ‘‘(II) remove a species from, or

14 ‘‘(III) change a species status

15 from a previous determination with

16 respect to

17 either of the lists published under sub18 section (c), the Secretary shall make a

19 finding as to whether the petition presents

20 substantial scientific or commercial infor21 mation indicating that the petitioned ac22 tion may be warranted. If a petition is

23 found to present such information, the

24 Secretary shall promptly commence a re25 view of the status of the species concerned
5

S 1180 IS

1 the Secretary shall promptly publish each

2 finding made under this subparagraph in

3 the Federal Register.

4 ‘‘(ii) MINIMUM DOCUMENTATION.—A

5 finding that the petition presents the infor6 mation described in clause (i) shall not be

7 made unless the petition provides—

8 ‘‘(I) documentation that the fish,

9 wildlife, or plant that is the subject of

10 the petition is a species as defined in

11 section 3;

12 ‘‘(II) a description of the avail13 able data on the historical and current

14 range and distribution of the species;

15 ‘‘(III) an appraisal of the avail16 able data on the status and trends of

17 populations of the species;

18 ‘‘(IV) an appraisal of the avail19 able data on the threats to the spe20 cies; and

21 ‘‘(V) an identification of the in22 formation contained or referred to in

23 the petition that has been peer-re24 viewed or field-tested.
6

S 1180 IS

1 ‘‘(iii) NOTIFICATION TO THE

2 STATES.—

3 ‘‘(I) PETITIONED ACTIONS.—If

4 the petition is found to present the in5 formation described in clause (i), the

6 Secretary shall notify and provide a

7 copy of the petition to the State agen8 cy in each State in which the species

9 is believed to occur and solicit the as10 sessment of the agency, to be submit11 ted to the Secretary within 90 days of

12 notification, as to whether the peti13 tioned action is warranted.

14 ‘‘(II) OTHER ACTIONS.—If the

15 Secretary has not received a petition

16 for a species and the Secretary is con17 sidering proposing to list such species

18 as either threatened or endangered

19 under subsection (a), the Secretary

20 shall notify the State agency in each

21 State in which the species is believed

22 to occur and solicit the assessment of

23 the agency, to be submitted to the

24 Secretary within 90 days of the notifi25 cation, as to whether the listing would
7

S 1180 IS

1 be in accordance with the provisions

2 of subsection (a).

3 ‘‘(III) CONSIDERATION OF STATE

4 ASSESSMENTS.—Prior to publication

5 of a determination that a petitioned

6 action is warranted or a proposed reg7 ulation, the Secretary shall consider

8 any State assessments submitted

9 within the comment period established

10 by subclause (I) or (II).

11 ‘‘(B) PETITION TO CHANGE STATUS OR

12 DELIST.—A petition may be submitted to the

13 Secretary under subparagraph (A) to change

14 the status of or to remove a species from either

15 of the lists published under subsection (c) in ac16 cordance with subsection (a)(1), if—

17 ‘‘(i) the current listing is no longer

18 appropriate because of a change in the fac19 tors identified in subsection (a)(1); or

20 ‘‘(ii) with respect to a petition to re21 move a species from either of the lists—

22 ‘‘(I) new data or a reinterpreta23 tion of prior data indicates that re24 moval is appropriate;

25 ‘‘(II) the species is extinct; or
8

S 1180 IS

1 ‘‘(III) the recovery goals estab2 lished

3 for the species in a recovery plan approved

4 under section 5(h) have been achieved.

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

6 after receiving a petition that is found under

7 subparagraph (A)(i) to present substantial in8 formation indicating that the petitioned action

9 may be warranted, the Secretary shall make

10 one of the following findings:

11 ‘‘(i) NOT WARRANTED.—The peti12 tioned action is not warranted, in which

13 case the Secretary shall promptly publish

14 the finding in the Federal Register.

15 ‘‘(ii) WARRANTED.—The petitioned

16 action is warranted, in which case the Sec17 retary shall promptly publish in the Fed18 eral Register a general notice and the com19 plete text of a proposed regulation to im20 plement the action in accordance with

21 paragraph (5).

22 ‘‘(iii) WARRANTED BUT PRE23 CLUDED.—The petitioned action is war24 ranted, but that—
9

S 1180 IS

1 ‘‘(I) the immediate proposal and

2 timely promulgation of a final regula3 tion implementing the petitioned ac4 tion in accordance with paragraphs

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

6 proposals to determine whether any

7 species is an endangered species or a

8 threatened species; and

9 ‘‘(II) expeditious progress is

10 being made to add qualified species to

11 either of the lists published under

12 subsection (c) and to remove from the

13 lists species for which the protections

14 of the Act are no longer necessary,

15 in which case the Secretary shall promptly

16 publish the finding in the Federal Register,

17 together with a description and evaluation

18 of the reasons and data on which the find19 ing is based.

