I
105TH CONGRESS
1ST SESSION
H. R. 2351
To amend the Endangered Species Act of 1973 to ensure the recovery of
our Nation’s declining biological diversity; to reaffirm and strengthen
this Nation’s commitment to protect wildlife; to safeguard our children’s
economic and ecological future; and to provide assurances to local govern-
ments, communities, and individuals in their planning and economic
development efforts.
IN THE HOUSE OF REPRESENTATIVES
JULY 31, 1997
Mr. MILLER of California (for himself, Mr. VENTO, Mr. OLVER, Mr. FARR
of California, Ms. JACKSON-LEE
of Texas, Mr. HINCHEY, Mr.
BLUMENAUER, Mr. SANDERS, Mr. LEWIS of Georgia, Mr. MCDERMOTT,
Mrs. MORELLA, Ms. PELOSI, Mrs. MALONEY of New York, Mr. SHAYS,
Mr. FRANK of Massachusetts, Mr. WAXMAN, Mr. STARK, Mr. MARKEY,
Ms. CHRISTIAN-GREEN, Mr. YATES, Mrs. LOWEY, Mr. DICKS, Mr.
DELAHUNT, Mr. LANTOS, Ms. RIVERS, Mr. GEJDENSON, Mr. SERRANO,
Mr. SKAGGS, Mr. SHERMAN, Ms. KILPATRICK, Mr. BERMAN, Mr.
FALEOMAVAEGA, Ms. FURSE, Mr. THOMPSON, Mr. BONIOR, Ms.
DEGETTE, Mr. NEAL of Massachusetts, Mr. BARRETT of Wisconsin, Mr.
DELLUMS, Mrs. MEEK of Florida, Mr. WEXLER, Ms. SLAUGHTER, Mr.
MORAN of Virginia, Mr. ADAM SMITH of Washington, Mr. CARDIN, Mr.
TIERNEY, Mr. MCNULTY, Mr. HASTINGS of Florida, Mr. MEEHAN, Mr.
MCGOVERN, Ms. WATERS, Mr. ENGEL, Ms. CARSON, and Mr. PALLONE)
introduced the following bill; which was referred to the Committee on Re-
sources, and in addition to the Committee on Ways and Means, for a pe-
riod to be subsequently determined by the Speaker, in each case for con-
sideration of such provisions as fall within the jurisdiction of the commit-
tee concerned
A BILL
To amend the Endangered Species Act of 1973 to ensure
the recovery of our Nation’s declining biological diversity;
to reaffirm and strengthen this Nation’s commitment
to protect wildlife; to safeguard our children’s economic
and ecological future; and to provide assurances to local
governments, communities, and individuals in their plan-
ning and economic development efforts.
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; AMEND-
MENT REFERENCES.
(a) SHORT TITLE.—This Act may be cited as the
‘‘Endangered Species Recovery Act of 1997’’.
(b) TABLE OF CONTENTS.—The table of contents of
this Act is as follows:
Sec. 1. Short title; table of contents; amendment references.
Sec. 2. Findings
TITLE I—AMENDMENTS TO ENDANGERED SPECIES ACT OF 1973
Sec. 101. Definitions.
Sec. 102. Designation of critical habitat and survival habitat.
Sec. 103. Schedule for listing determinations.
Sec. 104. Contents of listing petitions.
Sec. 105. Recovery planning.
Sec. 106. Cooperative agreements.
Sec. 107. Interagency cooperation.
Sec. 108. Permits and conservation plans.
Sec. 109. Citizen suits.
Sec. 110. Natural resource damage liability.
TITLE II—TAX INCENTIVES
Sec. 201. Endangered species conservation agreements.
Sec. 202. Deferral of estate taxes for real property subject to endangered spe-
cies conservation agreement.
Sec. 203. Additional deduction for certain State and local real property taxes
imposed with respect to property subject to an endangered spe-
cies conservation agreement.
Sec. 204. Credit for costs of compliance with endangered species conservation
agreement.
TITLE III—AUTHORIZATION OF APPROPRIATIONS
Sec. 301. Authorization of appropriations.
(c) AMENDMENT OF 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 provi-
sion, the reference shall be considered to be made to a
section or other provision of the Endangered Species Act
of 1973 (16 U.S.C. 1531 et seq.).
SEC. 2. FINDINGS
The Congress finds and declares the following:
(1) The American public recognizes the impor-
tance of protecting the natural environmental legacy
of this Nation.
(2) It is only through the protection of all spe-
cies of plants and animals and the ecosystems upon
which they depend that we will conserve a world for
our children with the spiritual, medicinal, agricul-
tural, and economic benefits that plants and animals
offer. Moreover, we have a moral responsibility not
to drive other species to extinction.
(3) We are rapidly proceeding in a manner that
will deny a world of abundant, varied species to fu-
ture generations.
(4) Although the Endangered Species Act of
1973 has prevented the extinction of many animal,
plant, and fish species, many of these species have
not fully recovered and the Act must ensure their
long-term survival and recovery.
(5) Federal agencies and others should act to
protect declining species before they need the full
application of the Endangered Species Act of 1973.
(6) All members of the public have a right to
be involved in the decisions made to protect biodiver-
sity.
(7) To avoid extinction in the wild, habitats
must be conserved by using the best available
science.
(8) Only by taking actions that implement the
existing recovery goal of the Endangered Species Act
of 1973 can we ensure that species will eventually be
removed from the lists of endangered species and
threatened species.
(9) We can provide assurances for communities,
local governments, and private landowners that will
enable them to move forward with planning and eco-
nomic development efforts while still protecting spe-
cies.
TITLE I—AMENDMENTS TO EN-
DANGERED SPECIES ACT OF
1973
SEC. 101. DEFINITIONS.
