I
106TH CONGRESS
1ST SESSION
H. R. 3160
To reauthorize and amend the Endangered Species Act of 1973.
IN THE HOUSE OF REPRESENTATIVES
OCTOBER 27, 1999
Mr. YOUNG of Alaska (for himself, Mr. POMBO, Mr. TAUZIN, Mr. HANSEN,
Mr. CALVERT, Mr. THOMAS, Mr. DOOLITTLE, Mr. RADANOVICH, Mr.
BAKER, Mr. SKEEN, Mrs. BONO, Mr. LEWIS of California, Mr. WALDEN
of Oregon, Mrs. CUBIN, Mr. SCHAFFER, Mr. TAYLOR of North Carolina,
Mr. HASTINGS of Washington, Mr. HUNTER, Mr. GARY MILLER of Cali-
fornia, Mr. WATKINS, Mr. TANCREDO, Mr. BACHUS, Mr. SIMPSON, Mr.
HERGER, Mr. CUNNINGHAM, Mr. PETERSON of Pennsylvania, Mr.
DELAY, Mr. GIBBONS, Mr. LUCAS of Oklahoma, Mr. JOHN, Mr.
BONILLA, and Mr. PACKARD) introduced the following bill; which was re-
ferred to the Committee on Resources
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
‘‘Common Sense Protections for Endangered Species
Act’’.
(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.
TITLE I—IMPROVING SCIENTIFIC INTEGRITY OF LISTING
DECISIONS AND PROCEDURES
Sec. 101. Improving the validity and credibility of decisions.
Sec. 102. Peer review.
Sec. 103. Making data public.
Sec. 104. Judicial review.
Sec. 105. State consultation on final determination.
Sec. 106. Determinations by the Secretary to delist.
Sec. 107. Cooperation with the States.
TITLE II—COMPLYING WITH ALL FEDERAL LAWS AND MISSIONS
Sec. 201. Balancing ESA with other laws and missions.
Sec. 202. Actions not requiring consultation and conferencing.
Sec. 203. Eliminating the exemption committee.
TITLE III—PERMITTING AND ENFORCEMENT
Sec. 301. Protecting public health and safety.
Sec. 302. Intervention in citizen suits.
Sec. 303. Incidental take permits.
Sec. 304. Safe harbor agreements.
TITLE IV—RECOVERY PLANNING
Sec. 401. Recovery planning.
TITLE V—MISCELLANEOUS
Sec. 501. Authorizing increased appropriations.
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.).
TITLE 
I—IMPROVING 
SCI-
ENTIFIC INTEGRITY OF LIST-
ING DECISIONS AND PROCE-
DURES
SEC. 101. IMPROVING THE VALIDITY AND CREDIBILITY OF
DECISIONS.
(a) BASES LISTINGS; USE OF CREDIBLE SCIENCE.—
Section 4 (16 U.S.C. 1533) is amended—
(1) by amending subsection (a)(1)(D) to read
as follows:
‘‘(D) the inadequacy of existing Federal, State,
and local government regulatory mechanisms or
other proactive conservation programs or measures,
including programs and measures voluntarily under-
taken;’’;
(2) by striking paragraph (3) of subsection (a);
and
(3) in subsection (b), by amending so much as
precedes paragraph (3) to read as follows:
‘‘(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 or foreign nation, any political subdivision of
a State or foreign nation, or any non-Federal person
or conservation organization, to protect such species,
whether by predator control, protection of habitat
and food supply, or other conservation practices,
within any area under its jurisdiction, or on the high
seas, and shall accord greater weight, consideration,
and preference to empirical data rather than projec-
tions or other extrapolations developed through mod-
eling.
‘‘(B) In carrying out this section, the Secretary
shall give consideration to species which have been—
‘‘(i) designated as requiring protection
from unrestricted commerce by any foreign na-
tion, or pursuant to any international agree-
ment; or
‘‘(ii) identified as in danger of extinction,
or as likely to become so within the foreseeable
future, by any State agency or by any agency
of a foreign nation that is responsible for the
conservation of fish or wildlife or plants.
‘‘(C) In making a determination whether a spe-
cies is an endangered species or threatened species
under this section, the Secretary shall consider the
future conservation benefits to be provided to the
species under any species conservation plans pre-
pared pursuant to section 10 or to any management
agreement entered into under section 6 or under any
other agreement for the conservation of any species
entered into between the Secretary and any other
person.
‘‘(2) STANDARDS
FOR
DETERMINING
SPE-
CIES.—Within 18 months after the date of the en-
actment of the Common Sense Protections for En-
dangered Species Act, the Secretary shall promul-
gate a rule establishing scientifically valid standards
for rendering taxonomic determinations of species
and subspecies. The standards shall provide that to
be eligible for determination as a subspecies under
this Act, a subspecies must be reproductively iso-
lated from other subspecific population units and
constitute an important component in the evolution-
ary legacy of the species.’’.
(b) LISTING AND DELISTING.—
found to present such information, the
Secretary shall promptly commence a re-
view of the status of the species concerned.
The Secretary shall promptly publish each
finding made under this subparagraph in
the Federal Register.
‘‘(ii) MINIMUM DOCUMENTATION.—A
finding that the petition presents the infor-
mation described in clause (i) shall not be
made unless the petition provides—
‘‘(I) 
scientific 
documentation
from a published scientific source that
the fish or wildlife or plant that is the
subject of the petition is a species;
‘‘(II) a description of all available
data on the historical and current
range, population, and distribution of
the species, an explanation of the
methodology used to collect the data,
and an identification of the location
where the data can be reviewed;
‘‘(III) scientific evidence that the
population of the species is declining
or has declined from historic popu-
lation levels and beyond normal popu-
lation fluctuations for the species;
‘‘(IV) an appraisal of the avail-
able data on the threats to the species
or the causes of its decline;
‘‘(V) an identification of the in-
formation contained or referred to in
the petition that has been peer-re-
viewed or field-tested;
‘‘(VI) the reason that the peti-
tioned action is warranted, based on
the factors established under sub-
section (a);
‘‘(VII) a bibliography of scientific
literature on the species, if any, in
support of the petition;
‘‘(VIII) the qualifications of any
person cited in the petition as an ex-
pert on the species or the status of
the species; and
‘‘(IX) at least one study or cred-
ible expert opinion, by a person who is
not affiliated with the petitioner, to
support the action requested in the
petition.
‘‘(iii) 
NOTIFICATION
TO
THE
STATES.—
‘‘(I) PETITIONED
ACTIONS.—If
the petition is found to present the in-
formation described in clause (i), the
Secretary shall notify and provide a
copy of the petition to the Governor of
each State in which the species is be-
lieved to occur and to affected tribes,
and shall solicit the advice of each
such Governor and tribe as to whether
the petitioned action is warranted.
Such advice shall be submitted to the
Secretary not later than 90 days after
the notification.
‘‘(II) PEER REVIEW OF CERTAIN
DETERMINATIONS.—If the Secretary’s
determination that the petitioned ac-
tion is warranted is in direct conflict
with the information submitted by the
Governor or tribe, the finding shall
not be final until the Secretary sub-
mits the finding to peer review as pro-
vided in subsection (f). The peer re-
viewers shall have not more than 30
days to submit their findings and
comments to the Secretary. If the
peer reviewers and the Secretary find
that the petition is warranted, the
Secretary shall prepare a record of de-
cision and shall submit the record to
the Governor or tribe. Issuance of
such record shall be final agency ac-
tion for purposes of chapter 7 of title
5, United States Code (relating to ju-
dicial review).
