[House Report 106-1013]
[From the U.S. Government Publishing Office]
106th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 106-1013
======================================================================
COMMON SENSE PROTECTIONS FOR ENDANGERED SPECIES ACT
_______
October 26, 2000.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Young of Alaska, from the Committee on Resources, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 3160]
The Committee on Resources, to whom was referred the bill
(H.R. 3160) to reauthorize and amend the Endangered Species Act
of 1973, having considered the same, report favorably thereon
without amendment and recommend that the bill do pass.
Purpose of the Bill
The purpose of H.R. 3160 is to reauthorize and amend the
Endangered Species Act of 1973.
Background and Need for Legislation
H.R. 3160 amends the Endangered Species Act of 1973 (Public
Law 93-295, codified at 16 U.S.C. 1531-1543) which was enacted
to provide a means of preventing various forms of plants and
animals from reaching the point of extinction. This law now
imposes rigid and comprehensive regulations on federal
agencies, state and local governments, and private citizens
alike in order to protect species in the United States and to
some extent foreign countries as well.
The Endangered Species Act (ESA) is administered by two
separate federal agencies: the Fish and Wildlife Service within
the Department of Interior and the National Marine Fisheries
Service within the Department of Commerce (``Services''). The
basic framework of the ESA includes the listing of a species as
either endangered or threatened, after which it is prohibited
to ``take'' the species unless one obtains either a incidental
take permit under Section 10(a) of the ESA for private actions
or an incidental take statement for federal actions after what
is commonly referred to as a Section 7 consultation.
Section 9 of the ESA sets forth those actions which are
prohibited or unlawful. It prohibits the ``taking'' of a
species. ``Take'' is defined to mean to harass, harm, pursue,
hunt, shoot, wound, kill, trap, capture, or collect a species
or attempt to engage in any of these activities. Regulations
issued by the Services also define ``take'' to include
significant adverse modification or destruction of a species'
habitat. Section 9 take prohibitions only directly apply to
fish and wildlife which are listed as endangered. The ESA
authorizes the Secretaries to extend by regulations the
``take'' prohibition to wildlife listed as ``threatened.''
There are significant differences in the prohibitions that
apply to endangered plants. There is no prohibition on the
``take'' of a listed plant on one's own private property.
However, regulatory authority to protect plants may be gained
by the government if a private landowner needs a government
permit to conduct certain activities, as when a Federal Water
Pollution Control Act 404 permit is needed or an ESA Section 10
permit is needed because of the presence of endangered
wildlife.
Section 7 identifies how all federal agencies will further
the purposes of protecting endangered species through
consultations with the Services. Every federal agency must
insure that any action authorized, funded, or carried out is
not likely to jeopardize the continued existence of a
threatened or endangered species or result in destruction of or
adverse modification of designated critical habitat.
Consultation is the process which the federal agency engages in
after a determination is made by that federal agency that its
planned action may affect a listed species or critical habitat.
After its initiation, consultation is concluded by the issuance
of a biological opinion. The biological opinion must include
the relevant Service's judgment as to whether the planned
action will jeopardize the species (a ``jeopardy opinion''), or
whether it will not (a ``no jeopardy opinion''). If a
``jeopardy'' opinion is reached, then the Service must suggest
reasonable and prudent alternatives to the action.
The biological opinion is also the document which provides
the ``incidental take statement.'' If, in the opinion of the
Service, a ``take'' will occur, the Service prescribes
``reasonable and prudent measures'' and sets forth the terms
and conditions that the federal agency must meet or comply with
to proceed with the project. There are, generally, two
exceptions--hardship exemptions (which are very rare) and
permits.
Under Section 10 of the ESA, the Service can issue a permit
to allow the incidental taking of species so that an action or
project can proceed. The permits issued under Section 10 are
usually associated with private landowners or state and local
governments and are issued only after an applicant submits an
approved conservation plan (known as a habitat conservation
plan or HCP). There are criteria the applicant must meet,
including what the probable impact to the species will be, what
mitigation measures the applicant is taking to minimize the
impacts to the species, what alternatives to the action the
applicant has developed and considered. Finally, the applicant
must follow other terms and conditions the Service may require.
An added complication overlaying some ESA decisions is the
permit required by Section 404 of the Federal Water Pollution
Control Act (Public Law 92-500) commonly known as the Clean
Water Act. Section 404, through the Army Corps of Engineers,
generally regulates the discharge of dredged or fill material
into navigable waters of the United States, would includes
wetlands. Current interpretation of ``navigable'' waters can
mean just about any wet land or in many cases dry land near
water bodies. The Corps must consult under Section 7 of the ESA
with the Services when processing a 404 permit if the Corps
determines that a particular activity may affect a threatened
or endangered species or modify critical habitat.
Mitigation for impacts caused by activities on various
environments is now regularly required by the Services to
obtain a permit from a federal agency. Mitigation can be
accomplished in many ways, but usually takes the form of
setting aside nonfederal land or restricting activities on such
lands, along with requiring various types of monetary payments.
Mitigation measures can also be in the form of replanting trees
or other vegetation that provides reciprocal habitat for the
species or ecosystem impacted. Land involved in mitigation is
often transferred to either a public or private entity for
long- term maintenance. The entity may be a state or local
agency or a private conservation group.
Over the most recent three Congresses, the Committee on
Resources has held many hearings specifically on the Endangered
Species Act and its implementation. Testimony has been received
from hundreds of citizens, including many elected state and
local officials, federal officials, private property owners,
public land users, and many others. Their total input resulted
in many of the recommendations for changes to the Endangered
Species Act embodied in H.R. 3160. These changes are designed
to approach saving endangered species in a common sense manner
that includes consideration of impacts on both humans and the
natural world.
As follows are hearings conducted by the Committee on
Resources, through the ESA Task Force during the 104th
Congress:
1. March 13, 1995: Joint oversight hearing on ESA and
wetlands issues in Belle Chase, Louisiana (Hearing Print 104-
6).
2. March 20, 1995: Hearing on ESA in Boerne, Texas (Hearing
Print 104-6)
3. April 1, 1995: Hearing on ESA in New Bern, North
Carolina (Hearing Print 104-7).
4. April 17, 1995: Hearing on ESA in Bakersfield,
California (Hearing Print 104-13).
5. April 24, 1995: Hearing on ESA in Vancouver, Washington
(Hearing Print 104-15).
6. April 26, 1995: Hearing on ESA in Riverside, California
(Hearing Print 104-11).
7. April 28, 1995: Hearing on ESA in Stockton, California
(Hearing Print 104-16).
8. May 10, 1995: Hearing on ESA in Washington, D.C.
(Hearing Print 104-10).
9. May 18, 1995: Hearing on ESA in Washington, D.C.
(Hearing Print 104-14).
10. May 25, 1995: Hearing on ESA in Washington, D.C.
(Hearing Print 104-18).
As follows are hearings conducted by the Committee on
Resources on the Endangered Species Act during the 104th
Congress:
1. September 20, 1995: Hearing on H.R. 2275 in Washington,
D.C. (Hearing Print 104-37).
2. March 20, 1996: Hearing on ``The Implementation of the
ESA, Private Property Rights and Whether Present Policies Have
Recovered Threatened or Endangered Wildlife.'' in Washington,
D.C. (Hearing Print 104-59).
3. April 17, 1996: Hearing on ``Examining the Expenditures
of Agencies That Participate in the Efforts to Save Endangered
and Threatened Species.'' in Washington, D.C. (Hearing Print
104-65).
4. June 25, 1996: Hearing on the ``Lifting of the
Moratorium on Listing of Threatened or Endangered Species'' in
Washington, D.C. (Hearing Print 104-89).
5. July 24, 1996: Hearing on ``The ESA with Regard to
Section 10(a) Permits (Habitat Conservation Plans) and Other
Incentives'' in Washington, D.C. (Hearing Print 104-97).
6. September 17, 1996: Hearing on ``Equal Access to the
Courts Under the ESA'', in Washington, D.C. (Hearing Print 104-
100).
As follows are hearings conducted by the Committee on
Resources on the Endangered Species Act during the 105th
Congress:
1. April 10, 1997: Hearing on H.R. 478, to improve the
ability of individuals and local, State, and federal agencies
to comply with the ESA in building, operating, maintaining, or
repairing existing flood control projects, facilities, or
structures and to determine whether federal wildlife policies
have impeded proper ongoing maintenance and repair of flood
control structures. in Washington, D.C. and via teleconference
in Sacramento, California (Hearing Print No. 105-12).
2. March 5, 1998: Hearing on regional differences in the
manner in which the ESA is implemented. in Washington, D.C.
(Hearing Print 105-80).
3. July 15, 1998: Oversight hearing on the implementation
of the ESA in the Southwestern region of the United States in
Washington, D.C. (Hearing Print 105-96).
4. September 2 and 3, 1998: Oversight field hearings were
held in Pasco, Washington and Boise, Idaho on the National
Marine Fisheries Service role in implementing the ESA and on
H.R. 4335 to transfer to the Secretary of the Interior the
functions of the Secretary of Commerce and the National Marine
Fisheries Services under the ESA (Hearing Print 105-111).
5. October 26, 1998: Full Committee conducted a field
hearing in Clovis, New Mexico, on how the ESA has been
implemented in New Mexico (Hearing Print 105-118).
As follows are hearings conducted on the ESA during the
106th Congress:
1. April 14, 1999: Hearing on H.R. 1142, to ensure that
landowners receive treatment equal to that provided to the
federal government when property must be used, Washington, D.C.
(Hearing Print 106-23).
2. May 26, 1999: Hearing on Land and Money Mitigation
Requirements in Endangered Species Act Enforcement, Washington,
D.C. (Hearing Print 106-34).
3. July 9, 1999: Hearing on Enforcement of the Endangered
Species Act in California in Hemet, California (Hearing Print
No. 106-49).
4. July 24, 1999: Hearing in Greeley, Colorado, on
Implementation of the Endangered Species Act.
5. February 2, 2000: Hearing on: H.R. 3160, to reauthorize
and amend the Endangered Species Act of 1973.
6. March 1, 2000: Hearing on: H.R. 3160, to reauthorize and
amend the Endangered Species Act of 1973.
7. April 27, 2000: Hearing on: Hydropower, River Management
and Salmon Recovery Issues on the Columbia/Snake River.
8. September 14, 2000: Hearing on: General Accounting
Office (GAO) review of Endangered Species Act implementation in
Southern California.
H.R. 3160 specifically addresses many of the concerns
identified by witnesses in these hearings. The changes address
many procedural deficiencies and are designed to insure fair
treatment of private citizens impacted by the ESA. The major
problems identified during the many hearings held by the
Committee on the ESA are as follows:
1. The listing process: Many witnesses testified as to the
lack of adequate scientific documentation, lack of scientific
peer review, lack of adequate public notice and input; failure
to involve the states and local governments in the listing
process.
2. The consultation and permitting processes: There was
considerable testimony regarding the failure to meet current
statutory deadlines for making consultation decisions and the
lack of deadlines for making decisions on permits.
3. The failure to comply with agreements: Many permit
applicants testified that they cannot rely on representations
and promises made by the Services.
