I 115th CONGRESS 2d Session H. R. 6360 IN THE HOUSE OF REPRESENTATIVES July 12, 2018 Mr. Norman (for himself, Mr. Abraham , Mr. Biggs , Mr. Bishop of Utah , Mr. Cramer , Mr. Duncan of South Carolina , Mr. Gosar , Mr. Luetkemeyer , Mr. Marshall , Mr. Tipton , Mr. Banks of Indiana , Mr. Stewart , Mrs. Noem , Mr. McClintock , Mr. Estes of Kansas , Mr. Gohmert , Mr. Newhouse , and Mr. Walden ) introduced the following bill; which was referred to the Committee on Natural Resources A BILL To amend the Endangered Species Act of 1973 to provide for greater certainty and improved planning for incidental take permit holders.

1. Short title This Act may be cited as the Permit Reassurances Enabling Direct Improvements for Conservation, Tenants, and Species Act of 2018 or the PREDICTS Act of 2018 . 2. Codification of the no surprises regulations (a) Definitions Section 3 of the Endangered Species Act of 1973 ( 16 U.S.C. 1532 ) is amended as follows: (1) By inserting after paragraph (1) the following: (_) Changed circumstances The term changed circumstances — (A) means changes in circumstances affecting a species or geographic area covered by a covered plan or agreement that can reasonably be anticipated by developers of such plan or agreement, respectively, and the Secretary, and that can reasonably be planned for; and (B) includes— (i) additions of species to lists published under section 4(c); and (ii) a fire or other natural catastrophic event in an area prone to such an event. . (2) By inserting after paragraph (3) the following: (_) Covered plan or agreement The term covered plan or agreement means a conservation plan required under section 10(a)(2)(A) or a candidate conservation agreement with assurances under section 10(k), respectively. . (3) By inserting after paragraph (5) the following: (_) Conserved habitat areas The term conserved habitat areas means areas explicitly designated for habitat restoration, acquisition, protection, or other conservation purposes under a covered plan or agreement. . (4) By inserting after paragraph (13) the following: (_) Operating conservation program The term operating conservation program means those conservation management activities that are expressly described in a covered plan or agreement and that are to be undertaken for the affected species when implementing the plan or agreement, respectively, including measures to respond to changed circumstances. . (5) By inserting after paragraph (24) the following: (_) Unforeseen circumstances The term unforeseen circumstances means changes in circumstances affecting a species or geographic area covered by a covered plan or agreement that could not reasonably have been anticipated by plan developers and the Secretary at the time of the development of such plan or agreement, respectively, and that result in a substantial and adverse change in the status of the covered species. . (6) By redesignating the paragraphs of such section as paragraphs (1) through (25), respectively. (b) Conforming amendment Section 7(n) of such Act ( 16 U.S.C. 1536(n) ) is amended by striking section 3(13) and inserting section 3(16) . (c) Assurances governing permit, plan, candidate conservation agreement with assurances, and safe harbor agreement issuance, modification, and revocation Section 10 of such Act ( 16 U.S.C. 1539 ) is amended as follows: (1) Subsection (a)(2)(B) is amended in the matter following clause (v) by adding at the end the following: In addition, each permit issued under paragraph (1)(B), each candidate conservation agreement with assurances entered into under subsection (k), and each safe harbor agreement entered into under subsection (l) shall contain the assurances governing permit revocation, changed circumstances, and unforeseen circumstances set forth in subparagraph (2)(C) and paragraph (3) of this subsection. . (2) Subsection (a)(2)(C) is amended by inserting (i) before the text, and by adding at the end the following: (ii) The Secretary may not revoke a permit issued under paragraph (1)(B) other than as required in clause (i), and may not terminate any candidate conservation agreement with assurances under subsection (k) or safe harbor agreement entered into under subsection (l), unless the Secretary finds that— (I) continuation of the permitted activity or activity authorized under such an agreement, respectively, would be inconsistent with any of the criteria set forth in subparagraph (B); and (II) the inconsistency has not been remedied in a timely fashion. . (3) Subsection (a) is amended by adding at the end the following: (3) Each permit issued by the Secretary under paragraph (1)(B), each candidate conservation agreement with assurances entered into under subsection (k), and each safe harbor agreement entered into under subsection (l) shall be subject to the following assurances addressing changed circumstances and unforeseen circumstances: (A) If additional conservation and mitigation measures are deemed necessary to respond to changed circumstances and are specified in the operating conservation program of the conservation plan for the permit or in such agreement, respectively, the permittee shall implement such measures. (B) If