Union Calendar No. 420
104TH CONGRESS
2D SESSION
H. R. 2275
[Report No. 104–778, Part I]
A BILL
To reauthorize and amend the Endangered Species
Act of 1973.
SEPTEMBER 9, 1996
Reported from the Committee on Resources with an
amendment
SEPTEMBER 9, 1996
Referral to the Committee on Agriculture extended for a
period ending not later than September 9, 1996
SEPTEMBER 9, 1996
Committee on Agriculture discharged; committed to the
Committee of the Whole House on the State of the
Union and ordered to be printed
IB
Union Calendar No. 420
104TH CONGRESS
2D SESSION
H. R. 2275
[Report No. 104–778, Part I]
To reauthorize and amend the Endangered Species Act of 1973.
IN THE HOUSE OF REPRESENTATIVES
SEPTEMBER 7, 1995
Mr. YOUNG of Alaska (for himself, Mr. POMBO, Mr. TAUZIN, Mr. BREWSTER,
Mr. DOOLITTLE, Mr. HANSEN, Mr. DOOLEY, Mr. CALVERT, Mr. CONDIT,
Mr. STENHOLM, Mr. STUMP, Mr. SMITH of Texas, Mr. GALLEGLY, Mr.
FIELDS of Texas, Mr. KOLBE, Ms. DANNER, Mr. HUTCHINSON, Mr.
HAYWORTH, Mr. HASTINGS of Washington, Mr. BONILLA, Mr. MCHUGH,
Mr. DORNAN, Mr. HERGER, Mr. EVERETT, Mr. TAYLOR of North Caro-
lina, Mr. PACKARD, Mr. CUNNINGHAM, Mr. THORNBERRY, Mr. HAYES,
Mr. ROYCE, Mr. COMBEST, Mr. COOLEY, Mr. SALMON, Mr. BONO, Mr.
BAKER of California, Mr. HUNTER, Mr. LEWIS of California, Mrs.
CUBIN, Mr. MCKEON, Mr. RADANOVICH, Mr. RIGGS, Mr. ROHRABACHER,
Mrs. SEASTRAND, Mr. THOMAS, Mr. ALLARD, Mr. SCHAEFER, Mr. MICA,
Mr. CHAMBLISS, Mr. COLLINS of Georgia, Mr. LINDER, Mr. BAKER of
Louisiana, Mr. CRAPO, Mr. EWING, Mr. BURTON of Indiana, Mr.
HOSTETTLER, Mr. MCINTOSH, Mr. ROBERTS, Mr. LEWIS of Kentucky,
Mr. BARTLETT of Maryland, Mr. KNOLLENBERG, Mr. EMERSON, Mr.
HANCOCK, Mr. SKEEN, Mr. PAXON, Mr. SOLOMON, Mr. BALLENGER, Mr.
JONES, Mr. OXLEY, Mr. COBURN, Mr. LARGENT, Mr. LUCAS, Mr.
WATTS of Oklahoma, Mr. BARTON of Texas, Mr. DELAY, Mr. SAM
JOHNSON of Texas, Mr. STOCKMAN, Mr. SHADEGG, Mr. CALLAHAN, Mr.
LAUGHLIN, Mrs. VUCANOVICH, Mr. TEJEDA, Mr. BACHUS, Mr. COX of
California, Mr. FUNDERBURK, Mr. BOEHNER, Mr. CRANE, Mr. DREIER,
Mr. EDWARDS, Mr. NETHERCUTT, Mr. PETE GEREN of Texas, Mr.
ORTIZ, Mr. HALL of Texas, Mr. DUNCAN, Mr. MCCRERY, and Mr. LIV-
INGSTON) introduced the following bill; which was referred to the Com-
mittee on Resources, and in addition to the Committee on Agriculture,
for a period to be subsequently determined by the Speaker, in each case
for consideration of such provisions as fall within the jurisdiction of the
committee concerned
SEPTEMBER 9, 1996
Additional sponsors: Mr. DICKEY, Mr. CHAPMAN, Mr. SHUSTER, Mr. NEY,
Mr. SPENCE, Mr. TIAHRT, Mr. CAMP, Mr. GEKAS, Mr. MCDADE, Mr.
NORWOOD, Mr. DEAL of Georgia, Mr. CHRISTENSEN, Mr. BATEMAN, Mr.
METCALF, Mr. LAHOOD, Mr. HASTERT, Mr. PARKER, Ms. DUNN of
Washington, Mr. HOEKSTRA, Mr. MYERS of Indiana, Mr. SCARBOROUGH,
Mr. ROTH, Mr. QUILLEN, Mr. CREMEANS, Mr. BRYANT of Tennessee,
Mr. MONTGOMERY, Mr. BARRETT of Nebraska, Mr. CRAMER, Mrs.
MYRICK, Mr. TATE, Mr. BARR of Georgia, Mr. ROGERS, and Mr.
UNDERWOOD
Deleted sponsor: Mr. MARTINEZ (added September 14, 1995; deleted
September 28, 1995)
SEPTEMBER 9, 1996
Reported from the Committee on Resources with an amendment
[Strike out all after the enacting clause and insert the part printed in italic]
SEPTEMBER 9, 1996
Referral to the Committee on Agriculture extended for a period ending not
later than September 9, 1996
SEPTEMBER 9, 1996
Committee on Agriculture discharged; committed to the Committee of the
Whole House on the State of the Union and ordered to be printed
[For text of introduced bill, see copy of bill as introduced on September 7, 1995]
A BILL
To reauthorize and amend the Endangered Species Act of
1973.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) SHORT TITLE.—This Act may be cited as the ‘‘En-
dangered Species Conservation and Management Act of
1995’’.
(b) TABLE OF CONTENTS.—The table of contents for
this Act is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. References to Endangered Species Act of 1973.
Sec. 3. Findings, purposes, and policy of Endangered Species Act of 1973.
TITLE I—PRIVATE PROPERTY RIGHTS AND VOLUNTARY
INCENTIVES FOR PRIVATE PROPERTY OWNERS
Sec. 101. Compensation for use or taking of private property.
Sec. 102. Voluntary cooperative management agreements.
Sec. 103. Grants for improving and conserving habitat for species.
Sec. 104. Technical assistance programs.
Sec. 105. Water rights.
TITLE II—IMPROVING ABILITY TO COMPLY WITH THE
ENDANGERED SPECIES ACT OF 1973
Sec. 201. Enforcement procedures.
Sec. 202. Removing punitive disincentives.
Sec. 203. Allowing non-Federal persons to use the consultation procedures.
Sec. 204. Permitting requirements for incidental takes.
Sec. 205. General, research, and educational permits.
Sec. 206. Maintenance of aquatic habitats for listed species.
Sec. 207. Compliance with international requirements and treaties.
Sec. 208. Incentives for protection of marine species.
Sec. 209. International cooperation to conserve sea turtles.
TITLE III—IMPROVING SCIENTIFIC INTEGRITY OF LISTING
DECISIONS AND PROCEDURES
Sec. 301. Improving the validity and credibility of decisions.
Sec. 302. Peer review.
Sec. 303. Making data public.
Sec. 304. Improving the petition and designation processes.
Sec. 305. Greater State involvement.
Sec. 306. Monitoring the status of species.
Sec. 307. Petitions to delist species.
Sec. 308. Determinations by the Secretary to delist.
TITLE IV—RECOGNIZING OTHER FEDERAL ACTION, LAWS, AND
MISSIONS
Sec. 401. Balance esa with other laws and missions.
Sec. 402. Exemptions from consultation and conferencing.
Sec. 403. Eliminating the exemption committee (GOD committee).
TITLE V—BETTER MANAGEMENT AND CONSERVATION OF LISTED
SPECIES
Sec. 501. Setting conservation objectives.
Sec. 502. Preparing a conservation plan.
Sec. 503. Interim measures.
Sec. 504. Critical habitat for species.
Sec. 505. Recognition of captive propagation as means of recovery.
Sec. 506. Introduction of species.
Sec. 507. Conserving threatened species.
Sec. 508. Delegation of authority to States.
TITLE VI—HABITAT PROTECTIONS
Sec. 601. Federal biological diversity reserve.
Sec. 602. Land acquisition.
Sec. 603. Property exchanges.
TITLE VII—STATE AUTHORITY TO PROTECT ENDANGERED AND
THREATENED SPECIES
Sec. 701. State authority.
Sec. 702. State programs affected by the Convention.
Sec. 703. Collaborative rulemaking with the States.
TITLE VIII—FUNDING OF CONSERVATION MEASURES
Sec. 801. Authorizing increased appropriations.
Sec. 802. Funding of Federal mandates.
Sec. 803. National Endowment for Fish and Wildlife.
TITLE IX—MISCELLANEOUS PROVISIONS
Sec. 901. Amendments to definitions.
Sec. 902. Review of species of national interest.
Sec. 903. Preparation of conservation plans for species listed before enactment of
this Act.
Sec. 904. Application of conservation plans for single or multiple species to habi-
tat conservation plans approved prior to this Act.
Sec. 905. Washington County, Utah Desert Tortoise Habitat Conservation Plan.
Sec. 906. Taking of species to conserve listed species.
Sec. 907. Conforming amendments.
Sec. 908. Application of provisions to certified applicators of registered pesticides.
SEC. 2. REFERENCES TO ENDANGERED SPECIES ACT OF
1973.
Except as otherwise expressly provided, whenever in
this Act an amendment or repeal is expressed in terms of
an amendment to, or repeal of, a section or other provision,
the reference shall be considered to be made to such section
or other provision of the Endangered Species Act of 1973
(16 U.S.C. 1531 et seq.).
SEC. 3. FINDINGS, PURPOSES, AND POLICY OF ENDAN-
GERED SPECIES ACT OF 1973.
(a) FINDINGS.—Section 2(a) (16 U.S.C. 1531(a)) is
amended—
(1) by amending paragraph (1) to read as fol-
lows:
‘‘(1) various species of fish, wildlife, and plants
in the United States have been rendered extinct be-
cause of inadequate conservation practices and natu-
ral processes;’’; and
(2) by striking ‘‘and’’ after the semicolon at the
end of paragraph (4)(G), by striking the period at the
end of paragraph (5) and inserting ‘‘; and’’, and by
adding at the end the following new paragraph:
‘‘(6) the Nation’s economic well-being is essential
to the ability to maintain a sustainable resource base,
therefore economic impacts and private property own-
ers’ rights must be considered while encouraging prac-
tices that protect species.’’.
(b) PURPOSES AND POLICY.—Section 2 (b) and (c) (16
U.S.C. 1531 (b), (c)) are amended to read as follows:
‘‘(b) PURPOSES.—The purposes of this Act are the fol-
lowing:
‘‘(1) To provide a feasible and practical means
to conserve endangered species and threatened species
consistent with protection of the rights of private
property owners and ensuring economic stability.
‘‘(2) To provide a program for the conservation
and management of such endangered species and
threatened species taking into account the economic
and social consequences of such program.
‘‘(3) To take such steps as may be practicable to
achieve the purposes of the treaties and conventions
set forth in subsection (a) of this section.
‘‘(c) POLICY.—
‘‘(1) FEDERAL
AUTHORITY.—It is further de-
clared to be the policy of Congress that all Federal de-
partments and agencies shall seek to conserve and
manage endangered species and threatened species
and shall, consistent with and not prevailing over
their primary missions, utilize their authorities in
furtherance of the purposes of this Act.
‘‘(2) COOPERATION WITH STATES.—It is further
declared to be the policy of Congress that Federal
agencies shall cooperate with State and local agencies
to resolve water resource issues in concert with con-
servation of endangered species and consistent with
State and local water laws.
‘‘(3) 
PROTECTION
OF
PRIVATE
PROPERTY
RIGHTS.—It is the policy of the Federal Government
that agency action taken pursuant to this Act shall
not use or limit the use of privately owned property
when such action diminishes the value of such prop-
erty without payment of fair market value to the
owner of private property. Each Federal agency, offi-
cer, and employee shall exercise authority under this
Act to ensure that agency action will not violate the
policy established in this paragraph.’’.
TITLE 
I—PRIVATE 
PROPERTY
RIGHTS AND VOLUNTARY IN-
CENTIVES 
FOR 
PRIVATE
PROPERTY OWNERS
SEC. 101. COMPENSATION FOR USE OR TAKING OF PRIVATE
PROPERTY.
The Endangered Species Act of 1973 (16 U.S.C. 1531
et seq.) is amended by adding at the end the following new
section:
‘‘SEC. 19. RIGHT TO COMPENSATION.
‘‘(a) PROHIBITION.—The Federal Government shall
not take an agency action affecting privately owned prop-
erty or nonfederally owned property under this Act which
results in diminishment of value of any portion of that
property by 20 percent or more unless compensation is of-
fered in accordance with this section.
‘‘(b) COMPENSATION
FOR USE
OR LIMITATION
ON
USE.—The agency or agencies that take an agency action
that exceeds the amount provided in subsection (a) shall
compensate the private property owner for the otherwise
lawful use or limitation on the otherwise lawful use in the
amount of the diminution in value of the portion of that
property resulting from the use or limitation on use. If the
diminution in value of a portion of that property is greater
than 50 percent, at the option of the owner, the agency or
agencies shall buy that portion of the property and shall
pay fair market value based on the value of the property
before the use or limitation on use was imposed. Compensa-
tion paid shall reflect the duration of the use or limitation
on use necessary to achieve the purposes of this Act.
‘‘(c) REQUEST OF OWNER.—An owner seeking com-
pensation under this section shall make a written request
for compensation to the agency implementing the agency
action. The request shall, at a minimum, identify the af-
fected portion of the property, the nature of the use or limi-
tation, and the amount of compensation claimed. No such
request may be made later than one year after the owner
receives actual notice that the use of property has been lim-
ited by an agency action.
‘‘(d) NEGOTIATIONS.—The agency may negotiate with
that owner to reach agreement on the amount of the com-
pensation and the terms of any agreement for payment. If
such an agreement is reached, the agency shall within 90
days pay the owner the amount agreed upon. An agreement
under this section may include a transfer of the title or
an agreement to use the property for a limited period of
time.
‘‘(e) CHOICE OF REMEDIES.—If, not later than 180
days after the written request is made, the parties have not
reached an agreement on compensation, the owner may elect
binding arbitration or seek compensation due under this
section in a civil action.
‘‘(f) ARBITRATION.—The procedures that govern the
arbitration shall, as nearly as practicable, be those estab-
lished under title 9, United States Code, for arbitration pro-
ceedings to which that title applies. An award made in such
arbitration shall include a reasonable attorney’s fee and
other arbitration costs, including appraisal fees. The agency
shall promptly pay any award made to the owner.
‘‘(g) CIVIL ACTION.—An owner who prevails in a civil
action against the agency pursuant to this section shall be
entitled to, and the agency shall be liable for, the amount
of compensation awarded plus reasonable attorney’s fees
and other litigation costs, including appraisal fees. The
court shall award interest on the amount of any compensa-
tion from the time of the limitation.
‘‘(h) SOURCE
OF PAYMENTS.—Any payment made
under this section to an owner, and any judgment obtained
by an owner in a civil action under this section shall, not-
withstanding any other provision of law, be made from the
annual appropriation of the agency that took the agency
action. If the agency action resulted from a requirement im-
posed by another agency, then the agency making the pay-
ment or satisfying the judgment may seek partial or com-
plete reimbursement from the appropriated funds of the
other agency. For this purpose the head of the agency con-
cerned may transfer or reprogram any appropriated funds
available to the agency. If insufficient funds exist for the
payment or to satisfy the judgment, it shall be the duty
of the head of the agency to seek the appropriation of such
funds for the next fiscal year.
‘‘(i) AVAILABILITY
OF APPROPRIATIONS.—Notwith-
standing any other provision of law, any obligation of the
United States to make any payment under this section shall
be subject to the availability of appropriations.
‘‘(j) DUTY OF NOTICE TO OWNERS.—An agency may
not take any action limiting the use of private property
unless the agency has given appropriate notice to the owners
of that property directly affected explaining their rights
under this section and the procedures for obtaining any
compensation that may be due to them under this section.
