I
104TH CONGRESS
1ST SESSION
H. R. 2275
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
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
‘‘Endangered 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.
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.
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.
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.
TITLE VIII—FUNDING OF CONSERVATION MEASURES
Sec. 801. Authorizing increased appropriations.
Sec. 802. Funding of Federal mandates.
Sec. 803. Endangered Species and Threatened Species Conservation Trust
Fund.
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. Conforming amendment to table of contents.
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 provi-
sion, 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 essen-
tial to the ability to maintain a sustainable resource
base, therefore economic impacts and private prop-
erty owners’ rights must be considered while encour-
aging practices 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
following:
‘‘(1) To provide a feasible and practical means
to conserve endangered species and threatened spe-
cies consistent with protection of the rights of pri-
vate property owners and ensuring economic stabil-
ity.
‘‘(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 conven-
tions 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
departments and agencies shall seek to conserve and
manage endangered species and threatened species
and shall, consistent with their primary missions,
utilize their authorities in furtherance of the pur-
poses of this Act.
‘‘(2) COOPERATION WITH STATES.—It is fur-
ther declared to be the policy of Congress that Fed-
eral agencies shall cooperate with State and local
agencies to resolve water resource issues in concert
with conservation of endangered species and consist-
ent 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, of-
ficer, 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 follow-
ing 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
offered 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.
Compensation 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
limitation, 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 limited by an agency action.
‘‘(d) NEGOTIATIONS.—The agency may negotiate
with that owner to reach agreement on the amount of the
compensation and the terms of any agreement for pay-
ment. If such an agreement is reached, the agency shall
promptly 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
proceedings 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 attor-
ney’s fees and other litigation costs, including appraisal
fees. The court shall award interest on the amount of any
compensation 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
imposed by another agency, then the agency making the
payment or satisfying the judgment may seek partial or
complete reimbursement from the appropriated funds of
the other agency. For this purpose the head of the agency
concerned 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 appropria-
tion of such funds for the next fiscal year.
‘‘(i) AVAILABILITY OF APPROPRIATIONS.—Notwith-
standing any other provision of law, any obligation of the
‘‘(1) AGENCY.—The term ‘agency’ has the
meaning 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,
including, the right to alter habitat; and
‘‘(viii) the making of a grant of land
or money, to a public authority or a pri-
vate entity as a predicate to an agency ac-
tion by the recipient that would constitute
a limitation if done directly by the agency.
‘‘(3) FAIR
MARKET
VALUE.—The term ‘fair
market 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,
neither 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 ‘limita-
tion 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
‘private property’, ‘privately owned property’, or
‘non-Federal property’ means property which is
owned by a person other than any Federal entity of
government.
‘‘(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
AGREEMENTS.
(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
AGREEMENTS.—Section 6 (16 U.S.C. 1535) is amended
by striking so much as precedes subsection (c) and insert-
ing 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 con-
sultation with the States and non-Federal persons con-
cerned before acquiring any land or water, or interest
therein, for the purpose of conserving any endangered spe-
cies or threatened 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
section 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
agreement 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
government, or non-Federal person and which
are affected by a listing determination, pro-
posed determination, or proposed candidacy for
determination; 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 un-
less written consent to such restrictions by the non-
Federal 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.
public comment on any proposed cooperative man-
agement agreement between the Secretary and any
governmental entity and shall hold a public hearing
on such a proposed cooperative management agree-
ment in each county or parish in which the proposed
agreement would be in effect.
‘‘(C) Before entering into a cooperative man-
agement agreement with another governmental en-
tity or a non-Federal person for the management of
federally owned land, the Secretary shall consider
and weigh carefully all information received in re-
sponse 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 pro-
posed cooperative management agreement under
paragraph (4), the Secretary shall determine wheth-
er the proposed 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—
‘‘(6) ENVIRONMENTAL
ASSESSMENTS.—Prepa-
ration, approval, and entering into a cooperative
management agreement under this subsection shall
not be subject to section 102(2) of the National En-
vironmental 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
agreement 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 agree-
ment, 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 co-
operative 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
PROVI-
SIONS.—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 agreement.
‘‘(10) VIOLATIONS
OF
AGREEMENTS.—(A) If
the Secretary determines that a party to a coopera-
tive management agreement is not administering or
acting in accordance with the agreement, the Sec-
retary 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 ap-
plicability 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 ef-
fective with respect to the party, whichever
is appropriate; and
‘‘(II) sections 5, 7, and 9 shall apply
to activities of the party.’’.
SEC. 103. GRANTS FOR IMPROVING AND CONSERVING
HABITAT FOR SPECIES.
Section 6 (16 U.S.C. 1535), as amended by section
102(b) of this Act, is amended by adding at the end of
subsection (b) the following new paragraph:
‘‘(11) HABITAT CONSERVATION GRANTS.—(A)
The Secretary may, from amounts in the account es-
tablished by section 13 or from funds appropriated
for such purpose, provide a grant to a non-Federal
person (other than an officer, 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 conserving,
preserving, or improving habitat for any species that
is determined under section 4 to be an endangered
species or a threatened species.
‘‘(B) The Secretary may provide a grant under
this paragraph if the Secretary determines that—
‘‘(i) the property for which the grant is
provided contains habitat that significantly con-
tributes to the protection of the population of
the species;
‘‘(ii) 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
‘‘(iii) the management of the habitat ad-
vances the interest of species protection.
‘‘(C) A grant made under this paragraph shall
be transferable 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 for which a conservation goal
has been adopted under this section. The technical
assistance provided shall include information on
habitat needs of species, optimum management of
habitat for species, methods for propagation of spe-
cies, feeding needs and habits, predator controls,
and any other information which a non-Federal per-
son may utilize or request for the purpose of con-
serving a species determined to be an endangered
species or threatened species or proposed to be de-
termined as an endangered species or threatened
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
quantities 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 uti-
lize 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 decree, or held by the United States for
use by a State, its political subdivisions, or its citizens.
The exercise of authority 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 pursuant 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, sec-
tion 7(a), and section 10, with respect to any endan-
gered 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 re-
spect to any endangered species of plants listed pur-
suant to section 4, it is unlawful for any person sub-
ject to the jurisdiction of the United States to—’’;
and
(3) by adding at the end the following new
paragraph:
‘‘(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 objec-
tive;
‘‘(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 nat-
ural event, or is mandated by any Federal,
State, or local government agency for public
health or safety purposes; or
‘‘(D) is incidental to, and not the purpose
of, the carrying out of an otherwise lawful ac-
tivity that occurs within an area of the terri-
torial 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 spe-
cies 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
endangered species or threatened species of fish or
wildlife,’’;
(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 speices of’’ after ‘‘im-
porting 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 (e) by adding at the end the
following new paragraph:
‘‘(7) ADOPTION OF REGULATIONS.—(A) No in-
terpretation, policy, guideline, finding, or other in-
formal determination may be relied upon by the Sec-
retary in the implementation and enforcement of
this Act unless such determination has been the sub-
ject of a proposed rule, subject to review by the pub-
lic and comment for a period of no less than 60
days. Any proposed rule under this subparagraph
must include—
‘‘(i) a plain-language explanation of the
reasons for and purpose of the proposed rule;
‘‘(ii) an analysis of the anticipated impact
of the proposed rule;
‘‘(iii) an analysis showing that the restora-
tion benefit of the proposed rule outweighs any
negative conservation impact of that proposed
rule;
‘‘(iv) an analysis showing that compliance
with the proposed rule is reasonably within the
means of the State or the range nation con-
cerned; and
‘‘(v) a summary of the literature reviewed
and experts consulted in regard to the species
involved, and a summary of the Secretary’s
findings based on that review and consultation.
‘‘(B) No refusal of entry, seizure of evidence, or
other enforcement action may take place under this
Act if the action is based solely on a notification
under the Convention or on a resolution of the Con-
ference of the Parties to the Convention.
‘‘(C) The burden is on the Secretary to show
that a specimen belongs to a species which is deter-
mined 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
specimen for longer than 30 days for the purpose of
identification. If the specimen cannot be positively
identified within that time, then it shall be re-
leased.’’; and
(7) 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
person on his or her own behalf, who satisfies the
requirements of the Constitution and who has suf-
fered or is threatened with economic or other injury
resulting from the violation, regulation, application,
nonapplication, or failure to act—
‘‘(A) to enjoin the United States or any
agency or official of the United States who is
alleged 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 en-
dangered 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
discretionary with the Secretary.
The district courts shall have jurisdiction to enforce
any such provision or regulation, or to order the
Secretary 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
United 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 ac-
tion 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
redress the alleged violation of any such provi-
sion 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 ac-
tion may be brought immediately after such notifica-
tion in the case of an action under this subsection
respecting 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 attor-
ney and expert witness fees) to any party, whenever
the court determines such award is appropriate.
‘‘(5) INJUNCTIVE RELIEF.—The injunctive re-
lief 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 en-
forcement of any standard or limitation or to seek
any other relief (including relief against the Sec-
retary or a State agency).
‘‘(6) INTERVENTION.—Any person may inter-
vene as a matter of right in any civil suit brought
under this subsection if such suit presents a reason-
able threat of economic injury to such person. Any
intervenor under this paragraph shall have the same
right to present argument and to accept or reject po-
tential 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, pur-
sue, hunt, shoot, wound, kill, trap, capture, or col-
lect, or to attempt to engage in that conduct.
‘‘(B) In subparagraph (A), the term ‘harm’
means to take a direct action against any member
of an endangered species of fish or wildlife that ac-
tually injures or kills a member of the species.’’.
SEC. 203. ALLOWING NON-FEDERAL PERSONS TO USE THE
CONSULTATION PROCEDURES.
Section 10(a) (16 U.S.C. 1539(a)), as amended by
section 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 per-
son—
‘‘(i) to determine if the activity is consist-
ent or inconsistent with a conservation plan or
conservation objective; or
‘‘(ii) if the person determines that the ac-
tivity is inconsistent, to determine whether the
activity is likely to jeopardize the continued ex-
istence of an endangered species or a threat-
ened species, or to destroy or adversely modify
the designated critical habitat of the species in
a manner that is likely to jeopardize the contin-
ued existence 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
consultation;
‘‘(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 requirement 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 sub-
paragraph (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.’’.
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 follow-
ing 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 sec-
tion 9 undertaken for scientific purposes or to
enhance the propagation or survival of the af-
fected species, including, but not limited to—
‘‘(i) acts necessary for the establish-
ment and maintenance of experimental
populations 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 Conven-
tion and with conservation strategies
adopted by the foreign nations responsible
for the conservation 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 per-
mitted;
‘‘(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 appli-
cation 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 assur-
ances 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 consist-
ent 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 Secretary deems necessary for determining
whether such terms and conditions are being com-
plied 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 re-
ceive water, or a proprietary water right not owned
by the applicant or to address a species other than
the species for which the application is made.
