SEC. 2. CODIFICATION OF THE ‘‘NO SURPRISES’’ REGULA-
TIONS. 
(a) DEFINITIONS.—Section 3 of the Endangered Spe-
cies Act of 1973 (16 U.S.C. 1532) is amended as follows: 
(1) By inserting after paragraph (1) the fol-
lowing: 
‘‘(l) CHANGED
CIRCUMSTANCES.—The term 
‘changed circumstances’— 
‘‘(A) means changes in circumstances af-
fecting a species or geographic area covered by 
a covered plan or agreement that can reason-
ably be anticipated by developers of such plan 
or agreement, respectively, and the Secretary, 
and that can reasonably be planned for; and 
‘‘(B) includes— 
‘‘(i) additions of species to lists pub-
lished under section 4(c); and 
‘‘(ii) a fire or other natural cata-
strophic event in an area prone to such an 
event.’’. 
(2) By inserting after paragraph (3) the fol-
lowing: 
‘‘(l) COVERED
PLAN
OR
AGREEMENT.—The 
term ‘covered plan or agreement’ means a conserva-
tion plan required under section 10(a)(2)(A) or a 
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candidate conservation agreement with assurances 
under section 10(k), respectively.’’. 
(3) By inserting after paragraph (5) the fol-
lowing: 
‘‘(l) CONSERVED HABITAT AREAS.—The term 
‘conserved habitat areas’ means areas explicitly des-
ignated for habitat restoration, acquisition, protec-
tion, or other conservation purposes under a covered 
plan or agreement.’’. 
(4) By inserting after paragraph (13) the fol-
lowing: 
‘‘(l) OPERATING CONSERVATION PROGRAM.— 
The term ‘operating conservation program’ means 
those conservation management activities that are 
expressly described in a covered plan or agreement 
and that are to be undertaken for the affected spe-
cies when implementing the plan or agreement, re-
spectively, including measures to respond to changed 
circumstances.’’. 
(5) By inserting after paragraph (24) the fol-
lowing: 
‘‘(l) 
UNFORESEEN
CIRCUMSTANCES.—The 
term ‘unforeseen circumstances’ means changes in 
circumstances affecting a species or geographic area 
covered by a covered plan or agreement that could 
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not reasonably have been anticipated by plan devel-
opers and the Secretary at the time of the develop-
ment of such plan or agreement, respectively, and 
that result in a substantial and adverse change in 
the status of the covered species.’’. 
(6) By redesignating the paragraphs of such 
section as paragraphs (1) through (25), respectively. 
(b) CONFORMING AMENDMENT.—Section 7(n) of 
such Act (16 U.S.C. 1536(n)) is amended by striking 
‘‘section 3(13)’’ and inserting ‘‘section 3(16)’’. 
(c) ASSURANCES GOVERNING PERMIT, PLAN, CAN-
DIDATE CONSERVATION AGREEMENT WITH ASSURANCES, 
AND SAFE HARBOR AGREEMENT ISSUANCE, MODIFICA-
TION, AND REVOCATION.—Section 10 of such Act (16 
U.S.C. 1539) is amended as follows: 
(1) Subsection (a)(2)(B) is amended in the 
matter following clause (v) by adding at the end the 
following: ‘‘In addition, each permit issued under 
paragraph (1)(B), each candidate conservation 
agreement with assurances entered into under sub-
section (k), and each safe harbor agreement entered 
into under subsection (l) shall contain the assur-
ances governing permit revocation, changed cir-
cumstances, and unforeseen circumstances set forth 
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in subparagraph (2)(C) and paragraph (3) of this 
subsection.’’. 
(2) Subsection (a)(2)(C) is amended by insert-
ing ‘‘(i)’’ before the text, and by adding at the end 
the following: 
‘‘(ii) The Secretary may not revoke a permit issued 
under paragraph (1)(B) other than as required in clause 
(i), and may not terminate any candidate conservation 
agreement with assurances under subsection (k) or safe 
harbor agreement entered into under subsection (l), unless 
the Secretary finds that— 
‘‘(I) continuation of the permitted activity or 
activity authorized under such an agreement, respec-
tively, would be inconsistent with any of the criteria 
set forth in subparagraph (B); and 
‘‘(II) the inconsistency has not been remedied 
in a timely fashion.’’. 
(3) Subsection (a) is amended by adding at the 
end the following: 
‘‘(3) Each permit issued by the Secretary under para-
graph (1)(B), each candidate conservation agreement with 
assurances entered into under subsection (k), and each 
safe harbor agreement entered into under subsection (l) 
shall be subject to the following assurances addressing 
changed circumstances and unforeseen circumstances: 
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‘‘(A) If additional conservation and mitigation 
measures are deemed necessary to respond to 
changed circumstances and are specified in the oper-
ating conservation program of the conservation plan 
for the permit or in such agreement, respectively, 
the permittee shall implement such measures. 
‘‘(B) If additional conservation and mitigation 
measures are deemed necessary to respond to 
changed circumstances and are not specified in the 
operating conservation program of the conservation 
plan for the permit or in such agreement, respec-
tively, the Secretary may not require any conserva-
tion and mitigation measures in addition to those 
specified in the plan or agreement, respectively, 
without the consent of the permittee. 