‘‘(k) RULES OF CONSTRUCTION.—The following rules
of construction shall apply to this Act:
‘‘(1) OTHER RIGHTS PRESERVED.—Nothing in
this Act shall be construed to limit any right to com-
pensation that exists under the Constitution or under
other laws.
‘‘(2) EXTENT
OF
FEDERAL
AUTHORITY.—Pay-
ment of compensation under this section (other than
when the property is bought by the Federal Govern-
ment at the option of the owner) shall not confer any
rights on the Federal Government other than the use
or limitation on use resulting from the agency action
for the duration so that the agency action may
achieve the species conservation purposes of this Act.
‘‘(l) DEFINITIONS.—For the purposes of this section:
‘‘(1) AGENCY.—The term ‘agency’ has the mean-
ing given that term in section 551 of title 5, United
States Code.
‘‘(2) AGENCY
ACTION.—The term ‘agency ac-
tion’—
‘‘(A) subject to subparagraph (B), has the
meaning given that term in section 551 of title
5, United States Code, and
‘‘(B) includes—
‘‘(i) the loss of use of property to avoid
prosecution under section 11;
‘‘(ii) a designation pursuant to section
9(i) of privately owned property as critical
habitat;
‘‘(iii) the denial of a permit under sec-
tion 10 that restricts the use of private
property;
‘‘(iv) an agency action pursuant to a
biological opinion under section 7 that
would cause an agency to restrict the use of
private property;
‘‘(v) an agreement under section 6 to
set aside property for habitat under the
terms of an easement or other contract;
‘‘(vi) a restriction imposed on private
property as part of a conservation plan
adopted by the Secretary under section 5;
‘‘(vii) any other agency action that re-
stricts a legal right to use that property, in-
cluding, the right to alter habitat; and
‘‘(viii) the making of a grant of land
or money, to a public authority or a private
entity as a predicate to an agency action by
the recipient that would constitute a limita-
tion if done directly by the agency.
‘‘(3) FAIR MARKET VALUE.—The term ‘fair mar-
ket value’ means the most probable price at which
property would change hands, in a competitive and
open market under all conditions requisite to fair
sale, between a willing buyer and willing seller, nei-
ther being under any compulsion to buy or sell and
both having reasonable knowledge of relevant facts,
prior to occurrence of the agency action.
‘‘(4) LAW OF THE STATE.—The term ‘law of the
State’ includes the law of a political subdivision of a
State.
‘‘(5) LIMITATION ON USE.—The term ‘limitation
on use’ means only a limitation on a use which is
otherwise permissable under applicable State property
or nuisance laws.
‘‘(6) PRIVATE
PROPERTY, PRIVATELY
OWNED
PROPERTY, NON-FEDERAL PROPERTY.—The term ‘pri-
vate property’, ‘privately owned property’, or ‘non-
Federal property’ means property which is owned by
a person other than any Federal entity of govern-
ment.
‘‘(7) PROPERTY.—The term ‘property’ means
land, an interest in land, the right to use or receive
water, and any personal property that is subject to
use by the Federal Government or to a restriction on
use.’’.
SEC. 102. VOLUNTARY COOPERATIVE MANAGEMENT AGREE-
MENTS.
(a) COOPERATIVE MANAGEMENT AGREEMENT DE-
FINED.—Section 3 (16 U.S.C. 1532) is amended—
(1) by redesignating paragraphs (2) through (21)
in order as paragraphs (3), (4), (5), (7), (9), (10),
(11), (12), (13), (18), (19), (20), (22), (23), (24), (25),
(26), (27), and (28); and
(2) by adding after paragraph (5) (as redesig-
nated by paragraph (1) of this section) the following
new paragraph:
‘‘(6) The term ‘cooperative management agreement’
means a voluntary agreement entered into under section
6(b).’’.
(b) VOLUNTARY COOPERATIVE MANAGEMENT AGREE-
MENTS.—Section 6 (16 U.S.C. 1535) is amended by strik-
ing so much as precedes subsection (c) and inserting the
following:
‘‘SEC. 6. COOPERATION WITH NON-FEDERAL PERSONS.
‘‘(a) GENERALLY.—In carrying out the program au-
thorized by this Act, the Secretary shall cooperate to the
maximum extent practicable with the States and other non-
Federal persons. Such cooperation shall include consulta-
tion with the States and non-Federal persons concerned be-
fore acquiring any land or water, or interest therein, for
the purpose of conserving any endangered species or threat-
ened species.
‘‘(b) COOPERATIVE MANAGEMENT AGREEMENTS.—
‘‘(1) IN
GENERAL.—The Secretary may enter
into a cooperative management agreement with any
State or group of States, political subdivision of a
State, local government, or non-Federal person—
‘‘(A) for the management of a species or
group of species listed as endangered species or
threatened species under section 4, a species or
group of species proposed to be listed under sec-
tion 4, or species or group of species which are
candidates for listing; or
‘‘(B) for the management or acquisition of
an area which provides habitat for a species.
‘‘(2) SCOPE
OF
COOPERATIVE
MANAGEMENT
AGREEMENTS.—(A) A cooperative management agree-
ment entered into under this subsection—
‘‘(i) may provide for the management of a
species or group of species on both public and
private lands which are under the authority,
control or ownership of a State or group of
States, political subdivision of a State, local gov-
ernment, or non-Federal person and which are
affected by a listing determination, proposed de-
termination, or proposed candidacy for deter-
mination; and
‘‘(ii) may include the acquisition or des-
ignation of land as habitat for species.
‘‘(B) A cooperative management agreement may
not restrict private or non-Federal property unless
written consent to such restrictions by the non-Fed-
eral owner is given either to the Secretary or the
State, political subdivision, local government, or non-
Federal person who is a party to the agreement.
‘‘(C) The Secretary may grant to a party to an
agreement the authority to undertake programs to en-
hance the population or habitat of a species on feder-
ally owned lands, except that such authority shall not
otherwise conflict with other uses of such land which
are approved by the Secretary or authorized by the
Congress.
‘‘(D) The Secretary is authorized, in conjunction
with entering into and as a part of any agreement
under this section, to provide funds to carry out the
agreement to a non-Federal person, as provided in
paragraph (11).
‘‘(3) NOTIFICATION.—Not later than 30 days
after submission of a request to enter into a coopera-
tive management agreement, the party submitting the
request shall provide notice of the request to any non-
Federal person or Federal power marketing adminis-
tration that would be subject to the proposed coopera-
tive management agreement.
‘‘(4) DEVELOPMENT
OF
PROPOSED
AGREE-
MENT.—(A) The requesting party shall develop and
submit to the Secretary a proposed cooperative man-
agement agreement.
‘‘(B) The Secretary shall publish in the Federal
Register a notice of availability and a request for
public comment on any proposed cooperative manage-
ment agreement between the Secretary and any gov-
ernmental entity and shall hold a public hearing on
such a proposed cooperative management agreement
in each county or parish in which the proposed agree-
ment would be in effect.
‘‘(C) Before entering into a cooperative manage-
ment agreement with another governmental entity or
a non-Federal person for the management of federally
owned land, the Secretary shall consider and weigh
carefully all information received in response to the
request for comment published under subparagraph
(B) and testimony presented in each hearing held
under subparagraph (B).
‘‘(5) APPROVAL OF AGREEMENT.—(A) Not later
than 120 days after the submission of a proposed co-
operative management agreement under paragraph
(4), the Secretary shall determine whether the pro-
posed agreement is in accordance with this subsection
and will promote the conservation of the species to
which the proposed agreement applies.
‘‘(B) The Secretary shall approve and enter into
a proposed cooperative management agreement, if the
Secretary finds that—
‘‘(i) the requesting party has sufficient au-
thority under law to implement and carry out
the terms of the agreement;
‘‘(ii) the agreement defines an area that
serves as habitat for the species or group of spe-
cies to which the agreement applies;
‘‘(iii) the agreement adequately provides for
the administration and management of the iden-
tified management area;
‘‘(iv) the agreement promotes the conserva-
tion of the species to which the agreement applies
by committing Federal or non-Federal efforts to
the conservation;
‘‘(v) the term of the agreement is of suffi-
cient duration to accomplish the provisions of
the agreement; and
‘‘(vi) the agreement is adequately funded to
carry out the agreement.
‘‘(C) No later than 30 days after entering into
a cooperative management agreement with a govern-
mental entity, the Secretary shall publish in the Fed-
eral Register a notice of availability of the terms of
such agreement and the response of the Secretary to
all information received or presented with respect to
the agreement pursuant to paragraph (4)(B).
‘‘(6) ENVIRONMENTAL ASSESSMENTS.—Prepara-
tion, approval, and entering into a cooperative man-
agement agreement under this subsection shall not be
subject to section 102(2) of the National Environ-
mental Policy Act of 1969 (42 U.S.C. 4332(2)).
‘‘(7) NO SURPRISES.—For any species or area
that is the subject of a cooperative management agree-
ment under this subsection, a party to the agreement
shall not be required—
‘‘(A) to make any additional payment for
any purpose, or to accept any additional restric-
tion on any parcel of land available for develop-
ment or land management under the agreement,
without consent of the party; or
‘‘(B) to undertake any other measure to
minimize or mitigate impacts on the species in
addition to measures required by the agreement
as established.
‘‘(8) EFFECT OF LISTING OF SPECIES.—A coop-
erative management agreement entered into under
this subsection shall remain in effect and shall not
be required to be amended if a species to which the
agreement does not apply is determined to be an en-
dangered species or threatened species under section
4.
‘‘(9) APPLICABILITY OF CERTAIN PROVISIONS.—
Sections 5, 7, and 9 shall not apply to those activities
of a party to a cooperative management agreement
which are conducted in accordance with such agree-
ment.
‘‘(10) VIOLATIONS OF AGREEMENTS.—(A) If the
Secretary determines that a party to a cooperative
management agreement is not administering or act-
ing in accordance with the agreement, the Secretary
shall notify the party.
‘‘(B) If a party that is notified under subpara-
graph (A) fails to take appropriate corrective action
within a period of time determined by the Secretary
to be reasonable (not to exceed 90 days after the date
of the notification)—
‘‘(i) the Secretary shall rescind the entire
cooperative management agreement or the appli-
cability of the agreement to the party that is the
subject of the notification; and
‘‘(ii) beginning on the date of the rescis-
sion—
‘‘(I) the entire agreement shall not be
effective, or the agreement shall not be effec-
tive with respect to the party, whichever is
appropriate; and
‘‘(II) sections 5, 7, and 9 shall apply
to activities of the party.
‘‘(11) FACA.—Consultation with States pursu-
ant to this section shall not be subject to the Federal
Advisory Committee Act (5 U.S.C. App.).’’.
SEC. 103. GRANTS FOR IMPROVING AND CONSERVING HABI-
TAT FOR SPECIES.
Section 6 (16 U.S.C. 1535), as amended by section 105
of this Act, is further amended by adding at the end the
following new subsection:
‘‘(k) HABITAT CONSERVATION GRANTS.—(1) The Sec-
retary may, from amounts in the account established by
section 13 or from funds appropriated for such purpose,
provide a grant to a non-Federal person (other than an offi-
cer, employee, or agent (acting in an official capacity) or
a department or instrumentality of a State, municipality,
or political subdivision thereof) for the purpose of conserv-
ing, preserving, or improving habitat for any species that
is determined under section 4 to be an endangered species
or a threatened species or for any conservation measures
that enhances the survivability of such species, including
predator control.
‘‘(2) The Secretary may provide a grant under this
subsection if the Secretary determines that—
‘‘(A) the property for which the grant is provided
contains habitat that significantly contributes to the
protection of the population of the species;
‘‘(B) the property has been managed for species
protection for a period of time that has been sufficient
to significantly contribute to the protection of the
population of the species; and
‘‘(C) the management of the habitat advances the
interest of species protection.
‘‘(3) A grant made under this subsection shall be trans-
ferable to subsequent owners of the property for which the
grant is provided.’’.
SEC. 104. TECHNICAL ASSISTANCE PROGRAMS.
Section 5 (16 U.S.C. 1534), as added by section 501
of this Act and as amended by sections 502(a), 503, 504(a),
and 505 of this Act, is amended by adding at the end the
following new subsection:
‘‘(m) TECHNICAL ASSISTANCE PROGRAM.—
‘‘(1) IN GENERAL.—The Secretary shall initiate
a technical assistance program to provide technical
advice and assistance to non-Federal persons who
wish to participate in achieving the conservation ob-
jective for a species. The technical assistance provided
shall include information on habitat needs of species,
optimum management of habitat for species, methods
for propagation of species, feeding needs and habits,
predator controls, and any other information which
a non-Federal person may utilize or request for the
purpose of conserving a species determined to be an
endangered species or threatened species or proposed
to be determined as an endangered species or threat-
ened species.
‘‘(2) REGULATIONS
TO
PROVIDE
EXEMPTIONS
FROM SECTION 9.—The Secretary shall promulgate
regulations that establish exemptions from section 9
for any person who participates in a conservation
program under this subsection.’’.
SEC. 105. WATER RIGHTS.
Section 6 (16 U.S.C. 1535) is amended by adding at
the end the following:
‘‘(j) WATER RIGHTS.—Nothing in this Act shall be
construed to supersede, abrogate, or otherwise impair any
right or authority of a State to allocate or administer quan-
tities of water (including boundary waters). Nothing in this
Act shall be implemented, enforced, or construed to allow
any officer or agency of the United States to utilize directly
or indirectly the authorities established under this Act to
impose any requirement not imposed by the State which
would supersede, abrogate, condition, restrict, or otherwise
impair rights to the use of water resources allocated under
State law, interstate water compact, or Supreme Court de-
cree, or held by the United States for use by a State, its
political subdivisions, or its citizens. The exercise of author-
ity pursuant to or in furtherance of this Act shall not be
construed to create a limitation on the exercise of rights
to water or constitute a cause for nondelivery of water pur-
suant to contract or State law.’’.
TITLE 
II—IMPROVING 
ABILITY
TO COMPLY WITH THE EN-
DANGERED SPECIES ACT OF
1973
SEC. 201. ENFORCEMENT PROCEDURES.
(a) IN GENERAL.—Section 9(a) (16 U.S.C. 1538(a))
is amended—
(1) in paragraph (1) by amending the matter
preceding subparagraph (A) to read as follows:
‘‘(1) Except as provided in paragraph (3), section
6(g)(2), subsections (d)(3) and (e) of section 5, section 7(a),
and section 10, with respect to any endangered species of
fish or wildlife listed pursuant to section 4 it is unlawful
for any person subject to the jurisdiction of the United
States to—’’;
(2) in paragraph (2) by amending the matter
preceding subparagraph (A) to read as follows:
‘‘(2) Except as provided in section 6(g)(2), subsections
(d)(3) and (e) of section 5, and section 10, with respect to
any endangered species of plants listed pursuant to section
4, it is unlawful for any person subject to the jurisdiction
of the United States to—’’; and
(3) by adding at the end the following new para-
graph:
‘‘(3) PERMITTED
TAKINGS.—An activity of a
non-Federal person is not a taking of a species if the
activity—
‘‘(A) is consistent with the provisions of a
final conservation plan or conservation objective;
‘‘(B) complies with the terms and condi-
tions of an incidental take permit or a coopera-
tive management agreement;
‘‘(C) addresses a critical, imminent threat
to public health or safety or a catastrophic natu-
ral event, or is mandated by any Federal, State,
or local government agency for public health or
safety purposes;
‘‘(D) is incidental to, and not the purpose
of, the carrying out of an otherwise lawful activ-
ity that consists of—
‘‘(i) on-going maintenance, routine op-
eration or use, and emergency repair of ex-
isting pipelines, fire breaks, transmission
and distribution lines, groundwater re-
charge facilities and areas, water storage fa-
cilities, water conveyance structures and
channels, and appurtenant facilities;
‘‘(ii) road and right-of-away mainte-
nance, use, and repair; or
‘‘(iii) emergency repair or restoration
of any property or non-Federal facility to
the condition in which it existed or operated
immediately before an emergency or disas-
ter, meeting current standards; or
‘‘(E) is incidental to, and not the purpose
of, the carrying out of an otherwise lawful activ-
ity that occurs within an area of the territorial
sea or exclusive economic zone established by
Proclamation Numbered 5030, dated March 10,
1983, that is not designated as critical habitat
under section 5(i), and the affected species is not
a species of fish.’’.