‘‘(D)(i) The Secretary shall complete the proc-
essing 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 submis-
sion to which the Secretary and the permit applicant
mutually 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,
without 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 ac-
tivity proposed for permitting; and
‘‘(II) are to be performed while the under-
lying 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 in-
terim 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 follow-
ing new subsection:
‘‘(k) MULTIPLE SPECIES CONSERVATION PLANS.—
‘‘(1) DEVELOPMENT.—The Secretary may as-
sist 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.—The Secretary
may issue a permit under subsection (a)(1)(B) au-
thorizing the take described in section 9(a)(1)(B) of
a species for which a multiple species conservation
plan is developed under this subsection, if the Sec-
retary, after providing opportunity for public com-
ment on the plan—
‘‘(A) determines that the plan specifies the
information described in subsection (a)(2)(A);
‘‘(B) makes the findings described in sub-
section (a)(2)(B) with respect to the permit ap-
plication and the plan; and
‘‘(C) receives such assurances as the Sec-
retary may require that the plan will be imple-
mented.
‘‘(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
permit apply is determined to be an endangered spe-
cies or a threatened species under section 4.’’.
(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 presump-
tion that the survival of a species is enhanced by the
ordinary benefit occurring from the taking of a spec-
imen 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
unless he makes and publishes in the Federal Reg-
ister a finding that there is substantial evidence that
the detriment resulting from the taking of such
specimens outweighs the benefit derived, and subse-
quently promulgates regulations containing the limi-
tation.
‘‘(C) The Secretary shall transmit the full text
and a complete description of the proposed regula-
tion referred to in the preceding paragraph directly
to the appropriate wildlife management authorities
of the nations from which the specimens are ex-
ported, in the language of those countries, with at
least 180 days allowed 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 collec-
tion, live export for captive breeding, sport hunting,
and falconry.’’.
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
paragraphs:
‘‘(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 na-
tionwide basis for any category of activities that may
affect a species determined to be an endangered spe-
cies or threatened species if the Secretary deter-
mines 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 spe-
cies generally. A general permit issued under this
paragraph shall specify the requirements and stand-
ards that apply to an activity authorized by the gen-
eral 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
general permit if, after providing notice and oppor-
tunity for public hearing, the Secretary determines
that the activities authorized by the general permit
have a greater than minimal adverse effect on a spe-
cies that is included in a list published under section
4(c)(1) or that the activities are more appropriately
authorized by individual permits issued under para-
graph (1) or (3).
‘‘(5) RESEARCH
ON
ALTERNATIVE
METHODS
AND TECHNOLOGIES.—Priority for issuing permits
under paragraph (1)(A) shall be accorded to applica-
tions for permits to conduct research, captive breed-
ing, or education on alternative methods and tech-
nologies, and the comparative costs of the methods
and technologies, to reduce the incidental taking as
described in paragraph (1)(B) of an endangered spe-
cies or a threatened species for which the employ-
ment of existing methods or technologies for avoid-
ance 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 dem-
onstrated the ability to use propagation tech-
niques that result in increases in the popu-
lations of species held in captivity for eventual
release into the wild, maintenance of live speci-
mens, or falconry purposes.
‘‘(B)(i) The Secretary shall issue a permit with-
in 30 days from the effective date of this subpara-
graph to any qualified organization or person who
has demonstrated the ability to handle or recover
species for a minimum of 15 years or who has at
least 10 permits in the aggregate issued pursuant to
this Act or the other laws listed in subparagraph
(H).
‘‘(ii) The Secretary shall issue a permit within
90 days of receipt of a completed application from
any qualified organization or person who currently
does not hold any permit but who has demonstrated
the ability to handle or recover species for a mini-
mum of 15 years of who has received at least 10
permits in the aggregate and who has not violated
any terms or conditions of any permits previously is-
sued pursuant to this Act or the laws listed in sub-
paragraph (H).
‘‘(C) A permit referred to in paragraph
(1)(A)(ii) shall be for a term of not less than 6
years.
‘‘(D) A permit referred to in paragraph
(1)(A)(ii) shall also authorize the permittee to im-
port, export, sell, purchase, or otherwise transfer
possession of the affected species.
‘‘(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
annually.
‘‘(G) A permit authorized in this paragraph
shall be the only permit required for the activities
authorized 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
Marine 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 Con-
servation Act of 1992 (Public Law 102–440) shall
be consolidated into a general permit to cover all au-
thorized activities, notwithstanding any law or regu-
lation 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 pur-
poses 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 re-
production is sexual, or from parents that were in captivity
when development of the progeny began, if development
is asexual. Such progeny shall be considered domestic fish
or wildlife for all purposes and shall not come under the
provisions and prohibitions of this Act and the laws listed
in subsection (a)(6)(H) unless intentionally and perma-
nently 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 provision of this subsection, and
shall maintain and submit to the Secretary, on request,
such inventories, documentation, and records as the Sec-
retary may by regulation require as being reasonable and
appropriate to carry out the purposes of this subsection.
Such requirements shall not unnecessarily 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 follow-
ing new section:
‘‘RECOGNIZING NET BENEFITS TO AQUATIC SPECIES
‘‘SEC. 20. (a) ENCOURAGING NET BENEFITS.—In
carrying out this Act, if the number of individual members
of an endangered species or threatened species exiting an
aquatic habitat area under the control, authority or owner-
ship 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
POPU-
LATIONS.—In calculating the number of individual mem-
bers of a species entering and exiting a specific aquatic
habitat area pursuant to this section, the Secretary shall
consider hatchery populations.
‘‘(c) LIMITATIONS.—The Secretary shall not require,
provide for, or recommend the imposition of any restric-
tion or obligation on the activity of any non-Federal per-
son 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 con-
servation program for the species in question is not
consistent 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 Sec-
retary, in making the findings required in paragraph 3(a)
of Article 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 sup-
ported by substantial evidence.
‘‘(g) RELATIONSHIP OF PROTECTIVE REGULATIONS
TO THE CONVENTION.—In determining the provisions of
protective 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, notwith-
standing Article XIV of the Convention;
‘‘(2) the Secretary shall, prior to publishing a
proposal for such protective regulations in the Fed-
eral Register, transmit the full text and a complete
description of the proposed regulation directly to the
appropriate 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 uti-
lization of the species, if any, and of the bene-
ficial or detrimental impact on the resource
management and conservation programs of that
country; and
‘‘(C) a summary of the literature reviewed
and experts consulted by the Secretary in re-
gard 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 of-
ficials feel that further studies of the species are in-
dicated the Secretary shall assist in finding the
funds for such studies and in carrying out the stud-
ies; and
‘‘(5) the Secretary must obtain the written con-
currence of all the nations contacted, and if such
concurrence 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:
‘‘(i) IMPORTATION AND EXPORTATION.—
‘‘(1) LIMITATION ON IMPORTATION.—The pro-
hibition on importation in subsection (a) of this sec-
tion shall not apply to a specimen of a threatened
species taken for an inherently limited use in accord-
ance with the laws of a foreign nation and accom-
panied by an export permit issued by that nation or
an equivalent document. For the purpose of this
subsection, the term ‘inherently limited use’ means
scientific collection, live export for captive breeding,
sport hunting, and falconry.
‘‘(2) REGULATIONS FOR SHIPPING UNDER CON-
VENTION.—(A) The Secretary shall adopt regula-
tions regarding the finding required by the Conven-
tion 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 exporters.
‘‘(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
notice 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 non-
compliance may be appealed as well as the issue of
the appropriateness of the recommendation for com-
pliance.’’.
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
prescribe by regulation, any operator of a trawl vessel re-
quired to use a turtle excluder device under regulations
promulgated under this Act from such requirement if such
operator agrees to support a conservation program ap-
proved under paragraph (2) and such support is deter-
mined to be appropriate 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 in-
volving protection of nesting beaches in other na-
tions;
‘‘(B) approve any such program determined by
the Secretary to be of significant benefit to the re-
covery of the species of such sea turtles under this
subsection; 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
written 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
exemption 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 ap-
proved under section 10(k),’’.
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.—Subsections
(a) and (b) (1) and (2) of section 4 (16 U.S.C.
1533) are amended to read as follows:
‘‘(a) GENERALLY.—The Secretary shall by regulation
promulgated in accordance with subsection (b) determine
whether any species is an endangered species or a threat-
ened species because of any of the following factors:
‘‘(1) The present or threatened loss of its habi-
tat.
‘‘(2) 
Overutilization 
for 
commercial, 
rec-
reational, scientific, or educational purposes.
‘‘(3) Disease or predation.
‘‘(4) The inadequacy of existing Federal, State,
and local government regulatory mechanisms.
‘‘(5) Other natural or manmade factors affect-
ing its continued existence.
‘‘(b) SECRETARIAL DETERMINATIONS.—
‘‘(1) BASIS
FOR
DETERMINATION.—(A) The
Secretary shall make determinations required by
subsection (a)(1) solely on the basis of the best sci-
entific and commercial data available to the Sec-
retary after conducting a review of the status of the
species and after soliciting and fully considering the
best scientific and commercial data available con-
cerning the status of a species from any affected
State or any interested non-Federal person, and tak-
ing 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 con-
servation practices, within any area under its juris-
diction, 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
habitat of the species. In the case of fish species, the
bred populations referred to in the preceding sen-
tence shall include hatchery populations.
‘‘(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) 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
following 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 list-
ed under the Convention is endangered or threat-
ened unless he makes an adequate finding, sup-
ported by substantial evidence, that the Convention
does not provide 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, trans-
mit the full text and a complete description of the
proposed listing directly to the appropriate wildlife
management authority of that nation, in the lan-
guage 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 proposed listing to the wildlife au-
thorities 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 list-
ing on the economic, social, and cultural utiliza-
tion of the species, if any, and of the beneficial
or detrimental impact on the resource manage-
ment and conservation programs of that nation;
and
‘‘(iii) a summary of the literature reviewed
and experts consulted by the Secretary in re-
gard 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
referred 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
concurrence of all the nations contacted. 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.’’.
(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 informa-
tion obtainable from any source, including govern-
mental and nongovernmental sources, which has
been to the maximum extent feasible verified 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 Na-
tion as a whole has been designated by Congress as
needing protection under this Act.
‘‘(8a) The term ‘foreign species’ means a spe-
cies naturally occurring outside the territory of the
United States, but does not include any marine spe-
cies, any species having a significant population oc-
curring 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 exist-
ence of’, with respect to a species, means, as deter-
mined 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 irrevers-
ible course to extinction, during the 2-year period
beginning on the date of the determination that the
species is an endangered species or a threatened spe-
cies, unless the species is accorded fully the protec-
tion available under this Act during such period.’’;
(4) by amending paragraph (22) (as redesig-
nated by section 102(a)(1) of this Act) to read as
follows:
‘‘(22) The term ‘Secretary’ means, except as
otherwise herein provided, the Secretary of the Inte-
rior, except that with respect to the enforcement of
the provisions of this Act and the Convention which
pertain to the importation or exportation of terres-
trial plants, the term also means the Secretary of
Agriculture.’’; and
(5) by amending paragraph (23) (as redesig-
nated by section 102(a)(1) of this Act) to read as
follows:
‘‘(23) The term ‘species’ includes any sub-
species of fish or wildlife or plants, and any distinct
population of national interest of any species or ver-
tebrate fish or wildlife which interbreeds when ma-
ture.’’.