additional conservation and mitigation measures are deemed necessary to respond to changed circumstances and are not specified in the operating conservation program of the conservation plan for the permit or in such agreement, respectively, the Secretary may not require any conservation and mitigation measures in addition to those specified in the plan or agreement, respectively, without the consent of the permittee. (C) (i) In negotiating unforeseen circumstances, the Secretary may not require the commitment of additional land, water, or financial compensation or additional restrictions on the use of land, water, or other natural resources beyond the level otherwise agreed upon for the species covered by the conservation plan or by such agreement, respectively, without the consent of the permittee. (ii) If additional conservation and mitigation measures are deemed necessary to respond to unforeseen circumstances, the Secretary may require additional measures of the permittee where the conservation plan or agreement, respectively, is being properly implemented, but only if such measures— (I) are limited to modifications within conserved habitat areas, if any, or to the conservation plan’s or agreement’s operating conservation program for the affected species; (II) maintain the original terms and structures of the conservation plan or agreement to the maximum extent possible; and (III) will not involve the commitment of additional land, water, or financial compensation or additional restrictions on the use of land, water, or other natural resources otherwise available for development or use under the original terms of the conservation plan or agreement, without the consent of the permittee. (iii) The Secretary shall have the burden of demonstrating that unforeseen circumstances exist, using the best scientific and commercial data available. The Secretary shall clearly document any finding that unforeseen circumstances exist, and shall base such finding on reliable technical information regarding the status and habitat requirements of the affected species. In making such finding, the Secretary will consider, among other matters, the following factors: (I) The size of the current range of the affected species. (II) The percentage of such range adversely affected by the conservation plan or agreement. (III) The percentage of such range conserved by the conservation plan or agreement. (IV) The ecological significance of that portion of the range affected by the conservation plan or agreement. (V) The level of knowledge about the affected species and the degree of specificity of the species’ conservation program under the conservation plan or agreement. (VI) Whether failure to adopt additional conservation measures would appreciably reduce the likelihood of survival and recovery of the affected species in the wild. (iv) The Secretary shall— (I) present a record of the analyses of the status of unforeseen circumstances to the permittee before requiring any additional conservation or mitigation measures of the permittee or agreement party under clause (ii); and (II) include in the record a qualitative and quantitative analysis of each of the factors specified in subclauses (I) through (VI) of clause (iii). . 3. Candidate conservation agreements with assurances (a) Permits Section 10(a)(1) of the Endangered Species Act of 1973 ( 16 U.S.C. 1539(a)(1) ) is amended— (1) by striking or at the end of subparagraph (A); (2) by striking the period at the end of subparagraph (B) and inserting ; or ; and (3) by adding at the end the following: (C) any taking incidental to, and not the purpose of, the carrying out of an otherwise lawful activity pursuant to a candidate conservation agreement with assurances entered into under subsection (k) or a safe harbor agreement entered into under subsection (l). . (b) Agreements Section 10 of such Act ( 16 U.S.C. 1539 ) is amended by adding at the end the following: (k) Candidate conservation agreements (1) In general At the request of any non-Federal person, the Secretary may enter into a candidate conservation agreement with assurances with the person for a species that has been proposed for listing under section 4(c)(1), is a candidate species, or is likely to be considered for listing in the near future on areas where the person has a fee simple, leasehold, or other property interest (including water or other natural resources) sufficient to carry out the proposed management activities, including on lands or waters under Federal ownership or control. (2) Review by the secretary (A) Submission to the secretary A non-Federal person may submit a candidate conservation agreement with assurances developed under paragraph (1) to the Secretary for review at any time prior to the listing described in section 4(c)(1) of a species that is the subject of the agreement. (B) Criteria for Approval The Secretary may approve an agreement and issue a permit under subsection (a)(1)(C) for the agreement if, after notice and opportunity for public comment, the Secretary finds that— (i) for species proposed for listing, candidates for listing, or are likely to be considered for listing in the near