(b) REWARDS AND INCIDENTAL EXPENSES.—Section
11 (16 U.S.C. 1540) is amended—
(1) in subsection (d)(2) by inserting after ‘‘tem-
porary care for any’’ the following: ‘‘endangered spe-
cies or threatened species of’’;
(2) in subsection (e)(3) in the fourth sentence by
striking ‘‘Any fish, wildlife,’’ and inserting ‘‘Any en-
dangered species or threatened species of fish or wild-
life,’’;
(3) in subsection (e)(4)(A) by inserting ‘‘endan-
gered species or threatened species of’’ after ‘‘All’’;
(4) in subsection (e)(4)(B) by inserting ‘‘endan-
gered species or threatened species of’’ after ‘‘import-
ing of any’’;
(5) in subsection (f) in the first sentence by in-
serting ‘‘endangered species or threatened species of’’
after ‘‘storage of’’;
(6) in subsection (a)(1) by striking ‘‘knowingly’’
each place it appears and inserting ‘‘with specific in-
tent’’;
(7) in subsection (b)(1) by striking ‘‘knowingly’’
each place it appears and inserting ‘‘with specific in-
tent’’;
(8) in subsection (e) by adding at the end the fol-
lowing new paragraph:
‘‘(7) ADOPTION OF REGULATIONS.—No interpre-
tation, policy, guideline, finding, or other informal
determination may be relied upon by the Secretary in
the implementation and enforcement of this Act unless
such determination has been the subject of a proposed
rule, subject to review by the public and comment for
a period of no less than 60 days. Any proposed rule
under this subparagraph must include—
‘‘(A) a plain-language explanation of the
reasons for and purpose of the proposed rule;
‘‘(B) an analysis of the anticipated impact
of the proposed rule;
‘‘(C) an analysis showing that the restora-
tion benefit of the proposed rule outweighs any
negative conservation impact of that proposed
rule;
‘‘(D) an analysis showing that compliance
with the proposed rule is reasonably within the
means of the State or the range nation con-
cerned; and
‘‘(E) a summary of the literature reviewed
and experts consulted in regard to the species in-
volved, and a summary of the Secretary’s find-
ings based on that review and consultation.
‘‘(8) BASIS FOR REFUSAL OF ENTRY.—No refusal
of entry, seizure of evidence, or other enforcement ac-
tion may take place under this Act if the action is
based solely on a notification under the Convention or
on a resolution of the Conference of the Parties to the
Convention.
‘‘(9) DETENTION FOR PURPOSE OF IDENTIFICA-
TION.—The burden is on the Secretary to show that
a specimen belongs to a species which is determined
to be an endangered species or threatened species
under this Act or is included in an Appendix to the
Convention. The Secretary may not detain a speci-
men for longer than 30 days for the purpose of identi-
fication except where the specimen has been substan-
tially changed from its natural appearance, in which
case it may be retained for an additional 30 days for
identification. If the specimen cannot be positively
identified within that time, then it shall be released.’’;
and
(9) by amending subsection (g) to read as fol-
lows:
‘‘(g) CITIZEN SUITS.—
‘‘(1) IN GENERAL.—Except as provided in para-
graph (2), a civil suit may be commenced by any per-
son on his or her own behalf, who satisfies the re-
quirements of the Constitution and who has suffered
or is threatened with economic or other injury result-
ing from the violation, regulation, application, non-
application, or failure to act—
‘‘(A) to enjoin the United States or any
agency or official of the United States who is al-
leged to be in violation of any provision of this
Act or regulation issued under the authority
thereof, if the violation poses immediate and ir-
reparable harm to a threatened species or endan-
gered species;
‘‘(B) to compel the Secretary to apply, or
modify the application of, the prohibitions set
forth in or authorized pursuant to section
9(a)(1)(B) or 4(d);
‘‘(C) to compel the Secretary to apply, or
modify the application of, the provisions of sec-
tion 10(a); or
‘‘(D) against the Secretary where there is
alleged a failure of the Secretary to perform any
act or duty under section 4(d) which is not dis-
cretionary with the Secretary.
The district courts shall have jurisdiction to enforce
any such provision or regulation, or to order the Sec-
retary to perform such act or duty, as the case may
be.
‘‘(2) PREREQUISITE PROCEDURES.—(A) No ac-
tion may be commenced under paragraph (1)(A)—
‘‘(i) prior to 60 days after written notice of
the alleged violation has been given to the Sec-
retary, and to any agency or official of the Unit-
ed States who is alleged to be in violation, except
that a State may commence an action at any
time;
‘‘(ii) if the Secretary has commenced action
to impose a penalty pursuant to subsection (a);
or
‘‘(iii) if the United States has commenced
and is diligently prosecuting a criminal action
in a court of the United States or a State to re-
dress the alleged violation of any such provision
or regulation.
‘‘(B) No action may be commenced under para-
graph (1)(B) prior to 60 days after written notice has
been given to the Secretary setting forth the reasons
for applying, or modifying the application of, the
prohibitions with respect to the taking of a threatened
species.
‘‘(C) No action may be commenced under para-
graph (1)(C) prior to 60 days after written notice has
been given to the Secretary, except that such action
may be brought immediately after such notification
in the case of an action under this subsection respect-
ing an emergency posing a significant risk to the
well-being of any species of fish or wildlife or plants.
‘‘(3) VENUE.—Any suit under this subsection
may be brought in the judicial district in which the
violation occurs.
‘‘(4) COSTS.—The court, in issuing any final
order in any suit brought pursuant to paragraph (1),
may award costs of litigation (excluding attorney and
expert witness fees) to any party, whenever the court
determines such award is appropriate.
‘‘(5) INJUNCTIVE RELIEF.—The injunctive relief
provided by this subsection shall not restrict any
right which any person (or class of persons) may have
under any statute or common law to seek enforcement
of any standard or limitation or to seek any other re-
lief (including relief against the Secretary or a State
agency).
‘‘(6) INTERVENTION.—Any person may intervene
as a matter of right in any civil suit brought under
this subsection if such suit presents a reasonable
threat of economic injury to such person. Any interve-
nor under this paragraph shall have the same right
to present argument and to accept or reject potential
settlements as do the parties to the suit.’’.
SEC. 202. REMOVING PUNITIVE DISINCENTIVES.
Section 3(26) (as redesignated by section 102(a)(1) of
this Act) is amended to read as follows:
‘‘(26)(A) The term ‘take’ means to harm, pursue,
hunt, shoot, wound, kill, trap, capture, or collect, or
to attempt to engage in that conduct.
‘‘(B) In subparagraph (A), the term ‘harm’
means an action that proximately and foreseeably
kills or physically injures an identifiable member of
an endangered species.’’.
SEC. 203. ALLOWING NON-FEDERAL PERSONS TO USE THE
CONSULTATION PROCEDURES.
Section 10(a) (16 U.S.C. 1539(a)), as amended by sec-
tion 204(b) of this Act, is amended by adding at the end
the following new paragraph:
‘‘(3) VOLUNTARY CONSULTATION.—(A) Subject to
such regulations as the Secretary may issue, any non-
Federal person may initiate consultation with the
Secretary on any prospective activity of the person—
‘‘(i) to determine if the activity is consistent
or inconsistent with a conservation plan or con-
servation objective; or
‘‘(ii) if the person determines that the activ-
ity is inconsistent, to determine whether the ac-
tivity is likely to jeopardize the continued exist-
ence of an endangered species or a threatened
species, or to destroy or adversely modify the des-
ignated critical habitat of the species in a man-
ner that is likely to jeopardize the continued ex-
istence of the species.
‘‘(B) The voluntary consultation process for non-
Federal persons authorized by subparagraph (A) shall
be conducted in accordance with the procedures and
requirements for consultation on agency actions set
forth in section 7, except that—
‘‘(i) the period for completion of the con-
sultation shall be 90 days from the date on
which the consultation is initiated, or not later
than such other date as is mutually agreeable to
the Secretary and the person initiating the con-
sultation;
‘‘(ii) the person initiating the consultation
shall not be required to prepare a biological as-
sessment or equivalent document;
‘‘(iii) neither the activity for which the con-
sultation process is sought nor the consultation
process itself shall be deemed a Federal action for
the purpose of compliance with section 102(2) of
the National Environmental Policy Act of 1969
(42 U.S.C. 4332(2)) or an agency action for the
purpose of compliance with the consultation re-
quirement of section 7(a)(2);
‘‘(iv) the Secretary shall provide the person
initiating the consultation with a written opin-
ion only, unless such person requests a permit
referred to in paragraph (1)(B) and meets the
requirements of clause (v); and
‘‘(v) a permit described in clause (iv) shall
be issued if the Secretary makes a finding of—
‘‘(I) consistency pursuant to subpara-
graph (A)(i);
‘‘(II) no jeopardy pursuant to subpara-
graph (A)(ii); or
‘‘(III) jeopardy pursuant to subpara-
graph (A)(ii), but offers a reasonable and
prudent alternative which the person initi-
ating the consultation accepts.
‘‘(C) Any person that is not an owner of prop-
erty is prohibited from participating in the consulta-
tion process under this paragraph with respect to the
property without written permission from the owner
of the property.’’.
SEC. 204. PERMITTING REQUIREMENTS FOR INCIDENTAL
TAKES.
(a) INCIDENTAL TAKE PERMIT DEFINED.—Section 3
(16 U.S.C. 1532) is amended by adding after paragraph
(14) (as added by section 301(b)(3) of this Act) the following
new paragraph:
‘‘(15) The term ‘incidental take permit’ means a
permit issued under section 10(a)(1)(B).’’.
(b) TAKE PERMITS.—Section 10 (16 U.S.C. 1539) is
amended by striking so much as precedes subsection (b) and
inserting the following:
‘‘SEC. 10. EXCEPTIONS.
‘‘(a) PERMITS.—
‘‘(1) AUTHORITY TO ISSUE PERMITS.—The Sec-
retary may permit, under such terms and conditions
as the Secretary shall prescribe—
‘‘(A) any act otherwise prohibited by section
9 undertaken for scientific purposes or to en-
hance the propagation or survival of the affected
species, including, but not limited to—
‘‘(i) acts necessary for the establish-
ment and maintenance of experimental pop-
ulations pursuant to subsection (j);
‘‘(ii) the public display or exhibition of
living wildlife in a manner designed to edu-
cate, or which otherwise contributes to the
education of the public about the ecological
role and conservation needs of the affected
species;
‘‘(iii) in the case of foreign species, acts
that are consistent with the Convention and
with conservation strategies adopted by the
foreign nations responsible for the conserva-
tion of the species; and
‘‘(iv) acts necessary for the research in
and carrying out of captive propagation; or
‘‘(B) any taking otherwise prohibited by
section 9(a)(1)(B) if such taking is incidental to,
and not the purpose of, the carrying out of an
otherwise lawful activity.
‘‘(2) SPECIES CONSERVATION PLANS.—(A) Ex-
cept as provided in paragraph (3), no permit may be
issued by the Secretary authorizing any taking re-
ferred to in paragraph (1)(B) unless the applicant
therefor submits to the Secretary a species conserva-
tion plan that specifies—
‘‘(i) the impact on the species which will be
the likely result of the activities to be permitted;
‘‘(ii) what steps the applicant can reason-
ably and economically take consistent with the
purposes and objectives of the activity to mini-
mize such impacts, and the funding that will be
available to implement such steps; and
‘‘(iii) what alternative actions to such tak-
ing the applicant considered and the reasons
why such alternatives are not being utilized.
‘‘(B) If the Secretary finds, after opportunity for
public comment, with respect to a permit application
and the related species conservation plan that—
‘‘(i) the taking will be incidental;
‘‘(ii) the applicant will, to the extent rea-
sonable and economically practicable, minimize
the impacts of such taking;
‘‘(iii) the applicant will ensure that ade-
quate funding for the plan will be provided;
‘‘(iv) the taking will not appreciably reduce
the likelihood of the survival and conservation of
the species; and
‘‘(v) the measures specified under subpara-
graph (A)(ii) will be met;
and the Secretary has received such other assurances
as the Secretary may require that the plan will be
implemented, the Secretary shall issue the permit.
The permit shall contain such reasonable and eco-
nomically practicable terms and conditions consistent
with the purposes and objectives of the activity as the
Secretary deems necessary or appropriate to carry
out the purposes of this paragraph, including, but not
limited to, such reporting requirements as the Sec-
retary deems necessary for determining whether such
terms and conditions are being complied with.
‘‘(C) The Secretary may not require the appli-
cant, as a condition of processing the application or
issuing the permit, to expand the application to in-
clude land, an interest in land, right to use or receive
water, or a proprietary water right not owned by the
applicant or to address a species other than the spe-
cies for which the application is made.
‘‘(D)(i) The Secretary shall complete the process-
ing of, and approve or deny, any application for a
permit under paragraph (1)(B) within 90 days of the
date of submission of the application or within such
other period of time after such date of submission to
which the Secretary and the permit applicant mutu-
ally agree.
‘‘(ii) The preparation and approval of a species
conservation plan and issuance of a permit under
paragraph (1)(B) shall not be subject to section
102(2) of the National Environmental Policy Act of
1969 (42 U.S.C. 4332(2)).
‘‘(E) No additional measures to minimize and
mitigate impacts on a species that is a subject of a
permit issued under paragraph (1)(B) shall be re-
quired of a permittee that is in compliance with the
permit. With respect to any species that is a subject
of such a permit, under no circumstance shall a per-
mittee in compliance with the permit be required to
make any additional payment for any purpose, or ac-
cept any additional restriction on any parcel of land
available for development or land management or any
water or water-related right under the permit, with-
out the consent of the permittee.
‘‘(F)(i) For such activities as the Secretary de-
termines will not appreciably reduce the chances of
survival of a species, the Secretary may issue an in-
terim permit to any applicant for a permit under
this section that provides evidence of appropriate in-
terim measures that—
‘‘(I) will minimize impacts of any inciden-
tal taking that may be associated with the activ-
ity proposed for permitting; and
‘‘(II) are to be performed while the underly-
ing permit application is being considered under
this section.
‘‘(ii) An interim permit issued under clause
(i)—
‘‘(I) shall specifically state the types of ac-
tivities that are authorized to be carried out
under the interim permit;
‘‘(II) shall not create any right to the issu-
ance of a permit under this section;
‘‘(III) shall expire on the date of the grant-
ing or denial of the underlying permit applica-
tion; and
‘‘(IV) may be revoked by the Secretary upon
failure to comply with any term of the interim
permit.
‘‘(G) The Secretary shall revoke a permit issued
under this paragraph if he finds that the permittee is
not complying with the terms and conditions of the
permit.’’.
(c) MULTI-SPECIES
PLANNING.—Section 10 (16
U.S.C. 1539) is amended by adding at the end the following
new subsection:
‘‘(k) MULTIPLE SPECIES CONSERVATION PLANS.—
‘‘(1) DEVELOPMENT.—The Secretary may assist
a non-Federal person in the development of a plan,
to be known as a ‘multiple species conservation plan’,
for the conservation of—
‘‘(A) any species with respect to which a
finding is made and a status review is com-
menced under section 4(b)(3)(B); and
‘‘(B) any other species that—
‘‘(i) inhabit the area covered by the
plan; and
‘‘(ii) are designated in the plan or are
within a taxonomic group designated in the
plan.
‘‘(2) ISSUANCE
OF
PERMITS.—A non-Federal
person may submit a species conservation plan pre-
pared under this subsection for the conservation of
multiple species to the Secretary for approval under
subsection (a)(2). If the Secretary approves the plan,
the Secretary shall issue an incidental take permit
authorizing take of any threatened species subject to
the plan under section 4(d). The Secretary shall also
recommend terms and conditions to address species
subject to the plan which have not been determined to
be endangered species or threatened species.