(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
species as an endangered species or threatened spe-
cies, 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 vol-
untary conservation activities, or other pertinent in-
formation which may assist in making a determina-
tion 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 extended 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 infor-
mation submitted in accordance with this para-
graph.’’.
(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
paragraph (4), (5), or (6) of this subsection nor sec-
tion 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 de-
cision to issue an emergency regulation under this
paragraph.’’.
(e) USING BEST DATA.—Section 4(b)(8) (16 U.S.C.
1533(b)(8)) is amended by striking ‘‘the data’’ and insert-
ing ‘‘the best scientific and commercial data’’.
(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
Federal Register with each proposed rule under
paragraph (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 de-
terminations 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
collect 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 promul-
gated under paragraph (1) or section 5(i)—
‘‘(i) a description of any data that have
not been collected and considered in the deter-
mination to which the rule relates and that are
necessary to ensure the continued scientific va-
lidity 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
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
endangered 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 of the
Interior; and
‘‘(iii) who has not participated in the
listing decision.
‘‘(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 Fed-
eral Register, through scientific and commercial
journals, and through the National Academy of
Sciences and other such institutions, seek nomina-
tions 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 ac-
cordance with paragraph (2), not more than 2 quali-
fied individuals 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 individuals to conduct peer review of the
action. If any individual declines the appointment,
the Secretary or the Governor shall appoint another
individual to conduct the peer review.
‘‘(4) DATA PROVIDED TO PEER REVIEWER.—
The Secretary shall make available to each person
conducting peer review all scientific information
available 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 sub-
mitted a petition for listing or delisting that is re-
viewed 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 pro-
posal, whether the methodology and analysis sup-
porting 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
RE-
PORT.—The Secretary shall publish with any final
regulation implementing an action a summary of the
report of the peer review panel noting points of dis-
agreement between peer reviewers, if any, and the
response of the Secretary to the report.’’.
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 fol-
lowing 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
information and shall be subject to section 552 of
title 5, United States Code (commonly referred to as
the ‘Freedom of Information Act’) unless the Sec-
retary, for good cause, determines that the informa-
tion must be kept confidential. The burden shall be
on the Secretary to prove that such information
shall be confidential and such decision shall be
reviewable by a district court of competent jurisdic-
tion, which shall review the decision in chambers.
Good cause can include that the information is of a
proprietary nature or that release of the location of
the species may endanger 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 threat-
ened species, unless the Secretary first notifies the
owner thereof and receives his or her consent, or the
information 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 follow-
ing new subparagraph:
‘‘(E) promptly hold at least 1 hearing in each
State in which the species proposed for determina-
tion as an endangered species or a threatened spe-
cies is believed to occur, and in a location that is as
close as possible to the center of the habitat of such
species in such State.’’; and
(2) in paragraph (6) by amending all that pre-
cedes subparagraph (B) to read as follows:
‘‘(6) PUBLICATION
OF
DETERMINATION.—(A)
Within the one-year period beginning on the date on
which general notice is published in accordance with
paragraph (5)(A)(i) regarding a proposed regulation,
the Secretary shall publish in the Federal Register,
if a determination as to whether a species is an en-
dangered species or a threatened species is involved,
either—
‘‘(i) a final regulation to implement such
determination,
‘‘(ii) a final regulation to implement such
revision or a finding that such revision should
not be made,
‘‘(iii) notice that such one-year period is
being extended under subparagraph (B)(i), or
‘‘(iv) notice that the proposed regulation is
being withdrawn under subparagraph (B)(ii),
together with the finding on which such with-
drawal is based.’’.
(c) NOTICE OF HEARINGS.—Section 14 is amended
to read as follows:
‘‘SEC. 14. NOTICE OF HEARINGS.
‘‘Except as otherwise provided by this Act, the Sec-
retary shall provide notice of any hearing or other public
meeting at which public comment is accepted under this
Act by publication in the Federal Register and in a news-
paper of general circulation in the location of the hearing
or meeting at least 30 days prior to the hearing or meet-
ing.’’.
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 threat-
ened species or endangered species and requesting
that the Secretary make a determination to that ef-
fect 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
along with the names of the persons performing
the peer review.
‘‘(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
subsection (c)(1) shall be submitted in accordance
with section 553(e) of title 5, United States Code.
The Secretary may commence a review of the status
of the species concerned consistent with the prior-
ities set by the Secretary for the listing of species.
The Secretary shall promptly publish any finding
made under this subparagraph in the Federal Reg-
ister.’’.
(b) CONFORMING AMENDMENTS.—Section 4(g), as
redesignated 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 sub-
paragraph (B) is commenced—
‘‘(i) the Secretary shall contact the Gov-
ernor of each State in which the proposed spe-
cies is located and shall solicit from the Gov-
ernor information about the action requested in
the petition in that State necessary to render a
decision and shall solicit the advice of the Gov-
ernor on whether the status of species merits
the action petitioned for, and if the Governor
advises that the petition action is not warranted
and thereafter the Secretary proceeds with the
action, the Secretary shall have the burden of
showing that the information submitted by the
Governor is incorrect 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 ef-
fective 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 to each county, or equivalent ju-
risdiction in which the species is believed
to occur, and consult with such agency,
and each such jurisdiction, thereon;
‘‘(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
species on the high seas, and consult with such
nation thereon;
‘‘(C) give notice of the proposed regulation
to any person who requests such notice, any
person 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 pro-
tect the species under this Act, and such profes-
sional scientific organizations as the Secretary
deems appropriate; and
‘‘(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.’’.
(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 au-
thority of this section, a State agency which 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, or
if the Secretary fails to adopt a regulation pursuant to
an action petitioned by a State agency under subsection
(b)(3) of this section, the Secretary shall submit to the
State agency a written justification for the failure of the
Secretary to adopt regulations consistent with the agen-
cy’s comments or petition.’’.
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
adding after subparagraph (C) the following subpara-
graph:
‘‘(D) The Secretary shall implement a system
to monitor effectively the status of all species with
respect to which a finding is made that the peti-
tioned action is warranted but precluded by propos-
als to determine whether any species is an endan-
gered species or a threatened species and progress is
being made to add qualified species to the list pub-
lished under subsection (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 para-
graph (7) to prevent a significant risk to the well
being 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(a) and (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 species from a list published under subsection
(c), on the basis that—
‘‘(i) new data or a reinterpretation of prior
data indicates that the previous determination
was in error;
‘‘(ii) the species is extinct; or
‘‘(iii) the population level target established
for the species in a conservation plan under sec-
tion 5(c)(3)(C)(vii) has been achieved.
‘‘(H) Not later than 90 days after receiving a
petition under subparagraph (D) for a species, the
Secretary shall publish—
‘‘(i) a proposed regulation to revise a pre-
vious determination for the species and to re-
move the species from a list published under
subsection (c) on a basis set forth in subpara-
graph (G); or
‘‘(ii) a finding that such a basis for the ac-
tion requested by the petition does not exist.’’.
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 preced-
ing subsection (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),
(e), and (i), all other Federal agencies shall, consist-
ent 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 conserva-
tion of endangered species and threatened species
listed pursuant to section 4.
‘‘(2) PROGRAMS
ADMINISTERED
BY
OTHER
AGENCIES.—Except as provided in section 5(d) and
(e), each Federal agency shall ensure that any action
authorized, funded, or carried out by such agency
(hereinafter in this section referred to as an ‘agency
action’) is not likely to jeopardize the continued ex-
istence of any endangered species or threatened spe-
cies 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
subject to this paragraph and that is likely to sig-
nificantly and adversely affect an endangered species
or a threatened species, the Federal agency shall ful-
fill the requirements of this paragraph in consulta-
tion with and with the assistance of the Secretary.
As provided in section 5(d)(2), each Federal agency
may initiate consultation with the Secretary to re-
ceive guidance from the Secretary on the consistency
of its action with the conservation objective or con-
servation 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 management agreement concerning such
species executed pursuant to section 6(b). In fulfill-
ing the requirements of this paragraph each agency
shall use the best available scientific and commercial
data, shall consider expert opinion and any reason-
able and prudent alternatives developed under sub-
section (b)(3)(A), and shall render the decision of
the agency in a manner consistent with the obliga-
tions 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
consult with the Secretary on any prospective agency
action at the request of, with the involvement of,
and in cooperation with, the prospective permit or li-
cense 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 spe-
cies issued pursuant to section 10(a), or a coopera-
tive management agreement for such species exe-
cuted pursuant to section 6(b), and that implemen-
tation of such action will likely affect such species.
‘‘(4) CONFERRING ON CANDIDATE SPECIES.—
Each Federal agency shall confer with the Secretary
on any agency action which is likely to jeopardize
the continued existence of any species proposed to be
listed under section 4 or to destroy or adversely
modify any habitat that is proposed to be designated
by the Secretary as critical habitat of such a species
in a manner that is likely to jeopardize the contin-
ued existence of the species. This paragraph does
not require a limitation on the commitment of re-
sources as described in subsection (d).
‘‘(5) LIMITATIONS ON MODIFICATIONS TO LAND
MANAGEMENT.—Notwithstanding any other provi-
sion of this Act, the authority in this Act shall not
be construed 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.
Notwithstanding any other law or regulation, man-
agement plans, practices, policies, projects, or guide-
lines, including management plans which, as of Oc-
tober 1, 1995, are subject to modification pending
completion of a final environmental impact state-
ment, shall not be amended for the purpose of main-
taining 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 species.’’.
(b) RESOLVING CONFLICTS BETWEEN FEDERAL
AGENCIES.—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:
‘‘(8) RELATIONSHIP TO DUTIES UNDER OTHER
LAWS.—(A) The responsibilities of a Federal agency
under this section shall not supersede and shall be
implemented in a manner consistent with duties as-
signed 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 con-
servation plan with economic and social needs and
pursuit of the purposes of the other laws or treaties.
The authority assigned to the President by this sub-
paragraph may not be delegated to a member of the
executive branch who has not been confirmed by the
Senate.
‘‘(9) 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
agency action.’’.
(c) PROCEDURES FOR CONSULTATION.—Section 7(b)
(16 U.S.C. 1536(b)) is amended by striking so much as
precedes paragraph (3)(B) and inserting the following:
‘‘(b) OPINION OF SECRETARY.—
‘‘(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 ap-
plicant, the Secretary and the Federal agency may
not mutually agree to conclude consultation within a
period exceeding 90 days unless the Secretary, be-
fore the close of the 90th day referred to in subpara-
graph (A)—
‘‘(i) if the consultation period proposed to
be agreed to will end before the 150th day after
the date on which consultation was initiated,
submits to the applicant a written statement
setting 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
consultation 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
agency 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
agency action required for the granting of an au-
thorization 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
concerned.