‘‘(B) PETITION
TO
CHANGE
STATUS
OR
DELIST.—A petition may be submitted to the
Secretary under subparagraph (A) to change
the status of a species or to remove a species
from either of the lists published under sub-
section (c) in accordance with subsection (a)(1),
if—
‘‘(i) the current listing is no longer
appropriate because of a change in the fac-
tors identified under subsection (a)(1); or
‘‘(ii) with respect to a petition to re-
move a species from either of the lists—
‘‘(I) new data or a reinterpreta-
tion of prior data indicate that re-
moval is appropriate;
‘‘(II) the species is extinct;
‘‘(III) the recovery goals estab-
lished for the species in a recovery
plan adopted under section 5 have
been achieved; or
‘‘(IV) the original listing of the
species was not subject to adequate
peer review as required by this Act.
‘‘(C) DETERMINATION.—Not later than
the end of the 1-year period beginning on the
date the Secretary receives a petition that is
found under subparagraph (A)(i) to present
substantial information indicating that the peti-
tioned action may be warranted, the Secretary
shall make one of the following findings:
‘‘(i) NOT
WARRANTED.—The peti-
tioned action is not warranted, in which
case the Secretary shall promptly publish
the finding in the Federal Register.
‘‘(ii) WARRANTED.—The petitioned
action is warranted, in which case the Sec-
retary shall, within 45 days after making
the determination and before issuing any
proposed rule to implement the determina-
tion, publish in the Federal Register a no-
tice of a review of the status of the species
that includes a description of the following:
‘‘(I) Any missing data that, if ob-
tained, would support the determina-
tion.
‘‘(II) Data that are necessary to
make the determination and that can
be collected within the period available
for making the determination.
‘‘(III) Data that may be nec-
essary in the future to ensure the con-
tinued validity of the determination,
and the deadline or deadlines for col-
lecting that data.
‘‘(iii) 
WARRANTED
BUT
PRE-
CLUDED.—The petitioned action is war-
ranted, but—
‘‘(I) the immediate proposal and
timely promulgation of a final regula-
tion implementing the petitioned ac-
tion in accordance with paragraphs
(5) and (6) is precluded by pending
proposals to determine whether any
species is an endangered species or a
threatened species; and
‘‘(II) 
expeditious 
progress 
is
being made to add qualified species to
either of the lists published under
subsection (c) and to remove from the
lists species for which the protections
of this Act are no longer necessary;
in which case the Secretary shall promptly
publish the finding in the Federal Register,
together with a description and evaluation
of the reasons and data on which the find-
ing is based.
‘‘(D) PUBLIC MEETINGS.—If requested by
any person within 30 days after the date of
publication of a finding under subparagraph
(C) regarding a species, the Secretary shall con-
duct at least one public meeting on the finding
in each State in which the species is believed to
occur and a person making such a request re-
sides. Public meetings in a State under this
clause shall include—
‘‘(i) a public meeting at a location
that is as centrally located as possible to
the areas in the State believed by the Sec-
retary to be habitat of the species; and
‘‘(ii) at least one public meeting in
each rural area of the State that the Gov-
ernor of the State determines is affected
by the determination.
‘‘(E) SUBSEQUENT
DETERMINATION.—A
petition with respect to which a finding is made
under subparagraph (C)(iii) shall be treated as
a petition that is resubmitted to the Secretary
under subparagraph (A) on the date of the
finding and that presents substantial scientific
or commercial information that the petitioned
action may be warranted.
‘‘(F) JUDICIAL REVIEW.—(i) Any negative
finding described in subparagraph (A)(i) and
any finding described in clause (i) or (iii) of
subparagraph (C) shall be subject to judicial re-
view. In any suit for review brought under this
paragraph, any person may intervene as a mat-
ter of right if the person can demonstrate that
a determination to list will have a direct eco-
nomic impact on such person.
‘‘(ii) In any action seeking judicial review
of a finding by the Secretary described in sub-
paragraph (C)(iii), the court shall give great
weight to the finding.
‘‘(G) MONITORING.—The Secretary shall
implement a system to monitor effectively the
status of each species with respect to which a
finding is made under subparagraph (C)(iii)
and shall make prompt use of the authority
under paragraph (7) to prevent a significant
risk to the well-being of the species.
‘‘(H) DATA SOLICITATION.—(i) The Sec-
retary shall, in the one-year period referred to
in subparagraph (C)—
‘‘(I) solicit, through publication in the
Federal Register, information regarding
the status of the species that may be the
subject of a proposed rule, including cur-
rent population, population trends, current
habitat, other State or local governmental
conservation efforts, Federal conservation
lands that could provide habitat for the
species, food sources, predators, breeding
habits, captive breeding efforts, commer-
cial, nonprofit, avocational, or voluntary
conservation activities, or other pertinent
information that may assist in making the
determination referred to in subsection
(a)(1); and
‘‘(II) collect and consider the data
identified and described pursuant to sub-
clause (I).
‘‘(ii) The solicitation shall establish a time
period within which to submit the information,
that shall be not less than 180 days. The period
shall be extended for an additional 60 days at
the request of any person who submits a re-
quest for such extension that includes a state-
ment of the reasons for the request. In making
the determination referred to in subsection
(a)(1), the Secretary shall give equal weight to
the information submitted in accordance with
this subparagraph.’’.
(2) 
CONFORMING
AMENDMENT.—Section
6(d)(1) (16 U.S.C. 1535(d)(1)) is amended in the
first sentence by striking ‘‘subparagraph (C)’’ and
inserting ‘‘subparagraph (G)’’.
(c) PROPOSED REGULATIONS.—Section 4(b)(5) (16
U.S.C. 1533(b)(5)) is amended to read as follows:
‘‘(5) PROPOSED REGULATIONS AND REVIEW.—
With respect to any regulation proposed by the Sec-
retary to implement a determination referred to in
subsection (a)(1) of this section, the Secretary shall
perform the following:
‘‘(A) Not later than 12 months before pub-
lishing the proposed regulation, the Secretary
shall—
‘‘(i) notify the Governor of each State
in which the species is believed to occur
and each affected tribe; and
‘‘(ii) solicit submission by each such
Governor and tribe, by not later than 90
days after the notification, of advice as to
whether the determination is warranted.
‘‘(B) Before publication of the proposed
regulation, the Secretary shall consider advice
received from State Governors and tribes under
subparagraph (A)(ii). If a Governor or tribe
provides scientific evidence pursuant to sub-
paragraph (A)(ii) that the determination is not
warranted, the Secretary may not make the de-
termination with respect to that State or on the
lands of that tribe, respectively, unless the Sec-
retary shows by a preponderance of scientific
evidence that the information submitted by the
Governor or tribe is incorrect and that the de-
termination is warranted.
‘‘(C) 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 as provided in para-
graph (8); and
‘‘(ii) give actual notice of the proposed
regulation (including the complete text of
the regulation) to the Governor of each
State in which the species is believed to
occur, and invite the determination of such
State as to whether the action is warranted
and if the Governor notifies the Secretary
that the action is not warranted, the Sec-
retary must provide to the Governor a
record of decision for such determination,
including information made available to
the Secretary which did not support the
determination, and the written reasons for
the determination.
‘‘(D) 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.
‘‘(E) 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.
‘‘(F) 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.
‘‘(G) At the request of any person made
not later than 45 days after the date of publica-
tion of general notice, promptly hold at least
one public meeting in each State that would be
affected by the proposed regulation (including
at least one public meeting in an affected rural
area, if any) except that the Secretary shall not
be required to hold more than five public meet-
ings under this subparagraph.