20 ‘‘(D) SUBSEQUENT DETERMINATION.—A

21 petition with respect to which a finding is made

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

23 a petition that is resubmitted to the Secretary

24 under subparagraph (A) on the date of such

25 finding and that presents substantial scientific
10

S 1180 IS

1 or commercial information that the petitioned

2 action may be warranted.

3 ‘‘(E) JUDICIAL REVIEW.—Any negative

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

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

6 (iii) shall be subject to judicial review.

7 ‘‘(F) MONITORING AND EMERGENCY LIST8 ING.—The Secretary shall implement a system

9 to monitor effectively the status of all species

10 with respect to which a finding is made under

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

12 use of the authority under paragraph (7) to

13 prevent a significant risk to the well-being of

14 any such species.’’.

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

16 is amended by—

17 (A) striking ‘‘(5) With respect to any regu18 lation’’ and inserting the following:

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

20 With respect to any regulation’’;

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

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

23 change in status’’;

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

25 ‘‘(a)(1),’’;
11

S 1180 IS

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

2 and inserting ‘‘in the Federal Register as pro3 vided by paragraph (8),’’; and

4 (E) striking subparagraph (E) and insert5 ing the following:

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

7 45 days after the date of publication of general

8 notice, promptly hold at least 1 public hearing

9 in each State that would be affected by the pro10 posed regulation (including at least 1 hearing in

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

12 Secretary may not be required to hold more

13 than 5 hearings under this clause.’’.

14 (7) FINAL REGULATIONS.—

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

16 amended to read as follows:

17 ‘‘(A) IN GENERAL.—Within the 1-year pe18 riod beginning on the date on which general no19 tice is published in accordance with paragraph

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

21 Secretary shall publish in the Federal Reg22 ister—

23 ‘‘(i) a final regulation to implement

24 the determination,
12

S 1180 IS

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

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

3 or

4 ‘‘(iii) notice that the proposed regula5 tion is being withdrawn under subpara6 graph (B)(ii), together with the finding on

7 which such withdrawal is based.’’.

8 (B) CONFORMING AMENDMENTS.—Section

9 4(b)(6) is amended—

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

11 ‘‘or revision’’;

12 (ii) in subparagraph (B)(iii), by strik13 ing ‘‘or revision concerned, a finding that

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

15 (iii) by striking subparagraph (C).

16 (8) PUBLICATION OF DATA AND INFORMA17 TION.—Section 4(b)(8) is amended by—

18 (A) striking ‘‘a summary by the Secretary

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

20 Secretary of the best scientific and commercial

21 data available’’;

22 (B) striking ‘‘is based and shall’’ and in23 serting ‘‘is based, shall’’; and

24 (C) striking ‘‘regulation; and if such regu25 lation designates or revises critical habitat, such
13

S 1180 IS

1 summary shall, to the maximum extent prac2 ticable, also include a brief description and eval3 uation of those activities (whether public or pri4 vate) which, in the opinion of the Secretary, if

5 undertaken may adversely modify such habitat,

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

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

8 degree that it is relevant and available, infor9 mation regarding the status of the affected spe10 cies, including current population, population

11 trends, current habitat, food sources, predators,

12 breeding habits, captive breeding efforts, gov13 ernmental and non-governmental conservation

14 efforts, or other pertinent information.’’.

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

16 by adding at the end the following:

17 ‘‘(9) ADDITIONAL DATA.—

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

19 identify and publish in the Federal Register

20 with the notice of a proposed regulation pursu21 ant to paragraph (5)(A)(i) a description of ad22 ditional scientific and commercial data that

23 would assist in the preparation of a recovery

24 plan and—
14

S 1180 IS

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

2 data to the Secretary; and

3 ‘‘(ii) describe the steps that the Sec4 retary plans to take for acquiring addi5 tional data.

6 ‘‘(B) RECOVERY PLANNING.—Data identi7 fied and obtained under subparagraph (A) shall

8 be considered by the recovery team and the Sec9 retary in the preparation of the recovery plan in

10 accordance with section 5.

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

12 this paragraph shall be deemed to waive or ex13 tend any deadline for publishing a final rule to

14 implement a determination (except for the ex15 tension provided in paragraph (6)(B)(i)) or any

16 deadline under section 5.