‘‘(3) EFFECT OF LISTING OF SPECIES.—A mul-
tiple species conservation plan developed under this
subsection and a permit issued with respect to the
plan shall remain in effect and shall not be required
to be amended if a species to which the plan and per-
mit apply is determined to be an endangered species
or a threatened species under section 4, except that
the Secretary’s recommendations under paragraph (2)
shall become terms and conditions of the permit. No
additional restrictions or prohibitions under this Act
shall be imposed upon the plan permittee for such
species or geographic area beyond those provided for
in the approved plan or the permit terms and condi-
tions.
‘‘(4) CONSIDERATION OF STATE RECOMMENDA-
TIONS.—The Secretary shall, in cooperation with the
States, develop a process whereby full consideration
can be given to State recommendations regarding
standards and guidelines for the development and ap-
proval of a broad range of multiple species conserva-
tion plans. To the maximum extent practicable and
consistent with the conservation of the affected species,
such standards and guidelines shall—
‘‘(A) develop clear criteria by which con-
servation plans would be approved;
‘‘(B) encourage the development of conserva-
tion plans which would reduce economic impacts
while providing conservation of affected species;
‘‘(C) include assurances that further con-
servation measures would not be required of a
non-Federal person should any species dependent
upon that habitat type be subsequently listed un-
less any additional costs are assumed by the Sec-
retary; and
‘‘(D) provide incentives to a non-Federal
person who voluntarily agrees to manage to en-
hance habitat for species on their property by ex-
cluding them from restrictions if they later re-
turn their land to its previous condition or use.
‘‘(5) TECHNICAL ASSISTANCE OR GUIDANCE.—To
the maximum extent practicable, the Secretary and
other Federal agencies, in cooperation with the af-
fected States, are authorized and encouraged to pro-
vide technical assistance or guidance to any non-Fed-
eral person who is developing a multiple species con-
servation plan pursuant to this subsection.’’.
(d) FOREIGN SPECIES.—Section 10(a), as amended by
subsection (b) of this section and sections 203 and 205(a)
of this Act, is amended by adding at the end the following
new paragraph:
‘‘(7) FOREIGN
SPECIES.—(A) In determining
whether 
to 
issue 
a 
permit 
under 
subsection
(a)(1)(A)(iii), there shall be a rebuttable presumption
that the survival of a species is enhanced by the ordi-
nary benefit occurring from the taking of a specimen
for an inherently limited use in accordance with the
laws and wildlife management policies of the nation
in which it is found.
‘‘(B) The Secretary may not refuse to issue a
permit for such specimens and may not limit the
number of such specimens which may be imported un-
less he makes and publishes in the Federal Register
a finding that there is substantial evidence that the
detriment resulting from the taking of such specimens
outweighs the benefit derived, and subsequently pro-
mulgates regulations containing the limitation.
‘‘(C) The Secretary shall transmit the full text
and a complete description of the proposed regulation
referred to in the preceding paragraph directly to the
appropriate wildlife management authorities of the
nations from which the specimens are exported, in the
language of those countries, with at least 180 days al-
lowed for review and comment. The 180-day period
shall be counted from the date of the delivery of the
materials to the wildlife management authority of
each of the nations.
‘‘(D) For the purpose of this paragraph, the term
‘inherently limited use’ means scientific collection,
live export for captive breeding, sport hunting, and
falconry.’’.
(e) EXPEDITED PERMITTING PROCESS FOR LOW-IM-
PACT ACTIVITIES.—Section 10(a), as amended by sub-
sections (b) and (d) of this section and sections 203, 205(a),
and 401(f) of this Act, is amended by adding at the end
the following new paragraph:
‘‘(9) EXPEDITED
PERMITTING
PROCESS
FOR
LOW-IMPACT
ACTIVITIES.—(A) Not later than 180
days after the date of the enactment of the Endan-
gered Species Conservation and Management Amend-
ments of 1995, the Secretary shall issue regulations
which establish a simple, standardized application
form for a permit under paragraph (1)(B) for a low-
impact activity.
‘‘(B) If a person submits an application for a
permit under paragraph (1)(B) in accordance with
the form established by the Secretary under subpara-
graph (A)—
‘‘(i) the person shall not be required to sub-
mit any other information to obtain the permit;
and
‘‘(ii) the Secretary shall complete processing
of the application, and approve or deny the per-
mit, within 30 days after the date the Secretary
receives the completed application.
‘‘(C) The regulations under this paragraph—
‘‘(i) shall describe classes of activities that
are low-impact activities for purposes of this
paragraph; and
‘‘(ii) shall treat as a low-impact activity
any activity which has no significant effect on
the survival of endangered species and threatened
species.
‘‘(D) For purposes of this paragraph, the term
‘low-impact activity’ means an activity in a class of
activities described in regulations under subpara-
graph (C)(i).’’.
SEC. 205. GENERAL, RESEARCH, AND EDUCATIONAL PER-
MITS.
(a) IN GENERAL.—Section 10(a) (16 U.S.C. 1539(a)),
as amended by sections 203 and 204(b) of this Act, is
amended by adding at the end the following new para-
graphs:
‘‘(4) GENERAL
PERMITS.—(A) After providing
notice and opportunity for public hearing, the Sec-
retary may issue a general permit under paragraph
(1)(B) on a county, parish, State, regional, or nation-
wide basis for any category of activities that may af-
fect a species determined to be an endangered species
or threatened species if the Secretary determines that
the activities in the category are similar in nature,
will cause only minimal adverse effects on the species
if performed separately, and will have only minimal
cumulative adverse effects on the species generally. A
general permit issued under this paragraph shall
specify the requirements and standards that apply to
an activity authorized by the general permit.
‘‘(B) A general permit issued under this para-
graph shall be effective for a period to be specified by
the Secretary, but not to exceed the 5-year period that
begins on the date of issuance of the permit.
‘‘(C) The Secretary may revoke or modify a gen-
eral permit if, after providing notice and opportunity
for public hearing, the Secretary determines that the
activities authorized by the general permit have a
greater than minimal adverse effect on a species that
is included in a list published under section 4(c)(1)
or that the activities are more appropriately author-
ized by individual permits issued under paragraph
(1) or (3).
‘‘(5) RESEARCH ON ALTERNATIVE METHODS AND
TECHNOLOGIES.—Priority for issuing permits under
paragraph (1)(A) shall be accorded to applications for
permits to conduct research, captive breeding, or edu-
cation on alternative methods and technologies, and
the comparative costs of the methods and technologies,
to reduce the incidental taking as described in para-
graph (1)(B) of an endangered species or a threatened
species for which the employment of existing methods
or technologies for avoidance of the incidental taking
entails significant costs for non-Federal persons.
‘‘(6) EDUCATIONAL
OR
PROPAGATION
PER-
MITS.—(A) A permit under paragraph (1)(A)(ii) or
(iv) shall be issued if—
‘‘(i)(I) the applicant holds a current and
valid license as an exhibitor under the Animal
Welfare Act (7 U.S.C. 2131 et seq.);
‘‘(II) in the case of a permit under para-
graph (1)(A)(ii), the applicant maintains a pub-
lic display or exhibition of living wildlife de-
scribed in that paragraph; and
‘‘(III) viewing of the public display or exhi-
bition is not limited or restricted other than by
charging an admission fee; or
‘‘(ii) in the case of a permit under para-
graph (1)(A)(iv), the applicant has demonstrated
the ability to use propagation techniques that re-
sult in increases in the populations of species
held in captivity for eventual release into the
wild, maintenance of live specimens, or falconry
purposes.
‘‘(B)(i) The Secretary shall issue an educational
or propagation permit as authorized in subparagraph
(A) within 30 days from the effective date of this sub-
‘‘(E) The Secretary shall revoke a permit re-
ferred to in paragraph (1)(A)(ii) if the Secretary de-
termines that the permittee—
‘‘(i) no longer meets the requirements of
subparagraph (A) and is not reasonably likely to
meet the requirements in the near future;
‘‘(ii) is not complying with the terms and
conditions of the permit; or
‘‘(iii) is engaging in an activity likely to
jeopardize the continued existence of the species
subject to the permit.
‘‘(F) The Secretary may require an annual re-
port on the activities authorized by a general permit,
but may not require reports more frequently than an-
nually.
‘‘(G) A permit authorized in this paragraph
shall be the only permit required for the activities au-
thorized therein, and may cover activities for one or
more species or taxa simultaneously.
‘‘(H) The authorizations for any activities per-
mitted under this paragraph or permitted by the
Bald Eagle Protection Act (16 U.S.C. 668–668d), the
Fish and Wildlife Conservation Act of 1980 (16
U.S.C. 2901–2911), the Lacey Act Amendments of
1981 (18 U.S.C. 42; 16 U.S.C. 3371–3378), the Ma-
rine Mammal Protection Act of 1972 (16 U.S.C.
1361–1407), the Migratory Bird Conservation Act (16
U.S.C. 715–715d), the Migratory Bird Treaty Act (16
U.S.C. 703–712), or the Wild Bird Conservation Act
of 1992 (Public Law 102–440) shall be consolidated
into a general permit to cover all authorized activi-
ties, notwithstanding any law or regulation to the
contrary.’’.
(b) EXCEPTIONS
FOR
WILDLIFE
BRED
IN
CAP-
TIVITY.—Section 10, as amended by section 204(c) of this
Act, is amended by adding at the end the following new
subsection:
‘‘(l) WILDLIFE BRED IN CAPTIVITY.—For the purposes
of this Act or any regulation adopted pursuant to this Act,
the terms ‘bred in captivity’ or ‘captive-bred’, with respect
to wildlife, means wildlife, including eggs, born or otherwise
produced in captivity from parents that mated or otherwise
transferred gametes in captivity if reproduction is sexual,
or from parents that were in captivity when development
of the progeny began, if development is asexual. Such prog-
eny shall be considered domestic fish or wildlife for all pur-
poses and shall not come under the provisions and prohibi-
tions of this Act and the laws listed in subsection (a)(6)(H)
unless intentionally and permanently released to the wild.
Any person holding any fish or wildlife or their progeny
as described in this subsection must be able to demonstrate
that such fish or wildlife do, in fact, qualify under the pro-
vision of this subsection, and shall maintain and submit
to the Secretary, on request, such inventories, documenta-
tion, and records as the Secretary may by regulation re-
quire as being reasonable and appropriate to carry out the
purposes of this subsection. Such requirements shall not un-
necessarily duplicate the requirements of other rules and
regulations promulgated by the Secretary.’’.
SEC. 206. MAINTENANCE OF AQUATIC HABITATS FOR LIST-
ED SPECIES.
The Endangered Species Act of 1973 (16 U.S.C. 1851
et seq.) is amended by adding at the end the following new
section:
‘‘SEC. 20. RECOGNIZING NET BENEFITS TO AQUATIC SPE-
CIES.
‘‘(a) ENCOURAGING NET BENEFITS.—In carrying out
this Act, if the number of individual members of an endan-
gered species or threatened species exiting an aquatic habi-
tat area under the control, authority or ownership of a non-
Federal person is equal to or greater than the number of
individual members of the species entering such area, the
Secretary shall not require, provide for, or recommend the
imposition of any restriction or obligation on the activity
of the non-Federal person in a manner which would require
the non-Federal person to support the maintenance of any
greater number of individual members of the species than
that which enters such aquatic habitat area.
‘‘(b) CONSIDERATION OF HATCHERY POPULATIONS.—
In calculating the number of individual members of a spe-
cies entering and exiting a specific aquatic habitat area
pursuant to this section, the Secretary shall consider hatch-
ery populations.
‘‘(c) LIMITATIONS.—The Secretary shall not require,
provide for, or recommend the imposition of any restriction
or obligation on the activity of any non-Federal person in
an aquatic habitat area to remedy adverse impacts on a
species resulting from activities of individuals other than
the non-Federal person.’’.
SEC. 207. COMPLIANCE WITH INTERNATIONAL REQUIRE-
MENTS AND TREATIES.
(a) RESPECTING THE SOVEREIGNTY OF OTHER NA-
TIONS.—Section 8 (16 U.S.C. 1537) is amended by adding
at the end the following new subsection:
‘‘(e) ENCOURAGEMENT OF FOREIGN PROGRAMS.—Any
action taken by the Secretary pursuant to this Act in regard
to a foreign species which occurs in a country which is a
party to the Convention—
‘‘(1) shall be done in cooperation with the wild-
life conservation authorities of such country; and
‘‘(2) shall not obstruct any wildlife conservation
program of such country unless the Secretary can
show, based on adequate findings supported by sub-
stantial evidence, that the country’s wildlife conserva-
tion program for the species in question is not con-
sistent with the Convention.’’.
(b) COMPLIANCE WITH THE CONVENTION.—Section
8A (16 U.S.C. 1537a) is amended by adding at the end
the following new subsections:
‘‘(f) NONDUPLICATION OF FINDINGS.—The Secretary,
in making the findings required in paragraph 3(a) of Arti-
cle III of the Convention, shall limit such findings to the
purpose of the importation, and shall not duplicate the
findings required to be made by the exporting nation except
for good cause based on adequate findings supported by sub-
stantial evidence.
‘‘(g) RELATIONSHIP OF PROTECTIVE REGULATIONS TO
THE CONVENTION.—In determining the provisions of pro-
tective regulations pursuant to section 4(d) of this Act when
such regulations relate to a foreign species—
‘‘(1) the Secretary may not prohibit any act that
is permissible under the Convention, notwithstanding
Article XIV of the Convention;
‘‘(2) the Secretary shall, prior to publishing a
proposal for such protective regulations in the Federal
Register, transmit the full text and a complete de-
scription of the proposed regulation directly to the ap-
propriate wildlife management authority of that
country, in the language of that country, with at least
180 days allowed for review and comment, the 180
days shall be counted from the date of delivery of the
materials to the wildlife authorities of the country;
‘‘(3) such transmission must be accompanied
by—
‘‘(A) a plain-language explanation of the
reasons for and purpose of the proposed regula-
tion;
‘‘(B) an analysis of the anticipated bene-
ficial impact or detrimental impact of the regu-
lation on the economic, social, and cultural utili-
zation of the species, if any, and of the beneficial
or detrimental impact on the resource manage-
ment and conservation programs of that country;
and
‘‘(C) a summary of the literature reviewed
and experts consulted by the Secretary in regard
to the species involved, and a summary of the
Secretary’s findings based on that review and
consultation;
‘‘(4) the Secretary shall enter into discussions
with appropriate wildlife management officials of the
countries to which he has sent the transmission re-
ferred to in the previous paragraph, and if those offi-
cials feel that further studies of the species are indi-
cated the Secretary may assist in finding funds from
private sources for such studies and in carrying out
the studies; and
‘‘(5) the Secretary must obtain the written con-
currence of all the nations contacted, and if such con-
currence is not obtained the Secretary may not issue
the proposed regulation except by an order submitted
to and approved by the President.’’.
(c) CONSERVATION OF THREATENED SPECIES.—Sec-
tion 9 (16 U.S.C. 1538), as amended by section 206 of this
Act, is amended by adding at the end the following new
subsection:
‘‘(h) IMPORTATION AND EXPORTATION.—
‘‘(1) LIMITATION ON IMPORTATION.—The prohi-
bition on importation in subsection (a) of this section
shall not apply to a specimen of a threatened species
taken for an inherently limited use in accordance
with the laws of a foreign nation which is a party
to the Convention and accompanied by an export per-
mit issued by that nation or an equivalent document.
For the purpose of this subsection, the term ‘inher-
ently limited use’ means scientific collection, live ex-
port for captive breeding, sport hunting, and falconry.
‘‘(2) REGULATIONS FOR SHIPPING UNDER CON-
VENTION.—(A) The Secretary shall adopt regulations
regarding the finding required by the Convention that
live specimens exported from the United States will be
so prepared as to minimize the risk of injury, damage
to health, or cruel treatment. Such regulations shall
provide clear, consistent and reliable guidance to ex-
porters.