‘‘(3) WRITTEN OPINION OF SECRETARY.—(A)(i)
Promptly after conclusion of consultation under
paragraph (2) or (3) of subsection (a), the Secretary
shall provide to the Federal agency and the appli-
cant, if any, a written statement setting forth the
Secretary’s opinion, and a summary of the informa-
tion on which the opinion is based, detailing whether
the agency action 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 exe-
cuted pursuant to section 6(b). If the Secretary de-
termines that the action is likely to jeopardize the
continued existence of the species as described in
subsection (a), the Secretary shall suggest reason-
able and prudent alternatives (considering any rea-
sonable and prudent alternatives undertaken by
other Federal agencies) that are consistent with sub-
section (a)(2) and that impose the least social and
economic costs.
‘‘(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
Federal agency proposing the agency action, may
not require, provide for, or recommend the imposi-
tion 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 Fed-
eral agency. Nothing in this clause prevents the Sec-
retary 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
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, regional, statewide or national basis. In this
clause, the term ‘significant waterfowl breeding,
staging, or wintering habitat areas’ means those pri-
vate or public lands managed primarily for, or pro-
viding, waterfowl breeding, staging or wintering
habitat including seasonal/permanent marsh lands or
land under rice cultivation 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 emer-
gency rule.
(d) ACTIVITIES PRIOR
TO COMPLETION
OF CON-
SULTATION.—Section 7(d) (16 U.S.C. 1536(d)) is amend-
ed to read as follows:
‘‘(d) 
LIMITATION
ON
COMMITMENT
OF
RE-
SOURCES.—
‘‘(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 ef-
fect 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 spe-
cies, or other procedure or decision related to a spe-
cies listed under section 4(c)(1), requires consulta-
tion under subsection (a)(2) on a land use plan or
land or resource management plan (or an amend-
ment to or revision of the plan) prepared under sec-
tion 202 of the Federal Land Policy and Manage-
ment Act of 1976 (43 U.S.C. 1712) or section 6 of
the Forest and Rangeland Renewable Resources
Planning Act of 1974 (16 U.S.C. 1604), the land
management agency implementing the plan may au-
thorize, 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 action 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 agen-
cy agrees to a reasonable and prudent al-
ternative.’’.
(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
paragraph:
‘‘(16) The term ‘likely to jeopardize the contin-
ued existence of ’, with respect to an action or activ-
ity affecting an endangered species or a threatened
species, means an action or activity that significantly
diminishes the likelihood of the survival of the spe-
cies by significantly reducing the numbers or dis-
tribution of the entire species.’’;
(2) by amending paragraph (18) (as redesig-
nated by section 102(a)(1) of this Act) to read as
follows:
‘‘(18) The term ‘permit or license applicant’
means, with respect to the consultation procedures
established by section 7, any person that requires
authorization 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
activity.’’; 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
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 exist-
ence of the species.’’.
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
paragraphs:
‘‘(6) ACTIONS
EXEMPT
FROM
CONSULTATION
AND CONFERENCING.—Consultation and conferenc-
ing under paragraphs (2) and (4) shall not be re-
quired 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 nat-
ural 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.
‘‘(7) ACTIONS
NOT
PROHIBITED.—An agency
action shall not constitute a taking of a species pro-
hibited by this Act or any regulation issued under
this Act if the action is consistent with—
‘‘(A) the actions provided for in a final
conservation plan under section 5(c)(5) or a
conservation objective described in section
5(b)(3); or
‘‘(B) a cooperative management agreement
or an incidental take permit.’’.
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 pro-
vision of this Act—
‘‘(1) the Secretary shall grant an exemption
from this Act for any activity if the Secretary of De-
fense determines that the exemption of the activity
is necessary for reasons of national security; and
‘‘(2) the President may grant an exemption
from this Act for any area that the President has
declared to be a major disaster area under The Rob-
ert T. Stafford Disaster Relief and Emergency As-
sistance Act (42 U.S.C. 5121 et seq.) for any project
for the repair or replacement of a public facility sub-
stantially 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
to be an endangered species or a threatened species pursu-
ant to section 4.
‘‘(b) DEVELOPMENT
OF
CONSERVATION
OBJEC-
TIVE.—
‘‘(1) ASSESSMENT AND PLANNING TEAM.—Not
later than 30 days after the listing determination,
the Secretary shall appoint an assessment and plan-
ning team which shall not be subject to the Federal
Advisory 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 con-
servation plan.
‘‘(2) ASSESSMENTS.—Not later than 180 days
after the listing determination, the assessment and
planning team shall report to the Secretary the as-
102
‘‘(3) SECRETARIAL REVIEW OF ASSESSMENTS
AND
ESTABLISHMENT
OF
CONSERVATION
OBJEC-
TIVE.—(A) Not later than 210 days after a listing
determination, the Secretary shall review the report
of the assessment and planning team prepared pur-
suant to paragraph (2), establish a conservation ob-
jective for the species, and publish in the Federal
Register the conservation objective, along with a
statement of findings on which the conservation ob-
jective was established.
‘‘(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 spe-
cies 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,
including but not limited to maintenance of ex-
isting population levels;
‘‘(iii) no Federal action other than enforce-
ment against any person whose activity violates
the prohibitions specified in section 9(a), in-
cluding any activity that results in a taking of
the species, unless the taking is incidental to,
103
and not the purpose of, the carrying out of an
otherwise 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-
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
104
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 Re-
serve as provided in section 5A(a);
‘‘(D) the implementation of conservation
measures that have the least economic and so-
cial costs;
‘‘(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 threat-
ened species, the assessment and planning team for
the species shall publish a draft conservation plan
for the species which is based on the assessments
made pursuant to subsection (b)(2) and designed to
achieve the conservation objective established pursu-
ant to subsection (b)(3).
105
‘‘(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;
‘‘(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
survival and recovery of the species that
the alternative 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
designation as critical habitat to the rec-
ommended management measures;
106
‘‘(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;
‘‘(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 re-
lease;
‘‘(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
107
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 con-
servation 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
affected species in such State.
‘‘(D) Prior to any decision to adopt a final con-
servation plan, the Secretary shall consider and
108
weigh carefully all information presented during
each hearing held under subparagraph (C) or re-
ceived in response to a request for comments pub-
lished under subparagraph (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 threat-
ened species, the Secretary shall publish in the Fed-
eral Register a notice of the availability, and a sum-
mary, of a final conservation plan for the species.
The notice shall include a detailed description of—
‘‘(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 con-
servation plan, including, if any alternative is
selected other than the alternative that would
impose the least total costs on the public and
private 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
information referred to in paragraph (4).
‘‘(6) PARTICIPATION BY OTHER PERSONS.—In
developing and implementing conservation plans, the
109
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
amendment that does not increase the direct or indi-
rect cost 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 sub-
section (c) or if a conservation objective is established
under subsection (b)(3)(C)—
‘‘(1) any Federal agency that determines that
the actions of the agency are consistent with the
provisions of the conservation plan or conservation
objective 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
110
be subject to section 7(a)(2) for the affected species,
except that a Federal agency may initiate consulta-
tion under section 7(a)(2) if the agency desires guid-
ance 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
prohibition under section 9(a), except that a non-
Federal person may initiate consultation under sec-
tion 10(a)(2)—
‘‘(A) if the person desires guidance from
the Secretary on the consistency of the action
with the plan or objective; or
‘‘(B) in order to determine whether to
apply for a permit under section 10 for any ac-
tion that is inconsistent with the plan or objec-
tive.’’.
(b) CONSERVATION OBJECTIVE AND CONSERVATION
RULE DEFINED.—Section 3(4) (16 U.S.C. 1532), as re-
designated by section 102(a) of this Act, is amended to
read as follows:
111
‘‘(4) The terms ‘conservation objective’ and
‘conservation plan’ (except when modified by ‘non-
Federal’) mean a conservation objective and a con-
servation plan, respectively, developed under section
5.’’.
SEC. 503. INTERIM MEASURES.
Section 5 (16 U.S.C. 1534), as added by section 501
of this Act and as amended by section 502 of this Act,
is amended by adding at the end the following new sub-
sections:
‘‘(e) MANAGEMENT PRIOR TO PUBLICATION OF CON-
SERVATION PLAN.—
‘‘(1) IN GENERAL.—After a listing determina-
tion and before the publication of a final conserva-
tion plan, or, if no plan is required pursuant to sub-
section (b)(3)(C), a conservation objective, for the
species—
‘‘(A) the prohibitions of section 9(a) shall
apply to any person, except in the case of a tak-
ing of a member of the species that is incidental
to, and not the purpose of, the carrying out of
an otherwise lawful activity which incidental
taking activity may include but is not limited to
the routine operation, maintenance, rehabilita-
tion, replacement, or repair of any structure,
112
building, road, dam, airport, or any irrigation
or other facility which is in operation prior to
the publication of the determination under sec-
tion 4(b)(6); and
‘‘(B) no Federal agency shall be required
to comply with section 7(a)(1) and no consulta-
tion shall be required on any agency action
under section 7(a)(2).
‘‘(2) 
EMERGENCY
RULEMAKING
PROTEC-
TIONS.—Notwithstanding paragraph (1), sections
7(a) and 9(a) shall apply fully to the listed species
during a period in which an emergency rulemaking
is in effect pursuant to section 4(b)(7) or if the
President declares, and advises the Secretary, that
there exists an imminent threat to the existence of
the species. Such declaration of the President ex-
pires upon the deadline for publication of a final
conservation plan for the species pursuant to sub-
section (c)(5) or the publication of a conservation
objective for the species provided in subsection
(b)(3) or if no conservation plan is required pursu-
ant to subsection (b)(3)(C).
‘‘(f) SUSPENSION OF CONSERVATION PLAN OR OB-
JECTIVE.—If the Secretary issues an incidental take per-
mit or enters into a cooperative management agreement
113
under section 6, the Secretary, by publication of notice
in the Federal Register, shall suspend the conservation ob-
jective or conservation plan with respect to the geographic
area or action applicable to the species to which the permit
or agreement applies.
‘‘(g) NONDELEGATION OF DUTIES.—The Secretary
may not delegate the authority to make the final decision
to select a conservation objective, issue a conservation
plan, or designate critical habitat under this section.
‘‘(h) REVIEW OF CONSERVATION PLANS.—
‘‘(1) DEADLINES.—The Secretary shall review
each conservation plan and the conservation objec-
tive on which it is based before the end of the 5-year
period that begins on the date of publication of the
conservation plan, and before the end of each 5-
year period thereafter.
‘‘(2) REVISIONS.—The Secretary shall revise a
conservation plan or the conservation objective on
which it is based if the Secretary determines—
‘‘(A) through a 5-year review under para-
graph (1), that the conservation plan or con-
servation objective does not meet the require-
ments of this section; or
‘‘(B) at any time—
114
‘‘(i) that funding is not available for
the implementation of a specific conserva-
tion measure that is integral to the con-
servation plan or that a more cost-effective
alternative exists for a specific conserva-
tion measure that is integral to the con-
servation plan; or
‘‘(ii) on the basis of scientific or com-
mercial data that were not available during
the development of the conservation objec-
tive or conservation plan, that the con-
servation objective is not achievable or the
conservation plan will not achieve the con-
servation objective.