4. Arbitrary and capricious use of mitigation: The
Committee received a great deal of testimony and documentation
regarding the arbitrary and capricious use of mitigation to
extract extremely large amounts of land and money mitigation
for both Section 10 and Section 7 permit and consultation
applications.
5. Permit applicants and the Section 7 consultation
process: Witnesses agreed that there is a lack of involvement
of private permit applicants in the consultation process under
Section 7.
6. Delisting and recovery: One of the major failures of the
current law is the failure to recover species and to delist
those species who have either recovered or which no longer
exist, according to many witnesses.
7. No consideration of economic and social impacts: The
lack of any consideration of economic and social impacts of the
implementation of the ESA, including a failure to consider the
impacts on public safety and public health of delays in
decision making for important public safety related projects,
was identified as a major weakness of the ESA.
In addition, many witnesses testified that the ESA results
in the taking of private property without the payment of just
compensation as required by the 5th Amendment of the U.S.
Constitution. This issue was addressed in a separate piece of
legislation, H.R. 1142, the Landowners Equal Treatment Act.
Committee Action
H.R. 3160 was introduced on October 27, 1999, by Resources
Committee Chairman Don Young (R-AK). The bill was referred to
the Committee on Resources. On February 2, 2000, and on March
1, 2000, the Committee on Resources held hearings on H.R. 3160.
On June 21, 2000, the Full Resources Committee met to consider
H.R. 3160. Congressman Jim Saxton (R-NJ) offered and withdrew
an amendment in the nature of a substitute. Congressman George
Miller (D-CA) also offered and withdrew an amendment. No
further amendments were offered and the bill was ordered
favorably reported to the House of Representatives by a roll
call vote of 25 to 15, as follows:
Section-by-Section Analysis
Section 1. Short title; table of contents
This section provides the short title for the bill, the
Common Sense Protections for Endangered Species Act, and the
table of contents for the bill.
Section 2. References to the Endangered Species Act of 1973
This section that amendments and repeals made by this bill
are to the Endangered Species Act (ESA, 16 U.S.C. 1531 et
seq.).
TITLE I--IMPROVING SCIENTIFIC INTEGRITY OF LISTING DECISIONS AND
PROCEDURES
Section 101. Improving the validity and credibility of decisions
Subsection (a) amends ESA Section 4 expanding the
considerations upon which a listing of a species as endangered
or threatened is made to allow the Secretary of the Interior
and the Secretary of Commerce to consider not only the
government regulatory mechanisms but also other proactive
conservation programs and measures voluntarily undertaken. The
designation of critical habitat is made part of the recovery
planning process rather than a mandatory requirement during the
listing process.
Currently, the Secretaries make listing determinations
solely on the basis of the best scientific and commercial data
available after conducting a review of the status of the
species. H.R. 3160 would require the Secretaries to solicit and
fully consider data from any affected state or any interested
non-federal person. The bill requires the Secretaries to give
greater weight, consideration, and preference to empirical data
rather than projections or other extrapolations developed
through modeling.
H.R. 3160 would allow the Secretaries, in making a listing
decision, to consider the future conservation benefits to the
species under habitat conservation plans prepared as part of
the application for an incidental take permit or to any state
or other management agreement or under any conservation
agreement between the Secretaries and any other person.
Within 18 months from enactment of H.R. 3160, the
Secretaries would be required to adopt a regulation
establishing scientifically valid standards for rendering
taxonomic determinations of species and subspecies, requiring
reproductive isolation from other subspecific population units
and constituting an important component in the evolutionary
legacy of the species.
Subsection (b) of the section clarifies that decisions by
the Secretaries on petitions to list, delist, or change the
status of a species should be made consistent with the priority
ranking system already established for listing species. It
improves the petition process by requiring that when a petition
to list isreceived by the Secretaries, the relevant Secretary
shall publish a notice in the Federal Register. If the relevant
Secretary finds that a petition is warranted, he shall begin the status
review of the species and publish that warranted finding in the Federal
Register.
The bill establishes minimum requirements to be contained
in listing petitions which includes:
(1) Scientific documentation that the fish or
wildlife or plant is a species;
(2) A description of all data on the range,
population, and distribution of the species,
explanation of how the data was obtained, and an
identification of the location where the data can be
reviewed;
(3) Scientific evidence that the population has
declined beyond normal population fluctuations;
(4) An appraisal of the data on the threats or causes
of decline;
(5) An identification of the data that has been peer-
reviewed or field-tested;
(6) The reason that the petitioned action is
warranted;
(7) A bibliography of scientific literature
supporting the petition;
(8) The qualifications of any person cited in the
petition as an expert; and
(9) At least one independent study or expert opinion
in support of the petition.
H.R. 3160 requires that for positive findings on petitions,
the relevant Secretary must send a copy of the petition to the
Governor of a State in which the species is found and to
affected tribes, and solicit the advice of the Governor and
tribes as to whether the petitioned action is warranted.
Thereafter, if the Secretary's decision is in direct conflict
with the information submitted by the Governor or tribes, the
finding shall not be final until the Secretary submits the
finding to peer review for a period of 30 days. If the peer
reviewers agree with the Secretary, he is to then prepare a
record of decision which shall be submitted to the Governor or
tribes.
The bill also sets up a procedure for submitting a petition
to change the status of a species or delist a species, if the
current listing is no longer appropriate because of a change in
the factors used for listing, where there is new data or a
reinterpretation of prior data, where it is found that the
species is extinct, where the recovery goals for the species
have been achieved, or the original listing was not subject to
adequate peer review.
Under the current law, if the relevant Secretary finds that
the petition may be warranted, he has one year to determine
whether the listing is not warranted, warranted, or warranted
but precluded. If he finds that the petition is warranted, H.R.
3160 would require that he publish a notice in the Federal
Register that he is commencing a status review that includes
the following:
(1) Any missing data that would support the
determination.
(2) Any data necessary to make the determination.
(3) Any data that may be necessary to ensure the
continued validity of the determination.
Under the bill, if there is a warranted finding, the
Secretary must hold (if requested) at least one public meeting
within 30 days in each State in which the species occurs and a
person making a request resides. Public meetings must be at a
location that is as centrally located as possible to the areas
believed to be habitat of the species, and in each rural area
of the State that the Governor determines is affected by the
decision.
The bills continues to allow judicial review of negative
findings on petitions and findings that petitions are not
warranted or warranted but precluded, but that in any such
suit, it allows any person to intervene of right if the person
can demonstrate that a determination to list will have a direct
economic impact on such person and requires the courts to give
great weight to the finding of warranted but precluded.
During the one-year status review, the bill requires
greater solicitation of information regarding the status of the
species from states and affected persons that may assist in
making the determination whether to list. The relevant
Secretary must allow not less than 180 days to submit data.
Subsection (c) of the section adds additional notices
during the proposed rule stage for Governors and affected
tribes. At least 12 months before proposing the rule, the
relevant Secretary is to notify the Governor of each State in
which the species is believed to occur (and each affected
tribe) and solicit their advice as to whether the determination
is warranted. He shall consider the advice received and if a
Governor or tribe provides scientific evidence that the
determination is not warranted, the Secretary may not proceed
unless he shows by a preponderance of scientific evidence that
the information submitted is incorrect and that the proposal is
warranted. The bills retains all other notice requirements to
the states and requires that the Secretary give the Governors a
record of decision including information which did not support
the determination.
The Secretary is to publish a summary of the proposed
regulation in an area newspaper where the species occurs and
upon request, not later than 45 days after publication of the
notice, hold at least one public meeting in each affected
State. The Secretary is not required to hold more than five
public meetings.
The Secretary is to identify and include with the proposal
a description of data to be considered and which is yet to be
collected or field verified; any necessary data that have not
been collected and considered; deadlines to collect and
consider the data; a description of additional scientific and
commercial data that would assist in the preparation of a
recovery plan; a list of known threats to the species and a
description of the types of activities that may be affected by
the determination and any restriction on use of property that
may result; and other measures that may either at present or in
the future contribute to the conservation of the species. Not
later than the deadline published by the Secretary, he shall
collect the data; provide an opportunity for public review and
comment on the data; consider the data after that review and
comment; and publish in the Federal Register the results of
that consideration and a description of and schedule for any
actions warranted by the data.
Subsection (d) requires within 1 year from publication of
the proposed rule, the Secretary shall publish in the Federal
Register either a final regulation to implement the
determination; a notice that period is being extended; or
notice that the proposed regulation is being withdrawn.
Subsection (e) requires that each proposal to list a
species shall be based primarily and substantially on peer-
reviewed scientific information that has been to the maximum
extent feasible verified by field testing.
Subsection (f) requires that concurrently with a listing
rule, the Secretary shall publish in the Federal Register an
analysis of the economic, social, and other public health,
safety, and welfare effects of the listing.
Subsection (g) makes several definitional changes including
the definition of the term ``species'' which would not include
a distinct population which is listed as endangered or
threatened under state law and where state law prohibits the
unpermitted take of the species.
Section 102. Peer review
This section establishes new requirements for peer review
of decisions which must be based on scientific standards,
including the determination to list or delist a species; the
designation or revision of the designation of critical habitat;
the determination that a proposed action is likely to
jeopardize the continued existence of a listed species; the
proposal of any reasonable and prudent alternatives by the
Secretary; and the issuance of any regulation or criteria
establishing specific mitigation obligations with respect to a
species. Peer reviewers would have to be ``qualified
individuals'' requiring expertise in the biological sciences.
The bill prevents conflicts of interests by precluding those
persons who are employed by or under contract to the Secretary
or to the State where the species is located or who has
actively participated in the prelisting or listing processes or
advocated that a listing decision be made; a person whose
employment is related to the action or species under
consideration; or a person with or employed by someone with a
direct financial interest in the decision.
The relevant Secretary must seek nominations of persons who
agree to peer review an action and maintain a list of qualified
peer reviewers. Before any action shall become final, the
Secretary appoints not more than two qualified individuals to
review and report on the scientific information and analyses on
which the proposed action is based. The Governor of each State
in which the species is located may appoint up to two qualified
individuals.
The Secretary shall make available to each peer reviewer
all scientific information available regarding the species. The
peer reviewer shall give his or her opinion with regard to any
technical or scientific deficiencies in the proposal, whether
the methodology and analysis supporting the petition conform to
the standards of the academic and scientific community, and
whether the proposal is supported by sufficient credible
evidence.
The Secretary shall publish with any final regulation a
summary of the peer review report which shall be included in
the official record and available for public review.
Section 103. Making data public
Subsection (a) makes all data used to list a species
subject to the Freedom of Information Act (5 U.S.C. 552) unless
the Secretary, for good cause, determines that the information
must be kept confidential. The burden is on the Secretary to
prove that such information shall be confidential. The
Secretary shall not disclose the location of private property
as habitat for a listed species unless he first notifies and
receives the consent of the owner or the information is
otherwise public information.
Subsection (b) requires the Secretary to provide at least
30 days notice of any hearing or public meeting at which public
comment is accepted in the Federal Register and in a newspaper
in the location of the hearing or public meeting. Each public
meeting shall allow the public to make statements and receive
information and answers from the agency regarding the matter
that is the subject of the public meeting.