‘‘(B) In any instance in which the Secretary be-
lieves that a shipment for export is not prepared in
accordance with the regulations, a detailed written
notice of noncompliance shall be issued to the ex-
porter. The notice shall contain recommendations as
to how future shipments should be modified in order
to come into compliance with the regulations. The no-
tice shall go into effect 30 days after receipt by the
shipper, subject to appeal to an Administrative Law
Judge or a court. The filing of an appeal shall toll
the effectiveness of the notice. The issue of noncompli-
ance may be appealed as well as the issue of the ap-
propriateness of the recommendation for compli-
ance.’’.
SEC. 208. INCENTIVES FOR PROTECTION OF MARINE SPE-
CIES.
(a) IN GENERAL.—Section 10 (16 U.S.C. 1539), as
amended by section 205(b) of this Act, is amended by add-
ing at the end the following new subsection:
‘‘(m) INCENTIVES.—(1) The Secretary shall exempt,
under such terms and conditions as the Secretary may pre-
scribe by regulation, any operator of a trawl vessel required
to use a turtle excluder device under regulations promul-
gated under this Act from such requirement if such operator
agrees to support a conservation program approved under
paragraph (2) and such support is determined to be appro-
priate under paragraph (4).
‘‘(2) No later than 180 days after the effective date of
this subsection and each year thereafter, the Secretary
shall—
‘‘(A) review all those programs intended to con-
serve the endangered species and threatened species of
sea turtles found in the Gulf of Mexico and along the
Atlantic seaboard, including those programs involving
protection of nesting beaches in other nations;
‘‘(B) approve any such program determined by
the Secretary to be of significant benefit to the recov-
ery of the species of such sea turtles under this sub-
section; and
‘‘(C) publish notice of such determination in the
Federal Register.
‘‘(3)(A) Any person or group of persons operating
trawl vessels may submit in writing a request to the Sec-
retary for an exemption under this subsection.
‘‘(B) Not later than 60 days after receipt of such re-
quest the Secretary shall provide such person or group writ-
ten notice of the issuance or denial of such request.
‘‘(4) The Secretary shall determine that the support
offered by an operator in a written request submitted under
paragraph (3) is appropriate if the benefits provided by
such support to the recovery of such species exceed any harm
to the recovery of such species incurred as a result of the
operator not using turtle excluder devices under an exemp-
tion provided under this subsection.
‘‘(5) The Secretary shall prescribe such regulations as
the Secretary considers necessary and appropriate to carry
out the purposes of this subsection.’’.
(b) INCIDENTAL TAKE STATEMENTS.—Section 7(b)
(16 U.S.C. 1536(b)) is amended by adding at the end of
paragraph (4)(C)(ii) the following: ‘‘including incentives to
encourage the support of conservation programs approved
under section 10(k),’’.
SEC. 209. INTERNATIONAL COOPERATION TO CONSERVE
SEA TURTLES.
(a) IN GENERAL.—The Secretary of State, in consulta-
tion with the Secretary of Commerce and the Secretary of
the Interior, may enter into international agreements for
the conservation of sea turtles listed under section 4 of the
Endangered Species Act of 1973, as amended by this Act.
(b) TERMS OF AGREEMENT.—Any international agree-
ment entered into under this section shall—
(1) provide for the conservation of the habitat
and nesting beaches of sea turtles and encourage na-
tional programs to enhance sea turtle populations;
(2) include provisions with respect to commercial
fishing to ensure that—
(A) the capture, injury, and mortality of
sea turtles incidental to such fishing are reduced
to the extent practicable;
(B) the productivity of commercial fisheries
is maintained; and
(C) measures taken by the nations con-
cerned to reduce the capture, injury, and mortal-
ity of sea turtles incidental to such fishing are
comparable to each other;
(3) create an institutional mechanism for inter-
national cooperation on a continuing basis which can
take account of new developments and information,
adopt measures relating to commercial fishing, and
otherwise facilitate international cooperation;
(4) provide for international cooperation in sci-
entific research on sea turtles; and
(5) provide for effective monitoring and evalua-
tion of measures taken by each country that is party
to the agreement to ensure compliance with the agree-
ment by persons and vessels subject to its jurisdiction.
(c) ENTRY INTO FORCE.—International agreements
entered into under this section shall enter into force for the
United States in accordance with the procedures for govern-
ing international fishery agreements set forth in section 203
of the Magnuson Fishery Conservation and Management
Act (16 U.S.C. 1823).
(d) ACCEPTANCE
AND IMPLEMENTATION
OF REC-
OMMENDATIONS.—The Secretary of State is authorized to
act for the United States with respect to any international
agreement entered into under this section, and to receive,
on behalf of the United States, any recommendations for
the conservation of sea turtles made pursuant to such agree-
ment. Any such recommendation shall be acted on by the
United States unless the Secretaries of State, Commerce,
and the Interior agree otherwise. The Secretary of Com-
merce or the Secretary of the Interior shall promulgate such
regulations as may be necessary to carry out any such
agreement or recommendation as has been accepted by the
United States, except that no regulation promulgated under
this Act may impose restrictions on United States commer-
cial fishing vessels which decrease the productivity of such
vessels more than provided for in an agreement or rec-
ommendation approved under this section.
(e) REPORT.—The Secretary of State shall submit to
Congress, not later than May 1, 1996, and every year there-
after a report describing the efforts of the Secretary to im-
plement this section, the results of such efforts, and any
plans for further such efforts. The report shall contain a
list of the countries participating effectively in and comply-
ing with agreements which have been approved pursuant
to subsection (c).
(f) EFFECT ON PRIOR LAW.—Section 609(b) of the Act
making appropriations for the Departments of Commerce,
Justice, and State, the Judiciary, and related agencies for
the fiscal year ending September 30, 1990, and for other
purposes (16 U.S.C. 1537 note) shall not apply to any coun-
try that is a party to, and is complying with, an agreement
entered into under this section whose geographical scope in-
cludes the Gulf of Mexico and the Wider Caribbean Sea.
The Secretary of State is encouraged to enter into inter-
national agreements under this section which include other
regions not affected by that Act.
TITLE 
III—IMPROVING 
SCI-
ENTIFIC INTEGRITY OF LIST-
ING DECISIONS AND PROCE-
DURES
SEC. 301. IMPROVING THE VALIDITY AND CREDIBILITY OF
DECISIONS.
(a) BASING LISTINGS ON CREDIBLE SCIENCE.—
(1) LISTING
DETERMINATIONS.—Section 4 (16
U.S.C. 1533) is amended—
(A) by striking so much as precedes sub-
section (a)(2) and inserting the following:
‘‘SEC. 4. DETERMINATION OF ENDANGERED SPECIES AND
THREATENED SPECIES.
‘‘(a) GENERALLY.—(1) The Secretary shall by regula-
tion promulgated in accordance with subsection (b) deter-
mine whether any species is an endangered species or a
threatened species because of any of the following factors:
‘‘(A) The present or threatened loss of its habitat.
‘‘(B) 
Overutilization 
for 
commercial, 
rec-
reational, scientific, or educational purposes.
‘‘(C) Disease or predation.
‘‘(D) The inadequacy of existing Federal, State,
and local government regulatory mechanisms.
‘‘(E) Other natural or manmade factors affecting
its continued existence.’’;
(B) by striking paragraph (3) of subsection
(a); and
(C) by amending so much of subsection (b)
as precedes paragraph (3) to read as follows:
‘‘(b) SECRETARIAL DETERMINATIONS.—
‘‘(1) BASIS FOR DETERMINATION.—(A) The Sec-
retary shall make determinations required by sub-
section (a)(1) solely on the basis of the best scientific
and commercial data available to the Secretary after
conducting a review of the status of the species and
after soliciting and fully considering the best sci-
entific and commercial data available concerning the
status of a species from any affected State or any in-
terested non-Federal person, and taking into account
those efforts being made by any State, any political
subdivision of a State, or any non-Federal person or
conservation organization, to protect such species,
whether by predator control, protection of habitat and
food supply, or other conservation practices, within
any area under its jurisdiction, or on the high seas,
and shall accord greater weight, consideration, and
preference to empirical data rather than projections
or other extrapolations developed through modeling.
‘‘(B) In making a determination whether a spe-
cies is an endangered species or a threatened species
under this section, the Secretary shall fully consider
populations of the species that are bred through pri-
vate sector, university, and Federal, State, and local
government breeding programs for release in the habi-
tat of the species. In the case of fish species, the bred
populations referred to in the preceding sentence shall
include hatchery populations.
‘‘(C) In making a determination whether a spe-
cies is an endangered species or threatened species
under this section, the Secretary shall consider the fu-
ture conservation benefits to be provided to the species
under any species conservation plans prepared pursu-
ant to section 10 or to any cooperative management
agreement entered into under section 6.
‘‘(2) CONSIDERATION OF STATE RECOMMENDA-
TIONS.—In making a determination pursuant to
paragraph (1), the Secretary shall give consideration
to species which have been identified as in danger of
extinction, or likely to become so within the foresee-
able future, by any State agency that is responsible
for the conservation of fish or wildlife or plants.’’.
(2) STANDARDS FOR TAXONOMIC DECISIONS.—
Section 4(b)(1) (15 U.S.C. 1533(b)(1)), as amended
by paragraph (1), is further amended by adding at
the end the following:
‘‘(D) Within 18 months after the date of the enactment
of the Endangered Species Conservation and Management
Act of 1995, the Secretary shall promulgate scientifically
valid standards for rendering taxonomic determinations of
species and subspecies. The standards shall provide that to
be eligible for determination as a subspecies under this Act,
a subspecies must be reproductively isolated from other sub-
specific population units and constitute an important com-
ponent in the evolutionary legacy of the species.’’.
(3) LISTING
FOREIGN
SPECIES.—Section 4(b)
(16 U.S.C. 1533(b)), as amended by subsection (f) of
this section, is amended by adding at the end the fol-
lowing new paragraph:
‘‘(10) FOREIGN
SPECIES.—(A) In determining
under subsection (a) whether a foreign species is an
endangered species or a threatened species, the Sec-
retary shall not determine that a species that is listed
under the Convention is endangered or threatened un-
less he makes an adequate finding, supported by sub-
stantial evidence, that the Convention does not pro-
vide adequate regulation.
‘‘(B) The Secretary shall, prior to publishing a
proposal in the Federal Register to determine that a
foreign species is endangered or threatened, transmit
the full text and a complete description of the pro-
posed listing directly to the appropriate wildlife man-
agement authority of that nation, in the language of
that nation, with at least 180 days allowed for review
and comment. The 180 days shall be counted from the
date of delivery of the materials supporting the pro-
posed listing to the wildlife authorities of the country.
‘‘(C) Such transmission must be accompanied
by—
‘‘(i) a plain-language explanation of the ob-
jective criteria for and purpose of the proposed
listing;
‘‘(ii) an analysis of the anticipated bene-
ficial impact or detrimental impact of the listing
on the economic, social, and cultural utilization
of the species, if any, and of the beneficial or det-
rimental impact on the resource management
and conservation programs of that nation; and
‘‘(iii) a summary of the literature reviewed
and experts consulted by the Secretary in regard
to the species involved, and a summary of the
Secretary’s findings based on that review and
consultation.
‘‘(D) The Secretary shall enter into discussions
with the appropriate wildlife management officials of
the nations to which he has sent the transmission re-
ferred to in subparagraph (C). If those officials feel
that further studies of the species are indicated, the
Secretary shall assist in finding the funds for such
studies and in carrying out the studies.
‘‘(E) The Secretary must obtain the written con-
currence of all the nations contacted. If such concur-
rence is not obtained, the Secretary may not issue the
proposed regulation except by an order submitted to
and approved by the President.’’.
(b) DEFINITIONS.—Section 3 (16 U.S.C. 1532) is
amended—
(1) by adding after paragraph (1) the following
new paragraph:
‘‘(2) The term ‘best scientific and commercial
data available’ means factual information, including
but not limited to peer reviewed scientific information
and genetic data, obtainable from any source, includ-
ing governmental and nongovernmental sources,
which has been to the maximum extent feasible veri-
fied by field testing.’’;
(2) by adding after paragraph (7) (as redesig-
nated by section 102(a)(1) of this Act) the following
new paragraphs:
‘‘(8) The term ‘distinct population of national
interest’ means a distinct population of a vertebrate
species that is not otherwise an endangered species or
threatened species in the United States, Canada, or
Mexico, but which because of its value to the Nation
as a whole has been designated by Congress as need-
ing protection under this Act.
‘‘(8a) The term ‘foreign species’ means a species
naturally occurring outside the territory of the United
States, but does not include any marine species, any
species having a significant population occurring in
the wild within the United States, or any migratory
species whose migration route includes United States
territory.’’;
(3) by adding after paragraph (13) (as redesig-
nated by section 102(a)(1) of this Act) the following
new paragraph:
‘‘(14) The term ‘imminent threat to the existence
of’, with respect to a species, means, as determined by
the Secretary under section 4(b)(7) or the President
under section 5(e)(2) solely on the basis of the best
scientific and commercial data available, that there is
a significant likelihood that the species will become
extinct, or will be placed on an irreversible course to
extinction, during the 2-year period beginning on the
date of the determination that the species is an en-
dangered species or a threatened species, unless the
species is accorded fully the protection available
under this Act during such period.’’; and
(4) by amending paragraph (23) (as redesig-
nated by section 102(a)(1) of this Act) to read as fol-
lows:
‘‘(23) The term ‘species’ includes any subspecies
of fish or wildlife or plants, and any distinct popu-
lation of national interest of any species or vertebrate
fish or wildlife which interbreeds when mature.’’.
(c) SOLICITING SCIENTIFIC INFORMATION.—Section
4(b)(3) (16 U.S.C. 1533(b)(3)), as amended by sections
303(a), 304(a), 305(a), and 306 of this Act, is amended by
adding at the end the following new subparagraph:
‘‘(F) Before any further action is taken in ac-
cordance with this paragraph, the Secretary shall
publish in the Federal Register a solicitation for fur-
ther information regarding the status of a species
which is the subject of a proposed rule to list the spe-
cies as an endangered species or threatened species,
including current population, populations trends,
current habitat, Federal conservation lands which
could provide habitat for the species, food sources,
predators, breeding habits, captive breeding efforts,
commercial, nonprofit, avocational, or voluntary con-
servation activities, or other pertinent information
which may assist in making a determination under
this section. The solicitation shall give a time limit
within which to submit the information which shall
be not less than 180 days. The time limit shall be ex-
tended for an additional 180 days at the request of
any person who submits a request for such extension
along with the reasons therefor. The Secretary in
making the determination required in this subsection,
shall give equal weight to the information submitted
in accordance with this paragraph.’’.
(d) EMERGENCY
LISTINGS.—Section 4(b)(7) (16
U.S.C. 1533(b)(7)) is amended—
(1) by striking the matter preceding subpara-
graph (A) and inserting the following:
‘‘(7) EMERGENCY REGULATIONS.—Neither para-
graph (4), (5), or (6) of this subsection nor section
553 of title 5, United States Code, shall apply to any
regulation issued by the Secretary in regard to any
emergency posing an imminent threat to the existence
of any species of fish or wildlife or plants, but only
if—’’; and
(2) by adding at the end the following new sen-
tence: ‘‘The Secretary may not delegate the final deci-
sion to issue an emergency regulation under this
paragraph.’’.
(e) USING BEST DATA.—Section 4(b)(8) (16 U.S.C.
1538(b)(8)) is amended—
(1) by striking ‘‘the data’’ and inserting ‘‘the
best scientific and commercial data available’’; and
(2) by adding at the end the following new sen-
tence: ‘‘Each regulation proposed by the Secretary to
implement a determination referred to in subsection
(a)(1) shall be based only upon peer-reviewed sci-
entific information obtainable from any source, in-
cluding governmental and nongovernmental sources,
which has been to the maximum extent feasible veri-
fied by field testing.’’.
(f) IDENTIFYING DATA USED FOR DECISIONS.—Sec-
tion 4(b) (16 U.S.C. 1533(b)) is amended by adding at the
end the following new paragraph:
‘‘(9) PUBLICATION IN FEDERAL REGISTER.—(A)
The Secretary shall identify and publish in the Fed-
eral Register with each proposed rule under para-
graph (1) or section 5(i) a description of—
‘‘(i) all data that are to be considered in
making the determination under the subsection
to which the proposed rule relates and that have
yet to be collected or field verified;
‘‘(ii) data that are necessary to make deter-
minations and that can be collected prior to any
determination; and
‘‘(iii) data that are necessary to ensure the
scientific validity of the determination, and each
deadline for collecting these data.