Section 3 (16 U.S.C. 1532) is amended—
(1) by amending paragraph (5) to read as fol-
lows:
‘‘(5) The term ‘critical habitat’ for a threatened or
endangered species includes—
‘‘(A) the specific areas within the geographic
area occupied by the species, at the time it is listed
in accordance with the provisions of section 4 of this
Act, on which are found those physical or biological
features (i) essential to the conservation of the spe-
cies, and (ii) which may require special management
considerations or protections; and
‘‘(B) specific areas outside the geographical
area occupied by the species at the time it is listed
in accordance with the provisions of section 4 of the
Act, upon a determination by the Secretary that
such areas are essential for the conservation of the
species.’’;
(2) by amending paragraph (16) to read as fol-
lows:
‘‘(16) The term ‘species’ includes any subspecies of
fish or wildlife or plants, any distinct population segment
of any species of vertebrate fish or wildlife which inter-
breeds when mature, and the last remaining distinct popu-
lation segment in the United States of any plant or inver-
tebrate species.’’; and
(3) by adding at the end the following new
paragraphs:
‘‘(22) The term ‘candidate species’ means any spe-
cies—
‘‘(A) that is not the subject of a proposed rule
under section 4(a)(1);
‘‘(B) that the Secretary is considering for list-
ing as an endangered species or threatened species;
and
‘‘(C) for which—
‘‘(i) the Secretary has sufficient informa-
tion to support a proposed rule for that listing;
or
‘‘(ii) the Secretary has information indicat-
ing that proposing that listing may be appro-
priate, but for which further information is re-
quired to support such a proposed rule.
‘‘(23)(A) The term ‘cumulative impacts’ means those
direct impacts and indirect impacts on a species or its
‘‘(24) The term ‘jeopardize the continued existence
of’ means to engage in an action that reasonably would
be expected, directly, indirectly or cumulatively, to reduce
appreciably the likelihood of recovery in the wild of any
foreign or domestic species included in a list published
under section 4(c).
‘‘(25) The term ‘minimize’—
‘‘(A) subject to subparagraph (B), means to
avoid to the extent possible, in designing and engag-
ing in an activity, adverse impacts to a threatened
species or endangered species in the course of the
activity; and
‘‘(B) for an activity for which it is determined,
after consideration of a reasonable range of alter-
natives, that avoidance of adverse impacts to the
species is impossible, to design and implement the
activity in a manner that results in the lowest pos-
sible individual and cumulative adverse impacts on
the species.
‘‘(26) The term ‘mitigate’ means to redress adverse
impacts to a threatened species or endangered species in
connection with an action, by replacing the number of
plants and animals in the wild, and the value to the species
of the habitat, that were lost as a result of the adverse
impacts.
‘‘(27) The term ‘recovery’ means that the threats to
a species, as analyzed under section 4(a), have been elimi-
nated, the species has achieved long-term viability, and the
protective measures under this Act are no longer needed.
‘‘(28) The term ‘interim habitat’ includes the habitat
necessary to support either current populations of a spe-
cies or populations which are necessary to ensure survival,
whichever is larger.’’.
SEC. 102. DESIGNATION OF CRITICAL HABITAT AND SUR-
VIVAL HABITAT.
Section 4 (16 U.S.C. 1531) is amended—
(1) in subsection (a), by amending paragraph
(3) to read as follows:
‘‘(3) The Secretary, by regulation promulgated in ac-
cordance with subsection (b)—
‘‘(A) subject to subparagraph (C), shall, concur-
rently with making a determination under paragraph
(1) that a species is an endangered species or threat-
ened species, designate interim habitat of the spe-
cies;
‘‘(B) subject to subparagraph (C), shall concur-
rently with adoption of the final recovery plan for a
species under subsection (f), designate critical habi-
tat of the species;
‘‘(C) in the case of a highly migratory marine
species, shall designate interim habitat and critical
habitat for the species to the maximum extent bio-
logically determinable; and
‘‘(D) shall, from time to time thereafter as ap-
propriate, revise such designations, if the Secretary
determines that such revision would expedite or as-
sist the recovery of the species.’’; and
(2) in subsection (b), by amending paragraph
(2) to read as follows:
‘‘(2)(A) The Secretary shall designate critical habitat,
and make revisions thereto, under subsection (a)(3) on the
basis of the best scientific data available and after taking
into consideration the economic impact, and any other rel-
evant impact, of specifying any particular area as critical
habitat. Interim habitat designated at the time of listing
shall be revised and finalized as critical habitat concur-
rently with the adoption of the final recovery plan. The
Secretary may exclude any area from critical habitat on
the basis that the benefits of such exclusion outweigh the
benefits of specifying such area as part of the critical habi-
tat, only if the Secretary determines, based on the best
scientific and commercial data available, that the failure
to designate such area as critical habitat will not impair
the species’ recovery.
‘‘(B) The Secretary shall designate interim habitat
of a species based only on biological factors, giving special
consideration to habitat that is currently occupied by the
species.’’.
SEC. 103. SCHEDULE FOR LISTING DETERMINATIONS.
Section 4(b)(3)(C) (16 U.S.C. 1533(b)(3)(C)) is
amended by adding at the end the following:
‘‘(iv) The Secretary shall, by not later than 1 year
after the date of enactment of the Endangered Species Re-
covery Act of 1997, cause to be published in the Federal
Register either a proposal to list or a not warranted find-
ing under subparagraph (B)(i) for each species for which
a finding under subparagraph (B)(iii) was made before
that date of enactment.
‘‘(v) The Secretary shall, not later than 4 years after
the date on which a finding under subparagraph (B)(iii)
is published for a species for which a finding under sub-
paragraph (B)(iii) was made after the date of enactment
of the Endangered Species Recovery Act of 1997, or a
date on which such a species is otherwise designated by
the Secretary as a candidate species, cause to be published
in the Federal Register—
‘‘(I) a proposal to list the species under sub-
paragraph (B)(ii); or
‘‘(II) a not warranted finding under subpara-
graph (B)(i).’’.
SEC. 104. CONTENTS OF LISTING PETITIONS.
Section 4(b)(3) (16 U.S.C. 1533(b)(3)) is amended
by adding at the end the following:
‘‘(E) A petition referred to in subparagraph (A) shall,
to the maximum extent practicable, contain the following
information:
‘‘(i) The current known and historic ranges of
the species.
‘‘(ii) The most recent population estimates and
trends, if available.
‘‘(iii) The reason that the petitioned action is
warranted, including known or perceived threats to
the species.
‘‘(iv) A bibliography of scientific literature on
the species, if any, in support of the petition.
‘‘(v) Any other information that the petitioner
feels is appropriate.’’.
SEC. 105. RECOVERY PLANNING.
