II 118th CONGRESS 2d Session S. 4985 IN THE SENATE OF THE UNITED STATES August 1, 2024 Mr. Lankford (for himself, Mr. Barrasso , and Ms. Lummis ) introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works A BILL To reform the process for listing a species as threatened or endangered under the Endangered Species Act of 1973, and for other purposes.

1. Short title This Act may be cited as the 21st Century Wildlife Enhancement and Partnership Act . 2. Definitions In this Act: (1) Candidate Conservation Agreement The term Candidate Conservation Agreement means a formal, voluntary agreement between the Service and 1 or more parties to address the conservation needs of— (A) a candidate species; or (B) a species that may become a candidate species in the near future. (2) Candidate Conservation Agreement with Assurances The term Candidate Conservation Agreement with Assurances means a Candidate Conservation Agreement that provides incentives for persons that are parties to the Candidate Conservation Agreement to engage in the voluntary conservation activities described in the Candidate Conservation Agreement. (3) Candidate species The term candidate species means a species that is under consideration for listing as threatened or endangered under the Endangered Species Act of 1973 ( 16 U.S.C. 1531 et seq. ). (4) Conservation Benefit Agreement The term Conservation Benefit Agreement means a conservation benefit agreement described in the final rule of the Service entitled Endangered and Threatened Wildlife and Plants; Enhancement of Survival and Incidental Take Permits (89 Fed. Reg. 26070 (April 12, 2024)). (5) Established consortium The term established consortium means a State-based or multi-State-based group of individuals or organizations that— (A) is established as of the date of enactment of this Act; (B) operates under a functioning, as determined by the individuals or organizations that are parties to that consortium— (i) conservation or recovery plan; or (ii) conservation, recovery, or planning documents; and (C) is an ongoing partnership organized principally for the conservation of a species that is not listed, or a species that is proposed to be listed, under the Endangered Species Act of 1973 ( 16 U.S.C. 1531 et seq. ). (6) Secretary The term Secretary means the Secretary of the Interior. (7) Service The term Service means the United States Fish and Wildlife Service. (8) Species The term species has the meaning given the term in section 3 of the Endangered Species Act of 1973 ( 16 U.S.C. 1532 ). (9) Third-party evaluator team The term third-party evaluator team means an independent entity empaneled under section 3(a). 3. Independent review of proposed listings (a) Third-Party evaluator teams (1) In general Not later than 90 days after the date on which an established consortium requests that a third-party evaluator team be empaneled under subsection (b)(1)(B), the Secretary shall empanel a third-party evaluator team to review, evaluate, and determine the sufficiency of a proposed listing as threatened or endangered under the Endangered Species Act of 1973 ( 16 U.S.C. 1531 et seq. ) by the Service of a species that is managed by the established consortium that objects to that proposed listing. (2) Membership; structure (A) In general The structure and membership of a third-party evaluator team shall be established by the Secretary, in consultation with Congress, subject to the condition that the Secretary shall have the final determination on the structure, membership, and scope of review of a third-party evaluator team. (B) Guidelines and requirements for membership In establishing the membership of a third-party evaluator team under subparagraph (A), the Secretary shall adhere to the following requirements: (i) Not fewer than 5, but not greater than 9, individuals selected to serve on the third-party evaluator team shall have expertise in the following: (I) Science or academic background necessary to render an expert opinion on the scientific studies and related materials submitted for review under paragraphs (5) and (6)(C) of subsection (b). (II) Ability to provide economic analysis and economic impacts of a threatened or endangered species listing on local and regional economies, with a particular expertise on impacts on private landowners and small businesses. (III) Voluntary conservation partnerships. (IV) Natural resource-related industries, including oil and gas, mining, forestry, ranching, agriculture, and grazing. (ii) No current or former employee of the Service shall be eligible to serve on the third-party evaluator team. (C) Chair The Chair of a third-party evaluator team shall be determined by the members of the third-party evaluator team. (D) Publication Not later than 10 days before the date on which a third-party evaluator team has its first meeting, the Secretary shall publish, by Secretarial Order in the Federal Register, the structure, membership, and scope of review of the third-party evaluator team. (3) Administration; voting (A) In general A third-party evaluator team shall determine the process for reviewing documents, requesting information, drafting the final report under subsection (b)(7), and other related actions. (B) Voting (i) In general Each member of a third-party evaluator team shall have an equal vote. (ii) Vote to proceed (I) In general A determination on proceeding by a third-party evaluator team shall be by majority vote. (II) Tie For purposes of preparing and submitting a final report and determination under subsection (b)(7), a vote of a third-party evaluator team that results in a tie shall result in the proposed listing that is the subject of that final report and determination to be terminated. (4) Compensation of members A member of a third-party evaluator team who is not an officer or employee of the Federal Government shall be compensated at a rate equal to the daily equivalent of the annual rate of basic pay prescribed for level IV of the Executive Schedule under section 5315 of title 5, United States Code, for each day (including travel time) during which the member is engaged in the performance of the duties of the third-party evaluator team. (5) Travel expenses A member of a third-party evaluator team shall be allowed travel expenses, including per diem in lieu of subsistence, at rates authorized for employees of agencies under subchapter I of chapter 57 of title 5, United States Code, while away from their homes or regular places of business in the performance of services for the third-party evaluator team. (b) Process (1) In general Not later than 21 days after the date on which the Secretary publishes a notice of a proposed listing of a species as threatened or endangered under the Endangered Species Act of 1973 ( 16 U.S.C. 1531 et seq. ), an established consortium may— (A) submit to the Secretary a letter objecting to the proposed listing; and (B) request that a third-party evaluator team be empaneled. (2) Cease of Federal action On receipt of an objection letter from an established consortium under paragraph (1)(A), the Secretary shall cease all action with respect to the proposed listing. (3) Response by Secretary