‘‘(B) In making a determination pursuant to
paragraph (1) or section 5(i), the Secretary shall col-
lect and consider the data identified and described
pursuant to subparagraph (A)(ii).
‘‘(C) The Secretary shall identify and publish in
the Federal Register with each final rule promulgated
under paragraph (1) or section 5(i)—
‘‘(i) a description of any data that have not
been collected and considered in the determina-
tion to which the rule relates and that are nec-
essary to ensure the continued scientific validity
of the determination; and
‘‘(ii) each deadline by which the Secretary
shall collect and consider the data in accordance
with subparagraph (D).
‘‘(D) Not later than the deadline published by
the Secretary pursuant to subparagraph (C)(ii), the
Secretary shall—
‘‘(i) collect the data referred to in each
paragraph;
‘‘(ii) provide an opportunity for public re-
view and comment on the data;
‘‘(iii) consider the data after the review and
comment; and
‘‘(iv) publish in the Federal Register the re-
sults of that consideration and a description of
and schedule for any actions warranted by the
data.’’.
(g) JUDICIAL REVIEW.—Section 4 (16 U.S.C. 1533),
as amended by section 302 of this Act, is amended by add-
ing at the end the following new subsection:
‘‘(j) JUDICIAL REVIEW OF DETERMINATIONS.—Any
determination with regard to whether a species is a threat-
ened species or endangered species shall be subject to a de
novo judicial review with the court determining whether the
decision is supported by a preponderance of the evidence.’’.
(h) ANALYSIS OF ECONOMIC AND SOCIAL EFFECTS.—
Section 4(b) (16 U.S.C. 1533(b)), as amended by section
305(d) of this Act, is further amended by adding at the end
the following new paragraph:
‘‘(12) ANALYSIS
OF
ECONOMIC
AND
SOCIAL
COSTS.—Concurrently with a determination that a
species warrants listing as an endangered species or
threatened species, the Secretary shall issue an analy-
sis of the economic and social effects the listing may
have. The analysis shall be published in the Federal
Register with the listing determination and shall in-
clude an estimate of the effects the listing may have
on Federal, State, and local expenditures and reve-
nues, and the costs and benefits of the listing for the
private sector, including lost opportunity costs.’’.
SEC. 302. PEER REVIEW.
Section 4 (16 U.S.C. 1533) is amended by adding after
subsection (h), as redesignated by section 507(b)(2) of this
Act, the following new subsection:
‘‘(i) PEER REVIEW REQUIREMENT.—
‘‘(1) DEFINITIONS.—In this subsection:
‘‘(A) The term ‘action’ means—
‘‘(i) the determination that a species is
an endangered species or a threatened spe-
cies under subsection (a);
‘‘(ii) the determination under sub-
section (a) that an endangered species or a
threatened species be removed from any list
published under subsection (c)(1);
‘‘(iii) the designation, or revision of the
designation, of critical habitat for an en-
dangered species or a threatened species
under section 5(i); and
‘‘(iv) the determination that a pro-
posed action is likely to jeopardize the con-
tinued existence of a listed species and the
proposal of any reasonable and prudent al-
ternatives by the Secretary under section
7(b)(3).
‘‘(B) The term ‘qualified individual’ means
an individual with expertise in the biological
sciences—
‘‘(i) who is by virtue of advanced edu-
cation, training, or avocational, academic,
commercial, research, or other experience
competent to review the adequacy of any
scientific methodology supporting the ac-
tion, the validity of any conclusions drawn
from the supporting data, and the com-
petency of the individual who conducted the
research or prepared the data;
‘‘(ii) who is not otherwise employed by
or under contract to the Secretary or the
State in which the species is located;
‘‘(iii) who has not actively partici-
pated in the prelisting or listing processes
or advocated that a listing decision be
made;
‘‘(iv) who has not been employed by or
under contract to the Secretary or the State
in which the species is located for work re-
lated to the action or species under consid-
eration; and
‘‘(v) who has no direct financial inter-
est, and is not employed by any person with
a direct financial interest, in opposing the
action under consideration.
‘‘(2) LIST OF PEER REVIEWERS.—In order to
provide a substantial list of individuals who on a vol-
untary basis are available to participate in peer re-
view actions, the Secretary shall, through the Federal
Register, through scientific and commercial journals,
and through the National Academy of Sciences and
other such institutions, seek nominations of persons
who agree to peer review action upon appointment by
the Secretary.
‘‘(3) APPOINTMENT OF PEER REVIEWERS.—Be-
fore any action shall become final, the Secretary shall
appoint, from among the list prepared in accordance
with paragraph (2), not more than 2 qualified indi-
viduals who shall review, and report to the Secretary
on, the scientific information and analyses on which
the proposed action is based. The Governor of each
State in which the species is located that is the subject
of the proposal, may appoint up to 2 qualified indi-
viduals to conduct peer review of the action. If any
individual declines the appointment, the Secretary or
the Governor shall appoint another individual to con-
duct the peer review.
‘‘(4) DATA PROVIDED TO PEER REVIEWER.—The
Secretary shall make available to each person con-
ducting peer review all scientific information avail-
able regarding the species which is the subject of the
peer review. The Secretary shall not indicate to a peer
reviewer the name of any person that submitted a pe-
tition for listing or delisting that is reviewed by the
reviewer.
‘‘(5) OPINION OF PEER REVIEWERS.—The peer
reviewer shall give his or her opinion with regard to
any technical or scientific deficiencies in the proposal,
whether the methodology and analysis supporting the
petition conform to the standards of the academic and
scientific community, and whether the proposal is
supported by sufficient credible evidence.
‘‘(6) PUBLICATION OF PEER REVIEW REPORT.—
The Secretary shall publish with any final regulation
implementing an action a summary of the report of
the peer review panel noting points of disagreement
between peer reviewers, if any, and the response of the
Secretary to the report. The report of the peer review-
ers shall be included in the official record of the pro-
posed action and shall be available for public review
prior to the close of the comment period on the regula-
tion.’’.
SEC. 303. MAKING DATA PUBLIC.
(a) PUBLIC
DATA.—Section 4(b)(3) (16 U.S.C.
1533(b)(3)), as amended by sections 304(a), 305(a), and
306 of this Act, is amended by adding at the end the follow-
ing new subparagraph:
‘‘(E)(i) All data or information considered by
the Secretary in making the determination to list as
provided in this section, shall be considered public in-
formation and shall be subject to section 552 of title
5, United States Code (commonly referred to as the
‘Freedom of Information Act’) unless the Secretary,
for good cause, determines that the information must
be kept confidential. The burden shall be on the Sec-
retary to prove that such information shall be con-
fidential and such decision shall be reviewable by a
district court of competent jurisdiction, which shall
review the decision in chambers. Good cause can in-
clude that the information is of a proprietary nature
or that release of the location of the species may en-
danger the species further.
‘‘(ii) The Secretary shall minimize releasing the
identification of particular private property as habi-
tat for a species which is determined to be an endan-
gered species or threatened species or proposed to be
determined to be an endangered species or threatened
species, unless the Secretary first notifies the owner
thereof and receives his or her consent, or the infor-
mation is otherwise public information.’’.
(b) PUBLIC HEARINGS.—Section 4(b) (16 U.S.C.
1533(b)) is amended—
(1) in paragraph (5) (as amended by section
305(b) of this Act) by adding at the end the following
new subparagraph:
‘‘(E) promptly hold at least 1 hearing in each
State in which the species proposed for determination
as an endangered species or a threatened species is be-
lieved to occur, and in a location that is as close as
possible to the center of the habitat of such species in
such State, including at least one hearing in an af-
fected rural area specified by the Governor of the
State, if the Governor determines that 1 or more rural
‘‘SEC. 14. PUBLIC HEARINGS AND PUBLIC MEETINGS.
‘‘(a) IN GENERAL.—Except as otherwise provided by
this Act, the Secretary shall provide notice of any hearing
or other public meeting at which public comment is accept-
ed under this Act by publication in the Federal Register
and in a newspaper of general circulation in the location
of the hearing or meeting at least 30 days prior to the hear-
ing or meeting.
‘‘(b) HEARINGS.—Public hearings held pursuant to
this Act shall provide an opportunity for the public to make
statements and receive information from the agency regard-
ing the impact of the proposal that is the subject of the pub-
lic hearing. To the maximum extent practicable, the Sec-
retary shall ensure that members of the public are provided
with the information sought at the public hearing.’’.
SEC. 304. IMPROVING THE PETITION AND DESIGNATION
PROCESSES.
(a) PETITIONS TO LIST.—Section 4(b)(3) (16 U.S.C.
1533(b)(3)) is amended to read as follows:
‘‘(3) PETITIONS.—(A) A petition submitted to
the Secretary asserting that a species is a threatened
species or endangered species and requesting that the
Secretary make a determination to that effect shall
contain at a minimum the following:
‘‘(i) Information on the current population
and range of the species.
‘‘(ii) Any information on efforts to field test
the population estimates on the species.
‘‘(iii) If literature from scientific or other
journals, dissertations or other such scientific
writings of another person are submitted, they
must be accompanied by an affidavit that the
literature or writings have been peer reviewed.
‘‘(iv) The qualifications of any person as-
serting expertise on the species or status of the
species.
‘‘(v) Information about the demonstrated
habitat needs of the species, along with the
known occupied habitat of the species.
‘‘(vi) Known causes of the species decline.
‘‘(B) Petitions to add a species to, or to remove
a species from, either of the lists published under sub-
section (c)(1) shall be submitted in accordance with
section 553(e) of title 5, United States Code. The Sec-
retary may commence a review of the status of the
species concerned consistent with the priorities set by
the Secretary for the listing of species. The Secretary
shall promptly publish any finding made under this
subparagraph in the Federal Register.’’.
(b) CONFORMING AMENDMENTS.—Section 4(g), as re-
designated by section 507(b)(2), is amended—
(1) by striking paragraph (2); and
(2) by redesignating paragraphs (3) and (4) in
order as paragraphs (2) and (3).
SEC. 305. GREATER STATE INVOLVEMENT.
(a) STATE CONSULTATION
ON PETITIONS.—Section
4(b)(3) (16 U.S.C. 1533(b)(3)), as amended by section
304(a) of this Act, is amended by adding after subpara-
graph (B) the following subparagraph:
‘‘(C) At the time the review provided in subpara-
graph (B) is commenced—
‘‘(i) the Secretary shall contact the Gov-
ernor of each State in which the proposed species
is located and shall solicit from the Governor in-
formation about the action requested in the peti-
tion in that State necessary to render a decision
and shall solicit the advice of the Governor on
whether the status of species merits the action pe-
titioned for, and if the Governor advises that the
petition action is not warranted and thereafter
the Secretary proceeds with the action, the Sec-
retary shall have the burden of showing that the
information submitted by the Governor is incor-
rect and that the action is warranted; and
‘‘(ii) the Secretary shall, to the maximum
extent feasible, require by field testing, the ver-
ification of the information presented regarding
the status of the species.’’.
(b) REGULATIONS
TO
IMPLEMENT
DETERMINA-
TIONS.—Section 4(b)(5) (16 U.S.C. 1533(b)(5)) is amended
to read as follows:
‘‘(5) NOTICE REQUIRED.—With respect to any
regulation proposed by the Secretary to implement a
determination referred to in subsection (a)(1) of this
section, the Secretary shall—
‘‘(A) not less than 90 days before the effec-
tive date of the regulation—
‘‘(i) publish a general notice and the
complete text of the proposed regulation in
the Federal Register, and
‘‘(ii) give actual notice of the proposed
regulation (including the complete text of
the regulation) to the Governor of each
State in which the species is believed to
occur, and invite the determination of such
State as to whether the action is warranted
and if the Governor notifies the Secretary
that the action is not warranted, the Sec-
retary must provide to the Governor a
record of decision for such determination,
including information made available to the
Secretary which did not support the deter-
mination, and the written reasons for the
determination;
‘‘(B) in cooperation with the Secretary of
State, give notice of the proposed regulation to
each foreign nation in which the species is be-
lieved to occur or whose citizens harvest the spe-
cies on the high seas, and consult with such na-
tion thereon;
‘‘(C) give notice of the proposed regulation
to any person who requests such notice, any per-
son who has submitted additional data, each
State and local government within which the
species is believed to occur or which is likely to
experience any effects of any measures to protect
the species under this Act, and such professional
scientific organizations as the Secretary deems
appropriate;
‘‘(D) publish a summary of the proposed
regulation in a newspaper of general circulation
in each area of the United States in which the
species is believed to occur; and’’.
(c) STATE CONSULTATION
ON FINAL DETERMINA-
TION.—Section 4(h), as redesignated by section 507(b)(2)
of this Act, is amended to read as follows:
‘‘(h) SUBMISSION TO STATE AGENCY OF JUSTIFICA-
TION
FOR
REGULATIONS
INCONSISTENT
WITH
STATE
AGENCY’S COMMENTS OR PETITION.—If, in the case of any
regulation proposed by the Secretary under the authority
of this section, a Governor who consulted with the Secretary
in accordance with subsection (b)(5)(A)(ii) of this section
files comments disagreeing with all or part of the proposed
regulation, the Secretary shall not issue a final regulation
which is in conflict with such comments until the Secretary
further consults with the President. If the Secretary adopts
a final regulation in conflict with comments made by the
Governor of a State or fails to adopt a regulation pursuant
to an action petitioned by a Governor under subsection
(b)(3) of this section, the Secretary shall submit to the Gov-
ernor a written justification for the failure of the Secretary
to adopt regulations consistent with the comments or peti-
tion of the Governor.’’.
(d) FACA.—Section 4(b) (16 U.S.C. 1533(b)), as
amended by section 301(a)(3) and (f) of this Act, is further
amended by adding at the end the following new paragraph:
‘‘(11) FACA.—Consultation with States regard-
ing petitions and proposed regulations under this
subsection shall not be subject to the Federal Advisory
Committee Act (5 U.S.C. App.).’’.
SEC. 306. MONITORING THE STATUS OF SPECIES.
Section 4(b)(3) (16 U.S.C. 1533(b)(3)), as amended by
sections 304(a) and 305(a) of this Act, is amended by add-
ing after subparagraph (C) the following subparagraph:
‘‘(D) The Secretary shall implement a system to
monitor effectively the status of all species with re-
spect to which a finding is made that the petitioned
action is warranted but precluded by proposals to de-
termine whether any species is an endangered species
or a threatened species and progress is being made to
add qualified species to the list published under sub-
section (c) and to remove from lists published under
that subsection species for which protection of this Act
is no longer necessary, and shall make prompt use of
the authority under paragraph (7) to prevent an im-
minent threat to the existence of any such species.’’.
SEC. 307. PETITIONS TO DELIST SPECIES.
Section 4(b)(3) (16 U.S.C. 1533(b)(3)), as amended by
sections 301(c), 303(a), 304(a), 305(a), and 306 of this Act,
is further amended by adding at the end the following new
subparagraphs:
‘‘(G) Any person may submit to the Secretary a
petition to revise a previous determination by the
Secretary under this Act that a species is an endan-
gered species or threatened species and to remove the
shall not be included or considered to be included in
any list published under subsection (c).
‘‘(iv) If, following review required under clause
(i) of this paragraph and subsection (i) of this sec-
tion, the final determination of the Secretary is to re-
tain the species as an endangered species or threat-
ened species on a list published under subsection (c),
that decision shall be considered to be a listing deter-
mination for purposes of section 5.
‘‘(v) This subparagraph shall not apply to a pe-
tition to delist a species for which a review, as re-
quired by this subparagraph, has been conducted by
the Secretary in the preceding 10-year period.’’.
SEC. 308. DETERMINATIONS BY THE SECRETARY TO DELIST.