Section 4(f) (16 U.S.C. 1533(f)) is amended—
(1) in paragraph (1)—
(A) in the first sentence—
(i) by striking ‘‘develop and imple-
ment plans’’ and inserting ‘‘within 18
months after the date of the adding of a
species to a list under subsection (c), de-
velop a draft plan, and within 30 months
after that date, develop and begin imple-
mentation of a final plan’’; and
(ii) by inserting ‘‘each’’ before ‘‘en-
dangered’’;
(iii) by striking ‘‘, unless he finds that
such plan will not promote the conserva-
tion of the species’’; and
(B) by striking subparagraph (B) and in-
serting the following:
‘‘(B) include in each plan specific provisions, in-
cluding provisions required under subparagraph (C),
that provide for the conservation in the recovery
plan area of all species listed as endangered species
or threatened species, candidate species, and species
proposed for listing;
‘‘(C) incorporate in each recovery plan for a
species—
‘‘(i) a description of such site-specific man-
agement actions, noting those of the highest
priority and greatest recovery potential, as may
be necessary to achieve the plan’s goal for the
recovery of the species;
‘‘(ii) objective, measurable criteria, includ-
ing habitat needs and population levels, that,
when met, would result in a determination, in
accordance with the provisions of this section,
that the species be removed from the list;
‘‘(iii) estimates of the time required and
the cost to carry out those measures needed to
achieve the plan’s goal and to achieve inter-
mediate steps toward that goal;
‘‘(iv) a general description of types of ac-
tions likely to violate the taking prohibition of
section 9 or the jeopardy prohibition of section
7; and
‘‘(v) a list of Federal agencies, States,
tribes, and local government entities signifi-
cantly affected by the goals or management ac-
tions set forth in the recovery plan, that should
complete a recovery implementation plan pursu-
ant to paragraph (5)(A); and
‘‘(D) for the purposes of determining the cri-
teria under subparagraph (C)(ii), select, in consulta-
tion with the National Academy of Sciences, inde-
pendent scientists who—
‘‘(i) through publication of peer-reviewed
scientific literature, have demonstrated relevant
scientific expertise in that species or similar
species; and
‘‘(ii) do not have, nor represent anyone
with, a significant economic interest in the re-
covery plan.’’; and
(2) by amending paragraph (5) to read as fol-
lows:
‘‘(5)(A) Each Federal agency significantly affected by
the goals or management actions set forth in a final recov-
ery plan shall develop and implement a plan (in this para-
graph referred to as a ‘recovery implementation plan’),
after providing public notice and an opportunity for public
review and comment on the recovery implementation plan.
‘‘(B) Each recovery implementation plan shall—
‘‘(i) identify the agency’s affirmative conserva-
tion duties and management responsibilities which
will contribute to the achievement of recovery goals
identified in the final recovery plan;
‘‘(ii) set forth specific agency actions, time-
tables, and funding required to achieve and monitor
progress of these recovery goals or management re-
sponsibilities; and
‘‘(iii) identify any lands or waters under the
agency’s jurisdiction or ownership that currently
provide or may provide suitable habitat for the spe-
cies, identify any actions needed to acquire addi-
tional suitable habitat under section 5(a), and de-
scribe management actions the agency will take on
lands or waters within its jurisdiction or ownership
to contribute toward recovery of the species.
‘‘(C) Consistent with section 6, the Secretary shall
cooperate to the maximum extent practicable with States,
tribes, and local government entities that are significantly
affected by a final recovery plan, to develop State coopera-
tive plans to achieve the goals and implement the manage-
ment actions identified in the recovery plan.’’.
SEC. 106. COOPERATIVE AGREEMENTS.
Section 6 (16 U.S.C. 1535) is amended by adding
at the end of each of subsections (c) and (d) the following:
‘‘(3) In this subsection, the term ‘State’ includes, in
addition to the entities described in section 3(17), any In-
dian tribe.’’.
SEC. 107. INTERAGENCY COOPERATION.
(a) FEDERAL AGENCY ACTIONS
AND CONSULTA-
TIONS.—Section 7(a) (16 U.S.C. 1536(a)) is amended—
(1) in paragraph (1) in the second sentence—
(A) by striking ‘‘All other Federal agen-
cies’’ and inserting ‘‘Each other Federal agen-
cy’’; and
(B) by inserting before the period the fol-
lowing: ‘‘, including recovery actions identified
in recovery implementation plans of the agen-
cy’’;
(2) in paragraph (2) in the first sentence by in-
serting after ‘‘to be critical,’’ the following: ‘‘in such
a way as to diminish the value of that habitat for
the recovery of the species,’’; and
(3) by adding at the end the following:
‘‘(5)(A) Any Federal agency may consult with the
Secretary regarding any action that may affect any can-
didate species or species proposed for listing under section
4(c).
‘‘(B) If consultation under this paragraph is com-
pleted before the listing of the species—
‘‘(i) no additional consultation is required solely
as a consequence of the subsequent listing of that
species, if the Secretary determines that there have
been no significant changes in the agency proposal
and there is no significant new information that was
not considered in the original consultation; and
‘‘(ii) the Secretary shall reinitiate consultation
under paragraph (2) if the Secretary determines
that there has been a significant change in the agen-
cy proposal or that there is significant new informa-
tion that was not considered in the original consulta-
tion.
‘‘(C) A Federal agency shall notify the Secretary of
any significant change in, or significant new information
regarding, any action regarding which the agency con-
sulted with the Secretary under this paragraph.
‘‘(6) The head of each Federal agency shall monitor
the status and trends of endangered species, threatened
species, and candidate species that occur on lands or in
waters under the administration of the agency.’’.
(b) OPINION
OF SECRETARY.—Section 7(b) (16
U.S.C. 1536(b)) is amended—
(1) by amending paragraph (3) to read as fol-
lows:
‘‘(3)(A) Promptly after conclusion of consultation
under paragraph (2), (3), or (5) of subsection (a), the Sec-
retary shall provide to the Federal agency and the appli-
cant, if any, a written statement setting forth the Sec-
retary’s opinion, and a summary of the information on
which the opinion is based, detailing how the agency action
affects the species or its critical habitat, including the
amount of habitat and the number of members of the spe-
cies that will be taken, and conservation actions to mini-
mize and mitigate the impacts of any incidental taking
that may result from the action. If jeopardy or adverse
modification is found, the Secretary shall suggest those
reasonable and prudent alternatives that the Secretary be-
lieves would not violate subsection (a)(2), and can be
taken by the Federal agency or applicant in implementing
the agency action.’’;
(2) by adding at the end the following:
‘‘(5) The Secretary shall, upon receipt of a request
to initiate consultation under paragraph (2), (3), or (5)
of subsection (a), promptly publish a notice in the Federal
Register announcing that the consultation has been initi-
ated and briefly describing the proposed agency action.