Section 104. Judicial review
This section requires that any final listing decision shall
be subject to de novo judicial review with the court
determining whether the decision is supported by a
preponderance of the evidence.
Section 105. State consultation on final determination
If a Governor who consulted with the Secretary during the
listing process files comments disagreeing with the proposed
regulation, a final regulation in conflict with the Governor
shall not be issued until the Secretary consults with the
President. If a final regulation is adopted that is in conflict
with comments made by the Governor or a regulation requested by
a Governor is not adopted, the Secretary shall submit to the
Governor a written justification for the failure to adopt
regulations consistent with the comments or petition of the
Governor.
Section 106. Determinations by the Secretary to delist
This section requires the Secretary to conduct a review of
all listed species every five years and determine whether any
should be delisted, or have a change in listing status based on
new data or a reinterpretation of prior data which is in error;
where the species is extinct; or the recovery goal established
for the species has been achieved. Upon such finding the
process must begin within 90 days.
Section 107. Cooperation with the States
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 effectively.
TITLE II--COMPLYING WITH ALL FEDERAL LAWS AND MISSIONS
Section 201. Balancing ESA with other laws and missions
Section 7 of the ESA requires the relevant Secretary to use
his programs to protect endangered species. This section
retains that requirement but requires other federal agencies to
utilize their authorities for the conservation of endangered
and threatened species consistent with their primary missions
and in consultation with the Secretary. It requires all federal
agencies to initiate consultation within 15 days after the date
on which a request is received from a permit or license
applicant for consultation. If the Secretary asserts the
applicability of ESA Section 7 to any property, the Secretary
has the responsibility of demonstrating that a threatened or
endangered species or its critical habitat is located in the
area that is the subject of the consultation, and the proposed
action will jeopardize the continued existence of a threatened
or endangered species. This provision insures that the
Secretary shall not issue a biological opinion that a proposed
action will jeopardize the continued existence of a species
where there is insufficient data on the impact of a proposed
action on such species.
Whenever a listing or a designation of critical habitat
requires reinitiation of consultation on an already approved
action, the consultation shall commence promptly, but not later
than 90 days after the date of the listing or critical habitat
designation rule, and shall be completed not later than 1 year
after the date on which the consultation commenced. During that
one-year period, any site specific actions may not be enjoined
based on that listing. The federal agency implementing a land
use plan or management plan may continue a site-specific,
ongoing or previously scheduled action within the scope of the
plan on the lands prior to completing consultation on the plan,
if no consultation on the action is required; or consultation
on the action is required and the Secretary issues or has
issued a biological opinion, and the action satisfies the
requirements of law.
H.R. 3160 clarifies that the responsibilities of a federal
agency under the ESA shall not supersede and shall be
implemented in a manner consistent with duties assigned to the
federal agency by any other laws or by any treaties. If a
federal agency determines that its responsibilities and duties
are in irreconcilable conflict with the ESA, the agency shall
request the President to resolve the conflict. In determining a
resolution, the President shall consider and choose the course
of action that best meets the public interest and balances
pursuit of the recovery objective or the purposes of the
recovery plan with economic and social needs and the purposes
of other laws or treaties.
This provision insure that if consultation is not concluded
and the written incidental take statement is not provided to
the federal agency by the deadline established in the ESA, the
requirements of the ESA shall be deemed met and the federal
agency may proceed with the agency action.
In conducting a consultation, the Secretary must provide
any person who has sought authorization or funding from a
federal agency for an action that is the subject of the
consultation the opportunity to: (1) prior to the development
of a draft biological opinion, submit and discuss with the
Secretary and the federal agency information relevant to the
effect of the proposed action on the species and the
availability of reasonable and prudent alternatives that the
federal agency and the person can take to avoid violation; (2)
must be given information, subject to the Privacy Act, on the
status of the species, threats to the species, and conservation
measures used by the Secretary to develop the biological
opinion, including any incidental taking statements; and (3)
receive a copy of the draft biological opinion and prior to
issuance of the final biological opinion be allowed to submit
comments on the draft and discuss with the federal agencies the
basis for the draft biological opinion. If reasonable and
prudent alternatives are proposed by a person and the Secretary
does not include the alternatives in the final biological
opinion, the Secretary shall explain, in writing, why those
alternatives were not included.
In the development of a biological opinion with respect to
public lands, the Secretary 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 landowner.
H.R. 3160 would prevent the Secretary from requiring
another federal agency to impose in any biological opinion or
take statement any restriction or obligation on the activity of
any person that is not authorized, funded, carried out, or
otherwise subject to regulation by the federal agency.
Subsection (d) provides definitions, including a definition
of ``reasonable and prudent alternative'' to mean an
alternative to an agency action that can be implemented in a
manner consistent with the purpose of the agency action or the
activity of a non-federal person; that can be implemented
consistent with the scope of the legal authority and
jurisdiction of the agency; that is economically and
technologically feasible; that the Secretary believes would
avoid being likely to jeopardize the continued existence of the
species; that does not exceed in nature, scope, and extent the
effect of the proposed activity that is the subject of the
consultation; and that prevents the agency action concerned
from jeopardizing the continued existence of the species and
imposes the least social and economic cost possible. It also
defines ``likely to jeopardize the continued existence of'' to
mean an action or activity that significantly diminishes the
likelihood of the survival of the species by significantly
reducing the numbers or distribution of the entire species.
Subsection (e) requires the Secretary to provide to each
applicant for a permit or license that is subject to
consultation a written statement that shall guarantee that, so
long as the project at issue is carried out consistent with the
take statement, the applicant shall not be subject to new or
additional requirements for the specific protection of any
species beyond those in the take statement. All federal
entities shall be bound by the Secretary's guarantee. The
Secretary shall not refuse to provide an incidental take
statement, unless the Secretary has provided to the agency and
the permit applicant all conditions for issuance of the
statement in writing, and an opportunity for the agency and the
permit applicant to provide a written response to the
conditions. Any refusal to provide an incidental take statement
without first providing the written conditions and providing an
opportunity to respond is deemed to be arbitrary and
capricious. This section would prevent the Secretary from
requiring measures to be taken that exceed in nature, scope, or
effect the impact of the taking for which the statement is
issued.
Section 202. Actions not requiring consultation and conferencing
This section would clarify that further consultation and
conferencing shall not be required for any agency action that
is consistent with a final recovery plan, a cooperative
management agreement, or an incidental taking permit; or
consists of routine operation, maintenance, rehabilitation,
repair, or replacement to a project or facility, including
operation of a project or facility in accordance with a
previously-issued federal license, permit, or other
authorization.
In addition, in order to respond to or to prevent or
minimize damage from a natural event or other emergency,
consultation could be waived 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 relevant Secretary for such
repair or maintenance, it shall be completed within 10 days of
any request by the applicant 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.
An agency action shall not constitute a taking of a species
if the action is consistent with the actions provided for in a
final recovery plan; a cooperative management agreement or an
incidental take permit; or the terms and conditions specified
in an incidental take statement.
Section 203. Eliminating the exemption committee
This section eliminates the exemption committee and
provides for Presidential exemptions which include: (1) an
exemption for any activity if the Secretary of Defense
determines that the exemption of the activity is necessary for
reasons of national security; and (2) in areas President has
declared to be a major disaster area, for any project for the
repair or replacement of a public facility substantially as the
facility existed prior to the disaster if the President
determines that the project is necessary to prevent the
recurrence of such a natural disaster or to reduce the
potential loss of human life, and involves an emergency
situation that makes the application of the procedures of the
ESA impractical.
TITLE III--PERMITTING AND ENFORCEMENT
Section 301. Protecting public health and safety
This section insures that an action is not a taking of a
listed species for which a private person or local government
can be punished if the activity of that person: (1) addresses a
critical threat to public health or safety or a catastrophic
natural event, or is mandated by any government agency for
public health or safety purposes; or (2) is incidental to, and
not the purpose of, the carrying out of an otherwise lawful
activity that consists of ongoing maintenance, routine
operation or use, and emergency repair of existing pipelines,
flood control facilities or projects, fire breaks, transmission
and distribution lines, groundwater recharge facilities and
areas, water storage and recycling facilities, water drainage
or water conveyance structures and channels, and appurtenant
facilities; or road and right-of-away maintenance, use, and
repair; or emergency repair or restoration of any property or
non-federal facility to the condition in which it existed or
operated immediately before an emergency or disaster, meeting
current standards.
Section 302. Intervention in citizen suits
This section amends the law with regard to citizens suits
to require that the person filing the suit must meet the
Constitutional requirements for standing and insure standing
for those who have suffered economic or other injury resulting
from a violation of the law or to enjoin the federal government
or any of its officials alleged to be in violation of the ESA,
if the violation poses immediate and irreparable harm to a
threatened or endangered species.
This section would allow any person to intervene as a
matter of right in any citizen suit brought if the suit
represents a reasonable threat of economic injury to that
person. The intervener would have the same right to present
argument and to accept or reject potential settlements as the
parties to the suit.
Section 303. Incidental take permits
The Secretaries are authorized under current law to issue
incidental take permits which allow the taking of a species or
its habitat. To obtain a permit, the applicant must submit a
plan that specifies (1) the impact on the species from the
taking; (2) the steps the applicant can reasonably and
economically take to minimize and mitigate the impacts, and the
funding to implement those steps; and (3) the alternatives to
the taking and why other alternatives would not be used.
The relevant Secretary is to issue the permit if he finds
that the taking will be incidental, the applicant will
reasonably and economically minimize the impacts of the taking;
the applicant will ensure that funding will be provided, the
taking will not appreciably reduce the likelihood of the
survival and recovery of the species, and these measures will
be met. This section requires the Secretary to include terms
and conditions in the permit that accomplish the goals of the
law at the least cost to the permit applicant.
This section limits the Secretary's authority to require
applicants, as a condition of processing a permit: (1) to
expand the application to include land, an interest in land, a
right to use or receive 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; (2) to carry out
mitigation that exceeds in nature, scope, or effect the impacts
of the taking for which the permit is issued; (3) to minimize
and mitigate for loss of habitat resulting from activities
under the permit in an area of land greater than the area of
land that is subject to impacts for which the mitigation is
required; or (4) to expend an aggregate amount greater than the
cost of fencing and preserving current conditions of the land
on which activities are conducted under the permit.
This section places time limits on the Secretary for
completing the processing of, and approving or denying, any
application for a take permit within 90 days of the date of
submission or within such period of time as mutually agreed to.
It also clarifies that section 102(2) of the National
Environmental Policy Act does not apply to preparation and
issuance of an incidental take permit.
This section requires that if the Secretary considers a
conservation plan to be insufficient or incomplete, he must
inform the applicant in writing within 30 days, stating why the
application is incomplete or insufficient and stating any
conditions that must be met to issuance of the permit.
Otherwise the denial is deemed to be arbitrary and capricious.
If the application is resubmitted, the Secretary shall have
60 days to either: (1) issue the permit; (2) provide written
reasons for denial; or (3) formally deny the permit, in
writing, stating the reasons for the denial.
This section clarifies that no consultation is required for
any action by a permittee that is authorized by a permit; any
action by the Secretary in implementing, enforcing, or
monitoring compliance with a permit; or the issuance,
amendment, or renewal of any permit, if the Secretary
determines that his action will not appreciably reduce the
likelihood of the survival and recovery of any species covered
by the permit.