‘‘(H) Identify and include with the pro-
posed rule a description of—
‘‘(i) all data that are to be considered
in making the determination under sub-
section (a)(1) to which the proposed rule
relates and that have yet to be collected or
field verified;
‘‘(ii) any data that have not been col-
lected and considered in the determination
under subsection (a)(1) to which the rule
relates and that are necessary to ensure
the continued scientific integrity of the de-
termination;
‘‘(iii) deadlines by which the Secretary
shall collect and consider the data in ac-
cordance with subparagraph (I);
‘‘(iv) a description of additional sci-
entific and commercial data that would as-
sist in the preparation of a recovery plan
for the species to which the rule relates;
‘‘(v) a list of known threats to the
species and a description of the types of
activities that may be affected by the de-
termination under subsection (a)(1) and
any restriction on use of property that may
result from the determination; and
‘‘(vi) other State, local, or Federal
regulatory or conservation measures that
may either at present or in the future con-
tribute to the conservation of the species.
‘‘(I) Not later than the deadline published
by the Secretary pursuant to subparagraph
(H)(iii), the Secretary shall—
‘‘(i) collect the data;
‘‘(ii) provide an opportunity for public
review and comment on the data;
‘‘(iii) consider the data after that re-
view and comment; and
‘‘(iv) publish in the Federal Register
the results of that consideration and a de-
scription of and schedule for any actions
warranted by the data.’’.
(d) FINAL REGULATIONS.—
(1) SCHEDULE.—Section 4(b)(6) (16 U.S.C.
1533(b)(6)) is amended by striking ‘‘(6)(A)’’ and all
that follows through the end of subparagraph (A)
and inserting the following:
‘‘(6) FINAL REGULATIONS.—
‘‘(A) IN GENERAL.—Within the 1-year pe-
riod beginning on the date on which general no-
tice is published in accordance with paragraph
(5)(A)(i) regarding a proposed regulation, the
Secretary 
shall 
publish 
in 
the 
Federal
Register—
‘‘(i) a final regulation to implement
the determination;
‘‘(ii) notice that the 1-year period is
being extended under subparagraph (B)(i);
or
‘‘(iii) notice that the proposed regula-
tion is being withdrawn under subpara-
graph (B)(ii), together with the finding on
which the withdrawal is based.’’.
(2) 
CONFORMING
AMENDMENTS.—Section
4(b)(6) (16 U.S.C. 1533(b)(6)) is amended—
(A) in subparagraph (B)(i), by striking ‘‘or
revision’’;
(B) in subparagraph (B)(iii), by striking
‘‘or revision concerned, a finding that the revi-
sion should not be made,’’; and
(C) by striking subparagraph (C).
(e) USING BEST DATA.—Section 4(b)(8) (16 U.S.C.
1533(b)(8)) is amended—
(1) by striking ‘‘the data’’ and inserting ‘‘the
best scientific and commercial data available’’;
(2) by striking ‘‘regulation; and if such regula-
tion designates or revises critical habitat, such sum-
mary shall, to the maximum extent practicable, also
include a brief description and evaluation of those
activities (whether public or private) which, in the
opinion of the Secretary, if undertaken may ad-
versely modify such habitat, or may be affected by
such designation.’’ and inserting ‘‘regulation, and
shall provide, to the degree that it is relevant and
available, information regarding the status of the af-
fected species, including current population, popu-
lation trends, current habitat, food sources, preda-
tors, breeding habits, captive breeding efforts, gov-
ernmental and nongovernmental conservation efforts,
or other pertinent information.’’; and
(3) by adding at the end the following new sen-
tence: ‘‘Each regulation proposed by the Secretary
to implement a determination referred to in sub-
section (a)(1) shall be based primarily and substan-
tially on peer-reviewed scientific information obtain-
able from any source, including governmental and
nongovernmental sources, that has been to the max-
imum extent feasible verified by field testing. The
Secretary shall identify any data that is used as a
basis for such a determination and that has not been
verified by field testing.’’.
(f) ANALYSIS
OF
ECONOMIC
AND
SOCIAL
EF-
FECTS.—Section 4(b) (16 U.S.C. 1533(b)) is amended by
adding at the end the following new paragraph:
‘‘(9) ANALYSIS
OF
ECONOMIC
AND
SOCIAL
COSTS.—(A) Concurrently with a determination that
a species warrants listing as an endangered species
or threatened species, the Secretary shall publish in
the Federal Register with such determination an
analysis of the economic, social, and other public
health, safety, and welfare effects the listing may
have.
‘‘(B) The analysis shall include—
‘‘(i) an estimate of the effects the listing
may have on Federal, State, and local expendi-
tures and revenues;
‘‘(ii) the costs and benefits of the listing
for the private sector, including lost opportunity
costs; and
‘‘(iii) an identification of the geographic
area that may be affected by the listing.’’.
(g) DEFINITIONS.—Section 3 (16 U.S.C. 1532) is
amended—
(1) by amending paragraph (20) to read as fol-
lows:
‘‘(20) The term ‘threatened species’ means any
species that is likely to become an endangered spe-
cies within the foreseeable future throughout all or
a significant portion of its range, and the population
of which is declining or has declined from known
historic populations levels and beyond the normal
population fluctuations for the species.’’; and
(2) by adding at the end the following:
‘‘(22) The term ‘best scientific and commercial
data available’ means factual information, including
but not limited to peer reviewed scientific informa-
tion and genetic data, obtainable from any source,
including 
governmental 
and 
nongovernmental
sources, which has been to the maximum extent fea-
sible verified by field testing.
‘‘(23) The term ‘species’ includes any sub-
species of fish or wildlife or plants, and any distinct
population of any species of vertebrate fish or wild-
life which interbreeds when mature, unless such dis-
tinct population is determined to be endangered or
threatened under the law of the State in which it is
found and such law prohibits the unpermitted take
of such species.’’.
SEC. 102. PEER REVIEW.
Section 4(f) (16 U.S.C. 1533(f)) is amended to read
as follows:
‘‘(f) PEER REVIEW REQUIREMENT.—
‘‘(1) DEFINITIONS.—In this subsection:
‘‘(A) The term ‘action’ means—
‘‘(i) the determination that a species
is an endangered species or a threatened
species under subsection (a);
‘‘(ii) the determination under sub-
section (a) that an endangered species or
a threatened species be removed from any
list published under subsection (c)(1);
‘‘(iii) the designation, or revision of
the designation, of critical habitat for an
endangered species or a threatened species
under section 5(k);
‘‘(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); and
‘‘(v) the issuance of any regulation or
criteria establishing specific mitigation ob-
ligations with respect to a species.
‘‘(B) The term ‘qualified individual’ means
an individual with expertise in the biological
sciences—
‘‘(i) who is by virtue of advanced edu-
cation, training, or avocational, academic,
commercial, research, or other experience
competent to review the adequacy of any
scientific methodology supporting the ac-
tion, the validity of any conclusions drawn
from the supporting data, and the com-
petency of the individual who conducted
the research or prepared the data;
‘‘(ii) who is not otherwise employed by
or under contract to the Secretary or the
State in which the species is located;
‘‘(iii) who has not actively participated
in the prelisting or listing processes or ad-
vocated that a listing decision be made;
‘‘(iv) who has not been employed by
or under contract to the Secretary or the
State in which the species is located for
work related to the action or species under
consideration; and
‘‘(v) who has no direct financial inter-
est, and is not employed by any person
with a direct financial interest, in opposing
the action under consideration.
‘‘(2) LIST OF PEER REVIEWERS.—In order to
provide a substantial list of individuals who on a vol-
untary basis are available to participate in peer re-
view of actions, the Secretary shall, through the
Federal Register, through scientific and commercial
journals, and through the National Academy of
Sciences and other such institutions, seek nomina-
tions of persons who agree to peer review an 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. The report
of the peer reviewers shall be included in the official
record of the proposed action and shall be available
for public review prior to the close of the comment
period on the regulation.’’.
SEC. 103. MAKING DATA PUBLIC.
(a) PUBLIC DATA.—Section 4(b)(3) (16 U.S.C.