‘‘(C)(i) 
In 
negotiating 
unforeseen 
cir-
cumstances, the Secretary may not require the com-
mitment of additional land, water, or financial com-
pensation or additional restrictions on the use of 
land, water, or other natural resources beyond the 
level otherwise agreed upon for the species covered 
by the conservation plan or by such agreement, re-
spectively, without the consent of the permittee. 
‘‘(ii) If additional conservation and mitigation 
measures are deemed necessary to respond to un-
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foreseen circumstances, the Secretary may require 
additional measures of the permittee where the con-
servation plan or agreement, respectively, is being 
properly implemented, but only if such measures— 
‘‘(I) are limited to modifications within 
conserved habitat areas, if any, or to the con-
servation plan’s or agreement’s operating con-
servation program for the affected species; 
‘‘(II) maintain the original terms and 
structures of the conservation plan or agree-
ment to the maximum extent possible; and 
‘‘(III) will not involve the commitment of 
additional land, water, or financial compensa-
tion or additional restrictions on the use of 
land, water, or other natural resources other-
wise available for development or use under the 
original terms of the conservation plan or 
agreement, without the consent of the per-
mittee. 
‘‘(iii) The Secretary shall have the burden of 
demonstrating that unforeseen circumstances exist, 
using the best scientific and commercial data avail-
able. The Secretary shall clearly document any find-
ing that unforeseen circumstances exist, and shall 
base such finding on reliable technical information 
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regarding the status and habitat requirements of the 
affected species. In making such finding, the Sec-
retary will consider, among other matters, the fol-
lowing factors: 
‘‘(I) The size of the current range of the 
affected species. 
‘‘(II) The percentage of such range ad-
versely affected by the conservation plan or 
agreement. 
‘‘(III) The percentage of such range con-
served by the conservation plan or agreement. 
‘‘(IV) The ecological significance of that 
portion of the range affected by the conserva-
tion plan or agreement. 
‘‘(V) The level of knowledge about the af-
fected species and the degree of specificity of 
the species’ conservation program under the 
conservation plan or agreement. 
‘‘(VI) Whether failure to adopt additional 
conservation measures would appreciably reduce 
the likelihood of survival and recovery of the af-
fected species in the wild. 
‘‘(iv) The Secretary shall— 
‘‘(I) present a record of the analyses of the 
status of unforeseen circumstances to the per-
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mittee before requiring any additional conserva-
tion or mitigation measures of the permittee or 
agreement party under clause (ii); and 
‘‘(II) include in the record a qualitative 
and quantitative analysis of each of the factors 
specified in subclauses (I) through (VI) of 
clause (iii).’’. 
SEC. 3. CANDIDATE CONSERVATION AGREEMENTS WITH 
ASSURANCES. 
(a) PERMITS.—Section 10(a)(1) of the Endangered 
Species Act of 1973 (16 U.S.C. 1539(a)(1)) is amended— 
(1) by striking ‘‘or’’ at the end of subparagraph 
(A); 
(2) by striking the period at the end of sub-
paragraph (B) and inserting ‘‘; or’’; and 
(3) by adding at the end the following: 
‘‘(C) any taking incidental to, and not the 
purpose of, the carrying out of an otherwise 
lawful activity pursuant to a candidate con-
servation agreement with assurances entered 
into under subsection (k) or a safe harbor 
agreement entered into under subsection (l).’’. 
(b) AGREEMENTS.—Section 10 of such Act (16 
U.S.C. 1539) is amended by adding at the end the fol-
lowing: 
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‘‘(k) CANDIDATE CONSERVATION AGREEMENTS.— 
‘‘(1) IN GENERAL.—At the request of any non- 
Federal person, the Secretary may enter into a can-
didate conservation agreement with assurances with 
the person for a species that has been proposed for 
listing under section 4(c)(1), is a candidate species, 
or is likely to be considered for listing in the near 
future on areas where the person has a fee simple, 
leasehold, or other property interest (including water 
or other natural resources) sufficient to carry out 
the proposed management activities, including on 
lands or waters under Federal ownership or control. 
‘‘(2) REVIEW BY THE SECRETARY.— 
‘‘(A) SUBMISSION TO THE SECRETARY.—A 
non-Federal person may submit a candidate 
conservation agreement with assurances devel-
oped under paragraph (1) to the Secretary for 
review at any time prior to the listing described 
in section 4(c)(1) of a species that is the sub-
ject of the agreement. 
‘‘(B) CRITERIA FOR APPROVAL.—The Sec-
retary may approve an agreement and issue a 
permit under subsection (a)(1)(C) for the 
agreement if, after notice and opportunity for 
public comment, the Secretary finds that— 
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‘‘(i) for species proposed for listing, 
candidates for listing, or are likely to be 
considered for listing in the near future, 
that are included in the agreement, the ac-
tions taken under the agreement, would 
provide a beneficial contribution to the 
conservation of the species or its habitat 
during the duration of the agreement; 
‘‘(ii) the actions taken under the 
agreement will not appreciably reduce the 
likelihood of survival and recovery of an 
endangered species or a threatened species; 
and 
‘‘(iii) the agreement includes such 
monitoring and reporting requirements as 
reasonably 
necessary 
for 
determining 
whether the terms and conditions of the 
agreement are being complied with. 