The Secretary shall make available upon request any in-
formation in the Secretary’s possession or control concern-
ing the consultation or the opinion prepared pursuant to
this subsection with respect to the consultation.
‘‘(6)(A) The Secretary shall, in preparing an opinion
pursuant to this subsection, invite independent scientists
with expertise on species that may be affected by the pro-
posed agency action to provide input into the consultation
or opinion.
‘‘(B) For purposes of this paragraph, an independent
scientist is an individual described in section 4(f)(1)(D).
‘‘(7) Not later than 30 days after the date the Sec-
retary provides a written statement under paragraph (3)
to the Federal agency and the applicant for a permit, if
any, the Secretary shall publish in the Federal Register
the Secretary’s findings and reasons for making any deter-
mination under this subsection.’’; and
(3) in paragraph (4)—
(A) in subparagraph (B), by striking ‘‘will
not violate such subsection’’ and inserting ‘‘will
not interfere with the timely achievement of re-
covery goals’’ each time it occurs;
(B) in clause (ii), by inserting ‘‘and miti-
gate’’ after ‘‘minimize’’;
(C) in clause (iii), by striking ‘‘and’’ after
the comma at the end;
(D) in clause (iv), by striking the period at
the end and inserting ‘‘, and’’; and
(E) by adding at the end the following:
‘‘(v) directs the Federal agency to assess and
report to the Secretary two years after the date of
issuance of the written statement and every two
years thereafter for as long as any incidental take
continues, the amount of incidental take that has oc-
curred as a direct impact, indirect impact, or cumu-
lative impact.
If an assessment under clause (v) indicates that the
amount of incidental take authorized under the written
statement has been exceeded, the Federal agency shall im-
mediately reinitiate consultation with the Secretary pursu-
ant to section 7(a)(2).’’.
(c) BIOLOGICAL ASSESSMENT.—Section 7(c)(1) (16
U.S.C. 1536(c)(1)) is amended by striking ‘‘Such assess-
ment may be undertaken’’ and inserting ‘‘Such assessment
shall be made available to the public, and may be under-
taken’’.
(d) FOREIGN SPECIES.—Section 7 (16 U.S.C. 1536)
is amended by adding at the end the following:
‘‘(q) FOREIGN SPECIES.—This section shall apply to
any agency action with respect to any endangered species,
threatened species, species proposed to be added to a list
under section 4(c), or candidate species carried out in
whole or in part, in the United States, in a foreign coun-
try, or on the high seas.’’.
(e) STREAMLINING
AND CONSOLIDATING INTER-
AGENCY COOPERATION.—Section 7 (16 U.S.C. 1536) is
further amended by adding at the end the following:
‘‘(r) REGULATIONS TO ENSURE TIMELY CONCLU-
SION OF CONSULTATIONS.—
‘‘(1) IN
GENERAL.—Within 1 year after the
date of the enactment of the Endangered Species
Recovery Act of 1997, the Secretary shall, in co-
operation with the States, promulgate regulations
that will ensure timely conclusion of consultations
under this section.
‘‘(2) CONTENT.—Regulations under this sub-
section shall provide, among other matters, that—
‘‘(A) consultations and conferences under
this section between the Secretary and a Fed-
eral agency shall, to the extent practicable and
if approved by the Secretary, encompass a num-
ber of similar or related agency actions to be
undertaken within a particular geographical
range or ecosystem; and
‘‘(B) the Secretary shall, to the extent
practicable, consolidate requests for consulta-
tions or conferences from various Federal agen-
cies whose proposed actions may affect endan-
gered species, threatened species, or candidate
species that are dependent on the same eco-
system.
‘‘(3) ECOSYSTEM DEFINED.—For purposes of
this subsection, the term ‘ecosystem’ means a dy-
namic complex of organisms and biological commu-
nities, and their associated nonliving environment,
interacting together as an ecological unit.’’.
SEC. 108. PERMITS AND CONSERVATION PLANS.
Section 10(a) (16 U.S.C. 1539(a)) is amended to
read as follows:
‘‘(a) PERMITS.—
‘‘(1) IN GENERAL.—The Secretary may permit
under the terms and conditions provided for in this
section—
‘‘(A) any act otherwise prohibited by sec-
tion 9 for scientific purposes or to enhance the
propagation or survival of the affected species,
or its conservation in the wild, including, but
not limited to, acts necessary for the conserva-
tion, establishment, and maintenance of experi-
mental populations pursuant to subsection (j);
or
‘‘(B) any taking otherwise prohibited by
section 9(a)(1) if such taking is incidental to,
and not the purpose of the carrying out of an
otherwise lawful activity.
The Secretary shall limit the duration of a permit
under this paragraph as necessary to ensure that
changes in circumstances that could occur in the pe-
riod and that would jeopardize the continued exist-
ence of the species are reasonably foreseeable.
‘‘(2) CONSERVATION
PLAN.—(A) No permit
may be issued by the Secretary authorizing any tak-
ing referred to in paragraph (1)(B) unless the appli-
cant therefor submits to the Secretary a conserva-
tion plan in accordance with this paragraph that is
based on the best scientific and commercial informa-
tion available.
‘‘(B) A conservation plan under this paragraph
shall specify the following:
‘‘(i) A description of the specific activities
sought to be authorized by the permit.
‘‘(ii) A description and analysis of a rea-
sonable range of alternative actions to the tak-
ing of each species covered by the plan.
‘‘(iii) The individual and cumulative im-
pacts that may reasonably be anticipated to re-
sult from the permitted activities covered by the
plan, including the impacts of modification or
destruction of habitat of species authorized to
be taken under the permit.
‘‘(iv) Objective, measurable biological goals
to be achieved for each species covered by the
plan.
‘‘(v) The conservation measures the appli-
cant will implement to minimize and mitigate
the impacts specified under clause (iii), includ-
ing—
‘‘(I) the specific conservation meas-
ures for achieving the biological goals of
the plan; and
‘‘(II) any additional requirements or
restrictions or other adaptive management
provisions that are necessary to respond to
all reasonably foreseeable changes in cir-
cumstances that would jeopardize the con-
tinued existence of any species covered by
the plan, including but not limited to new
scientific information and changing envi-
ronmental conditions, including natural
disasters.