This section would limit the authority of the Secretary to
later require additional minimization or mitigation measures
from a permittee who is in compliance with the permit or to
make additional payments, or accept additional restrictions on
land available for development or land management or any water
or water-related rights under the permit, without the consent
of the permittee.
This section retains the authority of the Secretary to
revoke permits for failure to comply with the permit, but only
after providing a permittee notice and an opportunity to make
appropriate corrections. It also limits lawsuits to challenge
permits unless suit is filed within 45 days after publication
in the Federal Register of notice of issuance of the permit.
This section limits the ability of the Secretary to require
as a condition of a permit that a permittee for a public
project take any measures to minimize or mitigate impacts of a
taking under the permit if the costs of implementing such
measures will exceed 10 percent of the total project costs of
the public project; or for any activity that occurred prior to
the date of the issuance of the permit. Public projects in this
section means any construction project that is carried out or
funded (in whole or in part) by a federal, State, or local
agency; and the term ``total project costs'' means the
aggregate costs of acquiring land and carrying out
construction.
Section 304. Safe Harbor Agreements
This is a new provision that authorizes Safe Harbor
Agreements, which are agreements with non-federal persons to
benefit the conservation of listed species by creating,
restoring, or improving habitat or by maintaining currently
unoccupied habitat for endangered species or threatened
species. These agreements would allow the take of listed
species included 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, and does not
violate certain baseline requirements established in the
agreement.
The Secretary is required to establish a baseline that is
mutually agreed upon 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 agreement.
The Secretary is required to issue standards and guidelines
for the development and approval of safe harbor agreements.
The section authorizes the Secretary to provide grants of
up to $10,000 to any individual private landowner to assist the
landowner in carrying out a safe harbor agreement.
TITLE IV--RECOVERY PLANNING
Section 401. Recovery planning
This section sets forth a new program to emphasize recovery
of species. The Secretary, in cooperation with the States, is
to develop and implement recovery plans for domestic endangered
and threatened species unless he finds that a plan will not
promote the conservation of the species or because an existing
plan already serves as the functional equivalent to a recovery
plan.
To the maximum extent practicable, the Secretary is to give
priority to recovery plans that: (1) address significant and
immediate threats to the survival of an endangered or a
threatened species, have the greatest likelihood of achieving
recovery of the endangered or the threatened species, and will
benefit species that are more taxonomically distinct; (2) will
address multiple species; (3) reduce economic and development
conflicts; and (4) reduce conflicts with military training and
operations.
Subsection (c) sets forth schedules for publishing recovery
plans. The draft recovery plan must be published not later than
18 months after the listing rule, and the final recovery plan
must be published not later than 30 months after the listing
rule.
Not later than 60 days after listing a species, the
Secretary is to appoint a recovery team to develop a plan or
provide a notice that a recovery team will not be appointed
along with the reasons therefore; and if requested by a
Governor where the species occurs, the Secretary shall appoint
a recovery team to develop a plan or delegate to the Governor
the authority to develop a recovery plan for that State.
This section sets forth the qualifications for the recovery
team including scientific, economics, property law and
regulation experts, and others from the private sector; a
representative of affected States, representatives of affected
local governments, and representatives of those directly
economically impacted.
Each recovery team shall submit to the Secretary the draft
recovery plan, which shall include recovery strategies
recommended by the team and alternatives to meet the recovery
goal. The recovery team shall also advise the Secretary
concerning the designation of critical habitat, if any. The
recovery team shall assess the direct, indirect, and cumulative
economic and social impacts on the public and private sectors
that may result from the listing or from recovery strategies.
The recovery team shall recommend measures to balance the
achievement of the recovery goal for a species with protecting
the economic well-being of the area affected by implementation
of the recovery plan.
This section provides that the Federal Advisory Committee
Act shall not apply to the selection or activities of a
recovery team except that meetings of the recovery team shall
be open to the public.
Within 180 days after their appointment, the recovery team
is to establish and submit a recommended biological recovery
goal which is to be expressed as objective and measurable
population criteria, that when met, would result in the species
removed from the endangered or threatened list. Each draft plan
shall contain recommendations for federal agency compliance
with Section 7 of the ESA; recommendations for avoiding a
prohibited take and a list of activities that constitute a
take; alternative strategies to achieve the recovery goal; and
a description of economic and social impacts. The alternative
strategies must achieve an appropriate balance between the
effectiveness of the measures in meeting the recovery goal, the
length of time in which the recovery goal is likely to be
achieved; and minimizing the economic and social impacts on the
public and private sectors. Each recovery plan under this
section shall provide equitable treatment of each affected
State and all other non-federal persons affected by the plan,
and seek to minimize and fairly distribute the social and
economic costs that may result from implementation of the plan.
If the Secretary finds that the draft plan meets these
requirements, he shall publish in the Federal Register and a
newspaper a description of and a request for public comment on
the draft recovery plan. Upon request, the Secretary shall hold
at least one public meeting on each draft recovery plan in each
State to which the plan would apply, except no more than five
total meetings are mandated.
After reviewing each plan, if the Secretary determines that
the plan does not satisfy these requirements, he shall notify
the recovery team and give the team an opportunity to address
his concerns and resubmit a satisfactory plan. In each final
plan the Secretary shall select recovery strategies that
achieve the recovery goal and the benchmarks while achieving an
appropriate balance, except that the Secretary shall select the
recovery strategy that would impose the least costs and result
in the least socioeconomic impacts in achieving the recovery
goal. If the Secretary selects strategies other than those
recommended by the recovery team, the Secretary shall publish
with the final plan an explanation. The Secretary shall publish
a notice of availability and summary of the final recovery
plan, and include a response to significant comments received
on the draft plan.
No later than five years after date of enactment, the
Secretary shall review recovery plans published prior to that
date of enactment of H.R. 3160. The Secretary shall review each
recovery plan first approved or revised under this section
after the date of enactment not later than five years after the
date of approval or revision of the plan and every five years
thereafter.
The Secretary shall revise a recovery plan if substantial
new information indicates that the recovery goal will not
achieve the conservation and recovery of the covered species.
The Secretary shall convene a recovery team to develop the
revisions, unless the Secretary has published a notice that a
recovery team shall not be appointed. Otherwise the Secretary
is not required to modify a recovery plan approved before
enactment of H.R. 3160, or a recovery plan on which public
notice and comment has been initiated before enactment of H.R.
3160.
Concurrent with the submission of the draft recovery plan,
the recovery team appointed for the species shall provide the
Secretary with a description of any area recommended for
designation as critical habitat and any recommendations for
special management considerations or protection. This section
allows the Secretary, to the maximum extent prudent and
determinable, to designate or revise an existing designation of
critical habitat. Critical habitat may be designated at the
time a species is listed if the Secretary determines that
designation at that time is essential to avoid the imminent
extinction of the species. The designation is to be made on the
basis of the best data available and after taking into
consideration the economic impact, impacts to military training
and operations, and any other relevant impact of specifying any
particular area as critical habitat. ``Economic impact'' as
used here, means the cumulative economic effects (including
costs) resulting 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 designated as
critical habitat or that receive revenue from use of the area.
At the request of one or more Governors, the Secretary may
delegate to a State the authority to develop and implement the
recovery plans if the Secretary finds that the State has
entered into a cooperative agreement with the Secretary and the
State has submitted a statement to the Secretary demonstrating
adequate authority and capability to carry out the requirements
and schedules. If the Secretary finds that a State agency lacks
any authority or capability, he shall notify the State and
provide the State an opportunity to address his concerns.
The Secretary, in cooperation with the States, shall
publish standards and guidelines for the development of
recovery plans by States. The recovery team shall prepare a
draft recovery plan in accordance with this section and shall
transmit the draft plan to the Secretary through the State
agency authorized to develop the recovery plan. Prior to
publication of a notice of availability of a draft plan, the
Secretary shall review each draft to determine whether it meets
the requirements and shall give the State an opportunity to
address any deficiencies. Thereafter, if the Secretary
determines that the plan does not meet such requirements, he
shall notify the State and, in cooperation with the State,
develop a recovery plan in accordance with this section. On
receipt of a draft plan transmitted by the State, the Secretary
shall review and adopt the plan. The Secretary may withdraw the
authority from a State if the actions of the State are not in
accordance with the substantive and procedural requirements of
this H.R. 3160. The Secretary shall give the State an
opportunity to correct any deficiencies and may withdraw the
authority from the State, unless the State within 60 days has
corrected the deficiencies. Following withdrawal of authority,
the Secretary shall within 18 months publish a draft plan for
the State, and within 12 months after publication of the draft
recovery plan, publish a final recovery plan for the State.
The term ``State agency'' means a State agency entering
into a cooperative request and the Pacific Northwest Electric
Power and Conservation Planning Council.
Within six months of enactment of H.R. 3160, the Secretary
shall establish in the Fish and Wildlife Service a separate
office, to be known as the Office of Species Recovery, and
shall delegate to that Office authority to provide support
services to recovery teams to develop, or where a recovery team
cannot be appointed to develop, implement recovery plans; to
seek the recovery of all endangered or threatened species; to
make all delisting decisions; and to assist in the designation
of critical habitat.
TITLE V--MISCELLANEOUS
Section 501. Authorizing increased appropriations
Subsection (a) authorizes appropriations to the Department
of the Interior $130 million for fiscal year (FY) 2001; $140
million for FY 2002; $150 million for FY 2003; and $160 million
for FY 2004. For the Department of Commerce, this subsection
authorizes appropriations of $30 million for FY 2001; $35
million for FY 2002; $40 million for FY 2003; and $45 million
for FY 2004. Finally, this subsection authorizes appropriations
for the Department of Agriculture of $4 million for each of FYs
2001-2004.
Subsection (b) authorizes appropriations to the Secretary
of the Interior for international programs of $1 million for
each of FYs 2001-2004.
Subsection (c) authorizes $10 million for each of FYs 2001-
2004 for Safe Harbor Agreements.
Committee Oversight Findings and Recommendations
With respect to the requirements of clause 2(1)(3) of rule
XI of the Rules of the House of Representatives, and clause
2(b)(1) of rule X of the Rules of the House of Representatives,
the Committee on Resources' oversight findings and
recommendations are reflected in the body of this report.
Federal Advisory Committee Statement
The functions of the proposed advisory committee authorized
in this bill are not currently being nor could they be
performed by one or more agencies, an advisory committee
already in existence or by enlarging the mandate of an existing
advisory committee.
Constitutional Authority Statement
Article I, section 8 of the Constitution of the United
States grants Congress the authority to enact H.R. 3160.
Compliance With House Rule XIII
1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the
Rules of the House of Representatives requires an estimate and
a comparison by the Committee of the costs which would be
incurred in carrying out this bill. The Committee on Resources
believes that any costs incurred in carrying out this bill
would not create a significant impact on the federal budget.
2. Congressional Budget Act. As required by clause 3(c)(2)
of rule XIII of the Rules of the House of Representatives and
section 308(a) of the Congressional Budget Act of 1974, this
bill does not contain any new budget authority, spending
authority, credit authority, or an increase or decrease in
revenues or tax expenditures.