1533(b)(3)) is further amended by adding at the end the
following new subparagraph:
‘‘(H)(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 re-
viewable 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 not publish or other-
wise publicly disclose the location of particular pri-
vate property as habitat for a species which is deter-
mined to be an endangered species or threatened
species or proposed to be determined to be an en-
dangered species or threatened species, unless the
Secretary first notifies the owner thereof and re-
ceives the consent of the owner, or the information
is otherwise public information.’’.
(b) NOTICE
OF HEARINGS
AND PUBLIC MEET-
INGS.—Section 14 is amended to read as follows:
‘‘SEC. 14. PUBLIC HEARINGS AND PUBLIC MEETINGS.
‘‘(a) IN GENERAL.—Except as otherwise provided by
this Act, the Secretary shall provide notice of any hearing
or public meeting at which public comment is accepted
under this Act by publication in the Federal Register and
in a newspaper of general circulation in the location of
the hearing or public meeting at least 30 days prior to
the hearing or public meeting.
‘‘(b) PUBLIC MEETINGS.—Each public meeting held
pursuant to this Act shall provide an opportunity for the
public to make statements and receive information and an-
swers, respectively, from the agency regarding all aspects
of and questions regarding the petition or other matter
that is the subject of the public meeting. To the maximum
extent practicable, the Secretary shall ensure that mem-
bers of the public are provided with the information
sought at the public meeting.’’.
SEC. 104. JUDICIAL REVIEW.
Section 4 (16 U.S.C. 1533) is further amended by
adding at the end the following new subsection:
‘‘(j) JUDICIAL REVIEW OF DETERMINATIONS.—Any
final determination that a species is a threatened species
or endangered species shall be subject to a de novo judicial
review with the court determining whether the decision is
supported by a preponderance of the evidence.’’.
SEC. 105. STATE CONSULTATION ON FINAL DETERMINA-
TION.
Section 4(i) (16 U.S.C. 1533(i)) is amended to read
as follows:
‘‘(i) 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 Governor who consulted with the
Secretary in accordance with subsection (b)(5)(A)(ii) files
comments disagreeing with all or part of the proposed reg-
ulation, the Secretary shall not issue a final regulation
that is in conflict with such comments until the Secretary
further consults with the President. If the Secretary
adopts a final regulation in conflict with comments made
by the Governor of a State or fails to adopt a regulation
pursuant to an action petitioned by a Governor under sub-
section (b)(3), the Secretary shall submit to the Governor
a written justification for the failure of the Secretary to
adopt regulations consistent with the comments or petition
of the Governor.’’.
SEC. 106. DETERMINATIONS BY THE SECRETARY TO
DELIST.
Section 4(c)(2) (16 U.S.C. 1533(c)(2)) is amended
to read as follows:
‘‘(2) The Secretary shall—
‘‘(A) conduct, at least once every 5 years, a re-
view of all species included in a list which is pub-
lished pursuant to paragraph (1) and which is in ef-
fect at the time of such review; and
‘‘(B) determine on the basis of such review
whether any such species should—
‘‘(i) be removed from such list, which shall
be proposed within 90 days of the date upon
which it is determined that—
‘‘(I) new data or a reinterpretation of
prior data indicates that the previous de-
termination was in error;
‘‘(II) the species is extinct; or
‘‘(III) the recovery goal established
for the species in a recovery plan under
section 5(e) has been achieved;
‘‘(ii) be changed in status from an endan-
gered species to a threatened species; or
‘‘(iii) be changed in status from a threat-
ened species to an endangered species.
Each determination under subparagraph (B) shall be
made in accordance with the provisions of subsections (a)
and (b) of this section.’’.
SEC. 107. COOPERATION WITH THE STATES.
The first sentence of section 4(h) (16 U.S.C.
1533(h)) is amended to read as follows: ‘‘The Secretary
shall develop in cooperation with the States, and publish
in the Federal Register, agency guidelines to ensure that
cooperation with the States is achieved efficiently and ef-
fectively.’’.
TITLE II—COMPLYING WITH ALL
FEDERAL LAWS AND MISSIONS
SEC. 201. BALANCING ESA WITH OTHER LAWS AND MIS-
SIONS.
(a) FEDERAL AGENCY ACTIONS.—Section 7 (16
U.S.C. 1536) is amended—
(1) by amending the matter preceding sub-
section (a)(2) 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(k)(2), all other Federal agencies shall, consistent
with their primary missions and in consultation with
and with the assistance of the Secretary, utilize their
authorities in furtherance of the purposes of this Act
by carrying out programs for the conservation of en-
dangered species and threatened species listed pur-
suant to section 4.’’; and
(2) by adding at the end of subsection (a) the
following:
‘‘(5) INITIATION OF CONSULTATION.—A Fed-
eral agency that receives a request under paragraph
(3) shall initiate consultation within 15 days after
the date on which the request is received from the
permit or license applicant.
‘‘(6) DEMONSTRATION
BY
SECRETARY
RE-
QUIRED.—If the Secretary asserts the applicability
of section 7 to any property, the Secretary shall have
the responsibility of demonstrating, based on the
best information available at the time any consulta-
tion under this subsection is initiated, that—
‘‘(A) a threatened species or endangered
species or its respective critical habitat is lo-
cated in the geographic area that is the subject
of the consultation; and
‘‘(B) such proposed action will jeopardize
the continued existence of a threatened species
or endangered species.
‘‘(7) PROHIBITION ON OPINIONS BASED ON IN-
SUFFICIENT DATA.—The Secretary shall not issue
an opinion under subsection (b) that a proposed ac-
tion will jeopardize the continued existence of a
threatened species or endangered species based on
the insufficiency of available data on the impact of
a proposed action on such species.
‘‘(8) 
EFFECT
OF
LISTING
ON
EXISTING
PLANS.—
‘‘(A) DEFINITION
OF
ACTION.—For the
purposes of this paragraph, the term ‘action’
includes the adoption of land use plans under
the Federal Land Policy and Management Act
of 1976 (43 U.S.C. 1701 et seq.) and land and
resource management plans under the Forest
and Rangeland Renewable Resources Planning
Act of 1974 (16 U.S.C. 1600 et seq.), as
amended by the National Forest Management
Act of 1976 (16 U.S.C. 1600 (note)).
‘‘(B) REINITIATION OF CONSULTATION.—
Whenever a determination to list a species as
an endangered species or a threatened species
or a designation of critical habitat requires re-
initiation of consultation on an already ap-
proved action, the consultation shall commence
promptly, but not later than 90 days after the
date of the determination or designation, and
shall be completed not later than 1 year after
the date on which the consultation is com-
menced. During that 1-year period, the site spe-
cific actions referred to in subparagraph (C)
may not be enjoined under this Act based on
that listing.
‘‘(C) SITE-SPECIFIC ACTIONS DURING CON-
SULTATION.—Notwithstanding subsection (d),
the Federal agency implementing the land use
plan or land and resource management plan
under subparagraph (B) may authorize, fund,
or carry out a site-specific ongoing or previously
scheduled action within the scope of the plan on
the lands prior to completing consultation on
the plan under subparagraph (B) pursuant to
the consultation procedures of this section and
related regulations, if—
‘‘(i) no consultation on the action is
required; or
‘‘(ii) consultation on the action is re-
quired, the Secretary issues or has issued
a biological opinion, and the action satis-
fies the requirements of this section.
‘‘(9) RELATIONSHIP TO DUTIES UNDER OTHER
LAWS.—(A) The responsibilities of a Federal agency
under this Act shall not supersede and shall be im-
plemented 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
recovery objective or the purposes of the recovery
plan with economic and social needs and pursuit of
the purposes of the other laws or treaties. The au-
thority assigned to the President by this subpara-
graph may not be delegated to a member of the ex-
ecutive branch who has not been confirmed by the
Senate.’’.