‘‘(3) NO
REOPENING
OF
CONSULTATIONS.—
Section 7 consultations shall not be reopened as a
result of modifications to a conservation plan under
paragraph (2).’’.
SEC. 504. CRITICAL HABITAT FOR SPECIES.
(a) CRITICAL HABITAT DESIGNATION.—Section 5, as
added by section 501 of this Act and as amended by sec-
tions 502 and 503 of this Act, is amended by adding at
the end the following new subsections:
‘‘(i) CRITICAL HABITAT DESIGNATION.—
115
‘‘(1) DESIGNATION.—The Secretary may, by
regulation and to the extent prudent and determina-
ble—
‘‘(A) designate critical habitat of a species
determined to be an endangered species or
threatened species that meets the requirements
of 
paragraph 
(3) 
utilizing 
the 
National
Biodiversity Reserve established under section
5A(a) as a first priority; and
‘‘(B) revise a critical habitat designation
on determining that the critical habitat does
not meet the requirements of paragraph (3).
Designation of critical habitat shall not result in re-
opening or reinitiation of consultations on Federal
actions pursuant to section 7.
‘‘(2) DEADLINES FOR DESIGNATION.—Any pro-
posed regulation and any final regulation to des-
ignate critical habitat shall be published not later
than 12 months and 18 months, respectively, after
the date on which the affected species is determined
to be an endangered species or a threatened species.
‘‘(3) BASIS FOR DESIGNATION.—The designa-
tion of critical habitat, and any revision of the des-
ignation, shall be made on the basis of the best
available scientific and commercial data after taking
116
into consideration the economic impact, and any
other relevant impact, of designating any particular
area as critical habitat and of the determination that
the affected species is an endangered species or
threatened species. The Secretary shall exclude any
area from critical habitat—
‘‘(A) which does not meet the definition of
critical habitat set forth in section 3(7);
‘‘(B) which is not necessary to achieve the
conservation objective for the affected species
established pursuant to subsection (b);
‘‘(C) for which the Secretary determines
that the benefits of the exclusion of the area
from designation as critical habitat outweigh
the benefits of designation, unless the Secretary
determines, on the basis of the best available
scientific and commercial data, that the failure
to designate the area as critical habitat will re-
sult in the extinction of the affected species; or
‘‘(D) in the case of property owned by a
non-Federal person, where the owner thereof
has not given written consent to the designation
or has not been compensated as provided in sec-
tion 19.
117
‘‘(4) PROCEDURE FOR DESIGNATION.—In the
Federal Register notice containing the proposed reg-
ulation to designate critical habitat, the Secretary
shall describe the economic impacts and other rel-
evant impacts that are to be considered, and the
benefits that are to be weighed, under paragraph (3)
in designating an area as critical habitat, along with
maps showing the location of the area to be des-
ignated as critical habitat. The Secretary shall sub-
mit the description, and the documentation support-
ing the description, to the Bureau of Labor Statis-
tics of the Department of Labor. The Commissioner
of Labor Statistics shall submit written comments
during the comment period on the proposed regula-
tion. The Secretary shall hold at least one public
hearing in each State on the proposed rule in which
critical habitat is designated for a species. In issuing
any final regulation designating critical habitat, the
Secretary shall respond separately and fully to each
comment.
‘‘(5) JUDICIAL REVIEW OF CRITICAL HABITAT
DESIGNATION.—The decision whether to designate
critical habitat shall be subject to a de novo judicial
review with the court determining whether the deci-
118
sion is supported by a preponderance of the evi-
dence.
‘‘(j) JUDICIAL REVIEW OF CONSERVATION OBJEC-
TIVE OR PLAN.—The standard for judicial review of any
decision of the Secretary, or a Federal agency pursuant
to this section shall be whether the decision is arbitrary,
capricious, an abuse of discretion, or otherwise not in ac-
cordance with law.
‘‘(k) CONSERVATION PLANS
FOR FOREIGN SPE-
CIES.—In developing conservation objectives and con-
servation plans under this section, the Secretary shall, in
regard to foreign species—
‘‘(1) act consistently with the Convention; and
‘‘(2) cooperate and support the conservation
strategy adopted for that species by any foreign na-
tion in which the species occurs.’’.
(b) CONFORMING AMENDMENTS.—Section 4(b)(6)
(16 U.S.C. 1533(b)(6)) is amended—
(1) in subparagraph (B)(i) by striking ‘‘or revi-
sion concerned’’;
(2) in subparagraph (B)(iii) by striking ‘‘or re-
vision concerned, a finding that the revision should
not be made,’’; and
(3) by striking subparagraph (C).
119
(c) CONFORMING AMENDMENT.—Section 4(b)(8) (16
U.S.C. 1533(b)(8)) is amended by striking ‘‘regulation’’
the third time it appears and all that follows through the
end of the paragraph and inserting ‘‘regulation.’’.
(d) DEFINITION
OF CRITICAL HABITAT.—Section
3(7), as redesignated by section 102(a) of this Act, is
amended to read as follows:
‘‘(7)(A) The term ‘critical habitat’ for an en-
dangered species or a threatened species means the
specific areas which are within the geographic area
found to be occupied by a species at the time the
species is determined to be an endangered species or
a threatened species in accordance with section 4
and which contain such physical or biological fea-
tures as—
‘‘(i) are essential to the persistence of the
species over the 50-year period beginning on the
date the regulation designating the critical
habitat, or any revision of the regulation, is
promulgated; and
‘‘(ii) require special management consider-
ations or protection.
‘‘(B) Except in those circumstances determined
by the Secretary, critical habitat shall not include
120
the entire geographical area occupied by the threat-
ened species or endangered species.’’.
SEC. 505. RECOGNITION OF CAPTIVE PROPAGATION AS
MEANS OF RECOVERY.
Section 5, as added by section 501 of this Act and
as amended by sections 502, 503, and 504 of this Act,
is amended by adding at the end the following new sub-
section:
‘‘(l) RECOGNITION
OF CAPTIVE PROPAGATION
AS
MEANS OF CONSERVATION.—
‘‘(1) IN GENERAL.—In carrying out this Act,
the Secretary shall recognize to the maximum extent
practicable, and may utilize, captive propagation as
a means of protecting or conserving an endangered
species or a threatened species.
‘‘(2) CAPTIVE
PROPAGATION
GRANTS.—The
Secretary may, subject to appropriations therefor,
provide annual grants to non-Federal persons to
fund captive propagation programs for the purpose
of protecting or conserving any species that is deter-
mined under section 4 to be an endangered species
or a threatened species, if the Secretary determines
that such a program contributes to enhancement of
the population of the species.’’.
121
SEC. 506. INTRODUCTION OF SPECIES.
Section 10(j) (16 U.S.C. 1539(j)) is amended—
(1) by amending paragraph (2)(B) to read as
follows:
‘‘(B) Before authorizing the release of any
population under subparagraph (A), the Sec-
retary shall by regulation identify the popu-
lation and the precise boundaries of the geo-
graphic area for the release and determine, on
the basis of the best available information,
whether the release is in the public interest,
whether or not such population is essential to
the continued existence of an endangered spe-
cies or a threatened species.’’;
(2) in paragraph (2)(C)—
(A) in clause (i) by striking ‘‘and’’ after
the semicolon; and
(B) by striking clause (ii) and inserting the
following:
‘‘(ii) for the purposes of sections 4(d)
and 9(a)(1)(B), any member of an experi-
mental population found outside the geo-
graphic area in which the population is re-
leased shall not be treated as a threatened
species if the member poses a threat to the
welfare of the public; and
122
‘‘(iii) critical habitat shall not be des-
ignated under this Act for any experi-
mental population determined under sub-
paragraph (B) to be not essential to the
continued existence of a species.’’;
(3) by redesignating paragraph (3) as para-
graph (4); and
(4) by inserting after paragraph (2) the follow-
ing new paragraph:
‘‘(3) REQUIREMENTS FOR RELEASES.—In au-
thorizing the release of a population under para-
graph (2), the Secretary shall require that—
‘‘(A) to the maximum extent practicable,
the release occurs only in a unit of the National
Park System or the National Wildlife Refuge
System;
‘‘(B) a release outside a unit occurs only in
an area that has been identified as a candidate
site for release of the population in a conserva-
tion plan for the species;
‘‘(C) in the case of a release outside a unit,
measures to protect the safety and welfare of
the public and domestic animals and the fund-
ing for the measures are identified in the regu-
123
lations authorizing the release and are imple-
mented;
‘‘(D) the regulations authorizing the re-
lease identify precisely the geographic area for
the release;
‘‘(E) a release on non-Federal land occurs
only with the written consent of the owner of
the land; and
‘‘(F) the regulations authorizing the re-
lease include measurable reintroduction goals to
restore viable populations only within the spe-
cific geographic area identified for release in
the regulations.’’.
SEC. 507. CONSERVING THREATENED SPECIES.
(a) 
REGULATIONS.—Section 
4(d) 
(16 
U.S.C.
1533(d)) is amended to read as follows:
‘‘(d) REGULATIONS TO PROTECT THREATENED SPE-
CIES.—Whenever any species is listed as a threatened spe-
cies pursuant to subsection (c), the Secretary shall issue,
concurrently with the regulation that provides for the list-
ing of the species, such regulations as the Secretary deems
necessary and advisable to provide for the conservation of
such species. Such regulations may apply to the threat-
ened species one or more of the prohibitions under section
9(a)(1), in the case of fish and wildlife, or section 9(a)(2)
124
in the case of plants, with respect to endangered species.
The prohibition applied to the threatened species shall ad-
dress the specific circumstances of such species and may
not be as restrictive as such prohibition for endangered
species. With respect to the taking of resident species of
fish or wildlife, such regulations shall apply in any State
which has entered into a cooperative agreement pursuant
to section 6(c) only to the extent that such regulations
have also been adopted by such State.’’.
(b) CONFORMING AMENDMENTS.—Section 4 (16
U.S.C. 1533) is amended—
(1) by striking subsection (f); and
(2) by redesignating subsections (g), (h), and
(i) in order as subsections (f), (g), and (h).
(c) CONSERVATION
GUIDELINES.—Section 4 is
amended in subsection (g), as redesignated by subsection
(b)(2) of this section, by amending paragraph (3), as re-
designated by section 304(b)(2) of this Act, to read as
follows:
‘‘(3) a system for developing and implementing,
on a priority basis, conservation objectives and con-
servation plans. The Secretary shall provide to the
public notice of, and opportunity to submit written
comments on, any guideline (including any amend-
125
ment thereto) proposed to be established under this
subsection.’’.
TITLE VI—HABITAT
PROTECTIONS
SEC. 601. FEDERAL BIOLOGICAL DIVERSITY RESERVE.
Section 5A, as redesignated by section 501 of this
Act, is amended to read as follows:
‘‘SEC. 5A. PROTECTION OF HABITAT.