17 ‘‘(10) INDEPENDENT SCIENTIFIC REVIEW.—

18 ‘‘(A) IN GENERAL.—In the case of a regu19 lation proposed by the Secretary to implement

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

21 any species is an endangered species or a

22 threatened species or that any species currently

23 listed as an endangered species or a threatened

24 species should be removed from any list pub25 lished pursuant to subsection (c), the Secretary
15

S 1180 IS

1 shall provide for independent scientific peer re2 view by—

3 ‘‘(i) selecting independent referees

4 pursuant to subparagraph (B);

5 ‘‘(ii) requesting the referees to con6 duct the review, considering all relevant in7 formation, and make a recommendation to

8 the Secretary in accordance with this para9 graph not later than 150 days after the

10 general notice is published pursuant to

11 paragraph (5)(A)(i).

12 ‘‘(B) SELECTION OF REFEREES.—For

13 each independent scientific review to be con14 ducted pursuant to subparagraph (A), the Sec15 retary shall select 3 independent referees from

16 a list provided by the National Academy of

17 Sciences, who—

18 ‘‘(i) through publication of peer-re19 viewed scientific literature or other means,

20 have demonstrated scientific expertise on

21 the species or a similar species or other

22 scientific expertise relevant to the decision

23 of the Secretary under subsection (a);

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

25 person with, a conflict of interest with re-
16

S 1180 IS

1 spect to the determination that is the sub2 ject of the review; and

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

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

5 species under paragraph (3)(A)(i), the as6 sessment of a State for the species under

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

8 final determination of the Secretary.

9 ‘‘(C) FINAL DETERMINATION.—The Sec10 retary shall take one of the actions under para11 graph (6)(A) of this subsection not later than

12 1 year after the date of publication of the gen13 eral notice of the proposed determination. If the

14 referees have made a recommendation in ac15 cordance with clause (ii) of subparagraph (A),

16 the Secretary shall evaluate and consider the in17 formation that results from the independent sci18 entific review and include in the final deter19 mination—

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

21 independent scientific review; and

22 ‘‘(ii) in cases where the recommenda23 tion of a majority of the referees who con24 ducted the independent scientific review

25 under subparagraph (A) are not followed,
17

S 1180 IS

1 an explanation as to why the recommenda2 tion was not followed.

3 ‘‘(D) FEDERAL ADVISORY COMMITTEE

4 ACT.—The referees selected pursuant to this

5 paragraph shall not be subject to the Federal

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

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

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

9 habitat’’; and

10 (B) striking ‘‘determinations, designations

11 and revisions’’ and inserting ‘‘determinations’’.

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

13 is amended by—

14 (A) striking ‘‘Whenever any species is list15 ed’’ and inserting the following:

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

17 listed’’; and

18 (B) adding at the end the following:

19 ‘‘(2) NEW LISTINGS.—With respect to each spe20 cies listed as a threatened species after the date of

21 enactment of the Endangered Species Recovery Act

22 of 1997, regulations applicable under paragraph (1)

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

24 date on which the Secretary is required to approve
18

S 1180 IS

1 a recovery plan for the species pursuant to section

2 5(c) and may be subsequently revised.’’.

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

4 by striking subsection (f) and redesignating sub5 sections (g) through (i) as subsections (f) through

6 (h), respectively.

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

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

9 paragraph (4) by striking ‘‘subsection (f) of this sec10 tion’’ and inserting ‘‘section 5’’.

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

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

13 the end the following:

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

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

16 upon the recommendation of the Secretary, may withhold

17 or limit the availability of data requested to be released

18 pursuant to section 552 of title 5, United States Code,

19 if the data describes or identifies the location of an endan20 gered species, a threatened species, or a species that has

21 been proposed to be listed as threatened or endangered,

22 and release of the data would be likely to result in in23 creased take of the species.’’.
19

S 1180 IS

1 SEC. 3. ENHANCED RECOVERY PLANNING.

2 (a) REDESIGNATION.—Section 5 of the Act is redes3 ignated as section 5A.

4 (b) RECOVERY PLANS.—The Act is amended by in5 serting prior to section 5A (as redesignated by subsection

6 (a)) the following:

7 ‘‘RECOVERY PLANS

8 ‘‘SEC. 5. (a) IN GENERAL.—The Secretary, in co9 operation with the States, and on the basis of the best

10 scientific and commercial data available, shall develop and

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

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

13 species and threatened species that are indigenous to the

14 United States or in waters under the jurisdiction of the

15 United States in accordance with the requirements and

16 schedules described in this section, unless the Secretary

17 finds, after notice and opportunity for public comment,

18 that a plan will not promote the conservation of the spe19 cies or because an existing plan or strategy to conserve

20 the species already serves as the functional equivalent to

21 a recovery plan. The Secretary may authorize a State

22 agency to develop recovery plans pursuant to subsection

23 (m).