‘‘(vi) The reasonably anticipated costs of
the measures specified under clause (v).
‘‘(vii) Measures the applicant will take to
monitor the effectiveness of the plan’s conserva-
tion measures in achieving the plan’s biological
goals and impacts on recovery of each species.
‘‘(viii) Funding that will be available to the
applicant, throughout the term of the plan, to
implement the plan, including but not limited to
the conservation measures specified in the plan.
‘‘(ix) Such other matters as the Secretary
determines to be necessary or appropriate for
purposes of the plan.
‘‘(C) The Secretary shall not issue a permit
under paragraph (1)(B) for the taking of any spe-
cies unless the Secretary finds that the conservation
plan submitted for the permit meets all of the re-
quirements of this paragraph and finds, after oppor-
tunity for public comment with respect to a permit
application and the related conservation plan, that—
‘‘(i) the taking will be incidental;
‘‘(ii) the applicant will minimize and miti-
gate the individual impacts and cumulative im-
pacts of such taking;
‘‘(iii) the activities authorized by the per-
mit and conservation plan are consistent with
the recovery of the species and will result in no
net loss of the value to the species of the habi-
tat occupied by the species;
‘‘(iv) the applicant has, in accordance with
paragraph (8), filed a performance bond or
other evidence of financial security to ensure
adequate funding for each element of the con-
servation plan; and
‘‘(v) the permit contains such terms and
conditions as are necessary or appropriate to
carry out the purposes of this paragraph and
ensure implementation of the conservation plan
by the applicant, including but not limited to,
such reporting and monitoring requirements as
are necessary for determining whether such
terms and conditions are being complied with.
‘‘(D)(i) Each permit shall require the permittee
to provide to the Secretary, one year after the date
of issuance of the permit, and at least every year
thereafter during the term of the permit, a complete
report on the biological status of the species in the
affected area, the impacts of the habitat conserva-
tion plan and the permitted action upon the species,
and whether the biological goals of the plan are
being met.
‘‘(ii) The Secretary shall make reports required
under this subparagraph available to the public.
‘‘(E)(i) If necessary to ensure that the per-
mitted action does not jeopardize the continued ex-
istence of any species affected by the permitted ac-
tion, the Secretary shall require a permittee to im-
plement conservation measures in addition to those
specified in the plan.
‘‘(ii) The Secretary shall pay the costs of any
additional conservation measures required under this
subparagraph that are in excess of the reasonably
anticipated costs specified in the plan.
‘‘(3) REVIEW BY SECRETARY.—
‘‘(A) The Secretary shall, every three years
after the date of approval of a permit applica-
tion and conservation plan under this section,
review and report on the progress of implemen-
tation of the terms and conditions of the permit
and plan and make recommendations on actions
necessary to ensure that they do not jeopardize
the continued existence of any species, that
progress is being made toward achieving the bi-
ological goals of the plan, and that the require-
ments of this section and the goals and policies
of the Act are carried out.
‘‘(B) The Secretary shall annually—
‘‘(i) prepare and make publicly avail-
able a report on the status of all permits
reviewed pursuant to this paragraph; and
‘‘(ii) publish in the Federal Register a
notice of the availability of that report.
‘‘(4) PERMIT
REVOCATION.—The Secretary
shall revoke a permit issued under this section and
‘‘(ii) amounts in the Habitat Conservation
Fund under paragraph (9).
‘‘(6) LOW EFFECT, SMALL SCALE PLANS.—(A)
The Secretary shall develop and implement a
streamlined application and approval procedure for a
permit under paragraph (1)(B) and related con-
servation plan that the Secretary determines to be a
low effect, small scale plan.
‘‘(B) A permit and related conservation plan
may be treated as a low effect, small scale permit
and plan if they meet all of the following criteria:
‘‘(i) The permitted action is expected to be
of less than 5 years’ duration.
‘‘(ii) The conservation plan is applicable to
fewer than 5 acres.
‘‘(iii) The affected acreage is not adjacent
to other lands that have been the subject of a
permit issued under this section within the pre-
ceding five years to the same person, or as part
of the same project.
‘‘(iv) The permitted action is not part of a
single larger project that will have additional
impacts on the endangered species or threat-
ened species.
‘‘(v) The Secretary determines the plan
will have a negligible cumulative impact and in-
dividual impact on the recovery of the endan-
gered species or threatened species.
‘‘(vi) The permitted action is not related to
other actions that will have additional impacts
on the endangered or threatened species. For
purposes of this clause, actions shall be consid-
ered related if they—
‘‘(I) automatically trigger other ac-
tions which may affect endangered species
or threatened species;
‘‘(II) cannot or will not proceed unless
other actions are taken previously or si-
multaneously; or
‘‘(III) are interdependent on parts of
a larger action and depend on the larger
action for their justification.
‘‘(C)(i) The Secretary shall monitor the imple-
mentation and results of low effect, small scale per-
mits and conservation plans to ensure that they do
not jeopardize the continued existence of any endan-
gered species or threatened species.
‘‘(ii) If the Secretary determines that additional
requirements or restrictions are required to ensure
that actions authorized by a low effect, small scale
conservation plan do not jeopardize the continued
existence of any species determined to be an endan-
gered species or threatened species after the plan
was approved, the Secretary shall require appro-
priate modifications to the plan to establish those re-
quirements or restrictions.
‘‘(iii) The Secretary shall pay all costs of imple-
menting additional requirements or restrictions re-
quired under clause (ii).
‘‘(D) The permittee for which a low effect,
small scale permit and conservation plan is approved
under this paragraph shall not be required to pro-
vide a performance bond or other financial security
under paragraph (8).
‘‘(7) MONITORING.—The Secretary shall mon-
itor the implementation and results of all conserva-
tion plans approved under this subsection to ensure
they do not jeopardize the continued existence of any
endangered species or threatened species.
