125
hibition under section 9(a) or 4(d), 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 action that
is inconsistent with the plan or objective.’’.
(b) CONSERVATION OBJECTIVE
AND CONSERVATION
RULE DEFINED.—Section 3(4) (16 U.S.C. 1532), as redes-
ignated by section 102(a) of this Act, is amended to read
as follows:
‘‘(4) The terms ‘conservation objective’ and ‘con-
servation plan’ (except when modified by ‘non-Fed-
eral’) mean a conservation objective and a conserva-
tion plan, respectively, developed under section 5.’’.
SEC. 503. INTERIM MEASURES.
Section 5, 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 subsections:
‘‘(e) MANAGEMENT PRIOR TO PUBLICATION OF CON-
SERVATION PLAN.—
‘‘(1) IN GENERAL.—After a listing determination
and before the publication of a final conservation
126
plan, or, if no plan is required pursuant to subsection
(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,
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 consultation
shall be required on any agency action under
section 7(a)(2), except that the species shall con-
tinue to be treated as a species proposed for list-
ing under section 4 solely for purposes of section
7(a)(4).
‘‘(2) EMERGENCY RULEMAKING PROTECTIONS.—
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
127
pursuant to section 4(b)(7) or if the President de-
clares, and advises the Secretary, that there exists an
imminent threat to the existence of the species. Such
declaration of the President expires upon the deadline
for publication of a final conservation plan for the
species pursuant to subsection (c)(5) or the publica-
tion of a conservation objective for the species pro-
vided in subsection (b)(3) or if no conservation plan
is required pursuant to subsection (b)(3)(C).
‘‘(f) SUSPENSION OF CONSERVATION PLAN OR OBJEC-
TIVE.—If the Secretary issues an incidental take permit or
enters into a cooperative management agreement under sec-
tion 6, the Secretary, by publication of notice in the Federal
Register, shall suspend the conservation objective or con-
servation 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 objective
on which it is based before the end of the 5-year pe-
128
riod that begins on the date of publication of the con-
servation plan, and before the end of each 5- year pe-
riod 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—
‘‘(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 conservation
measure that is integral to the conservation
plan; or
‘‘(ii) on the basis of scientific or com-
mercial data that were not available during
the development of the conservation objective
or conservation plan, that the conservation
objective is not achievable or the conserva-
tion plan will not achieve the conservation
objective.
129
‘‘(3) NO REOPENING OF CONSULTATIONS.—Sec-
tion 7 consultations shall not be reopened as a result
of modifications to a conservation plan under para-
graph (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 sections
502 and 503 of this Act, is amended by adding at the end
the following new subsections:
‘‘(i) CRITICAL HABITAT DESIGNATION.—
‘‘(1) DESIGNATION.—The Secretary—
‘‘(A) may, by regulation and to the extent
prudent and determinable, designate critical
habitat of a species determined to be an endan-
gered species or threatened species that meets the
requirements of paragraph (3) utilizing the Na-
tional Biodiversity Reserve established under sec-
tion 5A(a) as a first priority;
‘‘(B) may by regulation and to the extent
prudent and determinable, revise a critical habi-
tat designation on determining that the critical
habitat does not meet the requirements of para-
graph (3); and
‘‘(C) shall, by regulation and upon receiv-
ing a written request from a non-Federal person
130
requesting a review of the critical habitat des-
ignation on such person’s private property, re-
vise a critical habitat designation on such pri-
vate property on determining that the critical
habitat does not meet the requirements of para-
graph (3).
Designation or revision of critical habitat shall not
result in reopening 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 or revise critical habitat shall be published not
later than 12 months and 18 months, respectively,
after the date on which the affected species is deter-
mined to be an endangered species or a threatened
species, or on which the Secretary receives a written
request to review a critical habitat designation under
paragraph (1)(C).
‘‘(3) BASIS FOR DESIGNATION.—The designation
of critical habitat, and any revision of the designa-
tion, shall be made on the basis of the best available
scientific and commercial data after taking into con-
sideration the economic impact, and any other rel-
evant impact, of designating any particular area as
critical habitat and of the determination that the af-