(b) PROCEDURES FOR CONSULTATION.—Section 7(b)
(16 U.S.C. 1536(b)) is amended—
(1) by adding at the end of paragraph (1) the
following:
‘‘(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.’’; and
(2) by amending paragraph (2) to read as fol-
lows:
‘‘(2) OPPORTUNITY TO PARTICIPATE IN CON-
SULTATIONS.—(A) In conducting a consultation
under subsection (a)(2), the Secretary shall provide
any person who has sought authorization or funding
from a Federal agency for an action that is the sub-
ject of the consultation, the opportunity to—
‘‘(i) prior to the development of a draft bi-
ological opinion under paragraph (3), submit
and discuss with the Secretary and the Federal
agency information relevant to the effect of the
proposed action on the species and the avail-
ability of reasonable and prudent alternatives
(if a jeopardy opinion is to be issued) that the
Federal agency and the person can take to
avoid violation of subsection (a)(2);
‘‘(ii) receive information, on request, sub-
ject to the exemptions specified in section
552(b) of title 5, United States Code, on the
status of the species, threats to the species, and
conservation measures, used by the Secretary to
develop the draft biological opinion and the
final biological opinion, including the associated
incidental taking statements; and
‘‘(iii) receive a copy of the draft biological
opinion from the Federal agency and, prior to
issuance of the final biological opinion, submit
comments on the draft biological opinion and
discuss with the Secretary and the Federal
agency the basis for any finding in the draft bi-
ological opinion.
‘‘(B) If reasonable and prudent alternatives are
proposed by a person under subparagraph (A) and
the Secretary does not include the alternatives in the
final biological opinion under paragraph (3), the
Secretary shall explain, in writing, to the person why
those alternatives were not included in the opinion.
‘‘(C) Consultation under subsection (a)(3) shall
be concluded within such period as is agreeable to
the Secretary, the Federal agency, and the applicant
concerned.’’.
(c) REASONABLE AND PRUDENT ALTERNATIVES.—
Section 7(b)(3) (16 U.S.C. 1536(b)(3)) is amended by
adding at the end the following:
‘‘(C) In the development of an opinion under
this paragraph with respect to public lands, the Sec-
retary shall solicit and utilize information and advice
regarding those lands from the Governor of each
State in which the lands are located. With respect
to nonpublic lands, the Secretary shall solicit such
advice only upon the request of the affected land-
owner.
‘‘(D) Unless required by law other than sub-
sections (a) through (d), the Secretary, in any opin-
ion or statement under this subsection concerning an
agency action (including any reasonable and prudent
alternative suggested under subparagraph (A) 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.’’.
(d) DEFINITIONS.—Section 3 (16 U.S.C. 1532) is
further amended by adding at the end the following:
‘‘(24) The term ‘reasonable and prudent alter-
native’ means an alternative to 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;
‘‘(D) the Secretary believes would avoid
being likely to jeopardize the continued exist-
ence of the species;
‘‘(E) does not exceed in nature, scope, and
extent the effect of the proposed activity that is
the subject of the consultation; and
‘‘(F) both prevents the agency action con-
cerned from jeopardizing the continued exist-
ence of the species and imposes the least social
and economic cost possible.
‘‘(25) 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.’’.
(e) RESTRICTION ON NEW OR ADDITIONAL REQUIRE-
MENTS.—Section 7(b) (16 U.S.C. 1536(b)) is amended by
adding at the end the following:
‘‘(5) The Secretary shall provide to each applicant for
a permit or license that is subject to consultation under
this section a written statement that shall guarantee that,
so long as the project at issue is carried out consistent
with the statement issued under paragraph (4), the appli-
cant shall not be subject to new or additional requirements
for the specific protection of any species identified in the
statement beyond the requirements set forth in the state-
ment. All Federal entities shall be bound by the Sec-
retary’s guarantee.
‘‘(6)(A) The Secretary shall not refuse to provide an
incidental take statement under paragraph (4), unless the
Secretary has provided to the agency and the permit
applicant—
‘‘(i) all conditions for issuance of the statement,
in writing; and
‘‘(ii) an opportunity for the agency and the per-
mit applicant to provide a written response to the
conditions.
‘‘(B) Any refusal to provide an incidental take state-
ment without first providing the written conditions there-
fore and providing an opportunity to respond in accord-
ance with subparagraph (A), is deemed to be arbitrary and
capricious.
‘‘(7) The Secretary may not require any measures
under subsection (b)(4) that exceed in nature, scope, or
effect the impact of the taking for which the statement
is issued.’’.
SEC. 202. ACTIONS NOT REQUIRING CONSULTATION AND
CONFERENCING.
Section 7 is amended by adding at the end the fol-
lowing:
‘‘(q) ACTIONS NOT REQUIRING CONSULTATION AND
CONFERENCING.—
‘‘(1) IN
GENERAL.—Consultation and confer-
encing under paragraphs (2) and (4) of subsection
(a) shall not be required for any agency action
that—
‘‘(A) is consistent with the provisions of a
final recovery plan under section 5;
‘‘(B) is consistent with a cooperative man-
agement agreement under section 6 or an inci-
dental taking permit under section 10; or
‘‘(C) 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.
‘‘(2) EMERGENCY
CONSULTATIONS.—In re-
sponse to, or to prevent or minimize damage from,
a natural event or other emergency, consultation
under subsection (a)(2) may be waived by a Federal
agency for the repair or maintenance of a natural
gas pipeline, hazardous liquid pipeline, flood control
facility, or electrical distribution transmission, or
substation facility, if the repair or maintenance is
necessary to address a probable imminent threat to
human lives or a probable and significant threat to
the environment. If a consultation is required by the
Secretary for such repair or maintenance, it shall be
completed within 10 days of any request by the ap-
plicant for consultation. Any measure required to be
taken to avoid take for an activity that is the subject
of such a waiver may not exceed in nature, scope,
and extent the effect of the activity and shall not be
required prior to the completion of the repair or
maintenance action.
‘‘(3) 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 re-
covery plan under section 5;
‘‘(B) a cooperative management agreement
or an incidental take permit; or
‘‘(C) the terms and conditions specified in
a written statement provided under subsection
(b)(3) of this section.’’.
SEC. 203. ELIMINATING THE EXEMPTION 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 or to reduce the po-
tential loss of human life; and
‘‘(B) involves an emergency situation that
makes the application of the procedures of this
Act (other than this subsection) impractical.’’.
(c) REPEAL.—Section 7 (16 U.S.C. 1536) is further
amended—
(1) by striking subsections (f) through (n) and
subsection (p);
(2) in subsection (o)—
(A) by striking the heading and inserting
the following: ‘‘EXCEPTION FOR TAKING IN AC-
CORDANCE WITH STATEMENT.—’’; and
(B) by striking ‘‘such section—’’ and all
that follows through ‘‘(2) any taking’’ and in-
serting ‘‘such section, any taking’’; and
(3) by redesignating subsection (o) as sub-
section (f).
TITLE III—PERMITTING AND
ENFORCEMENT
SEC. 301. PROTECTING PUBLIC HEALTH AND SAFETY.
(a) IN GENERAL.—Section 9(a) (16 U.S.C. 1538(a))
is amended by adding at the end the following:
‘‘(3) PROTECTING PUBLIC HEALTH AND SAFE-
TY.—An activity of a non-Federal person is not a
taking of a species for purposes of paragraph (1) if
the activity—
‘‘(A) addresses a critical, probable 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
‘‘(B) is incidental to, and not the purpose
of, the carrying out of an otherwise lawful ac-
tivity that consists of—
‘‘(i) ongoing maintenance, routine op-
eration or use, and emergency repair of ex-
isting pipelines, flood control facilities or
projects, fire breaks, transmission and dis-
tribution lines, groundwater recharge fa-
cilities and areas, water storage and recy-
cling facilities, water drainage or water
conveyance structures and channels, and
appurtenant facilities;
‘‘(ii) road and right-of-away mainte-
nance, use, and repair; or
‘‘(iii) emergency repair or restoration
of any property or non-Federal facility to
the condition in which it existed or oper-
ated immediately before an emergency or
disaster, meeting current standards.’’.