24 ‘‘(b) PRIORITIES.—To the maximum extent prac25 ticable, the Secretary, in developing recovery plans, shall
20

S 1180 IS

1 give priority, without regard to taxonomic classification,

2 to recovery plans that—

3 ‘‘(1) address significant and immediate threats

4 to the survival of an endangered species or a threat5 ened species, have the greatest likelihood of achiev6 ing recovery of the endangered species or the threat7 ened species, and will benefit species that are more

8 taxonomically distinct;

9 ‘‘(2) address multiple species including (A) en10 dangered species, (B) threatened species, or (C) spe11 cies that the Secretary has identified as candidates

12 or proposed for listing under section 4 and that are

13 dependent on the same habitat as the endangered

14 species or threatened species covered by the plan;

15 ‘‘(3) reduce conflicts with construction, develop16 ment projects, jobs or other economic activities; and

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

18 operations.

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

20 an endangered species or a threatened species after the

21 date of enactment of the Endangered Species Recovery

22 Act of 1997 for which the Secretary is required to develop

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

24 publish—
21

S 1180 IS

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

2 the publication under section 4 of the final regula3 tion containing the listing determination, a draft re4 covery plan; and

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

6 publication under section 4 of the final regulation

7 containing the listing determination, a final recovery

8 plan.

9 ‘‘(d) APPOINTMENT AND ROLE OF RECOVERY

10 TEAM.—

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

12 after the date of the publication under section 4 of

13 the final regulation containing the listing determina14 tion for a species, the Secretary, in cooperation with

15 the affected States, shall either appoint a recovery

16 team to develop a recovery plan for the species or

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

18 recovery team shall not be appointed. Recovery

19 teams shall include the Secretary and at least one

20 representative from the State agency of each of the

21 affected States choosing to participate and be broad22 ly representative of the constituencies with an inter23 est in the species and its recovery and in the eco24 nomic or social impacts of recovery including rep25 resentatives of Federal agencies, tribal governments,
22

S 1180 IS

1 local governments, academic institutions, private in2 dividuals and organizations, and commercial enter3 prises. The recovery team members shall be selected

4 for their knowledge of the species or for their exper5 tise in the elements of the recovery plan or its imple6 mentation.

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

8 recovery team shall prepare and submit to the Sec9 retary the draft recovery plan that shall include the

10 team’s recommended recovery measures and alter11 natives, if any, to meet the recovery goal under sub12 section (e)(1). The recovery team may also be called

13 upon by the Secretary to assist in the implementa14 tion, review and revision of recovery plans. The re15 covery team shall also advise the Secretary concern16 ing the designation of critical habitat, if any.

17 ‘‘(3) EXCEPTION.—

18 ‘‘(A) IN GENERAL.—Notwithstanding para19 graph (1), the Secretary may, after notice and

20 opportunity for public comment, establish cri21 teria to identify species for which the appoint22 ment of a recovery team would not be required

23 under this subsection, taking into account the

24 availability of resources for recovery planning,

25 the extent and complexity of the expected recov-
23

S 1180 IS

1 ery activities and the degree of scientific uncer2 tainty associated with the threats to the species.

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

4 elects not to appoint a recovery team, the Sec5 retary shall provide notice to each affected

6 State and shall provide the affected States the

7 opportunity to appoint a recovery team and de8 velop a recovery plan, in accordance with the

9 requirements and procedures set out in sub10 section (m).

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

12 that a recovery team is not appointed, the Sec13 retary shall perform all duties of the recovery

14 team required by this section.

15 ‘‘(4) TRAVEL EXPENSES.—The Secretary is au16 thorized to provide travel expenses (including per

17 diem in lieu of subsistence at the same level as au18 thorized by section 5703 of title 5, United States

19 Code) to recovery team members.

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

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

22 App.) shall not apply to the selection or activities of

23 a recovery team appointed pursuant to this sub24 section or subsection (m).
24

S 1180 IS

1 ‘‘(e) CONTENTS OF RECOVERY PLANS.—Each recov2 ery plan shall contain:

3 ‘‘(1) BIOLOGICAL RECOVERY GOAL.—

4 ‘‘(A) IN GENERAL.—Not later than 6

5 months after the appointment of a recovery

6 team under this section, those members of the

7 recovery team with relevant scientific expertise

8 shall establish and submit to the Secretary of

9 recommended biological recovery goal to con10 serve and recover the species that, when met,

11 would result in the determination, in accordance

12 with the provisions of section 4, that the species

13 be removed from the list. The goal shall be

14 based solely on the best scientific and commer15 cial data available. The recovery goal shall be

16 expressed as objective and measurable biological

17 criteria. When the goal is met, the Secretary

18 shall be required to initiate the procedures for

19 determining whether, in accordance with section

20 4(a)(1), to remove the species from the list.