future, that are included in the agreement, the actions taken under the agreement, would provide a beneficial contribution to the conservation of the species or its habitat during the duration of the agreement; (ii) the actions taken under the agreement will not appreciably reduce the likelihood of survival and recovery of an endangered species or a threatened species; and (iii) the agreement includes such monitoring and reporting requirements as reasonably necessary for determining whether the terms and conditions of the agreement are being complied with. (3) Effective date of permit A permit issued under subsection (a)(1)(C) shall take effect at the time the species is listed pursuant to section 4(c), if the permittee is in full compliance with the terms and conditions of the agreement. (4) Assurances A person who has entered into a candidate conservation agreement under this subsection, and is in compliance with the agreement, may not be required to undertake any additional measures for species covered by such agreement if the measures would require the payment of additional money, or the adoption of additional use, development, or management restrictions on any land, waters, or water-related rights that would otherwise be available under the terms of the agreement without the consent of the person entering into the agreement. The Secretary and the person entering into a candidate conservation agreement, by the terms of the agreement, shall identify— (A) other modifications to the agreement; or (B) other additional measures; if any, that the Secretary may require under extraordinary circumstances. . 4. Safe harbor agreements Section 10 of the Endangered Species Act of 1973 ( 16 U.S.C. 1539 ) (as amended by section 3) is further amended by adding at the end the following: (l) Safe harbor agreements (1) Agreements (A) In general The Secretary may enter into agreements with non-Federal persons to benefit the conservation of endangered species or threatened species by creating, restoring, or improving areas as habitat or by maintaining currently unoccupied habitat for endangered species or threatened species. Under an agreement, the Secretary shall permit the person to take endangered species or threatened species included under the agreement on lands or waters that are subject to the agreement if the taking is incidental to, and not the purpose of, carrying out of an otherwise lawful activity, except that the Secretary may not permit through an agreement any incidental taking below the baseline requirement specified pursuant to subparagraph (B). (B) Baseline For each agreement under this subsection, the Secretary shall establish a baseline requirement that is mutually agreed on by the applicant and the Secretary at the time of the agreement that will, at a minimum, maintain existing conditions for the species covered by the agreement on lands and waters that are subject to the agreement. The baseline may be expressed in terms of the abundance or distribution of endangered or threatened species, quantity or quality of habitat, or such other indicators as appropriate. (2) Criteria for approval The Secretary may approve an agreement and issue a permit under subsection (a)(1)(C) for the agreement if, after notice and opportunity for public comment, the Secretary finds that— (A) the implementation of the terms of the agreement is reasonably expected to provide a beneficial contribution to the recovery of the species during the duration of the agreement; (B) the take will be incidental to an otherwise lawful activity and will be in accordance with the terms of the agreement; (C) the actions taken under the agreement will not appreciably reduce the likelihood of survival and recovery of an endangered species or threatened species; and (D) the agreement includes such monitoring and reporting requirements as reasonably necessary for determining whether the terms and conditions of the agreement are being complied with. (3) Effective date of the permit A permit issued under subsection (a)(1)(C) shall take effect on the day of issuance for species covered by the agreement. . 5. Financial assistance Section 10 of the Endangered Species Act of 1973 ( 16 U.S.C. 1539 ) (as amended by section (4)) is further amended by adding at the end the following: (m) Financial assistance (1) In general In cooperation with the States and subject to the availability of appropriations, the Secretary may provide a grant of up to $10,000 to any individual private landowner to assist the landowner in carrying out a candidate conservation agreement with assurances or safe harbor agreement under this subsection. (2) Prohibition on assistance for required activities The Secretary may not provide assistance under this paragraph for any action that is required by a permit, candidate conservation agreement with assurances, or safe harbor agreement under this Act or that is otherwise required under this Act or other Federal law. (3) Other payments A grant provided to an individual private landowner under this paragraph shall be in addition to, and not affect, the total amount of payments that the landowner is otherwise eligible to receive under Federal law. .