‘‘(3) EFFECTIVE DATE OF PERMIT.—A permit 
issued under subsection (a)(1)(C) shall take effect at 
the time the species is listed pursuant to section 
4(c), if the permittee is in full compliance with the 
terms and conditions of the agreement. 
‘‘(4) ASSURANCES.—A person who has entered 
into a candidate conservation agreement under this 
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subsection, and is in compliance with the agreement, 
may not be required to undertake any additional 
measures for species covered by such agreement if 
the measures would require the payment of addi-
tional money, or the adoption of additional use, de-
velopment, or management restrictions on any land, 
waters, or water-related rights that would otherwise 
be available under the terms of the agreement with-
out the consent of the person entering into the 
agreement. The Secretary and the person entering 
into a candidate conservation agreement, by the 
terms of the agreement, shall identify— 
‘‘(A) other modifications to the agreement; 
or 
‘‘(B) other additional measures; 
if any, that the Secretary may require under ex-
traordinary circumstances.’’. 
SEC. 4. SAFE HARBOR AGREEMENTS. 
Section 10 of the Endangered Species Act of 1973 
(16 U.S.C. 1539) (as amended by section 3) is further 
amended by adding at the end the following: 
‘‘(l) SAFE HARBOR AGREEMENTS.— 
‘‘(1) AGREEMENTS.— 
‘‘(A) IN
GENERAL.—The Secretary may 
enter into agreements with non-Federal persons 
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to benefit the conservation of endangered spe-
cies or threatened species by creating, restoring, 
or improving areas as habitat or by maintaining 
currently unoccupied habitat for endangered 
species or threatened species. Under an agree-
ment, the Secretary shall permit the person to 
take endangered species or threatened species 
included under the agreement on lands or 
waters that are subject to the agreement if the 
taking is incidental to, and not the purpose of, 
carrying out of an otherwise lawful activity, ex-
cept that the Secretary may not permit through 
an agreement any incidental taking below the 
baseline requirement specified pursuant to sub-
paragraph (B). 
‘‘(B) BASELINE.—For each agreement 
under this subsection, the Secretary shall estab-
lish a baseline requirement that is mutually 
agreed on by the applicant and the Secretary at 
the time of the agreement that will, at a min-
imum, maintain existing conditions for the spe-
cies covered by the agreement on lands and 
waters that are subject to the agreement. The 
baseline may be expressed in terms of the abun-
dance or distribution of endangered or threat-
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ened species, quantity or quality of habitat, or 
such other indicators as appropriate. 
‘‘(2) CRITERIA FOR APPROVAL.—The Secretary 
may approve an agreement and issue a permit under 
subsection (a)(1)(C) for the agreement if, after no-
tice and opportunity for public comment, the Sec-
retary finds that— 
‘‘(A) the implementation of the terms of 
the agreement is reasonably expected to provide 
a beneficial contribution to the recovery of the 
species during the duration of the agreement; 
‘‘(B) the take will be incidental to an oth-
erwise lawful activity and will be in accordance 
with the terms of the agreement; 
‘‘(C) the actions taken under the agree-
ment will not appreciably reduce the likelihood 
of survival and recovery of an endangered spe-
cies or threatened species; and 
‘‘(D) the agreement includes such moni-
toring and reporting requirements as reasonably 
necessary for determining whether the terms 
and conditions of the agreement are being com-
plied with. 
‘‘(3) EFFECTIVE
DATE
OF
THE
PERMIT.—A 
permit issued under subsection (a)(1)(C) shall take 
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effect on the day of issuance for species covered by 
the agreement.’’. 
SEC. 5. FINANCIAL ASSISTANCE. 
Section 10 of the Endangered Species Act of 1973 
(16 U.S.C. 1539) (as amended by section (4)) is further 
amended by adding at the end the following: 
‘‘(m) FINANCIAL ASSISTANCE.— 
‘‘(1) IN
GENERAL.—In cooperation with the 
States and subject to the availability of appropria-
tions, the Secretary may provide a grant of up to 
$10,000 to any individual private landowner to as-
sist the landowner in carrying out a candidate con-
servation agreement with assurances or safe harbor 
agreement under this subsection. 
‘‘(2) PROHIBITION
ON
ASSISTANCE
FOR
RE-
QUIRED ACTIVITIES.—The Secretary may not pro-
vide assistance under this paragraph for any action 
that is required by a permit, candidate conservation 
agreement with assurances, or safe harbor agree-
ment under this Act or that is otherwise required 
under this Act or other Federal law. 
‘‘(3) OTHER PAYMENTS.—A grant provided to 
an individual private landowner under this para-
graph shall be in addition to, and not affect, the 
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total amount of payments that the landowner is oth-
erwise eligible to receive under Federal law.’’. 
Æ 
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