3. Government Reform Oversight Findings. Under clause
3(c)(4) of rule XIII of the Rules of the House of
Representatives, the Committee has received no report of
oversight findings and recommendations from the Committee on
Government Reform on this bill.
4. Congressional Budget Office Cost Estimate. Under clause
3(c)(3) of rule XIII of the Rules of the House of
Representatives and section 403 of the Congressional Budget Act
of 1974, the Committee has requested but not received a cost
estimate for this bill from the Director of the Congressional
Budget Office.
Compliance With Public Law 104-4
H.R. 3160 contains no unfunded mandates.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
ENDANGERED SPECIES ACT OF 1973
* * * * * * *
definitions
Sec. 3. For the purposes of this Act--
(1) * * *
* * * * * * *
[(20) The term ``threatened species'' means any species which
is likely to become an endangered species within the
foreseeable future throughout all or a significant portion of
its range.]
(20) The term ``threatened species'' means any
species that is likely to become an endangered species
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.
* * * * * * *
(22) The term ``best scientific and commercial data
available'' means factual information, including but
not limited to peer reviewed scientific information and
genetic data, obtainable from any source, including
governmental and nongovernmental sources, which has
been to the maximum extent feasible verified by field
testing.
(23) The term ``species'' includes any subspecies of
fish or wildlife or plants, and any distinct population
of any species of vertebrate fish or wildlife which
interbreeds when mature, unless such distinct
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.
(24) The term ``reasonable and prudent alternative''
means an alternative to an agency action that--
(A) can be implemented in a manner consistent
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 existence 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 concerned
from jeopardizing the continued existence of
the species and imposes the least social and
economic cost possible.
(25) The term ``likely to jeopardize the continued
existence of'', with respect to an action or activity
affecting an endangered species or a threatened
species, means an action or activity that significantly
diminishes the likelihood of the survival of the
species by significantly reducing the numbers or
distribution of the entire species.
* * * * * * *
determination of endangered species and threatened species
Sec. 4. (a) General.--(1) The Secretary shall by regulation
promulgated in accordance with subsection (b) determine whether
any species is an endangered species or a threatened species
because of any of the following factors:
(A) * * *
* * * * * * *
[(D) the inadequacy of existing regulatory
mechanisms; or]
(D) the inadequacy of existing Federal, State, and
local government regulatory mechanisms or other
proactive conservation programs or measures, including
programs and measures voluntarily undertaken;
* * * * * * *
[(3) The Secretary, by regulation promulgated in accordance
with subsection (b) and to the maximum extent prudent and
determinable--
[(A) shall, concurrently with making a determination
under paragraph (1) that a species is an endangered
species or a threatened species, designate any habitat
of such species which is then considered to be critical
habitat; and
[(B) may, from time-to-time thereafter as
appropriate, revise such designation.]
* * * * * * *
[(b) Basis for Determinations.--(1)(A) The Secretary shall
make determinations required by subsection (a)(1) solely on the
basis of the best scientific and commercial data available to
him after conducting a review of the status of the species and
after taking into account those efforts, if any, being made by
any State or foreign nation, or any political subdivision of a
State or foreign nation, 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.
[(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 nation, or
pursuant to any international agreement; or
[(ii) identified as in danger of extinction, or
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.
[(2) The Secretary shall designate critical habitat, and make
revisions thereto, under subsection (a)(3) on the basis of the
best scientific data available and after taking into
consideration the economic impact, and any other relevant
impact, of specifying any particular area as critical habitat.
The Secretary may exclude any area from critical habitat if he
determines that the benefits of such exclusion outweight the
benefits of specifying such area as part of the critical
habitat, unless he determines, based on the best scientific and
commercial data available, that the failure to designate such
area as critical habitat will result in the extinction of the
species concerned.]
[(3)(A) To the maximum extent practicable, within 90 days
after receiving the petition of an interested person under
section 553(e) of title 5, United States Code, to add a species
to, or to remove a species from, either of the lists published
under subsection (c), the Secretary shall make a finding as to
whether the petition presents substantial scientific or
commercial information indicating that the petitioned action
may be warranted. If such a petition is found to present such
information, the Secretary shall promptly commence a review of
the status of the species concerned. The Secretary shall
promptly publish each finding made under this subparagraph in
the Federal Register.
[(B) Within 12 months after receiving a petition that is
found under subparagraph (A) to present substantial information
indicating that the petitioned action may be warranted, the
Secretary shall make one of the following findings:
[(i) The petitioned action is not warranted, in which
case the Secretary shall promptly publish such finding
in the Federal Register.
[(ii) The petitioned action is warranted in which
case the Secretary shall promptly publish in the
Federal Register a general notice and the complete text
of a proposed regulation to implement such action in
accordance with paragraph (5).
[(iii) The petitioned action is warranted but that--
[(I) the immediate proposal and timely
promulgation of a final regulation implementing
the petitioned action 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 such lists species for which the
protections of the Act are no longer necessary.
in which case the Secretary shall promptly publish such
finding in the Federal Register, together with a
description and evaluation of the reasons and data on
which the finding is based.
[(C)(i) A petition with respect to which a finding is made
under subparagraph (B)(iii) shall be treated as a petition that
is resubmitted to the Secretary under subparagraph (A) on the
date of such finding and that presents substantial scientific
or commercial information that the petitioned action may be
warranted.
[(ii) Any negative finding described in subparagraph (A) and
any finding described in subparagraph (B)(i) or (iii) shall be
subject to judicial review.
[(iii) The Secretary shall implement a system to monitor
effectively the status of all species with respect to which a
finding is made under subparagraph (B)(iii) and shall make
prompt use of the authority under paragraph 7 to prevent a
significant risk to the well being of any such species.
[(D)(i) To the maximum extent practicable, within 90 days
after receiving the petition of an interested person under
section 553(e) of title 5, United States Code, to revise a
critical habitat designation, the Secretary shall make a
finding as to whether the petition presents substantial
scientific information indicating that the revision may be
warranted. The Secretary shall promptly publish such finding in
the Federal Register.
[(ii) Within 12 months after receiving a petition that is
found under clause (i) to present substantial information
indicating that the requested revision may be warranted, the
Secretary shall determine how he intends to proceed with the
requested revision, and shall promptly publish notice of such
intention in the Federal Register.]
(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 scientific and
commercial data available to the Secretary after
conducting a review of the status of the species and
after soliciting and fully considering the best
scientific and commercial data available concerning the
status of a species from any affected State or any
interested non-Federal person, and taking 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 projections or
other extrapolations developed through modeling.
(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 nation, or
pursuant to any international agreement; 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 species 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 prepared 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 species.--Within 18
months after the date of the enactment of the Common
Sense Protections for Endangered Species Act, the
Secretary shall promulgate 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 isolated from other subspecific
population units and constitute an important component
in the evolutionary legacy of the species.
(3) Response to petitions.--
(A) Action may be warranted.--
(i) In general.--Consistent with the
ranking system established by the
Secretary under subsection (h)(3) and
to the maximum extent practicable,
after receiving the petition of an
interested person under section 553(e)
of title 5, United States Code, to--
(I) add a species to;
(II) remove a species from;
or
(III) change the status of a
species from a previous
determination with respect to;
either of the lists published under
subsection (c), the Secretary shall
immediately publish in the Federal
Register a notice of receipt of the
petition and shall make a finding as to
whether the petition presents
substantial scientific or commercial
information indicating that the
petitioned action may be warranted. If
a petition is found to present such
information, the Secretary shall
promptly commence a review 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
information 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
population levels and beyond
normal population fluctuations
for the species;
(IV) an appraisal of the
available data on the threats
to the species or the causes of
its decline;
(V) an identification of the
information contained or
referred to in the petition
that has been peer-reviewed or
field-tested;
(VI) the reason that the
petitioned action is warranted,
based on the factors
established under subsection
(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 expert on the
species or the status of the
species; and
(IX) at least one study or
credible 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 information
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
believed 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 action is
warranted is in direct conflict
with the information submitted
by the Governor or tribe, the
finding shall not be final
until the Secretary submits the
finding to peer review as
provided in subsection (f). The
peer reviewers 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 decision
and shall submit the record to
the Governor or tribe. Issuance
of such record shall be final
agency action for purposes of
chapter 7 of title 5, United
States Code (relating to
judicial 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 subsection (c) in
accordance with subsection (a)(1), if--
(i) the current listing is no longer
appropriate because of a change in the
factors identified under subsection
(a)(1); or
(ii) with respect to a petition to
remove a species from either of the
lists--
(I) new data or a
reinterpretation of prior data
indicate that removal is
appropriate;
(II) the species is extinct;
(III) the recovery goals
established 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
petitioned action may be warranted, the
Secretary shall make one of the following
findings:
(i) Not warranted.--The petitioned
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
Secretary shall, within 45 days after
making the determination and before
issuing any proposed rule to implement
the determination, publish in the
Federal Register a notice of a review
of the status of the species that
includes a description of the
following:
(I) Any missing data that, if
obtained, would support the
determination.
(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
necessary in the future to
ensure the continued validity
of the determination, and the
deadline or deadlines for
collecting that data.
(iii) Warranted but precluded.--The
petitioned action is warranted, but--
(I) the immediate proposal
and timely promulgation of a
final regulation implementing
the petitioned action 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 finding
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
conduct 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 resides. 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 Secretary to be habitat
of the species; and
(ii) at least one public meeting in
each rural area of the State that the
Governor 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
review. In any suit for review brought under
this paragraph, any person may intervene as a
matter of right if the person can demonstrate
that a determination to list will have a direct
economic impact on such person.
(ii) In any action seeking judicial review of
a finding by the Secretary described in
subparagraph (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 Secretary
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 current 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, commercial,
nonprofit, avocational, or voluntary
conservation activities, or other
pertinent information that may assist
in making thedetermination referred to
in subsection (a)(1); and
(II) collect and consider the data
identified and described pursuant to
subclause (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
request for such extension that includes a
statement 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.
(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 Secretary,
for good cause, determines that the information must be
kept confidential. The burden shall be on the Secretary
to prove that such information shall be confidential
and such decision shall be reviewable by a district
court of competent jurisdiction, 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 otherwise
publicly disclose the location of particular private
property as habitat for a species which is determined
to be an endangered species or threatened species or
proposed to be determined to be an endangered species
or threatened species, unless the Secretary first
notifies the owner thereof and receives the consent of
the owner, or the information is otherwise public
information.
* * * * * * *
[(5) With respect to any regulation proposed by the Secretary
to implement a determination, designation, or revision referred
to in subsection (a)(1) or (3), the Secretary shall--
[(A) not less than 90 days before the effective date
of the regulation--
[(i) publish a general notice and the
complete text of the proposed regulation in the
Federal Register, and
[(ii) give actual notice of the proposed
regulation (including the complete text of the
regulation) to the State agency in each State
in which the species is believed to occur, and
to each county or equivalent jurisdiction in
which the species is believed to occur, and
invite the comment of such agency, and each
such jurisdiction, thereon;
[(B) insofar as practical, and in cooperation with
the Secretary of State, give notice of the proposed
regulation to each foreign nation in which the species
is believed to occur or whose citizens harvest the
species on the high seas, and invite the comment of
such nation thereon;
[(C) give notice of the proposed regulation to such
professional scientific organizations as he deems
appropriate;
[(D) publish a summary of the proposed regulation in
a newspaper of general circulation in each area of the
United States in which the species is believed to
occur; and
[(E) promptly hold one public hearing on the proposed
regulation if any person files a request for such a
hearing within 45 days after the date of publication of
general notice.]