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

22 shall promptly obtain independent scientific re23 view of the recommended biological recovery

24 goal.
25

S 1180 IS

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

2 shall incorporate recovery measures that will meet

3 the recovery goal.

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

5 may incorporate general and site-specific meas6 ures for the conservation and recovery of the

7 species such as—

8 ‘‘(i) actions to protect and restore

9 habitat;

10 ‘‘(ii) research;

11 ‘‘(iii) establishment of refugia, captive

12 breeding, releases of experimental popu13 lations;

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

15 Federal agencies, including actions that

16 use, to the maximum extent practicable,

17 Federal 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

22 conservation plans under section 10.

23 ‘‘(B) DRAFT RECOVERY PLANS.—

24 ‘‘(i) IN GENERAL.—In developing a

25 draft recovery plan, the recovery team or,
26

S 1180 IS

1 if there is no recovery team, the Secretary,

2 shall consider alternative measures and

3 recommend measures to meet the recovery

4 goal including the benchmarks. The recov5 ery measures shall achieve an appropriate

6 balance among the following factors—

7 ‘‘(I) the effectiveness of the

8 measures in meeting the recovery

9 goal;

10 ‘‘(II) the period of time in which

11 the recovery goal is likely to be

12 achieved, provided that the time pe13 riod within which the recovery goal is

14 to be achieved will not pose a signifi15 cant risk to recovery of the species;

16 and

17 ‘‘(III) the social and economic

18 impacts (both quantitative and quali19 tative) of the measures and their dis20 tribution across regions and indus21 tries.

22 ‘‘(ii) DESCRIPTION OF ALTER23 NATIVES.—The draft plan shall include a

24 description of any alternative recovery

25 measures considered, but not included in
27

S 1180 IS

1 the recommended measures, and an expla2 nation of how any such measures consid3 ered were assessed and the reasons for

4 their selection or rejection.

5 ‘‘(iii) DESCRIPTION OF ECONOMIC EF6 FECTS.—If the recommended recovery

7 measures identified in clause (i) would im8 pose significant costs on a municipality,

9 county, region or industry, the recovery

10 team shall prepare a description of the

11 overall economic effects on the public and

12 private sections including, as appropriate,

13 effects on employment public revenues, and

14 value of property as a result of the imple15 mentation of the recovery plan.

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

17 include objective, measurable benchmarks expected

18 to be achieved over the course of the recovery plan

19 to determine whether progress is being made to20 wards the recovery goal.

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

22 for an endangered species or a threatened species

23 shall identify Federal agencies that authorize, fund,

24 or carry out actions that are likely to have a signifi-
28

S 1180 IS

1 cant impact on the prospects for recovering the spe2 cies.

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 1 public hearing on

17 each draft recovery plan in each State to which the

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

19 affected rural area, if any), except that the Sec20 retary may not be required to hold more than 5

21 hearings under this paragraph.

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

23 developing and implementing recovery plans, may procure

24 the services of appropriate public and private agencies and

25 institutions and other qualified persons.
29

S 1180 IS

1 ‘‘(h) REVIEW AND SELECTION BY THE SEC2 RETARY.—

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

4 shall review each plan submitted by a recovery team,

5 including a recovery team appointed by a State pur6 suant to the authority of subsection (m), to deter7 mine whether the plan was developed in accordance

8 with the requirements of this section. If the Sec9 retary determines that the plan does not satisfy such

10 requirements, the Secretary shall notify the recovery

11 team and give the team an opportunity to address

12 the concerns of the Secretary and resubmit a plan

13 that satisfies the requirements of this section. After

14 notice and opportunity for public comment on the

15 recommendations of the recovery team, the Sec16 retary shall adopt a final recovery plan that is con17 sistent with the requirements of this section.

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

19 each final plan the Secretary shall select recovery

20 measures that meet the recovery goal and the bench21 marks. The recovery measures shall achieve an ap22 propriate balance among the factors in subclauses

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

24 ‘‘(3) MEASURES RECOMMENDED BY RECOVERY

25 TEAM.—If the Secretary selects measures other than
30

S 1180 IS

1 those recommended by the recovery team, the Sec2 retary shall publish with the final plan an expla3 nation of why the measures recommended by the re4 covery team were not selected for the final recovery

5 plan.

6 ‘‘(4) PUBLICATION OF NOTICE ON FINAL

7 PLANS.—The Secretary shall publish in the Federal

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

9 the final recovery plan, and include in the final re10 covery plan a response to significant comments that

11 the Secretary received on the draft recovery plan.