Not later than 45 days after the date on which the Secretary receives an objection letter from an established consortium under paragraph (1)(A), the Secretary shall refer the matter to the third-party evaluator team. (4) First meeting Not later than 14 days after the date on which the Secretary refers an objection to the third-party evaluator team under paragraph (3), the third-party evaluator shall hold its first meeting. (5) Submission of information At such time and in such manner as the third-party evaluator team determines appropriate, the Service and the established consortium shall submit to the third-party evaluator team the scientific data, or any other material, that the Service and the established consortium, respectively, believes supports its position in opposition to, or support for, the proposed listing. (6) Review (A) In general Not later than 90 days after the date on which the third-party evaluator team receives the information submitted under paragraph (5), the third-party evaluator team— (i) shall conduct an initial review of the assertions made by the Service and the established consortium; and (ii) may, as applicable, request additional information from— (I) the Service or the established consortium; or (II) outside parties, including the public, experts, or any other party, as determined by the third-party evaluator team. (B) Considerations In conducting an initial review under subparagraph (A)(i), the third-party evaluator team shall consider, in addition to the information submitted under paragraph (5)— (i) the current management plans in place for the applicable candidate species; (ii) opportunities for achieving, or continuing, protection of the applicable species through the current, or enhanced, voluntary conservation actions; (iii) the economic impacts of the proposed listing; and (iv) such other factors, as determined by the third-party evaluator team. (C) Response to request If the third-party evaluator team requests additional information from the Service, the established consortium, or an outside party under subparagraph (A)(ii), the Service, established consortium, or outside party, as applicable, shall have 30 days to respond to that request. (7) Final decision and report (A) In general Not later than 180 days after the later of the date on which the third-party evaluator team conducts an initial review under subparagraph (A)(i) of paragraph (6) and the date on which the third-party evaluator team receives additional information under subparagraph (C) of that paragraph, the third-party evaluator team shall review the additional information, if applicable, and provide to the Secretary a final report that contains a binding determination describing whether the proposed listing shall— (i) proceed; (ii) be terminated; or (iii) be remanded back to the Service for further action, in accordance with that determination. (B) Requirement A final report submitted under subparagraph (A) shall be made publicly available and of sufficient length and detail to provide members of the public with a clear and basic understanding of the decision and why the decision was rendered. (C) Dissents Any member of the third-party evaluator team that disagrees with the final report submitted under subparagraph (A) may submit, to the Secretary in accordance with that subparagraph, a dissent. (8) Final agency action A determination made by the third-party evaluator team under paragraph (7)(A) shall constitute a final agency action (as defined in section 551 of title 5, United States Code). 4. Enhancing the transparency of the listing process (a) In general In accordance with subchapter II of chapter 5, and chapter 7, of title 5, United States Code (commonly known as the Administrative Procedure Act ), each Species Status Assessment shall be subject to notice and comment. (b) Requirements Each Species Status Assessment shall include— (1) the names of all peer reviewers; (2) a biography of each peer reviewer; (3) the selection process for the members of the peer review team; (4) a detailed description of all previous Species Status Assessments that the peer review team has reviewed and the role of each member of the peer review team in those reviews; (5) a list of published papers the peer reviewers have produced, including the subject of the Species Status Assessment and methodologies and expertise related to information included the Species Status Assessment; (6) an annotated bibliography of all reports, academic papers, and related material considered but excluded from the final Species Status Assessment and an explanation of why that information was excluded; (7) an annotated bibliography of all reports, academic papers, and related material considered and included in the final Species Status Assessment and an explanation of why that information was included; and (8) an explanation of how the Service interpreted the genetic data and information in the Species Status Assessment and, to the extent the peer review team use data sets, the given assumptions in the interpretation of those data sets. 5. Codification of Partnerships (a) Candidate conservation agreements; candidate conservation agreements with assurances Each Candidate Conservation Agreement and Candidate Conservation Agreement with Assurances in effect as of the date of enactment of this Act shall have the force and effect of law beginning on the date of enactment of this Act until such time as the parties to the applicable Candidate Conservation Agreement or Candidate Conservation Agreement with Assurances mutually agree not to renew the Candidate Conservation Agreement or Candidate Conservation Agreement with Assurances, as applicable. (b) Partners for fish and wildlife program (1) In general Pursuant to the Partners for Fish and Wildlife Program of the Service authorized by section 4 of the Partners for Fish and Wildlife Act ( 16 U.S.C. 3773 ) (referred to in this subsection as the Program ), the Secretary shall enter into voluntary and customized partnerships with private landowners to improve conditions for wildlife. (2) Duties In carrying out the Program, the Secretary shall provide technical and financial assistance to private landowners who enter into a partnership with the Service under paragraph (1) to plan, design, supervise, and monitor customized habitat restoration projects. 6. Conservation partnership options (a) In general Notwithstanding any other provision of law, it shall be at the sole discretion of a non-Federal property owner to determine which conservation agreement described in subsection (b) to enter into with the Service for the conservation of a species. (b) Conservation agreements described A conservation agreement referred to in subsection (a) is any of the following: (1) A Conservation Benefit Agreement. (2) A Candidate Conservation Agreement. (3) A Candidate Conservation Agreement with Assurances. 7. Ensuring true critical habitat The final rule of the Service and the National Marine Fisheries Service entitled Endangered and Threatened Wildlife and Plants; Regulations for Listing Species and Designating Critical Habitat (84 Fed. Reg. 45020 (August 27, 2019)) is enacted into law.