‘‘(a) ESTABLISHMENT
OF NATIONAL BIOLOGICAL
DIVERSITY RESERVE.—
‘‘(1) IN GENERAL.—There is hereby established
a National Biological Diversity Reserve (hereinafter
in this Act referred to as the ‘Reserve’). The Reserve
shall be composed of units of Federal and State
lands designated in accordance with paragraph (2)
and managed in accordance with paragraph (3).
‘‘(2) DESIGNATION
OF
RESERVE
UNITS.—(A)
Not later than 18 months after the date of enact-
ment of the Endangered Species Conservation and
Management Act of 1995, the Secretary of the Inte-
rior and the Secretary of Agriculture shall designate
to the Reserve by regulation those units of the na-
tional conservation systems which are within the ju-
risdiction of the Secretary concerned and which the
Secretary determines would contribute to the protec-
126
tion, maintenance, and enhancement of biological di-
versity in accordance with the provisions of this Act.
The term ‘national conservation systems’ means
wholly federally owned lands within the National
Park System, the National Wildlife Refuge System,
or the National Wilderness Preservation System,
and wild segments of rivers within the National Wild
and Scenic Rivers System.
‘‘(B) The Secretary of the Interior shall—
‘‘(i) designate to the Reserve by regulation
a unit of State-owned lands if such unit is nom-
inated for designation by the Governor of the
State and is managed under State law in ac-
cordance with paragraph (3);
‘‘(ii) designate to the Reserve by regulation
privately owned land that is nominated for des-
ignation by the owner of the land, and shall re-
move such land from the Reserve if the owner
requests removal;
‘‘(iii) remove from the Reserve by regula-
tion any unit designated pursuant to clause (i)
which the Secretary finds is not managed under
State law in accordance with paragraph (3);
and
127
‘‘(iv) remove from the Reserve any State-
owned lands at the request of the Governor of
that State.
‘‘(C) Designation of a Reserve unit shall not af-
fect any valid existing permit, right, right-of-way,
access, interest in land, right to use or receive water,
or property right.
‘‘(3) MANAGEMENT
OF
THE
RESERVE.—(A)
Each unit of the Reserve shall have as an objective
for the management thereof the preservation, main-
tenance, and enhancement of biological diversity.
Such objective shall be supplementary to any other
objective established for such unit by or pursuant to
any provision of law applicable to such unit. Each
such unit shall be managed in accordance with such
objective to the extent that such objective is not in-
consistent with the purpose for which the unit was
established, other provisions of law applicable to
such unit, and the activities which occur on such
unit.
‘‘(B) The manager of each Reserve unit should
consistent with paragraph (4) utilize his authority to
use active management and recovery measures, in-
cluding those specified in section 5(b)(2)(A)(vi), and
128
shall conduct a survey to determine the populations
of species within the Reserve.
‘‘(C) Nothing in this Act shall—
‘‘(i) alter, establish, or affect the respective
rights of the United States, the States, or any
person with respect to any water or water-relat-
ed right; or
‘‘(ii) affect the laws, rules, and regulations
pertaining to hunting, fishing, and other lawful
wildlife harvest under existing State and Fed-
eral laws and Indian treaties.
‘‘(D) Within 1 year of the designation of a unit
to the Reserve, the manager of such unit shall com-
plete, and the Secretary concerned shall make avail-
able to the public by notice in the Federal Register,
an inventory of the species composing the biological
diversity within such unit.
‘‘(4) OTHER FEDERAL LANDS.—Nothing in this
Act shall be construed as limiting the authority of
the Secretary of the Interior or the Secretary of Ag-
riculture to take such actions as are necessary and
authorized by other law to protect, maintain, and
enhance biological diversity on other Federal lands
not designated to the Reserve except that, before
taking any such action, the Secretary concerned
129
shall make a finding based on the best available sci-
entific and commercial data, that the biological di-
versity for which such action is proposed is not pro-
tected, maintained, or enhanced in whole or substan-
tial part on any unit of the Reserve. Such finding
shall be published, along with the reasons therefor in
the Federal Register.’’.
SEC. 602. LAND ACQUISITION.
Section 5A, as redesignated by section 501 of this
Act and as amended by section 601 of this Act, is amend-
ed by adding at the end the following new subsection:
‘‘(b) LAND ACQUISITION.—
‘‘(1) PROGRAM.—The Secretary, and the Sec-
retary of Agriculture with respect to the National
Forest System, shall establish and implement a pro-
gram to conserve fish, wildlife, and plants, including
those which are determined to be endangered species
or threatened species pursuant to section 4. To
carry out such a program, the appropriate Sec-
retary—
‘‘(A) shall utilize the land acquisition and
other authority under the Fish and Wildlife Act
of 1956 (16 U.S.C. 742a et seq.), the Fish and
Wildlife Coordination Act (16 U.S.C. 661 et
130
seq.), and the Migratory Bird Conservation Act
(16 U.S.C. 715 et seq.), as appropriate; and
‘‘(B) is authorized to acquire by purchase,
lease, donation, or otherwise, lands, waters, or
interest therein, including short- or long-term
conservation easements, and such authority
shall be in addition to any other land acquisi-
tion authority vested in that Secretary.
‘‘(2) AVAILABILITY
OF
FUNDS
FOR
ACQUISI-
TION OF LANDS, WATER, ETC.—Funds made avail-
able pursuant to the Land and Water Conservation
Fund Act of 1965 (16 U.S.C. 4601–4 et seq.) may
be used for the purpose of acquiring or leasing
lands, waters, or interests therein under subsection
(a) of this section.’’.
SEC. 603. PROPERTY EXCHANGES.
Section 5A, as redesignated by section 501 of this
Act and as amended by sections 601 and 602 of this Act,
is amended by adding at the end the following new sub-
sections:
‘‘(c) EXCHANGES.—
‘‘(1) IN
GENERAL.—In accordance with sub-
section (a), the Secretary of the Interior and the
Secretary of Agriculture shall encourage exchanges
of lands, waters, or interests in land or water within
131
the jurisdiction of each Secretary (other than units
of the National Park System and units of the Na-
tional Wilderness Preservation System) for lands,
waters, or interests in land or water that are not in
Federal ownership and that are affected by this Act.
‘‘(2) TIMING
OF
EXCHANGES.—An exchange
under this subsection may be made if the Secretary
of the Interior or the Secretary of Agriculture deter-
mines, without a formal appraisal, that the lands to
be exchanged are of approximately equal value.
‘‘(3) ENVIRONMENTAL ASSESSMENT.—An envi-
ronmental assessment shall be the only document
under section 102(2) of the National Environmental
Policy Act of 1976 (16 U.S.C. 4332(2)) that shall
be prepared with respect to any exchange under this
subsection.
‘‘(4) EXPEDITIOUS EXCHANGE DECISIONS.—An
exchange under this subsection shall be processed as
expeditiously as practicable. The Secretary of the In-
terior or the Secretary of Agriculture shall periodi-
cally provide information to the non-Federal land-
owner on the status of the exchange.
‘‘(5) APPLICABLE LAW.—The Secretary of the
Interior and the Secretary of Agriculture shall proc-
ess exchanges under this subsection in accordance
132
with applicable laws that are consistent with this
subsection.
‘‘(d) VALUATION.—Any land, water, or interest in
land or water to be acquired by the Secretary or the Sec-
retary of Agriculture by purchase, exchange, donation, or
otherwise under this section shall be valued as if the land,
water, or interest in land or water were not subject to any
restriction on use under this Act imposed after the date
of acquisition by the current owner of the land, water, or
interest in land or water.
‘‘(e) ll.—For any land or water acquired by the
Secretary or the Secretary of Agriculture by purchase, ex-
change, lease, donation or otherwise under this section,
the Secretary or Secretary of Agriculture shall ensure that
such purchase, exchange, lease, donation, or other transfer
shall not supersede, abrogate, or otherwise impair existing
easements, rights-of-way, fencing, water sources, water de-
livery lines or ditches, and current uses of adjacent land.’’.
TITLE 
VII—STATE 
AUTHORITY
TO PROTECT ENDANGERED
AND THREATENED SPECIES
SEC. 701. STATE AUTHORITY.
(a) IN GENERAL.—Section 6 (16 U.S.C. 1535) is
amended by striking subsection (c) and all that follows
through subsection (f) and inserting the following:
133
‘‘(c) STATE AUTHORITY TO PROTECT ENDANGERED
AND THREATENED SPECIES.—
‘‘(1) DELEGATION OF AUTHORITY.—In further-
ance of the purposes of this Act, the Secretary may
delegate to a State which establishes and maintains
an adequate program for the conservation of endan-
gered species and threatened species the authority
contained in this Act with respect to species of fish,
wildlife, and plants that are residents in the State.
Within 120 days after the Secretary receives a cer-
tified copy of such a proposed State program, the
Secretary shall make a determination whether such
program will be adequate to provide protections to
endangered species and threatened species in such
State. In order for a State program to be deter-
mined to be an adequate program for the conserva-
tion of endangered species and threatened species,
the Secretary must find that under the State pro-
gram—
‘‘(A)(i) authority resides in the State agen-
cy to conserve resident species of fish or wildlife
determined by the State agency or the Sec-
retary to be endangered species or threatened
species;
135
‘‘(vi) the State agency has initiated or en-
couraged voluntary or incentive based programs
to further the conservation objectives for the
species; or
‘‘(B)(i) the requirements set forth in
clauses (iii), (iv), and (v) of subparagraph (A)
are complied with, and
‘‘(ii) plans are included under which imme-
diate attention will be given to those resident
species of fish and wildlife which are deter-
mined by the Secretary or the State agency to
be endangered species or threatened species and
which the Secretary and the State agency agree
are most urgently in need of conservation pro-
grams.
‘‘(2) PROHIBITIONS NOT AFFECTED.—A delega-
tion to a State whose program is deemed adequate
pursuant to paragraph (1) shall not affect the appli-
cability of prohibitions set forth in or authorized
pursuant to section 4(d) or section 9(a)(1) with re-
spect to the taking of any resident endangered spe-
cies or threatened species in the State.
‘‘(d) ALLOCATION OF FUNDS.—
‘‘(1) FINANCIAL
ASSISTANCE.—The Secretary
may provide financial assistance to any State,
136
through its respective State agency, which has re-
ceived delegation pursuant to subsection (c) of this
section to assist in development of programs for the
conservation of endangered species and threatened
species or to assist in monitoring the status of can-
didate species pursuant to subparagraph (C) of sec-
tion 4(b)(3) and recovered species pursuant to sec-
tion 4(f). The Secretary shall allocate each annual
appropriation made in accordance with subsection (i)
to such States based on consideration of—
‘‘(A) the international commitments of the
United States to protect endangered species or
threatened species;
‘‘(B) the readiness of a State to proceed
with a conservation program consistent with the
objectives and purposes of this Act;
‘‘(C) the number of endangered species
and threatened species within a State;
‘‘(D) the potential for restoring endan-
gered species and threatened species within a
State;
‘‘(E) the relative urgency to initiate a pro-
gram to restore and protect an endangered spe-
cies or threatened species in terms of survival
of the species;
137
‘‘(F) the importance of monitoring the sta-
tus of candidate species within a State to pre-
vent a significant risk to the well-being of any
such species; and
‘‘(G) the importance of monitoring the sta-
tus of recovered species within a State to assure
that such species do not return to the point at
which the measures provided pursuant to this
Act are again necessary.