12 ‘‘(i) REVIEW.—

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

14 after date of enactment of Endangered Species re15 covery Act of 1997, the Secretary shall review recov16 ery plans published prior to such date.

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

18 review each recovery plan first approved or revised

19 under this section subsequent to the enactment of

20 the Endangered Species Recovery Act of 1997, not

21 later than 10 years after the date of approval or re22 vision of the plan and every 10 years thereafter.

23 ‘‘(j) REVISION OF RECOVERY PLANS.—Notwith24 standing any other provisions of this section,the Secretary

25 shall revise a recovery plan if the Secretary finds that sub-
31

S 1180 IS

1 stantial new information, that may include the failure to

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

3 best scientific and commercial data available, indicates

4 that the recovery goals contained in the recovery plan will

5 not achieve the conservation and recovery of the endan6 gered species or threatened species covered by the plan.

7 The Secretary shall convene a recovery team to develop

8 the revisions required by this subsection, unless the Sec9 retary has established an exception for the species pursu10 ant to subsection (d)(3).

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

12 be interpreted to require the modification of—

13 ‘‘(1) a recovery plan approved, or

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

15 comment has been initiated,

16 prior to the date of enactment of the Endangered Species

17 Recovery Act of 1997 until revised by the Secretary in

18 accordance with this section.

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

20 ‘‘(1) IMPLEMENTATION AGREEMENTS.—The

21 Secretary is authorized to enter into agreements

22 with Federal agencies, affected States, Indian tribes,

23 local governments, private landowners and organiza24 tions to implement specified conservation measures

25 identified by an approved recovery plan that promote
32

S 1180 IS

1 the recovery of the species on lands or waters owned

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

3 The Secretary may enter into such agreements, if

4 the Secretary, after notice and opportunity for pub5 lic comment, determines that—

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

7 legal authority and capability to carry out the

8 agreement;

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

10 revised as necessary on a regular basis by the

11 parties to the agreement to ensure that it meets

12 the requirements of this section; and

13 (C) the agreement establishes a mechanism

14 for the Secretary to monitor and evaluate im15 plementation of the agreement.

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

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

18 shall enter into an implementation agreement with

19 the Secretary not later than 2 years after the date

20 on which the Secretary approves the recovery plan

21 for the species. For purposes of satisfying this sec22 tion, the substantive provisions of the agreement

23 shall be within the sole discretion of the Secretary

24 and the head of the Federal agency entering into the

25 agreement.
33

S 1180 IS

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 recov7 ery of the species and for which the agreement

8 provides sufficient information on the nature,

9 scope and duration of the action to determine

10 the effect of the action on any endangered spe11 cies, threatened species, or critical habitat shall

12 not be subject to the requirements of section

13 7(a)(2) for that species, provided the action is

14 to be carried out during the term of such agree15 ment and the Federal agency is in compliance

16 with the agreement.

17 ‘‘(B) COMPREHENSIVE AGREEMENTS.—If

18 a non-Federal person proposes to include in an

19 implementation agreement a site-specific action

20 that the Secretary determines meets the re21 quirements of subparagraph (A) and that action

22 would require authorization or funding by one

23 or more Federal agencies, the agencies author24 izing or funding the action shall participate in

25 the development of the agreement and shall
34

S 1180 IS

1 identify, at that time, all measures for the spe2 cies that would be required under this Act as a

3 condition of the authorization or funding.

4 ‘‘(4) FINANCIAL ASSISTANCE—

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

6 the States and subject to the availability of ap7 propriations under section 13(f), the Secretary

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

9 individual private landowner to assist the land10 owner in carrying out a recovery plan imple11 mentation agreement under this subsection.

12 ‘‘(B) PROHIBITION ON ASSISTANCE FOR

13 REQUIRED ACTIVITIES.—The Secretary may not

14 provide assistance under this paragraph for any

15 action that is required by a permit issued under

16 this Act or that is otherwise required under this

17 Act or other Federal law.

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

19 to an individual private landowner under this

20 paragraph shall be in addition to, and not af21 fect, the total amount of payments the land22 owner is otherwise eligible to receive under the

23 Conservation Reserve Program (16 U.S.C. 3831

24 et seq.), the Wetlands Reserve Program (16
35

S 1180 IS

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

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

3 ‘‘(m) STATE AUTHORITY FOR RECOVERY PLAN4 NING.—

5 ‘‘(1) IN GENERAL.—At the request of the Gov6 ernor of a State, or the Governors of several States

7 in cooperation, the Secretary may authorize the re8 spective State agency to develop the recovery plan

9 for an endangered species or a threatened species

10 in accordance with the requirements and schedules

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

12 subsection if the Secretary finds that—

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

14 a cooperative agreement with the Secretary pur15 suant to section 6(c); and

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

17 statement to the Secretary demonstrating ade18 quate authority and capability to carry out the

19 requirements and schedules of subsections (c),

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

21 ‘‘(2) STANDARDS AND GUIDELINES.—The Sec22 retary, in cooperation with the States, shall publish

23 standards and guidelines for the development of re24 covery plans by a State agency under this sub25 section, including standards and guidelines for inter-
36

S 1180 IS

1 state cooperation and for the grant and withdrawal

2 of authorization under this subsection by the Sec3 retary.