‘‘(8) PERFORMANCE BONDS.—(A) After the ap-
proval of an incidental take permit under paragraph
(1)(B) and associated conservation plan in accord-
ance with this subsection, but before such permit is
issued, the applicant shall—
‘‘(i) file with the Secretary a performance
bond payable to the United States, and condi-
tional upon faithful performance of all the re-
quirements of the permit; or
‘‘(ii) deposit other forms of financial secu-
rity, payable to the United States, in a form
and manner approved by the Secretary, and
conditional upon such faithful performance,
having a cash or market value, as applicable,
equal to or greater than the amount of a per-
formance bond otherwise required under clause
(i).
‘‘(B) The amount of the bond or deposit of
other financial security required for each permit—
‘‘(i) shall be determined by the Secretary;
‘‘(ii) shall be based upon the mitigation re-
quirements needed to meet the biological goals
of the conservation plan; and
‘‘(iii) shall be sufficient to ensure the com-
pletion of all conservation measures to be imple-
mented by the permittee under the conservation
plan, as such costs and measures are specified
in the plan.
‘‘(C) In the case of a bond or deposit of other
financial security required for a large-scale conserva-
tion plan (as that term is defined in paragraph
(11)), or a conservation plan for which the reason-
ably foreseeable costs may be prohibitive, the Sec-
retary may authorize the use of—
‘‘(i) phased bonds or deposits, by which the
permittee may divide the area or actions cov-
ered by the conservation plan into discrete sec-
tions and execute a separate bond or deposit for
each section before undertaking any action on
that section; or
‘‘(ii) adjusted bonds or deposits, through
which the amount of the bond or deposits re-
quired and the terms of acceptance of the bond
or deposit shall be adjusted by the Secretary
from time to time as the extent of actions that
affect endangered species or threatened species
increases or decreases.
‘‘(D) The bond or deposits shall be executed by
the permittee and a corporate surety or depository,
respectively.
‘‘(E)(i) The permittee may file a request with
the Secretary for the release of all or any part of a
performance bond or deposit of any other financial
security required under this paragraph. Within 30
days after any application for release has been filed
with the Secretary, the Secretary shall file notice of
such application in the Federal Register and provide
opportunity for public comment before making a de-
cision under clause (ii).
‘‘(ii) Upon receipt of the request, the Secretary
shall within 30 days conduct a review of the imple-
mentation of the conservation plan to determine
whether the requirements of the plan have been fully
implemented, the plan has achieved its biological
goals, and no further action is needed to ensure that
the permitted action is not jeopardizing the existence
of the species covered by the plan.
‘‘(iii) The Secretary shall notify the permittee
in writing of the decision of the Secretary to release
or not to release all or part of the bond or deposit,
within 90 days after the filing of the request. If the
Secretary does not release any portion of the bond
or deposit, the Secretary shall notify the permittee
in writing, stating the reasons the portion was not
released and recommending corrective actions nec-
essary to secure that release.
‘‘(9) HABITAT CONSERVATION PLAN FUND.—
(A) There is established in the Treasury a separate
account to be known as the ‘Habitat Conservation
Plan Fund’ (in this paragraph referred to as the
‘fund’). The fund shall consist of—
‘‘(i) donations to the fund;
‘‘(ii) appropriations to the fund;
‘‘(iii) amounts received by the United
States as fees charged for permits under this
section;
‘‘(iv) amounts received by the United
States as natural resource damages under sec-
tion 12; and
‘‘(v) the proceeds of performance bonds
and other deposits of financial security under
paragraph (8).
‘‘(B) Amounts in the fund shall be available to
the Secretary until expended, without further appro-
priation, for—
‘‘(i) cost of additional conservation meas-
ures required under paragraph (2)(E) and addi-
tional requirements and restrictions required
under paragraph (6) for recovery of a species;
‘‘(ii) actions by the Secretary to conserve
species under paragraph (5);
‘‘(iii) permitting costs with respect to
which fees are deposited in the fund under sub-
paragraph (A)(iii) of this paragraph; and
‘‘(iv) restoration or replacement of natural
resources with respect to which natural resource
damages are deposited in the fund under sub-
paragraph (A)(iv) of this paragraph.
‘‘(10) MULTIPLE
LANDOWNER, MULTISPECIES
PLANNING.—(A) The Secretary shall encourage the
development of multiple landowner, multispecies con-
servation plans, that—
‘‘(i) make a significant contribution to the
recovery of an endangered species or threatened
species;
‘‘(ii) rely on the best available scientific in-
formation;
‘‘(iii) rely, to the maximum extent prac-
ticable, on ecosystem planning; and
‘‘(iv) maintain the well-being of other spe-
cies located within the planning area.
‘‘(B)(i) To encourage the development of such
plans, the Secretary shall cooperate to the maximum
extent practicable with States and local governments
to streamline permitting processes across jurisdic-
tions.
‘‘(ii) Such cooperation shall include, but not be
limited to, issuing permits under paragraph (1)(B)
to a State, local government, or group of local gov-
ernments for large-scale habitat conservation plans
that involve more than 1 landowner.
‘‘(C) A permit under subparagraph (B)(ii) may
authorize the State, local government, or group of
local governments to issue incidental take certifi-
cates to landowners that authorize takings under the
authority of the permit within the jurisdiction of the
State, local government, or group of local govern-
ments, if—
‘‘(i) the State, local government, or group
of local governments meets the performance
bond or other financial security requirements
under paragraph (8) with respect to all such
certificates, or each certificate is effective only
after the landowner to whom the certificate is
issued has met those requirements with respect
to the certificate;
‘‘(ii) the State, local government, or group
of local governments ensures that all incidental
take certificates issued under the permit are
consistent with the permit and approved habitat
conservation plan;
‘‘(iii) the State, local government, or group
of local governments provides adequate public
notice and opportunity to comment on decisions
to issue incidental take certificates; and
‘‘(iv) the Secretary and the State, local
government, or group of local governments have
adequate authority to enforce the terms and
conditions of the incidental take certificates.
‘‘(D) To encourage the timely development of
plans under this paragraph, the Secretary shall—
‘‘(i) ensure the participation of a broad
range of public and private interests in the de-
velopment of the plan;
‘‘(ii) provide technical assistance to the
maximum extent practicable; and
‘‘(iii) give such plans priority consideration
for funding under section 6.
‘‘(E) The Secretary may approve the use of
pooled bonds or deposits in order to meet the re-
quirements of paragraph (8) for plans approved
under this paragraph which—
‘‘(i) do not meet the requirements of sub-
paragraph (B); and
‘‘(ii) involve more than 1 landowner.