So much of the annual appropriation made in ac-
cordance with subsection (i) allocated for obligation
to any State for any fiscal year as remains unobli-
gated at the close thereof may be made available to
that State until the close of the succeeding fiscal
year. Any amount allocated to any State which is
unobligated at the end of the period during which it
is available for expenditure may be made available
for expenditure by the Secretary in conducting pro-
grams under this section.
‘‘(2) 
CONTENTS
OF
DELEGATION
AGREE-
MENT.—Such delegation shall provide for—
‘‘(A) the actions to be taken by the Sec-
retary and the States;
138
‘‘(B) the benefits that are expected to be
derived in connection with the conservation of
endangered species or threatened species;
‘‘(C) the estimated cost of these actions;
and
‘‘(D) the share of such costs to be borne
by the Federal Government and by the States;
except that—
‘‘(i) the Federal share of such pro-
gram costs shall not exceed 75 percent of
the estimated program cost stated in the
agreement; and
‘‘(ii) the Federal share may be in-
creased to 90 percent whenever two or
more States having a common interest in
one or more endangered species or threat-
ened species, the conservation of which
may be enhanced by cooperation of such
States, enter jointly into an agreement
with the Secretary.
The Secretary may, in the Secretary’s discretion,
and under such rules and regulations as he may pre-
scribe, advance funds to the State for financing the
United States pro rata share agreed upon in the co-
operative agreement. For the purposes of this sec-
139
tion, the non-Federal share may, in the discretion of
the Secretary, be in the form of money or real prop-
erty, the value of which will be determined by the
Secretary, whose decision shall be final.
‘‘(3) COMPLIANCE WITH PROCEDURES.—In im-
plementing this Act under authority delegated to a
State by the Secretary, the State shall comply with
all requirements, prohibitions, and procedures set
forth by this Act.
‘‘(e) REVIEW
OF STATE PROGRAMS.—Any action
taken by the Secretary under this section shall be subject
to his periodic review at no greater than intervals of 5
years.
‘‘(f) CONFLICTS BETWEEN FEDERAL
AND STATE
LAWS.—Any State law or regulation which applies with
respect to the importation or exportation of, or interstate
or foreign commerce in, endangered species or threatened
species is void to the extent that it may effectively—
‘‘(1) permit what is prohibited by this Act or by
any regulation which implements this Act, or
‘‘(2) prohibit what is authorized pursuant to an
exemption or permit provided for in this Act or in
any regulation which implements this Act. This Act
shall not otherwise be construed to void any State
law or regulation which is intended to conserve mi-
140
gratory, resident, or introduced fish or wildlife, or to
permit or prohibit sale of such fish or wildlife. Any
State law or regulation respecting the taking of an
endangered species or threatened species may be
more restrictive than the exemptions or permits pro-
vided for in this Act or in any regulation which im-
plements this Act.’’.
(b) CONFORMING AMENDMENT.—Section 6(g)(2)(A)
(16 U.S.C. 1535(g)(2)(A)) is amended to read as follows:
‘‘(A) to which the Secretary has delegated au-
thority under subsection (c); or’’.
SEC. 702. STATE PROGRAMS AFFECTED BY THE CONVEN-
TION.
Section 8A (16 U.S.C. 1537a), as amended by section
207(b) of this Act, is amended by adding at the end the
following new subsection:
‘‘(h) ISSUANCE OF PERMITS FOR EXPORT.—
‘‘(1) COMPLIANCE WITH STATE RECOMMENDA-
TION.—In any instance in which a State has a pro-
gram for management of a native species which is
the subject of a request for an export permit under
the Convention, the Secretary shall act in accord-
ance with the recommendation of the State unless
the Secretary makes a finding and publishes a notice
141
in the Federal Register that scientific evidence justi-
fies a conclusion contrary to the advice of the State.
‘‘(2) APPEAL.—The State which is the subject
to such a finding, or any person in that State di-
rectly affected because of inability to obtain a per-
mit, may appeal the finding to an Administrative
Law Judge or a court. The burden shall be on the
Secretary to show that the evidence supports a find-
ing contrary to the recommendation of the State.’’.
TITLE VIII—FUNDING OF
CONSERVATION MEASURES
SEC. 801. AUTHORIZING INCREASED APPROPRIATIONS.
Section 15 (16 U.S.C. 1542) is amended to read as
follows:
‘‘SEC. 15. AUTHORIZATION OF APPROPRIATIONS.
‘‘(a) IN GENERAL.—In addition to the amounts au-
thorized to be appropriated under section 6(i) and sub-
sections (b) through (e), there are authorized to be appro-
priated—
‘‘(1) to the Department of the Interior to carry
out the duties of the Secretary of the Interior under
this Act $110,000,000 for fiscal year 1996,
$120,000,000 for fiscal year 1997, $130,000,000 for
fiscal year 1998, $140,000,000 for fiscal year 1999,
142
$150,000,000 
for 
fiscal 
year 
2000, 
and
$160,000,000 for fiscal year 2001;
‘‘(2) to the Department of Commerce to carry
out the duties of the Secretary of Commerce under
this 
Act 
$15,000,000 
for 
fiscal 
year 
1996,
$20,000,000 for fiscal year 1997, $25,000,000 for
fiscal year 1998, $30,000,000 for fiscal year 1999,
$35,000,000 for fiscal year 2000, and $40,000,000
for fiscal year 2001; and
‘‘(3) to the Department of Agriculture to carry
out the duties of the Secretary of Agriculture under
this Act $4,000,000 for each of fiscal years 1996
through 2001.
‘‘(b) COOPERATIVE MANAGEMENT AGREEMENTS.—
There are authorized to be appropriated to the Depart-
ment of the Interior to carry out section 6(b),
$20,000,000 for each of fiscal years 1996 through 2001,
to remain available until expended.
‘‘(c) CONVENTION IMPLEMENTATION.—There are au-
thorized to be appropriated to the Department of the Inte-
rior to carry out section 8A(e) $1,000,000 for each of fis-
cal years 1996 through 2001, to remain available until ex-
pended.
‘‘(d) NON-FEDERAL CONSERVATION PLANNING.—
There are authorized to be appropriated to the Depart-
143
ment of the Interior to carry out section 10(a)(2)(F)
$20,000,000 for each of fiscal years 1996 through 2001,
to remain available until expended.
‘‘(e) HABITAT CONSERVATION GRANTS.—There are
authorized to be appropriated to the Department of the
Interior to provide habitat conservation grants under sec-
tion 6(b)(14) $20,000,000 for each of fiscal years 1996
though 2001, to remain available until expended.’’.
SEC. 802. FUNDING OF FEDERAL MANDATES.
Section 16 is amended to read as follows:
‘‘SEC. 16. FEDERAL COST-SHARING REQUIREMENTS FOR
CONSERVATION OBLIGATIONS.
‘‘(a) DIRECT COSTS DEFINED.—In this section, the
term ‘direct costs’ means—
‘‘(1) expenditures on labor, material, facilities,
utilities, equipment, supplies and other resources
which are necessary to undertake a specific con-
servation measure;
‘‘(2) increased purchase power costs and lost
revenues caused by changes in the operation of a hy-
dropower system from which the non-Federal person
or Federal power marketing administration markets
power to meet a specific conservation measure; and
144
‘‘(3) other reimbursable costs specifically identi-
fied by the Secretary as directly related to the per-
formance of a specific conservation measure.
‘‘(b) COST-SHARING.—
‘‘(1) CONSERVATION
PLANS.—For any non-
Federal person or Federal power marketing adminis-
tration, the Secretary shall pay 50 percent of any di-
rect costs that result from the compliance by the
person or administration mandated by a conserva-
tion plan issued under section 5 or any conservation
measure that provides protection to a listed species
under a plan developed under the Pacific Northwest
Electric Power Planning and Conservation Act (16
U.S.C. 839 et seq.) including a plan that provides
protection to a larger population unit of the same
listed species.
‘‘(2) CONSULTATION REQUIREMENTS.—For any
non-Federal person or Federal power marketing ad-
ministration, the Secretary shall pay 50 percent of
direct costs that result solely from requirements im-
posed by the Secretary on the person or marketing
administration under section 7.
‘‘(3) INCIDENTAL
TAKE
PERMITS.—For any
non-Federal person issued an incidental take permit
under section 10, the Secretary shall pay to such
145
person 50 percent of the direct costs of preparing
the application for the permit and implementing the
terms and conditions of the permit.
‘‘(4) 
COOPERATIVE
MANAGEMENT
AGREE-
MENTS.—The Secretary shall pay 50 percent of the
direct costs of preparing and implementing the
terms and conditions of a cooperative management
agreement incurred by a party to the agreement and
any costs incurred by any other non-Federal person
or Federal power marketing administration subject
to the terms of such agreement.
‘‘(c) METHOD OF COST-SHARING.—
‘‘(1) IN GENERAL.—Except as provided in para-
graph (2), the Secretary may make a contribution
required under subsection (b) by—
‘‘(A) providing a habitat reserve grant
under section 6(b)(14);
‘‘(B) acquiring, from or for the party to
the cost-share, land or an interest in land as
provided in section 5A; or
‘‘(C) providing appropriated funds.
‘‘(2) COST-SHARE
PAYMENT
FOR
FEDERAL
POWER MARKETING ADMINISTRATIONS AND OTHER
STATE OR LOCAL GOVERNMENTAL ENTITIES.—The
Secretary shall make a contribution under sub-
146
section (b) to a Federal power marketing adminis-
tration or any other State or local governmental en-
tity by providing appropriated funds directly to the
administration or governmental entity.
‘‘(3) APPROPRIATED FUNDS.—To the maximum
extent practicable, any appropriated funds paid by
the Secretary under paragraphs (1) and (2) shall be
paid directly (in lieu of reimbursement) to the party,
person, or administration.
‘‘(4) LOANS.—The Secretary may not consider
a loan to the party to the cost-share as a contribu-
tion or portion of a contribution under subsection
(b).
‘‘(5) RECOVERED COSTS.—The Secretary may
not claim as a portion of the Federal share under
subsection (b) any costs to the Federal Government
that are recovered through rates for the sale or
transmission of power or water.
‘‘(6) EFFECT OF FEDERAL NONPAYMENT.—If
the Secretary fails to make the contribution required
under subsection (b), the application of the applica-
ble provision of the conservation plan, requirement
under section 7, term under the incidental take per-
mit, or provision of the cooperative management
agreement shall be suspended until such time as the
147
full contribution is made. If the suspended provision
or requirement includes a conservation easement or
other instrument restricting title to the property of
the non-Federal person, nonpayment of the full con-
tribution shall result in the nullification of the pre-
viously granted restriction on title.