4 ‘‘(3) MEMBERS AND DUTIES OF RECOVERY

5 TEAM.—Each recovery team appointed by a State

6 agency under this subsection shall include the Sec7 retary. The recovery team shall prepare a draft re8 covery plan in accordance with the requirements of

9 this section and shall transmit the draft plan to the

10 Secretary through the State agency authorized to

11 develop the recovery plan.

12 ‘‘(4) REVIEW OF DRAFT PLANS.—Prior to pub13 lication of a notice of availability of a draft recovery

14 plan, the Secretary shall review each draft recovery

15 plan developed pursuant to this subsection to deter16 mine whether it meets the requirements of this sec17 tion. If the Secretary determines that the plan does

18 not meet such requirements, the Secretary shall no19 tify the State agency and, in cooperation with such

20 State agency, develop a recovery plan in accordance

21 with the requirements of this section.

22 ‘‘(5) REVIEW AND APPROVAL OF FINAL

23 PLANS.—Upon receipt of a draft recovery plan

24 transmitted by a State agency, the Secretary shall
37

S 1180 IS

1 review and approve the plan in accordance with sub2 section (h).

3 ‘‘(6) WITHDRAWAL OF AUTHORITY.—

4 ‘‘(A) IN GENERAL.—The Secretary may

5 withdraw the authority from a State that has

6 been authorized to develop a recovery plan pur7 suant to this subsection if the actions of the

8 State agency are not in accordance with the

9 substantive and procedural requirements of sub10 sections (c), (d)(1), (d)(2), and (e) of this sub11 section. The Secretary shall give the State

12 agency an opportunity to correct any defi13 ciencies identified by the Secretary and shall

14 withdraw the authority from the State unless

15 the State agency within 60 days has corrected

16 the deficiencies identified by the Secretary.

17 Upon withdrawal of State authority pursuant to

18 this subsection, the Secretary shall have an ad19 ditional 18 months to publish a draft recovery

20 plan and an additional 12 months to publish a

21 final recovery plan under subsection 5(c).

22 ‘‘(B) PETITIONS TO WITHDRAW.—Any per23 son may submit a petition requesting the Sec24 retary to withdraw the authority from a State

25 on the basis that the actions of the State agen-
38

S 1180 IS

1 cy are not in accordance with the substantive

2 and procedural requirements identified in sub3 paragraph (A). If the Secretary has not acted

4 on the petition pursuant to subparagraph (A)

5 within 90 days, the petition shall be deemed de6 nied and the denial shall be a final agency ac7 tion for the purposes of judicial review.

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

9 subsection, the term ‘State agency’ includes—

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

11 3) of the several States submitting a coopera12 tive request under paragraph (1); and

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

14 spawning grounds and habitat, on the Columbia

15 River and its tributaries, the Pacific Northwest

16 Electric Power and Conservation Planning

17 Council established under the Pacific Northwest

18 Electric Power Planning and Conservation Act

19 (16 U.S.C. 839 et seq.).

20 ‘‘(n) CRITICAL HABITAT DESIGNATION.—

21 ‘‘(1) RECOMMENDATION OF THE RECOVERY

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

23 publication under section 4 of a final regulation con24 taining a listing determination for a species, the re25 covery team appointed for the species shall provide
39

S 1180 IS

1 the Secretary with a description of any habitat of

2 the species that is recommended for designation as

3 critical habitat pursuant to this subsection and any

4 recommendations for special management consider5 ations or protection that are specific to such habitat.

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

7 Secretary, to the maximum extent prudent and de8 terminable, shall be regulation designate any habitat

9 of an endangered species or a threatened species

10 that is indigenous to the United States or waters

11 under the jurisdiction of the United States that is

12 considered to be critical habitat.

13 ‘‘(A) DESIGNATION.—

14 ‘‘(i) PROPOSAL.—Not later than 18

15 months after the date on which a final list16 ing determination is made under section 4

17 for a species, the Secretary, after consulta18 tion and in cooperation with the recovery

19 team, shall publish in the Federal Register

20 a proposed regulation designating critical

21 habitat for the species.