SEC. 302. INTERVENTION IN CITIZEN SUITS.
Section 11(g) (16 U.S.C. 1540(g)) is amended—
(1) by amending so much as precedes para-
graph (1)(B) to read as follows:
‘‘(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;’’ and
(2) by adding at the end the following:
‘‘(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. 303. INCIDENTAL TAKE PERMITS.
(a) 
SPECIES
CONSERVATION
PLANS.—Section
10(a)(2) (16 U.S.C. 1539(a)(2)) is amended to read as
follows:
‘‘(2) SPECIES CONSERVATION PLANS.—(A) No
permit may be issued by the Secretary authorizing
any taking referred to in paragraph (1)(B) unless
the applicant therefor submits to the Secretary a
species conservation plan that specifies—
‘‘(i) the impact on the species which will be
the likely result of the taking to be permitted;
‘‘(ii) what steps the applicant can reason-
ably and economically take consistent with the
purposes and objectives of the taking to mini-
mize and mitigate such impacts, and the fund-
ing 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 recovery 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 con-
sistent with the purposes and objectives of the activ-
ity as the Secretary deems necessary to carry out
the purposes of this paragraph, including, but not
limited to, such reporting requirements as the Sec-
retary deems necessary for determining whether
such terms and conditions are being complied with.
The Secretary shall include those terms and condi-
tions that accomplish the goals of this section for
the least cost to the permit applicant.
‘‘(C) The Secretary may not require the appli-
cant, as a condition of processing the application or
issuing the permit—
‘‘(i) to expand the application to include
land, an interest in land, a 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;
‘‘(ii) to carry out mitigation that exceeds
in nature, scope, or effect the impacts of the
taking for which the permit is issued;
‘‘(iii) to minimize and mitigate for loss of
habitat resulting from activities under the per-
mit, in an area of land greater than the area
of land that is subject to impacts for which the
mitigation is required; or
‘‘(iv) to expend an aggregate amount
greater than the cost of fencing and preserving
current conditions of the land on which activi-
ties are conducted under the permit.
‘‘(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 with re-
spect to nonpublicly owned lands 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)).
‘‘(iii) If the Secretary considers a plan sub-
mitted under subparagraph (A) to be insufficient or
incomplete, the Secretary shall respond in writing to
the applicant within 30 days after receiving the ap-
plication, stating why the application is incomplete
or insufficient and stating any additional conditions
that must be met for the issuance of the permit. Any
denial of a permit under paragraph (1)(B) without
first providing such conditions in writing is deemed
to be arbitrary and capricious.
‘‘(iv) If the application is resubmitted after the
Secretary responds under clause (iii), the Secretary
shall, within 60 days after receiving the resubmitted
application—
‘‘(I) issue the permit;
‘‘(II) at the request of the permit appli-
cant, provide written reasons for refusal to
complete consideration of the application; or
‘‘(III) formally deny the permit, in writing,
stating the reasons for the denial.
‘‘(E) No consultation is required under section
7 for—
‘‘(i) any action by a permittee under this
section that is authorized by the terms and con-
ditions of the permit;
‘‘(ii) any action by the Secretary in imple-
menting, enforcing, or monitoring compliance
with a permit under this section; or
‘‘(iii) the issuance, amendment, or renewal
of any permit under this section, if the Sec-
retary determines that the issuance, amend-
ment, or renewal, respectively, will not appre-
ciably reduce the likelihood of the survival and
recovery of any species that is authorized to be
taken under the permit.
‘‘(F) 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.
‘‘(G) After providing a permittee notice and an
opportunity to make appropriate corrections, the
Secretary shall revoke a permit issued under this
paragraph if the Secretary finds that the permittee
is not complying with the terms and conditions of
the permit or the species conservation plan required
for the permit.
‘‘(H) Notwithstanding any other provision of
law, a person may not commence any action or pro-
ceeding to challenge the approval of a permit under
this section unless suit is filed within 45 days after
publication in the Federal Register of notice of
issuance of the permit.’’.
(b) LIMITATION ON MITIGATION REQUIRED FOR IN-
CIDENTAL TAKE PERMITS.—Section 10 of the Endan-
gered Species Act of 1973 (16 U.S.C. 1539) is amended
by adding at the end the following:
‘‘(k) LIMITATION ON REQUIRED MITIGATION.—
‘‘(1) IN GENERAL.—Subsection (a)(2) does not
require, and the Secretary may not require as a
term or condition of a permit under subsection
(a)(1)(B), that a permittee for a public project take
any measures to minimize or mitigate impacts of a
taking under the permit—
‘‘(A) if the costs of implementing such
measures will exceed 10 percent of the total
project costs of the public project; or
‘‘(B) for any activity that occurred prior to
the date of the issuance of the permit.
‘‘(2) DEFINITIONS.—In this subsection—
‘‘(A) the term ‘public project’ means any
construction project that is carried out or fund-
ed (in whole or in part) by a Federal, State, or
local agency; and
‘‘(B) the term ‘total project costs’ means
the aggregate costs of acquiring land and car-
rying out construction.’’.
SEC. 304. SAFE HARBOR AGREEMENTS.
Section 10 (16 U.S.C. 1539) is further amended by
adding at the end the following:
‘‘(l) SAFE HARBOR AGREEMENTS.—
‘‘(1) AGREEMENTS.—
‘‘(A) IN
GENERAL.—The Secretary may
enter into agreements with non-Federal persons
to benefit the conservation of endangered spe-
cies or threatened species by creating, restoring,
or improving habitat or by maintaining cur-
rently unoccupied habitat for endangered spe-
cies or threatened species. Under an agreement,
the Secretary shall permit the person to take
endangered species or threatened species in-
cluded under the agreement on lands or waters
that are subject to the agreement if the taking
is incidental to, and not the purpose of, car-
rying out of an otherwise lawful activity, and
does not violate the baseline requirement estab-
lished under subparagraph (B).
‘‘(B) BASELINE REQUIREMENT.—For each
agreement under this subsection, the Secretary
shall establish a baseline requirement that is
mutually agreed upon by the applicant and the
Secretary at the time of the agreement that
will, at a minimum, maintain existing condi-
tions for the species covered by the agreement
on lands and waters that are subject to the
agreement. The baseline requirement may be
expressed in terms of the abundance or dis-
tribution of endangered species or threatened
species, quantity or quality of habitat, or such
other indicators as appropriate.
‘‘(2) STANDARDS AND GUIDELINES.—The Sec-
retary shall issue standards and guidelines for the
development and approval of safe harbor agreements
in accordance with this subsection.
‘‘(3) FINANCIAL ASSISTANCE.—
‘‘(A) IN
GENERAL.—In cooperation with
the States and subject to the availability of ap-
propriations to carry out this section, the Sec-
retary may provide a grant of up to $10,000 to
any individual private landowner to assist the
landowner in carrying out a safe harbor agree-
ment under this subsection.
‘‘(B) PROHIBITION
ON
ASSISTANCE
FOR
REQUIRED ACTIVITIES.—The Secretary may not
provide assistance under this paragraph for any
action that is required by a permit issued under
this Act or that is otherwise required under this
Act or other Federal law.’’.
TITLE IV—RECOVERY PLANNING
SEC. 401. RECOVERY PLANNING.
(a) REDESIGNATION.—Section 5 (16 U.S.C. 1534) is
redesignated as section 5A.