(5) Proposed regulations and review.--With respect to
any regulation proposed by the Secretary to implement a
determination referred to in subsection (a)(1) of this
section, the Secretary shall perform the following:
(A) Not later than 12 months before
publishing 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
subparagraph (A)(ii) that the determination is
not warranted, the Secretary may not make the
determination with respect to that State or on
the lands of that tribe, respectively, unless
the Secretary shows by a preponderance of
scientific evidence that the information
submitted by the Governor or tribe is incorrect
and that the determination is warranted.
(C) Not less than 90 days before the
effective date of the regulation--
(i) publish a general notice and the
complete text of the proposed
regulation in the Federal Register as
provided in paragraph (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 Secretary 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
believed 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
protect the species under this Act, and such
professional 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
publication 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 meetings under this
subparagraph.
(H) Identify and include with the proposed
rule a description of--
(i) all data that are to be
considered in making the determination
under subsection (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
collected 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
determination;
(iii) deadlines by which the
Secretary shall collect and consider
the data in accordance with
subparagraph (I);
(iv) a description of additional
scientific and commercial data that
would assist 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 determination under subsection
(a)(1) andany 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 contribute 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
review and comment; and
(iv) publish in the Federal Register
the results of that consideration and a
description of and schedule for any
actions warranted by the data.
[(6)(A) Within the one-year period beginning on the date on
which general notice is published in accordance with paragraph
(5)(A)(i) regarding a proposed regulation, the Secretary shall
publish in the Federal Register--
[(i) if a determination as to whether a species is an
endangered species or a threatened species, or a
revision of critical habitat, is involved, either--
[(I) a final regulation to implement such
determination,
[(II) a final regulation to implement such
revision or a finding that such revision should
not be made,
[(III) notice that such one-year period is
being extended under subparagraph (B)(i), or
[(IV) notice that the proposed regulation is
being withdrawn under subparagraph (B)(ii),
together with the finding on which such
withdrawal is based; or
[(ii) subject to subparagraph (C), if a designation
of critical habitat is involved, either--
[(I) a final regulation to implement such
designation, or
[(II) notice that such one-year period is
being extended under such subparagraph.]
(6) Final regulations.--
(A) In general.--Within the 1-year period
beginning on the date on which general notice
is published in accordance with paragraph
(5)(A)(i) regarding a proposed regulation, the
Secretary shall publish in the Federal
Register--
(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
regulation is being withdrawn under
subparagraph (B)(ii), together with the
finding on which the withdrawal is
based.
(B)(i) If the Secretary finds with respect to a proposed
regulation referred to in subparagraph (A)(i) that there is
substantial disagreement regarding the sufficiency or accuracy
of the available data relevant to the determination [or
revision] concerned, the Secretary may extend the one-year
period specified in subparagraph (A) for not more than six
months for purposes of soliciting additional data.
* * * * * * *
(iii) If the one-year period specified in subparagraph (A) is
extended under clause (i) with respect to a proposed
regulation, then before the close of such extended period the
Secretary shall publish in the Federal Register either a final
regulation to implement the determination [or revision
concerned, a finding that the revision should not be made,] or
a notice of withdrawal of the regulation under clause (ii),
together with the finding on which the withdrawal is based.
[(C) A final regulation designating critical habitat of an
endangered species or a threatened species shall be published
concurrently with the final regulation implementing the
determination that such species is endangered or threatened,
unless the Secretary deems that--
[(i) it is essential to the conservation of such
species that the regulation implementing such
determination be promptly published; or
[(ii) critical habitat of such species is not then
determinable, in which case the Secretary, with respect
to the proposed regulation to designate such habitat,
may extend the one-year period specified in
subparagraph (A) by not more than one additional year,
but not later than the close of such additional year
the Secretary must publish a final regulation, based on
such data as may be available at that time,
designating, to the maximum extent prudent, such
habitat.]
* * * * * * *
(8) The publication in the Federal Register of any proposed
or final regulation which is necessary or appropriate to carry
out the purposes of this Act shall include a summary by the
Secretary of [the data] the best scientific and commercial data
available on which such regulation is based and shall show the
relationship of such data to such [regulation; and if such
regulation designates or revises critical habitat, such summary
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 adversely modify such habitat, or may be
affected by such designation.] regulation, and shall provide,
to the degree that it is relevant and available, information
regarding the status of the affected species, including current
population, population trends, current habitat, food sources,
predators, breeding habits, captive breeding efforts,
governmental and nongovernmental conservation efforts, or other
pertinent information. Each regulation proposed by the
Secretary to implement a determination referred to in
subsection (a)(1) shall be based primarily and substantially on
peer-reviewed scientific information obtainable from any
source, including governmental and nongovernmental sources,
that has been to the maximum 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.
(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
expenditures 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.
* * * * * * *
(c) Lists.--(1) * * *
[(2) The Secretary shall--
[(A) conduct, at least once every five years, a
review of all species included in a list which is
published pursuant to paragraph (1) and which is in
effect 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;
[(ii) be changed in status from an endangered
species to a threatened species; or
[(iii) be changed in status from a threatened
species to an endangered species.
Each determination under subparagraph (B) shall be made in
accordance with the provisions of subsection (a) and (b).]
(2) The Secretary shall--
(A) conduct, at least once every 5 years, a review of
all species included in a list which is published
pursuant to paragraph (1) and which is in effect 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
determination 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 endangered
species to a threatened species; or
(iii) be changed in status from a threatened
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.
* * * * * * *
[(f)(1) Recovery Plans.--The Secretary shall develop and
implement plans (hereinafter in this subsection referred to as
``recovery plans'') for the conservation and survival of
endangered species and threatened species listed pursuant to
this section, unless he finds that such a plan will not promote
the conservation of the species. The Secretary, in development
and implementing recovery plans, shall, to the maximum extent
practicable--
[(A) give priority to those endangered species or
threatened species, without regard to taxonomic
classification, that are most likely to benefit from
such plans, particularly those species that are, or may
be, in conflict with construction or other development
projects or other forms of economic activity;
[(B) incorporate in each plan--
[(i) a description of such site-specific
management actions as may be necessary to
achieve the plan's goal for the conservation
and survival of the species;
[(ii) objective, measurable criteria which,
when met, would result in a determination, in
accordance with the provisions of this section,
that the species be removed from the list; and
[(iii) estimates of the time required and the
cost to carry out those measures needed to
achieve the plan's goal and to achieve
intermediate steps toward that goal.
[(2) The Secretary, in developing and implementing recovery
plans, may procure the services of appropriate public and
private agencies and institutions and other qualified persons.
Recovery teams appointed pursuant to this subsection shall not
be subject to the Federal Advisory Committee Act.
[(3) The Secretary shall report every two years to the
Committee on Environment and Public Works of the Senate and the
Committee on Merchant Marine and Fisheries of the House of
Representatives on the status of efforts to develop and
implement recovery plans for all species listed pursuant to
this section and on the status of all species for which such
plans have been developed.
[(4) The Secretary shall, prior to final approval of a new or
revised recovery plan, provide public notice and an opportunity
for public review and comment on such plan. The Secretary shall
consider all information presented during the public comment
period prior to approval of the plan.
[(5) Each Federal agency shall, prior to implementation of a
new or revised recovery plan, consider all information
presented during the public comment period under paragraph
(4).]
(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
subsection (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
proposed action is likely to jeopardize
the continued existence of a listed
species and the proposal of any
reasonable and prudent alternatives by
the Secretary under section 7(b)(3);
and
(v) the issuance of any regulation or
criteria establishing specific
mitigation obligations 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
education, training, or avocational,
academic, commercial, research, or
other experience competent to review
the adequacy of any scientific
methodology supporting the action, the
validity of any conclusions drawn from
the supporting data, and the competency
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 advocated 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
interest, 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 voluntary
basis are available to participate in peer review 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 nominations of persons who
agree to peer review an action upon appointment by the
Secretary.
(3) Appointment of peer reviewers.--Before any action
shall become final, the Secretary shall appoint, from
among the list prepared in accordance with paragraph
(2), not more than 2 qualified 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 submitted a petition for
listing or delisting that is reviewed 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 proposal,
whether the methodology and analysis supporting 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 report.--The Secretary
shall publish with any final regulation implementing an
action a summary of the report of the peer review panel
noting points of disagreement 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.
* * * * * * *
(h) Agency Guidelines.--[The Secretary shall establish, and
publish in the Federal Register, agency guidelines to insure
that the purposes of this section are achieved efficiently and
effectively.] 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 effectively. Such guidelines shall
include, but are not limited to--
(1) * * *
* * * * * * *
[(i) If, in the case of any regulation proposed by the
Secretary under the authority of this section, a State agency
to which notice thereof was given in accordance with subsection
(b)(5)(A)(ii) files comments disagreeing with all or part of
the proposed regulation, and the Secretary issues a final
regulation which is in conflict with such comments, or if the
Secretary fails to adopt a regulation pursuant to an action
petitioned by a State agency under subsection (b)(3), the
Secretary shall submit to the State agency a written
justification for his failure to adopt regulations consistent
with the agency's comments or petition.]
(i) Submission to State Agency of Justification for
Regulations Inconsistent With State Agency's Comments or
Petition.--If, in the case of any regulation proposed by the
Secretary under the authority 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 regulation, 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 subsection (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.
(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.
* * * * * * *
recovery plans
Sec. 5. (a) In General.--The Secretary, in cooperation 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 promote 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 practicable, 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 threatened
species, have the greatest likelihood of achieving
recovery of the endangered species or the threatened
species, and will benefit species that are more
taxonomically distinct;
(2) address multiple species including (A) endangered
species, (B) threatened species, or (C) species 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, development
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 Secretary is
required to develop a recovery plan under subsection (a), the
Secretary shall publish--
(1) not later than 18 months after the date of the
publication under section 4 of the final regulation
containing the listing determination, a draft recovery
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 determination 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
appointing a recovery team; and
(B) Upon request by the Governor of any State in
which the species occurs made after publication of
notice under subparagraph (A)(ii), the Secretary 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
subsection (l), the authority of the Secretary
to develop a recovery plan for the species for
that State.
(2) Appointment of recovery team.--(A) The recovery
team shall consist of--
(i) experts in biology or pertinent
scientific fields, economics, property law and
regulation, and other appropriate disciplines,
including from the private sector;
(ii) a representative nominated by the
Governor of each affected State;
(iii) representatives nominated by each
affected local government, if the local
government agrees to the appointment of a
representative; and
(iv) representatives of persons who may be
directly, economically impacted by the
conservation plan.
(B) The chairman of the team shall be selected by the
team from among its members who are representatives of
States or local governments.
(3) Duties of the recovery team.--(A) Each recovery
team shall prepare and submit to the Secretary the
draft recovery plan, which shall include recovery
strategies recommended by the team and alternatives, if
any, to meet the recovery goal under subsection (e)(1).