Section 4(c)(2) (16 U.S.C. 1533(c)(2)) is amended to
read as follows:
‘‘(2) The Secretary shall—
‘‘(A) conduct, at least once every 5 years, a re-
view of all species included in a list which is pub-
lished pursuant to paragraph (1) and which is in ef-
fect at the time of such review; and
‘‘(B) determine on the basis of such review
whether any such species should—
‘‘(i) be removed from such list, which shall
be proposed within 90 days of the date upon
which it is determined that—
‘‘(I) new data or a reinterpretation of
prior data indicates that the previous deter-
mination was in error;
‘‘(II) the species is extinct; or
‘‘(III) the population level target estab-
lished for the species in a conservation plan
under section 5(c)(3)(C)(vii) has been
achieved;
‘‘(ii) be changed in status from an endan-
gered species to a threatened species; or
‘‘(iii) be changed in status from a threat-
ened species to an endangered species.
Each determination under subparagraph (B) shall be made
in accordance with the provisions of subsections (a) and
(b) of this section.’’.
TITLE IV—RECOGNIZING OTHER
FEDERAL ACTION, LAWS, AND
MISSIONS
SEC. 401. BALANCE ESA WITH OTHER LAWS AND MISSIONS.
(a) FEDERAL AGENCY ACTIONS.—Section 7 (16 U.S.C.
1536) is amended by amending the matter preceding sub-
section (b) to read as follows:
‘‘SEC. 7. INTERAGENCY COOPERATION.
‘‘(a) FEDERAL AGENCY ACTIONS
AND CONSULTA-
TIONS.—
‘‘(1) PROGRAMS
ADMINISTERED
BY
THE
SEC-
RETARY OF THE INTERIOR.—The Secretary shall re-
view other programs administered by the Secretary
and utilize such programs in furtherance of the pur-
poses of this Act. Except as provided in section 5(d)
and (e), all other Federal agencies shall, consistent
with their primary missions and in consultation with
and with the assistance of the Secretary, utilize their
authorities in furtherance of the purposes of this Act
by carrying out programs for the conservation of en-
dangered species and threatened species listed pursu-
ant to section 4.
‘‘(2) PROGRAMS ADMINISTERED BY OTHER AGEN-
CIES.—Except as provided in section 5(d) and (e),
each Federal agency shall ensure that any action au-
thorized, funded, or carried out by such agency (here-
inafter in this section referred to as an ‘agency ac-
tion’) is not likely to jeopardize the continued exist-
ence of any endangered species or threatened species
or destroy or adversely modify any habitat that is
designated by the Secretary as critical habitat of the
species in a manner that is likely to jeopardize the
continued existence of the species. In the case of any
agency action that the agency has determined is sub-
ject to this paragraph and that is likely to signifi-
cantly and adversely affect an endangered species or
a threatened species, the Federal agency shall fulfill
the requirements of this paragraph in consultation
with and with the assistance of the Secretary. As pro-
vided in section 5(d)(2), each Federal agency may
initiate consultation with the Secretary to receive
guidance from the Secretary on the consistency of its
action with the conservation objective or conservation
plan for such species developed pursuant to section 5,
with an incidental take permit for such species issued
pursuant to section 10(a), or with a cooperative man-
agement agreement concerning such species executed
pursuant to section 6(b). In fulfilling the require-
ments of this paragraph each agency shall use the best
available scientific and commercial data, shall con-
sider expert opinion and any reasonable and prudent
alternatives developed under subsection (b)(3)(A), and
shall render the decision of the agency in a manner
consistent with the obligations and responsibilities of
the agency under each applicable law and treaty.
‘‘(3) INVOLVEMENT
OF
APPLICANTS
FOR
FED-
ERAL APPROVALS.—Subject to such guidelines as the
Secretary may establish, a Federal agency shall con-
sult with the Secretary on any prospective agency ac-
tion at the request of, with the involvement of, and in
cooperation with, the prospective permit or license
applicant if the applicant has reason to believe that
an endangered species or a threatened species may be
present in the area affected by his project, that the
project is inconsistent with the conservation objective
or plan for such species developed pursuant to section
5, an incidental take permit for such species issued
pursuant to section 10(a), or a cooperative manage-
ment agreement for such species executed pursuant to
section 6(b), and that implementation of such action
will likely affect such species.
‘‘(4) CONFERRING ON SPECIES PROPOSED FOR
LISTING.—Each Federal agency shall confer with the
Secretary on any agency action which is likely to
jeopardize the continued existence of any species pro-
posed to be listed under section 4 or to destroy or ad-
versely modify any habitat that is proposed to be des-
ignated by the Secretary as critical habitat of such a
species in a manner that is likely to jeopardize the
continued existence of the species. This paragraph
does not require a limitation on the commitment of
resources as described in subsection (d).
‘‘(5) LIMITATIONS ON MODIFICATIONS TO LAND
MANAGEMENT.—Notwithstanding any other provision
of this Act, the authority in this Act shall not be con-
strued to authorize or form the basis for any Federal
agency to modify a land management plan, policy,
standard, or guideline or water allocation plan unless
a determination has been made under section 4 that
a species is threatened or endangered. Notwithstand-
ing any other law or regulation, management plans,
practices, policies, projects, or guidelines, including
management plans which, as of October 1, 1995, are
subject to modification pending completion of a final
environmental impact statement, shall not be amend-
ed for the purpose of maintaining viable populations
of native and desired non-native species unless it is
determined under this Act that current practices are
likely to jeopardize the continued existence of the spe-
cies.
‘‘(6) 
DEMONSTRATION
BY
SECRETARY
RE-
QUIRED.—The Secretary shall have the responsibility
of demonstrating, based on the best information avail-
able at the time of the request for consultation, that—
‘‘(A) a threatened species or endangered spe-
cies or its respective critical habitat is located in
the geographic area that would be affected by the
proposed action; and
‘‘(B) such proposed action will jeopardize
the continued existence of a threatened species or
endangered species.
‘‘(7) PROHIBITION ON OPINIONS BASED ON IN-
SUFFICIENT DATA.—The Secretary shall not issue an
opinion under subsection (b) that a proposed action
will jeopardize the continued existence of a threatened
or endangered species based on the insufficiency of
available data on the impact of a proposed action on
such species.’’.
(b) RESOLVING CONFLICTS BETWEEN FEDERAL AGEN-
CIES.—Section 7(a), as amended by subsection (a) of this
section and section 402 of this Act, is amended by adding
at the end the following new paragraphs:
‘‘(10) RELATIONSHIP TO DUTIES UNDER OTHER
LAWS.—(A) The responsibilities of a Federal agency
under this Act shall not supersede and shall be imple-
mented in a manner consistent with duties assigned
to the Federal agency by any other laws or by any
treaties.
‘‘(B)(i) If a Federal agency determines that the
responsibilities and duties described in subparagraph
(A) are in irreconcilable conflict, the action agency
shall request the President to resolve the conflict.
‘‘(ii) In determining a resolution to such a con-
flict, the President shall consider and choose the
course of action that best meets the public interest
and, to the extent possible, balances pursuit of the
conservation objective or the purposes of the conserva-
tion plan with economic and social needs and pursuit
of the purposes of the other laws or treaties. The au-
thority assigned to the President by this subpara-
graph may not be delegated to a member of the execu-
tive branch who has not been confirmed by the Sen-
ate.
‘‘(11) MODIFICATION OF PROJECTS AND FACILI-
TIES.—Any consultation and conferencing required
under paragraphs (2) and (4) for an agency action
that consists solely of a modification of a Federal,
State, local government, or private project or facility
shall be limited to the consideration of the effects that
result from the modification that comprises the agen-
cy action.’’.
(c) PROCEDURES FOR CONSULTATION.—Section 7(b)
(16 U.S.C. 1536(b)) is amended by striking so much as pre-
cedes paragraph (3)(B) and inserting the following:
‘‘(b) OPINION OF SECRETARY.—
100
‘‘(1) PERIODS
WITHIN
WHICH
CONSULTATION
MUST BE COMPLETED.—(A) Consultation under sub-
section (a)(2) with respect to any agency action shall
be concluded within the 90-day period beginning on
the date on which initiated by the Federal agency.
The period may be extended by not more than 45
days by the Secretary or head of the Federal agency
by publication of notice in the Federal Register that
sets forth the reasons for the extension. Consultation
on an agency action involving a permit or license ap-
plicant shall be concluded not later than the earlier
of—
‘‘(i) 1 year after the date of submission of
the application to the Federal agency; or
‘‘(ii) the end of the period established under
subparagraph (B).
‘‘(B) Subject to subparagraph (A), in the case of
an agency action involving a permit or license appli-
cant, the Secretary and the Federal agency may not
mutually agree to conclude consultation within a pe-
riod exceeding 90 days unless the Secretary, before the
close of the 90th day referred to in subparagraph
(A)—
‘‘(i) if the consultation period proposed to
be agreed to will end before the 150th day after
101
the date on which consultation was initiated,
submits to the applicant a written statement set-
ting forth—
‘‘(I) the reasons why a longer period is
required,
‘‘(II) the information that is required
to complete the consultation, and
‘‘(III) the estimated date on which con-
sultation will be completed; or
‘‘(ii) if the consultation period proposed to
be agreed to will end on or after the 150th day
but before the 210th day after the date on which
consultation was initiated, obtains the consent of
the applicant to such period.
‘‘(C) If consultation is not concluded and the
written statement of the Secretary required under
paragraph (3)(A) is not provided to the Federal agen-
cy by the applicable deadline established under this
paragraph, the requirements of subsection (a)(2) shall
be deemed met and the Federal agency may proceed
with the agency action.
‘‘(D) A permit or license applicant shall be enti-
tled to participate fully in any consultation or con-
ferencing under this section with respect to any agen-
102
cy action required for the granting of an authoriza-
tion or provision of funding to the applicant.
‘‘(2) PROCEDURE
FOR
APPLICANT
CONSULTA-
TION.—Consultation under subsection (a)(3) shall be
concluded within such period as is agreeable to the
Secretary, the Federal agency, and the applicant con-
cerned.
‘‘(3) WRITTEN OPINION OF SECRETARY.—(A)(i)
Promptly after conclusion of consultation under para-
graph (2) or (3) of subsection (a), the Secretary shall
provide to the Federal agency and the applicant, if
any, a written statement setting forth the Secretary’s
opinion, and a summary of the information on which
the opinion is based, detailing whether the agency ac-
tion is consistent with the conservation objective or
plan developed pursuant to section 5, an incidental
taking permit issued pursuant to section 10(a), or a
cooperative management agreement executed pursuant
to section 6(b). If the Secretary determines that the
action is likely to jeopardize the continued existence
of the species as described in subsection (a), the Sec-
retary shall suggest reasonable and prudent alter-
natives (considering any reasonable and prudent al-
ternatives undertaken by other Federal agencies) that
are consistent with subsection (a)(2) and that impose
103
the least social and economic costs. In the develop-
ment of a biological opinion, the Secretary shall so-
licit and utilize information and advice from the
Governor of any State in which is located a species
or land that is the subject of the Federal action re-
quiring consultation.
‘‘(ii) Unless required by law other than sub-
sections (a) through (d), the Secretary, in any opin-
ion or statement concerning an agency action made
under this subsection (including any reasonable and
prudent alternative suggested under clause (i) or any
reasonable and prudent measure specified under
clause (ii) of paragraph (4)), and the head of the Fed-
eral agency proposing the agency action, may not re-
quire, provide for, or recommend the imposition of
any restriction or obligation on the activity of any
person that is not authorized, funded, carried out, or
otherwise subject to regulation by the Federal agency.
Nothing in this clause prevents the Secretary from
pursuing any appropriate remedy under section 11
for any activity prohibited by section 4(d) or 9.
‘‘(iii) The Secretary shall not require a reason-
able and prudent alternative that may or will result
in a significant adverse impact upon waterfowl popu-
lations, waterfowl habitat management, or waterfowl
104
hunting opportunities in a significant waterfowl
breeding, staging, or wintering habitat area. In this
clause, the term ‘significant adverse impact’ means
any actions, proposed or in effect, which individually
or cumulatively are likely to reduce the carrying ca-
pacity of habitat for waterfowl by 10 percent or more
of its current capability, as determined on a local, re-
gional, statewide or national basis. In this clause, the
term ‘significant waterfowl breeding, staging, or win-
tering habitat areas’ means those private or public
lands managed primarily for, or providing, waterfowl
breeding, staging or wintering habitat including sea-
sonal/permanent marsh lands or land under rice cul-
tivation for three out of the past five years.
‘‘(iv) Notwithstanding any other provision of
law, if the Secretary renders an opinion or suggests
any reasonable and prudent alternative which has
general application to a group of individuals con-
ducting a commercial operation, the Secretary may
not promulgate an emergency rule without providing
at least 30 days for public comment on the emergency
rule.
‘‘(v) No additional measures to minimize or
mitigate impacts on a species that is a subject of an
opinion issued under this paragraph shall be required
105
of a permit applicant or licensee that is in compli-
ance with the opinion and any agreement or permit
issued to implement the opinion.’’.
(d) ACTIVITIES PRIOR TO COMPLETION OF CONSULTA-
TION.—Section 7(d) (16 U.S.C. 1536(d)) is amended to
read as follows:
‘‘(d) LIMITATION ON COMMITMENT OF RESOURCES.—
‘‘(1) IN GENERAL.—Except as provided in para-
graph (2), after initiation of consultation required
under subsection (a)(2), the Federal agency and the
permit or license applicant shall not make any irre-
versible or irretrievable commitment of resources with
respect to the agency action which has the effect of
foreclosing the formulation or implementation of any
reasonable and prudent alternative measures which
would not violate subsection (a)(2).
‘‘(2) RELATIONSHIP
TO
LAND
MANAGEMENT
PLANNING REQUIREMENTS.—If the listing of a species,
or other procedure or decision related to a species list-
ed under section 4(c)(1), requires consultation under
subsection (a)(2) on a land use plan or land or re-
source management plan (or an amendment to or re-
vision of the plan) prepared under section 202 of the
Federal Land Policy and Management Act of 1976
(43 U.S.C. 1712) or section 6 of the Forest and
106
Rangeland Renewable Resources Planning Act of
1974 (16 U.S.C. 1604), the land management agency
implementing the plan may authorize, fund, or carry
out an agency action that is consistent with the plan
prior to the completion of the consultation, if, under
the procedures established by this section, the head of
the land management agency responsible for the ac-
tion determines or has determined that the action—
‘‘(A) is not likely to significantly and ad-
versely affect the species; or
‘‘(B) is likely to significantly and adversely
affect the species, and the Secretary issues an
opinion on the action that finds that the ac-
tion—
‘‘(i) is not likely to jeopardize the con-
tinued existence of the species; or
‘‘(ii) is likely to jeopardize the contin-
ued existence of the species, and the agency
agrees to a reasonable and prudent alter-
native.’’.
(e) DEFINITIONS.—Section 3 (16 U.S.C. 1532) is
amended—
(1) by adding after paragraph (15) (as added by
section 204(a) of this Act) the following new para-
graph:
107
‘‘(16) The term ‘likely to jeopardize the contin-
ued existence of ’, with respect to an action or activity
affecting an endangered species or a threatened spe-
cies, means an action or activity that significantly
diminishes the likelihood of the survival of the species
by significantly reducing the numbers or distribution
of the entire species.’’;
(2) by amending paragraph (18) (as redesig-
nated by section 102(a)(1) of this Act) to read as fol-
lows:
‘‘(18) The term ‘permit or license applicant’
means, with respect to the consultation procedures es-
tablished by section 7, any person that requires au-
thorization or funding from a Federal agency as a
prerequisite to conducting an activity (including a
party to a written lease, right-of-way, license, con-
tract to purchase or provide a product or service, or
other permit with a Federal agency) that requires an
action from the agency to obtain the benefit of the ac-
tivity.’’; and
(3) by adding after paragraph (20) (as redesig-
nated by section 102(a)(1) of this Act) the following
new paragraph:
‘‘(21) The term ‘reasonable and prudent alter-
native’ means an alternative action under section
108
7(b)(3) during consultation on an agency action
that—
‘‘(A) can be implemented in a manner con-
sistent with the intended purpose of the agency
action or the activity of a non-Federal person
under section 10;
‘‘(B) can be implemented consistent with
the scope of the legal authority and jurisdiction
of the Federal agency;
‘‘(C) is economically and technologically
feasible for the applicant or non-Federal person
to undertake; and
‘‘(D) the Secretary believes would avoid
being likely to jeopardize the continued existence
of the species.’’.