‘‘(7) IN-KIND CONTRIBUTIONS.—A non-Federal
person or Federal power marketing administration
may include in-kind contributions in calculating the
appropriate share of the costs of the person or ad-
ministration under this section.
‘‘(8) COSTS PAID BY THE SECRETARY.—Com-
pensation from the Federal Government under sec-
tion 19 may not cover costs incurred by a non-Fed-
eral person that were otherwise paid by the Sec-
retary under subsection (b).
‘‘(d) EXISTING COST-SHARING AGREEMENTS.—Any
cost-sharing agreement with a non-Federal person pro-
vided in any recovery plan or other agreement in existence
prior to the date of enactment of this subsection shall re-
main in effect unless the non-Federal person requests that
the cost-sharing percentage be reconsidered.
‘‘(e) ADJUSTMENTS
TO COST-SHARING PERCENT-
AGE.—At the request of the non-Federal person, the Sec-
148
retary may adjust the percentage of the Federal contribu-
tion to a higher share.’’.
SEC. 803. ENDANGERED SPECIES AND THREATENED SPE-
CIES CONSERVATION TRUST FUND.
Section 13 is amended to read as follows:
‘‘SEC. 13. ENDANGERED SPECIES AND THREATENED SPE-
CIES CONSERVATION TRUST FUND.
‘‘(a) ESTABLISHMENT.—There is established in the
general fund of the Treasury a separate account which
shall be known as the ‘Endangered Species and Threat-
ened Species Conservation Trust Fund’ (in this section re-
ferred to as the ‘Fund’).
‘‘(b) CONTENTS.—The Fund shall consist of the fol-
lowing:
‘‘(1) Amounts received as gifts, bequests, and
devises under subsection (d).
‘‘(2) Other amounts appropriated to or other-
wise deposited in the Fund.
‘‘(c) USE.—Amounts in the fund shall be available
to the Secretary, subject to appropriations, for the follow-
ing:
‘‘(1) Payment of compensation under section
19.
‘‘(2) Habitat conservation grants under section
6(b)(11).
149
‘‘(3) Payment of cost sharing under section 16.
‘‘(d) GIFTS, BEQUESTS, AND DEVISES.—
‘‘(1) IN GENERAL.—The Secretary may accept,
use, and dispose of gifts, bequests, or devises of
services or property, both real and personal, for the
purpose of carrying out this Act.
‘‘(2) DEPOSIT INTO FUND.—Gifts, bequests, or
devises of money, and proceeds from sales of other
property received as gifts, bequests, or devises, shall
be deposited in the Fund and shall be available for
disbursement upon order of the Secretary.
‘‘(3) TREATMENT.—For purposes of Federal in-
come, estate, and gift taxes, property accepted under
this subsection shall be considered as a gift, bequest,
or devise to the United States.’’.
TITLE IX—MISCELLANEOUS
PROVISIONS
SEC. 901. AMENDMENTS TO DEFINITIONS.
Section 3 (16 U.S.C. 1532) is amended—
(1) by adding after paragraph (16) (as added
by section 401(e)(1) of this Act) the following new
paragraph:
‘‘(17) The term ‘non-Federal person’ means a
person other than an officer, employee, agent, de-
partment, or instrumentality of the Federal Govern-
150
ment or a foreign government, acting in the official
capacity of the person.’’; and
(2) by amending paragraph (3) (as redesig-
nated by section 102(a)(1) of this Act) to read as
follows:
‘‘(3) The term ‘commercial activity’ means all
activities of industry and trade, including, but not
limited to, the buying or selling of commodities and
activities conducted for the purpose of facilitating
such buying and selling, except that it does not in-
clude exhibition of commodities or species by exhibi-
tors licensed under the Animal Welfare Act (7
U.S.C. 2131 et seq.), museums, or similar cultural
or historical organizations.’’.
SEC. 902. REVIEW OF SPECIES OF NATIONAL INTEREST.
No later than 60 days after the date of the enactment
of this Act, the Secretary (as that term is defined in sec-
tion 3 of the Endangered Species Act of 1973, as amended
by this Act) shall identify those species which are listed
under section 4 of that Act as a result of being determined
to be a population segment. No later than one year after
the date of the enactment of this Act, the Secretary shall
review and determine whether or not it is in the national
interest to continue to list each such population segment.
Those population segments which the Secretary rec-
151
ommends for continued listing in the national interest
shall be submitted to the Congress for approval. Any pop-
ulation segment which is not determined to be in the na-
tional interest shall be delisted within 60 days after that
determination.
SEC. 903. PREPARATION OF CONSERVATION PLANS FOR
SPECIES LISTED BEFORE ENACTMENT OF
THIS ACT.
(a) LISTED SPECIES WITHOUT RECOVERY PLANS.—
(1) PRIORITY
FOR
DEVELOPMENT
OF
CON-
SERVATION PLANS.—Not later than 30 days after
the date of enactment of this Act, the Secretary (as
defined in section 3 of the Endangered Species Act
of 1973, as amended by this Act) shall publish a list
of all species that were determined to be endangered
species or threatened species under section 4 of the
Act (16 U.S.C. 1533) for which no final recovery
plans were issued under section 4(f) of the Act (16
U.S.C. 1533(f)) (as in effect on the day before the
date of enactment of this Act) divided equally into
three tiers of priority for preparation of conservation
objectives and conservation plans therefor pursuant
to section 5 of the Act. Any species which is listed
as an endangered species or threatened species in
152
more than one State shall be placed in the first tier
of priority.
(2) SCHEDULE FOR ADOPTION OF PLANS.—The
Secretary shall publish pursuant to section 5 of the
Endangered Species Act of 1973 a conservation ob-
jective, draft conservation plan, and final conserva-
tion plan (except when a conservation objective is
published pursuant to section 5(b)(3)(C) of such
Act) for each species within each tier of priority
identified pursuant to paragraph (1) within the fol-
lowing periods after the date of enactment of this
Act:
(A) Conservation objective: First tier, 120
days; second tier, 12 months; and third tier, 24
months.
(B) Draft conservation plan: First tier, 6
months; second tier, 18 months; and third tier,
30 months.
(C) Final conservation plan: First tier, 12
months; second tier, 24 months; and third tier,
36 months.
(b) LISTED SPECIES WITH RECOVERY PLANS.—
(1) PRIORITY
FOR
REVISION
OF
EXISTING
PLANS.—Except as provided in paragraph (3), a
final recovery plan issued under section 4(f) of the
153
Endangered Species Act of 1973 (16 U.S.C.
1533(f)) (as in effect on the day before the date of
enactment of this Act) shall continue in effect until
the expiration of the deadline for revision thereof es-
tablished under this paragraph. Within 90 days after
the date of enactment of this Act, the Secretary
shall publish a list of all species that were deter-
mined to be endangered species or threatened spe-
cies under section 4 of such Act (16 U.S.C. 1533)
and for which final recovery plans were issued under
section 4(f) of such Act (16 U.S.C. 1533(f)) (as in
effect on the day before the date of enactment of
this Act) divided equally into three tiers of priority
for preparation of conservation objectives pursuant
to section 5(b) of such Act and revisions of the re-
covery plans consistent with the requirements for
conservation plans set forth in section 5(c) of such
Act. Any species which is listed as an endangered
species or threatened species in more than one State
shall be placed in the first tier of priority.
(2) SCHEDULE FOR REVISION OF PLANS.—The
Secretary shall publish pursuant to section 5 of the
Endangered Species Act of 1973 a conservation ob-
jective, draft revision of the existing recovery plan,
and final revision of the existing recovery plan (ex-
154
cept when a conservation objective is published pur-
suant to section 5(b)(3)(C) of such Act) for each
species within each tier of priority identified pursu-
ant to paragraph (1) within the following periods
after the date of enactment of this Act:
(A) Conservation objective: First tier, 180
days; second tier, 18 months; and third tier, 30
months.
(B) Draft revised recovery plan: First tier,
12 months; second tier, 24 months; and third
tier, 36 months.
(C) Final revised recovery plan: First tier,
18 months; second tier, 30 months; and third
tier, 42 months.
(3) SPECIES
FOR
WHICH
NO
CONSERVATION
PLAN IS REQUIRED.—If the Secretary publishes a
conservation objective for which no conservation plan
is required pursuant to section 5(b)(3)(C) of the En-
dangered Species Act of 1973 for any species subject
to this subsection, the final recovery plan applicable
to the species shall be rescinded.
(c) 
PROHIBITION
ON
ADDITIONAL
REQUIRE-
MENTS.—The Secretary or any other Federal agency may
not require any increase in any measurable criterion con-
tained in, or any site specific management action in addi-
155
tion to those provided in, a final recovery plan issued
under section 4(f) of the Endangered Species Act of 1973
(16 U.S.C. 1533(f)) (as in effect on the day before the
date of enactment of this Act) until such time as a con-
servation plan, or, pursuant to section 5(b)(3)(C) of such
Act, a conservation objective, has been published under
section 5 of such Act.
(d) EXISTING BIOLOGICAL OPINIONS.—In conjunc-
tion with the issuance of a conservation plan, or, pursuant
to section 5(b)(3)(C) of the Endangered Species Act of
1973, a conservation objective under subsection (a) or (b),
the Secretary (as defined in section 3 of such Act (16
U.S.C. 1532)) shall review and reissue, in accordance with
section 7 of such Act, any written opinion of the Secretary
that relates to the affected species and was issued after
January 1, 1995, under section 7(b)(3) of such Act (16
U.S.C. 1536(b)(3)) (as in effect on the day before the date
of enactment of this Act).
SEC. 904. CONFORMING AMENDMENT TO TABLE OF CON-
TENTS.
The table of contents at the end of the first section
is amended to read as follows:
‘‘TABLE OF CONTENTS
‘‘Sec. 2. Findings, purposes, and policy.
‘‘Sec. 3. Definitions.
‘‘Sec. 4. Determination of endangered species and threatened species.
‘‘Sec. 5. Species conservation plans.
‘‘Sec. 5A. Protection of habitat.
156
‘‘Sec. 6. Cooperation with non-Federal persons.
‘‘Sec. 7. Interagency cooperation.
‘‘Sec. 8. International cooperation.
‘‘Sec. 8A. Convention implementation.
‘‘Sec. 9. Prohibited acts.
‘‘Sec. 10. Exceptions.
‘‘Sec. 11. Penalties and enforcement.
‘‘Sec. 12. Endangered plants.
‘‘Sec. 13. Endangered Species and Threatened Species Conservation Trust
Fund.
‘‘Sec. 14. Notice of hearings.
‘‘Sec. 15. Authorization of appropriations.
‘‘Sec. 16. Federal cost-sharing requirements for conservation obligations.
‘‘Sec. 17. Marine Mammal Protection Act of 1972.
‘‘Sec. 18. Annual cost analysis by the Fish and Wildlife Service.
‘‘Sec. 19. Right to compensation.
‘‘Sec. 20. Recognizing net benefits to aquatic species.’’.
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