‘‘(11) CITIZEN PARTICIPATION; INDEPENDENT
SCIENTISTS.—(A) The Secretary may issue a permit
under this section only after notice of the receipt of
an application for such a permit has been published
in the Federal Register, a 60-day public comment
period has been provided, and a notice of permit ap-
proval has been published in the Federal Register
with agency responses to public comments.
‘‘(B) The Secretary shall, upon receipt of re-
quest for agency involvement in the development of
a large-scale conservation plan pursuant to para-
graphs (2)(A) and (10), promptly publish a notice in
the Federal Register announcing the agency’s in-
volvement and briefly describing the activities that
would be permitted under the plan. The Secretary
shall make available upon request any information in
the Secretary’s possession or control concerning such
planning efforts.
‘‘(C) The Secretary shall invite members of the
public to participate in the development of large-
scale conservation plans and multiple landowner,
multispecies plans. The Secretary shall promulgate
regulations establishing a development process under
this paragraph which ensures an equitable balance
of participation among citizens with a primary inter-
est in carrying out economic development activities
that may affect species conservation and citizens
whose primary interest is in species conservation.
Meetings of participants under this subparagraph
shall not be subject to the Federal Advisory Commit-
tee Act (5 U.S.C. App.), but shall be open to the
public.
‘‘(D) Upon receipt of a request for agency in-
volvement in the development of a large-scale con-
servation plan, the Secretary shall invite independent
scientists with expertise on species that may be af-
fected by the plan to provide input.
‘‘(E) For the purposes of this paragraph:
‘‘(i) The term ‘agency involvement’ means
any role played by the Secretary in the develop-
ment of a conservation plan pursuant to para-
graph (2)(A).
‘‘(ii) The term ‘large-scale conservation
plan’ means a conservation plan that would
cover a significant portion of the range of a
threatened species, endangered species, can-
didate species, or species proposed for listing
under section 4.
‘‘(iii) For purposes of this subparagraph,
an independent scientist is a scientist that
meets that criteria set forth in clauses (i) and
(ii) of section 4(f)(D).
‘‘(12) PUBLIC OUTREACH AND COMMUNITY AS-
SISTANCE PROGRAM.—(A) The Secretary shall estab-
lish a Community Assistance Program to provide
timely and accurate information to local govern-
ments or property owners.
‘‘(B) Under the Community Assistance Pro-
gram, the Secretary shall assign to each field office
of the United States Fish and Wildlife Service em-
ployees whose duties include, but are not limited
to—
‘‘(i) providing accurate, timely information
on local impacts of determinations that species
are endangered species or threatened species,
recovery planning efforts, and other actions
under this Act;
‘‘(ii) providing assistance on obtaining per-
mits under this section and otherwise complying
with this Act;
‘‘(iii) serving as a focal point for questions,
requests, complaints, and suggestions from
property owners and local governments concern-
ing the policies and activities of the United
States Fish and Wildlife Service or other Fed-
eral agencies in the implementation of this Act;
and
‘‘(iv) training Federal personnel on public
outreach efforts under this Act.’’.
SEC. 109. CITIZEN SUITS.
Section 11(g) (16 U.S.C. 1540(g)) is amended—
(1) in paragraph (1), in subparagraph (A), by
striking ‘‘in violation’’ and all that follows through
the end of the subparagraph and inserting ‘‘in viola-
tion of this Act, any regulation or permit issued
under this Act, any statement provided by the Sec-
retary under section 7(b)(3), or any agreement con-
cluded under authority of this Act;’’;
(2) in paragraph (2)(A)(i), by inserting before
the semicolon the following ‘‘, except that notwith-
standing this clause such an action may be brought
immediately after such notification in the case of an
action against any person regarding an emergency
posing a significant risk to any species of fish or
wildlife or plant included in a list under section 4(c)
or proposed for inclusion in such a list’’; and
(3) in paragraph (2)(B)(i), by inserting before
the semicolon the following: ‘‘, except that notwith-
standing this clause such an action may be brought
immediately after such notification in the case of an
action under this section against any person regard-
ing an emergency posing a significant risk to any
species of fish or wildlife or plant included in a list
under section 4(c)’’.
SEC. 110. NATURAL RESOURCE DAMAGE LIABILITY.
Section 11 (16 U.S.C. 1540) is amended by adding
at the end the following:
‘‘(i) NATURAL RESOURCE DAMAGE LIABILITY.—
‘‘(1) IN GENERAL.—Any person who, in viola-
tion of this Act, negligently damages any member or
habitat of a species included in a list under section
4(c)—
‘‘(A) shall be liable to the United States
for the costs incurred by the United States in
restoring or replacing the member or habitat,
including reasonable costs of assessing such
damage; and
‘‘(B) shall be liable to a State for the costs
incurred by the State in restoring or replacing
the member or habitat under a management
agreement with the Secretary under section
6(a) or a cooperative agreement with the Sec-
retary under section 6(c), including reasonable
costs of assessing such damage.
‘‘(2) DEPOSIT.—Amounts received by the Unit-
ed States under this subsection shall be deposited in
the Habitat Conservation Plan Fund established
under section 10, and may be obligated only for the
acquisition or rehabilitation of damaged habitat or
populations.
‘‘(3) CIVIL ACTIONS BY SECRETARY.—The Sec-
retary may commence a civil action on behalf of the
United States under this subsection.
‘‘(4) NOTICE.—No action may be commenced
under this paragraph by the Secretary or a State be-
fore the end of the 60-day period beginning on the
date the Secretary or the State, respectively, pro-
vides written notice of the action to the person
against whom the action is commenced.’’.
TITLE II—TAX INCENTIVES
SEC. 201. ENDANGERED SPECIES CONSERVATION AGREE-
MENTS.
Section 5 (16 U.S.C. 1534) is amended by adding
at the end the following new subsection:
‘‘(c) ENDANGERED SPECIES CONSERVATION AGREE-
MENTS.—
‘‘(1) IN GENERAL.—The Secretary may enter
into an agreement in accordance with this sub-
section, to be known as an ‘endangered species con-
servation agreement’, with any person that is an
owner or lessee of real property on which will be car-
ried out conservation measures for any species de-
scribed in paragraph (3) in accordance with the
agreement.