(b) RECOVERY PLANS.—The Act is amended by in-
serting before section 5A (as redesignated by subsection
(a)) the following:
‘‘RECOVERY PLANS
‘‘SEC. 5. (a) IN GENERAL.—The Secretary, in co-
operation with the States, and on the basis of the best
scientific and commercial data available, shall develop and
implement plans (referred to in this Act as ‘recovery
plans’) for the conservation and recovery of endangered
species and threatened species that are indigenous to the
United States or in waters with respect to which the
United States exercises sovereign rights or jurisdiction, in
accordance with the requirements and schedules described
in this section, unless the Secretary finds, after notice and
opportunity for public comment, that a plan will not pro-
mote the conservation of the species or because an existing
plan or strategy to conserve the species already serves as
the functional equivalent to a recovery plan.
‘‘(b) PRIORITIES.—To the maximum extent prac-
ticable, the Secretary, in developing recovery plans, shall
give priority, without regard to taxonomic classification,
to recovery plans that—
‘‘(1) address significant and immediate threats
to the survival of an endangered species or a threat-
ened species, have the greatest likelihood of achiev-
ing recovery of the endangered species or the threat-
ened species, and will benefit species that are more
taxonomically distinct;
‘‘(2) address multiple species including (A) en-
dangered species, (B) threatened species, or (C) spe-
cies that the Secretary has identified as candidates
or proposed for listing under section 4 and that are
dependent on the same habitat as the endangered
species or threatened species covered by the plan;
‘‘(3) reduce conflicts with construction, develop-
ment projects, jobs, agriculture, private property, or
other economic activities; and
‘‘(4) reduce conflicts with military training and
operations.
‘‘(c) SCHEDULE.—For each species determined to be
an endangered species or a threatened species after the
date of enactment of this subsection for which the Sec-
retary is required to develop a recovery plan under sub-
section (a), the Secretary shall publish—
‘‘(1) not later than 18 months after the date of
the publication under section 4 of the final regula-
tion containing the listing determination, a draft re-
covery plan; and
‘‘(2) not later than 30 months after the date of
publication under section 4 of the final regulation
containing the listing determination, a final recovery
plan.
‘‘(d) APPOINTMENT
AND
ROLE
OF
RECOVERY
TEAM.—
‘‘(1) IN GENERAL.—(A) Not later than 60 days
after the date of the publication under section 4 of
the final regulation containing the listing determina-
tion for a species, the Secretary, in cooperation with
the affected States, shall either—
‘‘(i) appoint a recovery team to develop a
recovery plan for the species; or
‘‘(ii) provide to each affected State and
publish a notice that a recovery team will not
be appointed, stating the reasons for not ap-
pointing a recovery team; and
‘‘(B) Upon request by the Governor of any
State in which the species occurs made after publica-
tion of notice under subparagraph (A)(ii), the Sec-
retary shall, as requested by the Governor—
‘‘(i) appoint a recovery team to develop a
recovery plan under this section; or
‘‘(ii) delegate to the Governor, under sub-
section (l), the authority of the Secretary to de-
velop a recovery plan for the species for that
State.
mentation, review, and revision of recovery plans.
The recovery team shall also advise the Secretary
concerning the designation of critical habitat, if any.
‘‘(B) The recovery team shall assess the direct,
indirect, and cumulative economic and social impacts
on the public and private sectors, including local
governments, that may result from the listing deter-
mination or from potential recovery strategies rec-
ommended under subparagraph (A), including—
‘‘(i) impacts on the cost of governmental
actions, tax and other revenues, employment,
the use and value of property, and other social,
cultural, and community values; and
‘‘(ii) commercial activity that might result
in a net benefit to the conservation of the spe-
cies.
‘‘(C) The recovery team shall recommend to the
Secretary measures to balance the achievement of
the recovery goal for a species under subsection (e)
with protecting the economic well-being of the area
affected by implementation of the recovery plan for
the species.
‘‘(4) TRAVEL EXPENSES.—The Secretary may
provide travel expenses (including per diem in lieu of
subsistence at the same level as authorized by sec-
tion 5703 of title 5, United States Code) to recovery
team members.
‘‘(5) FEDERAL
ADVISORY
COMMITTEE
ACT.—
The Federal Advisory Committee Act (5 U.S.C.
App.) shall not apply to the selection or activities of
a recovery team appointed pursuant to this sub-
section, except that meetings of the recovery team
shall be open to the public as provided in that Act
for meetings of advisory committees.
‘‘(e) CONTENTS OF RECOVERY PLANS AND DRAFT
RECOVERY PLANS.—
‘‘(1) BIOLOGICAL RECOVERY GOAL.—Not later
than 180 days after the appointment of a recovery
team under this section, the recovery team shall es-
tablish and submit to the Secretary a recommended
biological recovery goal to conserve and recover the
species that, when met, would result in the deter-
mination, in accordance with section 4, that the spe-
cies be removed from the list. The recovery goal
shall be expressed as objective and measurable popu-
lation criteria. When the goal is met, the Secretary
shall initiate the procedures under this Act to re-
move the species from the list. The recovery team
shall also report to the Secretary the scientific feasi-
bility of full recovery of the species and the time
frame in which recovery is likely to occur.
‘‘(2) CONTENTS OF DRAFT PLAN.—
‘‘(A) IN GENERAL.—Each draft recovery
plan shall contain the following:
‘‘(i) Recommendations for Federal
agency compliance with section 7(a)(1) and
7(a)(2).
‘‘(ii) Recommendations for avoiding a
taking of a listed species prohibited under
section 9(a)(1) and a list of specific activi-
ties that would constitute a take under sec-
tion 9.
‘‘(iii) Alternative strategies to achieve
the recovery goal for the listed species,
that range from a strategy requiring the
least possible Federal management to
achieve the recovery goal to a strategy in-
volving more intensive Federal manage-
ment to achieve the goal.
‘‘(iv) A description of economic and
social impacts identified under subsection
(d)(3)(B).
‘‘(B) REQUIREMENTS
FOR
ALTERNATIVE
STRATEGIES.—The alternative strategies under
subparagraph (A)(iii) must achieve an appro-
priate balance among the following factors:
‘‘(i) The effectiveness of the measures
in meeting the recovery goal.
‘‘(ii) The length of time in which the
recovery goal is likely to be achieved if the
time period within which the recovery goal
is to be achieved will not pose a significant
risk to recovery of the species.
‘‘(iii) Minimizing the economic and so-
cial impacts on the public and private sec-
tors, including the impact on employment,
the cost of government actions, tax and
other revenues, the use and value of prop-
erty, and other social, cultural, and com-
munity values.
‘‘(3) BENCHMARKS.—The recovery plan shall
include objective, measurable benchmarks expected
to be achieved over the course of the recovery plan
to determine whether progress is being made toward
the recovery goal. To the extent possible, current
and historical population estimates, along with other
relevant factors, should be considered in determining
whether progress is being made toward meeting the
recovery goal.
‘‘(4) EQUITABLE
TREATMENT
OF
AFFECTED
STATES AND OTHER NON-FEDERAL PERSONS.—Each
recovery plan under this section shall—
(A) provide equitable treatment of each af-
fected State and all other non-Federal persons
affected by the plan; and
‘‘(B) seek to minimize and fairly distribute
the social and economic costs that may result
from implementation of the plan.
‘‘(f) PUBLIC NOTICE AND COMMENT.—
‘‘(1) IN GENERAL.—If the Secretary makes a
preliminary determination that the draft recovery
plan meets the requirements of this section, the Sec-
retary shall publish in the Federal Register, and a
newspaper of general circulation in areas in each af-
fected State that are located as close to the affected
area as possible, a notice of availability and a sum-
mary of, and a request for public comment on, the
draft recovery plan. The notice shall include a de-
scription of the activities that will require a permit
under section 10, a description of the economic and
social impacts referred to in subsection (d)(3)(B),
and the recommendations of the recovery team on
the recovery goal under subsection (e)(1).