(f) RESTRICTION ON NEW OR ADDITIONAL REQUIRE-
MENTS.—
(1) COMPLIANCE WITH BIOLOGICAL OPINION.—
Section 7(b) (16 U.S.C. 1536(b)) is amended by add-
ing at the end the following new paragraph:
‘‘(5) The Secretary shall, once a Biological Opinion
has been rendered and the applicant has agreed to the terms
and conditions contained in the Biological Opinion, pro-
vide to the applicant a written approval which shall guar-
antee that, so long as the project at issue is pursued consist-
109
ent with the Biological Opinion, the applicant shall not be
subject to new or additional requirements for the specific
protection of any species beyond the requirements set forth
in the Biological Opinion. All public entities shall be bound
by the Secretary’s approval.’’.
(2) COMPLIANCE WITH PERMIT.—Section 10(a)
(16 U.S.C. 1539(a)) is further amended by adding at
the end the following new paragraph:
‘‘(8) RESTRICTION ON NEW OR ADDITIONAL RE-
QUIREMENTS.—The Secretary shall, as part of the
conservation planning process, guarantee that, so long
as the permittee is complying with the terms and con-
ditions of the permit issued under this section, the
permittee shall not be subject to new or additional re-
quirements for the specific protection of any species
beyond the requirements set forth in the conservation
plan. All public entities shall be bound by this guar-
antee.’’.
SEC. 402. EXEMPTIONS FROM CONSULTATION AND CON-
FERENCING.
Section 7(a), as amended by section 401(a) of this Act,
is amended by adding at the end the following new para-
graphs:
‘‘(8) ACTIONS EXEMPT FROM CONSULTATION AND
CONFERENCING.—Consultation 
and 
conferencing
110
under paragraphs (2) and (4) shall not be required
for any agency action that—
‘‘(A) is consistent with the provisions of a
final conservation plan under section 5(c)(5) or
a conservation objective described in section
5(b)(3);
‘‘(B) is consistent with a cooperative man-
agement agreement or an incidental taking per-
mit;
‘‘(C) addresses a critical, imminent threat
to public health or safety or a catastrophic natu-
ral event or compliance with Federal, State, or
local safety or public health requirements;
‘‘(D) consists of routine operation, mainte-
nance, rehabilitation, repair, or replacement to a
Federal or non-Federal project or facility, in-
cluding operation of a project or facility in ac-
cordance with a previously issued Federal li-
cense, permit, or other authorization; or
‘‘(E) permits activities that occur on pri-
vate land.
‘‘(9) ACTIONS NOT PROHIBITED.—An agency ac-
tion shall not constitute a taking of a species prohib-
ited by this Act or any regulation issued under this
Act if the action is consistent with—
111
‘‘(A) the actions provided for in a final con-
servation plan under section 5(c)(5) or a con-
servation objective described in section 5(b)(3);
‘‘(B) a cooperative management agreement
or an incidental take permit; or
‘‘(C) the terms and conditions specified in
a written statement provided under subsection
(b)(3) of this section.’’.
SEC. 403. ELIMINATING THE EXEMPTION COMMITTEE (GOD
COMMITTEE).
(a) CONFORMING AMENDMENTS.—Section 7(c) (16
U.S.C. 1536(c)) is amended—
(1) in the first full sentence by striking ‘‘(1) To
facilitate’’ and inserting ‘‘To facilitate’’; and
(2) by striking paragraph (2).
(b) PRESIDENTIAL EXEMPTIONS.—Section 7(e) (16
U.S.C. 1536(e)) is amended to read as follows:
‘‘(e) EXEMPTIONS.—Notwithstanding any other provi-
sion of this Act—
‘‘(1) the Secretary shall grant an exemption from
this Act for any activity if the Secretary of Defense
determines that the exemption of the activity is nec-
essary for reasons of national security; and
‘‘(2) the President may grant an exemption from
this Act for any area that the President has declared
112
to be a major disaster area under The Robert T. Staf-
ford Disaster Relief and Emergency Assistance Act
(42 U.S.C. 5121 et seq.) for any project for the repair
or replacement of a public facility substantially as
the facility existed prior to the disaster under section
405 or 406 of that Act (42 U.S.C. 5171 and 5172),
if the President determines that the project—
‘‘(A) is necessary to prevent the recurrence
of such a natural disaster and to reduce the po-
tential loss of human life; and
‘‘(B) involves an emergency situation that
does not allow the procedures of this Act (other
than this subsection) to apply.’’.
(c) REPEAL.—Subsections (f) through (p) of section 7
(16 U.S.C. 1536(f)–(p)) are repealed.
TITLE V—BETTER MANAGEMENT
AND CONSERVATION OF LIST-
ED SPECIES
SEC. 501. SETTING CONSERVATION OBJECTIVES.
Section 5 (16 U.S.C. 1534) is redesignated as section
5A, and the following new section is added after section 4:
‘‘SEC. 5. SPECIES CONSERVATION PLANS.
‘‘(a) IN GENERAL.—Except as provided in subsection
(b)(3)(C), the Secretary shall publish a conservation objec-
tive and a conservation plan for each species determined
113
to be an endangered species or a threatened species pursu-
ant to section 4.
‘‘(b) DEVELOPMENT OF CONSERVATION OBJECTIVE.—
‘‘(1) ASSESSMENT
AND
PLANNING
TEAM.—Not
later than 30 days after the listing determination, the
Secretary shall appoint an assessment and planning
team which shall not be subject to the Federal Advi-
sory Committee Act (5 U.S.C. App.) and shall consist
of—
‘‘(A) experts in biology or pertinent sci-
entific fields, economics, property law and regu-
lation, and other appropriate disciplines from
the Department of the Secretary, other Federal
agencies, and the private sector;
‘‘(B) a representative nominated by the
Governor of each affected State;
‘‘(C) representatives nominated by each af-
fected local government, if the local government
agrees to the appointment of a representative;
and
‘‘(D) representatives of persons who may be
directly, economically impacted by the conserva-
tion plan.
114
The chairman of the team shall be selected from rep-
resentatives of participating States or local govern-
ments.
‘‘(2) ASSESSMENTS.—Not later than 180 days
after the listing determination, the assessment and
planning team shall report to the Secretary the as-
sessment of the following biological, economic, and
intergovernmental factors with respect to the listed
species:
‘‘(A) The team shall assess—
‘‘(i) the biological considerations nec-
essary to carry out this Act;
‘‘(ii) the biological significance of the
species;
‘‘(iii) the geographic range and occu-
pied habitat of the species, and the type and
amounts of habitat needed, at a minimum,
to maintain the existence of the species and,
at a maximum, to secure recovery of the
species;
‘‘(iv) the current population, and the
population trend, of the species;
‘‘(v) the technical practicality of recov-
ering the species;
115
‘‘(vi) the potential management meas-
ures capable of recovering, or reducing the
risks to survival of, the species, including
the contribution of existing or potential
captive breeding programs for the species,
predator control, enhancement of food
sources, supplemental feeding, and other
methods which enhance the survival of the
young of the species; and
‘‘(vii) where appropriate, the demon-
strable commercial or medicinal value of the
species.
‘‘(B) The team shall assess the direct, indi-
rect, and cumulative economic and social im-
pacts on the public and private sectors, includ-
ing local governments, that may result from the
listing determination and any potential manage-
ment measures identified under subparagraph
(A)(vi), including impacts on the cost of govern-
mental actions, tax and other revenues, employ-
ment, the use and value of property, other social,
cultural, and community values, and an assess-
ment of any commercial activity which could po-
tentially result in a net benefit to the conserva-
tion of the species.
116
‘‘(C) The team shall assess the impacts on
State and local land use laws, conservation
measures, and water allocation policies that may
result from the listing determination and from
the potential management measures identified
under subparagraph (A)(vi).
‘‘(D) The Secretary shall provide funding to
the team to employ or obtain such technical as-
sistance as necessary to fulfill its duties under
this paragraph.
‘‘(E) Upon completion of the assessment, the
Secretary shall publish in the Federal Register a
notice of availability of the report and allow 30
days for public comment.
‘‘(3) SECRETARIAL
REVIEW
OF
ASSESSMENTS
AND
ESTABLISHMENT
OF
CONSERVATION
OBJEC-
TIVE.—(A) Not later than 210 days after a listing de-
termination, the Secretary shall review the report of
the assessment and planning team prepared pursuant
to paragraph (2), establish a conservation objective
for the species, and publish in the Federal Register
the conservation objective, along with a statement of
findings on which the conservation objective was es-
tablished.
117
‘‘(B) The conservation objective may be, in the
discretion of the Secretary—
‘‘(i) recovery of the listed species;
‘‘(ii) such level of conservation of the species
which the Secretary determines practicable and
reasonable to the extent that the benefits of the
potential conservation measures outweigh the
economic and social costs of such measures, in-
cluding but not limited to maintenance of exist-
ing population levels;
‘‘(iii) no Federal action other than enforce-
ment against any person whose activity violates
the prohibitions specified in section 9(a), includ-
ing any activity that results in a taking of the
species, unless the taking is incidental to, and
not the purpose of, the carrying out of an other-
wise lawful activity; or
‘‘(iv) such other objective as the Secretary
may determine that does not provide a lesser
level of protection than the level described in
clause (iii).
‘‘(C) If the conservation objective established by
the Secretary is the objective provided in subpara-
graph (B)(iii), the Secretary shall not develop a con-
118
servation plan for the affected species under sub-
section (c).’’.
SEC. 502. PREPARING A CONSERVATION PLAN.
(a) IN GENERAL.—Section 5 (16 U.S.C. 1534), as
added by section 501 of this Act, is amended by adding
at the end the following new subsections:
‘‘(c) DEVELOPMENT OF CONSERVATION PLAN.—
‘‘(1) PRIORITIES.—In the development and im-
plementation of a conservation plan under this sub-
section, the Secretary shall accord priority to—
‘‘(A) the development of an integrated plan
for 2 or more endangered species or threatened
species that are likely to benefit from an inte-
grated conservation plan;
‘‘(B) the geographic areas where conflicts
between the conservation of the affected species
and development projects or other forms of eco-
nomic activity exist or are likely to exist;
‘‘(C) protection of the listed species on units
of the National Biological Diversity Reserve as
provided in section 5A(a);
‘‘(D) the implementation of conservation
measures that have the least economic and social
costs;
119
‘‘(E) nonregulatory, incentive-based con-
servation measures and commercial activities
that provide a net benefit to the conservation of
the species; and
‘‘(F) plans in which States or private orga-
nizations 
or 
persons 
are 
the 
primary
implementors.
‘‘(2) PUBLICATION OF DRAFT PLAN.—Not later
than 12 months after the date of a determination that
a species is an endangered species or a threatened
species, the assessment and planning team for the spe-
cies shall publish a draft conservation plan for the
species which is based on the assessments made pursu-
ant to subsection (b)(2) and designed to achieve the
conservation objective established pursuant to sub-
section (b)(3).
‘‘(3) CONTENTS
OF
DRAFT
PLAN.—Each draft
conservation plan shall contain—
‘‘(A) recommendations for Federal agency
compliance with section 7(a)(1) and 7(a)(2);
‘‘(B) recommendations for avoiding a tak-
ing of a listed species prohibited under section
9(a)(1) and a list of specific activities that
would constitute a take under section 9;
120
‘‘(C) alternative strategies to achieve the
conservation objective for the listed species which
range from a strategy requiring the least possible
Federal management to achieve the conservation
objective to a strategy involving more intensive
Federal management to achieve the objective,
each of which contains—
‘‘(i) an estimate of the risks to the sur-
vival and recovery of the species that the al-
ternative would entail;
‘‘(ii) a description of any site-specific
management measures recommended for the
alternative;
‘‘(iii) an analysis of the relationship of
any habitat of the species proposed for des-
ignation as critical habitat to the rec-
ommended management measures;
‘‘(iv) a description of the direct, indi-
rect, and cumulative economic and social
impacts on the public and private sectors
including impacts on employment, the cost
of government actions, tax and other reve-
nues, the use and value of property, and
other social, cultural, and community val-
ues;
121
‘‘(v) a description of any captive
breeding program recommended for the al-
ternative;
‘‘(vi) an analysis of whether the alter-
native would include any release of an ex-
perimental population outside the current
range of the species and an identification of
candidate geographic areas for the release;
‘‘(vii) objective and measurable cri-
teria, including a population level target,
that, if met, would result in a determina-
tion under section 4 that the species is no
longer an endangered species or threatened
species;
‘‘(viii) estimates of the time and costs
required to carry out the management
measures, including any intermediate steps;
and
‘‘(ix) a description of the role of each
affected State, if any, in achieving the con-
servation objective.
‘‘(4) PLAN
PREPARATION
PROCEDURES.—(A)
The Secretary shall consult with the Governor of each
State in which the affected species is located during
the preparation of each draft and final conservation
122
plan. Each plan shall provide for equitable treatment
of affected States and other non-Federal persons.
‘‘(B) The Secretary shall publish in the Federal
Register and a newspaper of general circulation in
each affected county and parish a notice of the avail-
ability and a summary of, and a request for the sub-
mission of comments on, each draft conservation plan.
‘‘(C) The Secretary shall hold at least 1 hearing
on each draft conservation plan in each State to
which the plan would apply in a location that is as
close as possible to the center of the habitat of the af-
fected species in such State.
‘‘(D) Prior to any decision to adopt a final con-
servation plan, the Secretary shall consider and weigh
carefully all information presented during each hear-
ing held under subparagraph (C) or received in re-
sponse to a request for comments published under sub-
paragraph (B).
‘‘(5) PUBLICATION OF FINAL PLAN.—Not later
than 18 months from the date of a determination that
a species is an endangered species or a threatened
species, the Secretary shall publish in the Federal
Register a notice of the availability, and a summary,
of a final conservation plan for the species. The notice
shall include a detailed description of—
123
‘‘(A) the reasons for the selection of the final
conservation plan;
‘‘(B) the reasons for not selecting each of the
other alternatives included in the draft conserva-
tion plan, including, if any alternative is se-
lected other than the alternative that would im-
pose the least total costs on the public and pri-
vate sectors, the reasons for such selection;
‘‘(C) the effect of the priorities specified in
paragraph (1) on the selection; and
‘‘(D) the response of the Secretary to the in-
formation referred to in paragraph (4).
‘‘(6) PARTICIPATION
BY
OTHER
PERSONS.—In
developing and implementing conservation plans, the
Secretary may use the services of appropriate public
and private agencies and institutions and other
qualified persons.
‘‘(7) PLAN REVISION OR AMENDMENT.—Any re-
vision of or amendment to a conservation plan shall
be made in accordance with the procedures and re-
quirements of subsection (b) and this subsection, ex-
cept that the Secretary by regulation may provide for
other procedures and requirements for any amend-
ment that does not increase the direct or indirect cost
124
of implementation of the plan or enlarge the area to
which the plan applies.
‘‘(d) NO FURTHER PROCEDURES OR REQUIREMENTS
FOR ACTIONS CONSISTENT WITH
THE CONSERVATION
PLAN.—If a conservation plan is prepared under subsection
(c) or if a conservation objective is established under sub-
section (b)(3)(C)—
‘‘(1) any Federal agency that determines that the
actions of the agency are consistent with the provi-
sions of the conservation plan or conservation objec-
tive shall be considered to comply with section 7(a)(1)
for the affected species;
‘‘(2) any agency action that the Federal agency
determines is consistent with the provisions of the
conservation plan or conservation objective shall not
be subject to section 7(a)(2) for the affected species, ex-
cept that a Federal agency may initiate consultation
under section 7(a)(2) if the agency desires guidance
from the Secretary on the consistency of the action of
the agency with the conservation plan or conservation
objective; and
‘‘(3) any action of any person that is consistent
with the provisions of the conservation plan or con-
servation objective shall not constitute a violation
concerning the affected species of any applicable pro-