The recovery team may also be called on by the
Secretary to assist in the implementation, 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
determination or from potential recovery strategies
recommended 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
species.
(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 section
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 subsection, 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 establish and
submit to the Secretary a recommended biological
recovery goal to conserve and recover the species that,
when met, would result in the determination, in
accordance with section 4, that the species be removed
from the list. The recovery goal shall be expressed as
objective and measurable population criteria. When the
goal is met, the Secretary shall initiate the
procedures under this Act to remove the species from
the list. The recovery team shall also report to the
Secretary the scientific feasibility 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 activities that would
constitute a take under section 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 involving
more intensive Federal management 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
appropriate 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
social impacts on the public and
private sectors, including the impact
on employment, the cost of government
actions, tax and other revenues, the
use and value of property, and other
social, cultural, and community 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
affected 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 Secretary shall
publish in the Federal Register, and a newspaper of
general circulation in areas in each affected State
that are located as close to the affected area as
possible, a notice of availability and a summary of,
and a request for public comment on, the draft recovery
plan. The notice shall include a description 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 meeting 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 Secretary.--
(1) Review and approval.--The Secretary shall review
each plan submitted by a recovery team to determine
whether the plan was developed in accordance with the
requirements of this section. If the Secretary
determines that the plan does not satisfy 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 Secretary
shall adopt a final recovery plan that is consistent
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 benchmarks while
achieving an appropriate balance among the factors
described in subsection (e)(2)(B), except that the
Secretary shall select the recovery strategy that would
impose the least costs and result in the least
socioeconomic impacts in achieving the recovery goal.
(3) Strategies recommended by recovery team.--If the
Secretary selects strategies other than those
recommended by the recovery team, the Secretary shall
publish with the final plan an explanation of why the
strategies recommended by the recovery team were not
selected for the final recovery plan.
(4) Publication of notice on final plan.--The
Secretary shall publish in the Federal Register a
notice of availability, and a summary, of the final
recovery plan, and include in the final recovery plan a
response to significant comments that the Secretary
received on the draft recovery plan.
(h) Review.--
(1) Existing plans.--Not later than five years after
date of enactment of this subsection, the Secretary
shall review recovery plans published prior to that
date of enactment.
(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.--Notwithstanding 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 Secretary shall
convene a recovery team to develop the revisions required by
this subsection, unless the Secretary has published a notice
that a recovery team shall not be appointed pursuant to
subsection (d)(3).
(j) Existing Plans.--Except as provided in subsection (i),
nothing in this section shall require the modification 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
enactment.
(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 recovery 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 recommendationsfor
special management considerations 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 existing
designation of critical habitat of each
endangered species or threatened species that
is indigenous to the United States or to waters
with respect to which the United States
exercises sovereign rights or jurisdiction.
(B) Emergency authority.--The Secretary may
publish a regulation designating critical
habitat for an endangered species or
athreatened 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 designation of
critical habitat shall be made on the basis of the best
scientific and commercial data available and after
taking into consideration the economic impact, impacts
to military training and operations, and any other
relevant impact, of specifying any particular area as
critical habitat. The Secretary shall describe the
economic impacts and other relevant impacts that are to
be considered under this subsection in the publication
of any proposed regulation designating critical
habitat.
(4) Proposed and final regulations.--Any regulation
to designate critical habitat or implement a requested
revision shall be proposed and promulgated in the same
manner as a regulation to implement 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) resulting 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 designated as critical
habitat or that receive revenue from use of the area.
(l) State Authority for Recovery Planning.--
(1) In general.--At the request of the Governor 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 Secretary
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
subsection, 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 capability
to carry out the requirements and schedules of
subsections (c), (d)(1), (d)(2), and (e) and
this subsection.
(2) Response to concerns of secretary.--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 Secretary.
(3) Standards and guidelines.--The Secretary, in
cooperation with the States, shall publish standards
and guidelines for the development of recovery plans by
State agencies under this subsection, including
standards and guidelines for interstate cooperation and
for the grant and withdrawal of authorization by the
Secretary under this subsection.
(4) Duties of recovery team.--The recovery team shall
prepare a draft recovery plan in accordance 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 publication of a
notice of availability of a draft recovery plan, the
Secretary shall review each draft recovery plan
developed pursuant to this subsection to determine
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 transmitted 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 recovery plan pursuant
to this subsection if the actions of the State agency
are not in accordance with the substantive 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 unless the State
agency within 60 days has corrected the deficiencies
identified by the Secretary.
(B) Following withdrawal of authority delegated to a
State pursuant to this subsection, the Secretary shall,
in accordance with this section--
(i) within 18 months after the date of that
withdrawal, publish a draft recovery plan for
the State; and
(ii) within 12 months after publication of
the draft recovery plan, publish a final
recovery plan for the State.
(8) Definition of state agency.--For purposes of this
subsection, the term ``State agency'' means--
(A) a State agency (as defined in section 3)
of each State entering into a cooperative
request under paragraph (1); and
(B) for fish and wildlife, including related
spawning grounds and habitat, on the Columbia
River and its tributaries, the Pacific
Northwest Electric Power and Conservation
Planning Council established under the Pacific
Northwest Electric Power Planning and
Conservation Act (16 U.S.C. 839 et seq.).
(m) Office of Recovery Planning.--
(1) Establishment.--Not later than 6 months after the
date of the enactment of the Common Sense Protections
for Endangered Species Act, the Secretary shall
establish in the United States Fish and Wildlife
Service a separate office, to be known as the Office of
Species Recovery.
(2) Authorities.--The Secretary, subject to
subsection (l), shall delegate to the head of the
Office of Species Recovery authority of the Secretary
under this Act to--
(A) provide support services to recovery
teams to develop, or where a recovery team
cannot be appointed to develop, implement
recovery plans under this section;
(B) otherwise seek the recovery of all
species listed under section 4(c) as endangered
species or threatened species;
(C) make all determinations to remove a
species from such a list; and
(D) assist in the designation of critical
habitat.
land acquisition
Sec. [5] 5A. (a) Program.--The Secretary, and the Secretary
of Agriculture with respect to the National Forest System,
shall establish and implement a program to conserve fish,
wildlife, and plants, including those which are listed as
endangered species or threatened species pursuant to section 4
of this Act. To carry out such a program, the appropriate
Secretary--
(1) * * *
* * * * * * *
cooperation with the states
Sec. 6. (a) * * *
* * * * * * *
(d) Allocation of Funds.--(1) The Secretary is authorized to
provide financial assistance to any State, through its
respective State agency, which has entered into a cooperative
agreement pursuant to subsection (c) of this section to assist
in development of programs for the conservation of endangered
and threatened species or to assist in monitoring the status of
candidate species pursuant to subparagraph [(C)] (G) of section
4(b)(3) and recovered species pursuant to section 4(g). The
Secretary shall allocate each annual appropriation made in
accordance with the provisions of subsection (i) of this
section to such States based on consideration of--
(A) * * *
* * * * * * *
[interagency cooperation
[Sec. 7. (a) Federal Agency Actions and Consultations.--(1)
The Secretary shall review other programs administered by
himand utilize such programs in furtherance of the purposes of this
Act. All other Federal agencies shall, 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 endangered species and threatened species listed
pursuant to section 4 of this Act.]
SEC. 7. INTERAGENCY COOPERATION.
(a) Federal Agency Actions and Consultations.--
(1) Programs administered by the secretary of the
interior.--The Secretary shall review other programs
administered by the Secretary and utilize such programs
in furtherance of the purposes 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 endangered species and threatened
species listed pursuant to section 4.
* * * * * * *
(5) Initiation of consultation.--A Federal 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 required.--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 consultation under this
subsection is initiated, that--
(A) a threatened species or endangered
species or its respective critical habitat is
located 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 insufficient
data.--The Secretary shall not issue an opinion under
subsection (b) that a proposed action 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
reinitiation of consultation on an already
approved 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 commenced. During that 1-year
period, the site specific actions referred to
in subparagraph (C) may not be enjoined under
this Act based on that listing.
(C) Site-specific actions during
consultation.--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
required, the Secretary issues or has
issued a biological opinion, and the
action satisfies 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 implemented in a
manner consistent with duties assigned 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 conflict,
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 authority assigned
to the President by this subparagraph may not be
delegated to a member of the executive branch who has
not been confirmed by the Senate.
* * * * * * *
(b) Opinion of Secretary.--(1)(A) * * *
* * * * * * *
(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.
[(2) Consultation under subsection (a)(3) shall be concluded
within such period as is agreeable to the Secretary, the
Federal agency, and the applicant concerned.]
(2) Opportunity to participate in consultations.--(A)
In conducting a consultation under subsection (a)(2),
the Secretary shall provide any person who has sought
authorizationor funding from a Federal agency for an
action that is the subject of the consultation, the opportunity to--
(i) prior to the development of a draft
biological 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
availability 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, subject
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
biological 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.
(3)(A) * * *
* * * * * * *
(C) In the development of an opinion under this
paragraph with respect to public lands, the Secretary
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 landowner.
(D) Unless required by law other than subsections (a)
through (d), the Secretary, in any opinion 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 imposition 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 Federal agency.
* * * * * * *
(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 applicant 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 statement. All Federal
entities shall be bound by the Secretary'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 permit
applicant to provide a written response to the
conditions.
(B) Any refusal to provide an incidental take statement
without first providing the written conditions therefore and
providing an opportunity to respond in accordance 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.
(c) Biological Assessment.--[(1)] To facilitate compliance
with the requirements of subsection (a)(2) each Federal agency
shall, with respect to any agency action of such agency for
which no contract for construction has been entered into and
for which no construction has begun on the date of enactment of
the Endangered Species Act Amendments of 1978, request of the
Secretary information whether any species which is listed or
proposed to be listed may be present in the area of such
proposed action. If the Secretary advises, based on the best
scientific and commercial data available, that such species may
be present, such agency shall conduct a biological assessment
for the purpose of identifying any endangered species or
threatened species which is likely to be affected by such
action. Such assessment shall be completed within 180 days
after the date on which initiated (or within such other period
as in mutually agreed to by the Secretary and such agency,
except that if a permit or license applicant is involved, the
180-day period may not be extended unless such agency provides
the applicant, before the close of such period, with a written
statement setting forth the estimated length of the proposed
extension and the reasons therefor) and, before any contract
for construction is entered into and before construction is
begun with respect to such action. Such assessment may be
undertaken as part of a Federal agency's compliance with the
requirements of section 102 of the National Environmental
Policy Act of 1969 (42 U.S.C. 4332).
[(2) Any person who may wish to apply for an exemption under
subsection (g) of this section for that action may conduct a
biological assessment to identify any endangered species or
threatened species which is likely to be affected by such
action. Any such biological assessment must, however, be
conducted in cooperation with the Secretary and under the
supervision of the appropriate Federal agency.]
* * * * * * *
[(e)(1) Establishment of Committee.--There is established a
committee to be known as the Endangered Species Committee
(hereinafter in this section referred to as the ``Committee'').
[(2) The Committee shall review any application submitted to
it pursuant to this section and determine in accordance with
subsection (h) of this section whether or not to grant an
exemption from the requirements of subsection (a)(2) of this
action for the action set forth in such application.