‘‘(2) HEARINGS.—At the request of any person,
the Secretary shall hold at least 1 public meeting on
each draft recovery plan in each State to which the
plan would apply (including at least 1 public meet-
ing in an affected rural area, if any), except that the
Secretary may not be required to hold more than 5
public meetings under this paragraph.
‘‘(g) REVIEW
AND
SELECTION
BY
THE
SEC-
RETARY.—
‘‘(1) REVIEW AND APPROVAL.—The Secretary
shall review each plan submitted by a recovery team
to determine whether the plan was developed in ac-
cordance with the requirements of this section. If
the Secretary determines that the plan does not sat-
isfy such requirements, the Secretary shall notify the
recovery team and give the team an opportunity to
address the concerns of the Secretary and resubmit
a plan that satisfies the requirements of this section.
After notice and opportunity for public comment on
the recommendations of the recovery team, the Sec-
retary shall adopt a final recovery plan that is con-
sistent with the requirements of this section.
‘‘(2) SELECTION OF RECOVERY STRATEGIES.—
In each final plan the Secretary shall select recovery
strategies that achieve the recovery goal and the
‘‘(2) SUBSEQUENT PLANS.—The Secretary shall
review each recovery plan first approved or revised
under this section after the date of enactment of this
subsection, not later than 5 years after the date of
approval or revision of the plan and every 5 years
thereafter.
‘‘(i) REVISION
OF
RECOVERY
PLANS.—Notwith-
standing any other provision of this section, the Secretary
shall revise a recovery plan if the Secretary finds, based
on the best scientific and commercial data available, that
substantial new information, which may include failure to
meet the benchmarks included in the plan, indicates that
the recovery goal contained in the recovery plan will not
achieve the conservation and recovery of the endangered
species or threatened species covered by the plan. The Sec-
retary shall convene a recovery team to develop the revi-
sions required by this subsection, unless the Secretary has
published a notice that a recovery team shall not be ap-
pointed pursuant to subsection (d)(3).
‘‘(j) EXISTING PLANS.—Except as provided in sub-
section (i), nothing in this section shall require the modi-
fication of—
‘‘(1) a recovery plan approved before the date
of the enactment of the Common Sense Protections
for Endangered Species Act; or
‘‘(2) a recovery plan on which public notice and
comment has been initiated before that date of en-
actment.
‘‘(k) CRITICAL HABITAT DESIGNATION.—
‘‘(1) RECOMMENDATION
OF
THE
RECOVERY
TEAM.—Concurrent with the submission of the draft
recovery plan for a species to the Secretary, the re-
covery team appointed for the species shall provide
the Secretary with a description of any habitat of
the species that is recommended for designation as
critical habitat pursuant to this subsection and any
recommendations for special management consider-
ations or protection that are specific to the habitat.
‘‘(2) DESIGNATION BY THE SECRETARY.—
‘‘(A) IN GENERAL.—The Secretary, to the
maximum extent prudent and determinable,
may by regulation designate or revise an exist-
ing designation of critical habitat of each en-
dangered species or threatened species that is
indigenous to the United States or to waters
with respect to which the United States exer-
cises sovereign rights or jurisdiction.
‘‘(B) EMERGENCY AUTHORITY.—The Sec-
retary may publish a regulation designating
critical habitat for an endangered species or a
threatened species concurrently with the final
regulation implementing the determination that
the species is endangered or threatened if the
Secretary determines that designation of such
habitat at the time of listing is essential to
avoid the imminent extinction of the species.
‘‘(3) FACTORS TO BE CONSIDERED.—The des-
ignation of critical habitat shall be made on the
basis of the best scientific and commercial data
available and after taking into consideration the eco-
nomic impact, impacts to military training and oper-
ations, and any other relevant impact, of specifying
any particular area as critical habitat. The Secretary
shall describe the economic impacts and other rel-
evant impacts that are to be considered under this
subsection in the publication of any proposed regula-
tion designating critical habitat.
‘‘(4) PROPOSED
AND
FINAL
REGULATIONS.—
Any regulation to designate critical habitat or imple-
ment a requested revision shall be proposed and pro-
mulgated in the same manner as a regulation to im-
plement a determination with respect to listing a
species.
‘‘(5) ECONOMIC
IMPACTS
DEFINED.—In this
subsection, the term ‘economic impact’ means the
cumulative economic effects (including costs) result-
ing from the listing of a species and the designation
of critical habitat of the species, for communities
and industries that are located in the area des-
ignated as critical habitat or that receive revenue
from use of the area.
‘‘(l) STATE
AUTHORITY
FOR
RECOVERY
PLAN-
NING.—
‘‘(1) IN GENERAL.—At the request of the Gov-
ernor of a State, or the Governors of several States
in cooperation, the Secretary may delegate to the
State agency, or to the State agencies of such States
acting jointly, respectively, the authority of the Sec-
retary to develop and implement the recovery plan
for an endangered species or a threatened species in
accordance with the requirements and schedules of
subsections (c), (d)(1), (d)(2), and (e) and this sub-
section, if the Secretary finds that—
‘‘(A) the State agency (or agencies, jointly)
has entered into a cooperative agreement with
the Secretary pursuant to section 6(c); and
‘‘(B) the State agency (or agencies, jointly)
has submitted a statement to the Secretary
demonstrating adequate authority and capa-
bility to carry out the requirements and sched-
ules of subsections (c), (d)(1), (d)(2), and (e)
and this subsection.
‘‘(2) 
RESPONSE
TO
CONCERNS
OF
SEC-
RETARY.—If the Secretary finds that a State agency
lacks any authority or capability required under
paragraph (1)(B), the Secretary shall notify the
State agency and provide the State agency with an
opportunity to address the concerns of the Sec-
retary.
‘‘(3) STANDARDS AND GUIDELINES.—The Sec-
retary, in cooperation with the States, shall publish
standards and guidelines for the development of re-
covery plans by State agencies under this subsection,
including standards and guidelines for interstate co-
operation and for the grant and withdrawal of au-
thorization by the Secretary under this subsection.
‘‘(4) DUTIES OF RECOVERY TEAM.—The recov-
ery team shall prepare a draft recovery plan in ac-
cordance with this section and shall transmit the
draft plan to the Secretary through the State agency
authorized to develop the recovery plan.
‘‘(5) REVIEW OF DRAFT PLANS.—Prior to pub-
lication of a notice of availability of a draft recovery
plan, the Secretary shall review each draft recovery
plan developed pursuant to this subsection to deter-
mine whether the plan meets the requirements of
this section and shall give the State an opportunity
to address any deficiencies in the plan. Thereafter,
if the Secretary determines that the plan does not
meet such requirements, the Secretary shall notify
the State agency and, in cooperation with the State
agency, develop a recovery plan in accordance with
this section.
‘‘(6) 
REVIEW
AND
APPROVAL
OF
FINAL
PLANS.—On receipt of a draft recovery plan trans-
mitted by a State agency, the Secretary shall review
and adopt the plan in accordance with subsection
(g).
‘‘(7) WITHDRAWAL OF AUTHORITY.—(A) The
Secretary may withdraw the authority from a State
that has been delegated authority to develop a recov-
ery plan pursuant to this subsection if the actions of
the State agency are not in accordance with the sub-
stantive and procedural requirements of subsections
(c), (d)(1), (d)(2), and (e) and this subsection. The
Secretary shall give the State agency an opportunity
to correct any deficiencies identified by the Secretary
and may withdraw the authority from the State un-
less the State agency within 60 days has corrected
the deficiencies identified by the Secretary.