22 ‘‘(ii) PROMULGATION.—The Secretary

23 shall, after consultation and in cooperation

24 with the recovery team, publish a final reg25 ulation designating critical habitat for a
40

S 1180 IS

1 species not later than 30 months after the

2 date on which a final listing determination

3 is made under section 4 for the species.

4 ‘‘(B) OTHER DESIGNATIONS.—If a recov5 ery plan is not developed under this section for

6 an endangered species or a threatened species,

7 the Secretary shall publish a final critical habi8 tat determination for that endangered species

9 or threatened species within 36 months after

10 making a determination that the species is an

11 endangered species or a threatened species.

12 ‘‘(C) ADDITIONAL AUTHORITY.—The Sec13 retary may publish a regulation designating

14 critical habitat for an endangered species or a

15 threatened species concurrently with the final

16 regulation implementing the determination that

17 the species is endangered or threatened if the

18 Secretary determines that designation of such

19 habitat at the time of listing is essential to

20 avoid the imminent extinction of the species.

21 ‘‘(3) FACTORS TO BE CONSIDERED.—The des22 ignation of critical habitat shall be made on the

23 basis of the best scientific and commercial data

24 available and after taking into consideration the eco25 nomic impact, impacts to military training and oper-
41

S 1180 IS

1 ations, and any other relevant impact, of specifying

2 any particular area as critical habitat. The Secretary

3 shall describe the economic impacts and other rel4 evant impacts that are to be considered under this

5 subsection in the publication of any proposed regula6 tion designating critical habitat.

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

8 any area from critical habitat for a species if the

9 Secretary determines that the benefits of the exclu10 sion outweigh the benefits of designating the area as

11 part of the critical habitat, unless the Secretary de12 termines that the failure to designate the area as

13 critical habitat will result in the extinction of the

14 species.

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

16 time-to-time and as appropriate, revise a designa17 tion. Each area designated as critical habitat before

18 the date of enactment of the Endangered Species

19 Recovery Act of 1997 shall continue to be considered

20 so designated, until the designation is revised in ac21 cordance with this subsection.

22 ‘‘(6) PETITIONS.—

23 ‘‘(A) DETERMINATION THAT REVISION

24 MAY BE WARRANTED.—To the maximum extent

25 practicable, within 90 days after receiving the
42

S 1180 IS

1 petition of an interested person under section

2 553(e) of title 5, United States Code, to revise

3 a critical habitat designation, the Secretary

4 shall make a finding as to whether the petition

5 presents substantial scientific or commercial in6 formation indicating that the revision may be

7 warranted. The Secretary shall promptly pub8 lish such finding in the Federal Register.

9 ‘‘(B) NOTICE OF PROPOSED ACTION.—

10 Within 12 months after receiving a petition

11 that is found under subparagraph (A) to

12 present substantial information indicating that

13 the requested revision may be warranted, the

14 Secretary shall determine how to proceed with

15 the requested revision, and shall promptly pub16 lish notice of such intention in the Federal Reg17 ister.

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

19 Any regulation to designate critical habitat or imple20 ment a requested revision shall be proposed and pro21 mulgated in accordance with paragraphs (4), (5)

22 and (6) of section 4(b) in the same manner as a reg23 ulation to implement a determination with respect to

24 listing a species.
43

S 1180 IS

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

S 1180 IS

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 IS

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.’’.
46

S 1180 IS

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

S 1180 IS

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
48

S 1180 IS

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

S 1180 IS

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

S 1180 IS

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

S 1180 IS

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.—
52

S 1180 IS

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:
53

S 1180 IS

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
54

S 1180 IS

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

S 1180 IS

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
56

S 1180 IS

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-
57

S 1180 IS

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,
58

S 1180 IS

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
59

S 1180 IS

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.
60

S 1180 IS

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-
61

S 1180 IS

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.’’.
62

S 1180 IS

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—
63

S 1180 IS

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-
64

S 1180 IS

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,
65

S 1180 IS

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
66

S 1180 IS

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-
67

S 1180 IS

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
68

S 1180 IS

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.
69

S 1180 IS

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
70

S 1180 IS

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).
71

S 1180 IS

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.—
72

S 1180 IS

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
73

S 1180 IS

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
74

S 1180 IS

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
75

S 1180 IS

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
76

S 1180 IS

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-
77

S 1180 IS

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-
78

S 1180 IS

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.
79

S 1180 IS

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
80

S 1180 IS

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.
81

S 1180 IS

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.’’.
82

S 1180 IS

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—
83

S 1180 IS

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))
84

S 1180 IS

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’’.

23 (2) TABLE OF CONTENTS.—The table of con24 tents in the first section of the Act is amended with
85

S 1180 IS

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

2 follows:

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

Æ