‘‘(2) REQUIRED TERMS.—The Secretary shall
include in an agreement with a person under this
subsection provisions that—
‘‘(A) require the person—
‘‘(i) to carry out on real property
owned or leased by the person activities
not otherwise required by law that contrib-
ute to the conservation of a species de-
scribed in paragraph (3);
‘‘(ii) to refrain from carrying out on
real property owned or leased by the per-
son otherwise lawful activities that would
inhibit the conservation of a species de-
scribed in paragraph (3); or
‘‘(iii) to do any combination of clauses
(i) and (ii);
‘‘(B) describe the real property referred to
in subparagraph (A) (i) and (ii);
‘‘(C) specify species conservation goals for
such actions by the person, and measures for
attaining such goals;
‘‘(D) require the person to make measur-
able progress each year in achieving those
goals;
‘‘(E) specify actions to be taken by the
Secretary or the person (or both) to monitor
the effectiveness of the agreement in attaining
those conservation goals;
‘‘(F) require the person to notify the Sec-
retary if—
‘‘(i) any right or obligation of the per-
son under the agreement is assigned to any
other person; or
‘‘(ii) any term of the agreement is
breached by the person or any other person
to whom is assigned a right or obligation
of the person under the agreement;
‘‘(G) specify the date on which the agree-
ment takes effect; and
‘‘(H) provide that the agreement shall not
be in effect on and after any date on which the
Secretary publishes a certification under para-
graph (4) that the person has not complied the
agreement.
‘‘(3) COVERED SPECIES.—A species referred to
in paragraphs (2)(A) (i) and (ii) is any species that
is—
‘‘(A) listed as an endangered species or
threatened species under section 4;
‘‘(B) proposed for such listing under sec-
tion 4; or
‘‘(C) identified by the Secretary as a can-
didate for such listing under section 4.
‘‘(4) REVIEW
AND
APPROVAL
OF
PROPOSED
AGREEMENTS BY SECRETARY.—Upon submission by
any person of a proposed agreement under this sub-
section, the Secretary—
‘‘(A) shall review the proposed agreement
and determine whether it complies with the re-
quirements of this subsection; and
‘‘(B) if the Secretary determines that the
agreement complies with the requirements of
this subsection, shall—
‘‘(i) approve and enter with the per-
son into the agreement; and
‘‘(ii) promptly notify the Secretary of
the Treasury that the agreement has been
entered into, specifying the date on which
the agreement takes effect.
‘‘(5) 
MONITORING
IMPLEMENTATION
OF
AGREEMENT.—The Secretary shall—
‘‘(A) periodically monitor the implementa-
tion of each agreement entered into under this
subsection; and
‘‘(B) based on the information obtained
from that monitoring, annually certify to the
Secretary of the Treasury whether or not each
person that has entered into an agreement
under this subsection has complied with the
agreement.
‘‘(6) STATE
COOPERATION.—The Secretary
shall establish a technical assistance program in co-
operation with the States to assist landowners in the
development and implementation of endangered spe-
cies conservation agreements.’’.
SEC. 202. DEFERRAL OF ESTATE TAXES FOR REAL PROP-
ERTY SUBJECT TO ENDANGERED SPECIES
CONSERVATION AGREEMENT.
(a) IN GENERAL.—Part IV of subchapter A of chap-
ter 11 of the Internal Revenue Code of 1986 (relating to
taxable estate) is amended by adding at the end the follow-
ing new section:
‘‘SEC. 2057. CERTAIN REAL PROPERTY SUBJECT TO ENDAN-
GERED 
SPECIES 
CONSERVATION 
AGREE-
MENT.
‘‘(a) GENERAL RULE.—If—
‘‘(1) on the due date (including extensions) for
filing the return of tax imposed by section 2001 with
respect to the estate of the decedent, an endangered
species conservation agreement is in effect with re-
spect to any real property included in the decedent’s
estate,
‘‘(2) the executor of such estate—
‘‘(A) elects the application of this section
with respect to such real property, and
‘‘(B) files such agreement with the Sec-
retary, and
‘‘(3) each person entering into such agreement
consents to the application of subsection (c),
then, for purposes of the tax imposed by section 2001,
the value of the taxable estate shall be determined by de-
ducting from the value of the gross estate an amount
equal to the value of such real property.
‘‘(b) ENDANGERED SPECIES CONSERVATION AGREE-
MENT.—For purposes of this section, the term ‘endan-
gered species conservation agreement’ means, with respect
to any real property, any endangered species conservation
agreement (as defined in section 5(c) of the Endangered
Species Act of 1973) which is entered into by each person
who has an interest in such property (whether or not in
possession).
‘‘(c) RECAPTURE OF TAX BENEFIT.—
‘‘(1) DISPOSITION
OF
INTEREST; MATERIAL
BREACH OR TERMINATION OF AGREEMENT.—
‘‘(A) IN GENERAL.—Except as provided in
subparagraph (C), if—
‘‘(i) any person disposes of any inter-
est in any property subject to an endan-
gered species conservation agreement,
‘‘(ii) there is a material breach by any
person who holds an interest in such prop-
erty of such agreement, or
‘‘(iii) such agreement terminates,
then there is hereby imposed an additional es-
tate tax.
‘‘(B) AMOUNT OF TAX.—The amount of
the tax imposed by subparagraph (A) with re-
spect to any interest shall be the amount which
bears the same ratio to the fair market value of
such interest (as of the date of the event caus-
ing such tax to be imposed) as—
‘‘(i) the excess of—
‘‘(I) what would have been the
estate tax liability but for subsection
(a) over
‘‘(II) the estate tax liability,
bears to
‘‘(ii) the value of such interest which
would have been included in determining
the gross estate but for subsection (a).
For purposes of this subparagraph, the term
‘estate tax liability’ means the tax imposed by
section 2001 reduced by the credits allowable
against such tax.
‘‘(C) EXCEPTION
IF
TRANSFEREE
AS-
SUMES
OBLIGATIONS
OF
TRANSFEROR.—Sub-
paragraph (A)(i) shall not apply to a disposition
if the transferee enters into a binding written
agreement—
‘‘(i) to assume the obligations imposed
on the transferor under the endangered
species conservation agreement,
‘‘(ii) to assume personal liability for
any tax imposed under subparagraph (A)
with respect to—
‘‘(I) any future disposition or
breach by such transferee, and