[(3) The Committee shall be composed of seven members as
follows:
[(A) The Secretary of Agriculture.
[(B) The Secretary of the Army.
[(C) The Chairman of the Council of Economic
Advisors.
[(D) The Administrator of the Environmental
Protection Agency. Agency.
[(E) The Secretary of the Interior.
[(F) The Administrator of the National Oceanic and
Atmospheric Administration.
[(G) The President, after consideration of any
recommendations received pursuant to subsection
(g)(2)(B) shall appoint one individual from each
affected State, as determined by the Secretary, to be a
member of the Committee for the consideration of the
application for exemption for an agency action with
respect to which such recommendations are made, not
later than 30 days after an application is submitted
pursuant to this section.
[(4)(A) Members of the Committee shall receive no additional
pay on account of their service on the Committee.
[(B) While away from their homes or regular places of
business in the performance of services for the Committee,
members of the Committee shall be allowed travel expenses,
including per diem in lieu of subsistence, in the same manner
as persons employed intermittently in the Government service
are allowed expenses under section 5703 of title 5 of the
United States Code.
[(5)(A) Five members of the Committee or their
representatives shall constitute a quorum for the transaction
of any function of the Committee, except that, in no case shall
any representative be considered in determining the existence
of a quorum for the transaction of any function of the
Committee if that function involves a vote by the Committee on
any matter before the Committee.
[(B) The Secretary of the Interior shall be the Chairman of
the Committee.
[(C) The Committee shall meet at the call of the Chairman or
five of its members.
[(D) All meetings and records of the Committee shall be open
to the public.
[(6) Upon request of the Committee, the head of any Federal
agency is authorized to detail, on a nonreimbursable basis, any
of the personnel of such agency to the Committee to assist it
in carrying out its duties under this section.
[(7)(A) The Committee may for the purpose of carrying out its
duties under this section hold such hearings, sit and act at
such times and places, take such testimony, and receive such
evidence, as the Committee deems advisable.
[(B) When so authorized by the Committee, any member or agent
of the Committee may take any action which the Committee is
authorized to take by this paragraph.
[(C) Subject to the Privacy Act, the Committee may secure
directly from any Federal agency information necessary to
enable it to carry out its duties under this section. Upon
request of the Chairman of the Committee, the head of such
Federal agency shall furnish such information to the Committee.
[(D) The Committee may use the United States mails in the
same manner and upon the same conditions as a Federal agency.
[(E) The Administrator of General Services shall provide to
the Committee on a reimbursable basis such administrative
support services as the Committee may request.
[(8) In carrying out its duties under this section, the
Committee may promulgate and amend such rules, regulations, and
procedures, and issue and amend such orders as it deems
necessary.
[(9) For the purpose of obtaining information necessary for
the consideration of an application for an exemption under this
section the Committee may issue subpoenas for the attendance
and testimony of witnesses and the production of relevant
papers, books, and documents.
[(10) In no case shall any representative, including a
representative of a member designated pursuant to paragraph
(3)(G) of this subsection, be eligible to cast a vote on behalf
of any member.]
(e) Exemptions.--Notwithstanding any other provision of this
Act--
(1) the Secretary shall grant an exemption from this
Act for any activity if the Secretary of Defense
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 Robert T. Stafford
Disaster Relief and Emergency Assistance Act (42 U.S.C.
5121 et seq.) for any project for the repair or
replacement of a public facility substantially 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
potential 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.
[(f) Regulations.--Not later than 90 days after the date of
enactment of the Endangered Species Act Amendments of 1978, the
Secretary shall promulgate regulations which set forth the form
and manner in which applications for exemption shall be
submitted to the Secretary and the information to be contained
in such applications. Such regulations shall require that
information submitted in an application by the head of any
Federal agency with respect to any agency action include but
not be limited to--
[(1) a description of the consultation process
carried out pursuant to subsection (a)(2) of this
section between the head of the Federal agency and the
Secretary; and
[(2) a statement describing why such action cannot be
altered or modified to conform with the requirements of
subsection (a)(2) of this section.
[(g) Application for Exemption and Report to the Committee.--
(1) A Federal agency, the Governor of the State in which an
agency action will occur, if any, or a permit or license
applicant may apply to the Secretary for an exemption for an
agency action of such agency if, after consultation under
subsection (a)(2), the Secretary's opinion under subsection (b)
indicates that the agency action would violate subsection
(a)(2). An application for an exemption shall be considered
initially by the Secretary in the manner provided for in this
subsection, and shall be considered by the Committee for a
final determination under subsection (h) after a report is made
pursuant to paragraph (5). The applicant for an exemption shall
be referred to as the ``exemption applicant'' in this section.
[(2)(A) An exemption applicant shall submit a written
application to the Secretary, in a form prescribed under
subsection (f), not later than 90 days after the completion of
the consultation process; except that, in the case of any
agency action involving a permit or license applicant, such
application shall be submitted not later than 90 days after the
date on which the Federal agency concerned takes final agency
action with respect to the issuance of the permit or license.
For purposes of the preceding sentence, the term ``final agency
action'' means (i) a disposition by an agency with respect to
the issuance of a permit or license that is subject to
administrative review, whether or not such disposition is
subject to judicial review; or (ii) if administrative review is
sought with respect to such disposition, the decision resulting
after such review. Such application shall set forth the reasons
why the exemption applicant considers that the agency action
meets the requirements for an exemption under this subsection.
[(B) Upon receipt of an application for exemption for an
agency action under paragraph (1), the Secretary shall promptly
(i) notify the Governor of each affected State, if any, as
determined by the Secretary, and request the Governors so
notified to recommend individuals to be appointed to the
Endangered Species Committee for consideration of such
application; and (ii) publish notice of receipt of the
application in the Federal Register, including a summary of the
information contained in the application and a description of
the agency action with respect to which the application for
exemption has been filed.
[(3) The Secretary shall within 20 days after the receipt of
an application for exemption, or within such other period of
time as is mutually agreeable to the exemption applicant and
the Secretary--
[(A) determine that the Federal agency concerned and
the exemption applicant have--
[(i) carried out the consultation
responsibilities described in subsection (a) in
good faith and made a reasonable and
responsible effort to develop and fairly
consider modifications or reasonable and
prudent alternatives to the proposed agency
action which would not violate subsection
(a)(2);
[(ii) conducted any biological assessment
required by subsection (c); and
[(iii) to the extent determinable within the
time provided herein, refrained from making any
irreversible or irretrievable commitment of
resources prohibited by subsection (d); or
[(B) deny the application for exemption because the
Federal agency concerned or the exemption applicant
have not met the requirements set forth in subparagraph
(A)(i), (ii), and (iii).
The denial of an application under subparagraph (B) shall be
considered final agency action for purposes of chapter 7 of
title 5, United States Code.
[(4) If the Secretary determines that the Federal agency
concerned and the exemption applicant have met the requirements
set forth in paragraph (3)(A) (i), (ii) and (iii) he shall, in
consultation with the Members of the Committee, hold a hearing
on the application for exemption in accordance with sections
554, 555, and 556 (other than subsection (b) (1) and (2)
thereof) of title 5, United States Code, and prepare the report
to be submitted pursuant to paragraph (5).
[(5) Within 140 days after making the determinations under
paragraph (3) or within such other period of time as in
mutually agreeable to the exemption applicant and the
Secretary, the Secretary shall submit to the Committee a report
discussing--
[(A) the availability and reasonable and prudent
alternatives to the agency action, and the nature and
extent of the benefits of the agency action and of
alternative courses of action consistent with
conserving the species of the critical habitat;
[(B) a summary of the evidence concerning whether or
not the agency action is in the public interest and is
of national or regional significance;
[(C) appropriate reasonable mitigation and
enhancement measures which should be considered by the
Committee; and
[(D) whether the Federal agency concerned and the
exemption applicant refrained from making any
irreversible or irretrievable commitment of resources
prohibited by subsection (d).
[(6) To the extent practicable within the time required for
action under subsection (g) of this section, and except to the
extent inconsistent with the requirements of this section, the
consideration of any application for an exemption under this
section and the conduct of any hearing under this subsection
shall be in accordance with sections 554, 555, and 556 (other
than subsection (b)(3) of section 556) of title 5, United
States Code.
[(7) Upon request of the Secretary, the head of any Federal
agency is authorized to detail, on a nonreimbursable basis, any
of the personnel of such agency to the Secretary to assist him
in carrying out his duties under this section.
[(8) All meetings and records resulting from activities
pursuant to this subsection shall be open to the public.
[(h) Exemption.--(1) The Committee shall make a final
determination whether or not to grant an exemption within 30
days after receiving the report of the Secretary pursuant to
subsection (g)(5). The Committee shall grant an exemption from
the requirements of subsection (a)(2) for an agency action if,
by a vote of not less than five of its members voting in
person--
[(A) it determines on the record, based on the report
of the Secretary, the record of the hearing held under
subsection (g)(4), and on such other testimony or
evidence as it may receive, that--
[(i) there are no reasonable and prudent
alternatives to the agency action;
[(ii) the benefits of such action clearly
outweigh the benefits of alternative courses of
action consistent with conserving the species
or its critical habitat, and such action is in
the public interest;
[(iii) the action is of regional or national
significance; and
[(iv) neither the Federal agency concerned
nor the exemption applicant made any
irreversible or irretrievable commitment of
resources prohibited by subsection (d); and
[(B) it establishes such reasonable mitigation and
enhancement measures, including, but not limited to,
live propagation, transplantation, and habitat
acquisition and improvement, as are necessary and
appropriate to minimize the adverse effects of the
agency action upon the endangered species, threatened
species, or critical habitat concerned.
Any final determination by Committee under this subsection
shall be considered final agency action for purposes of chapter
7 of title 5 of the United States Code.
[(2)(A) Except as provided in subparagraph (B), an exemption
for an agency action granted under paragraph (1) shall
constitute a permanent exemption with respect to all endangered
or threatened species for the purposes of completing such
agency action--
[(i) regardless whether the species was identified in
the biological assessment; and
[(ii) only if a biological assessment has been
conducted under subsection (c) with respect to such
agency action.
[(B) An exemption shall be permanent under subparagraph (A)
unless--
[(i) the Secretary finds, based on the best
scientific and commercial data available, that such
exemption would result in the extinction of a species
that was not the subject of consultation under
subsection (a)(2) or was not identified in any
biological assessment conducted under subsection (c),
and
[(ii) the Committee determines within 60 days after
the date of the Secretary's finding that the exemption
should not be permanent.
If the Secretary makes a finding described in clause (i), the
Committee shall meet with respect to the matter within 30 days
after the date of the finding.
[(i) Review by Secretary of State.--Notwithstanding any other
provision of this Act, the Committee shall be prohibited from
considering for exemption any application made to it, if the
Secretary of State, after a review of the proposed agency
action and its potential implications, and after hearing,
certifies, in writing, to the Committee within 60 days of any
application made under this section that the granting of any
such exemption and the carrying out of such action would be in
violation of an international treaty obligation or other
international obligation of the United States. The Secretary of
State shall, at the time of such certification, publish a copy
thereof in the Federal Register.
[(j) Notwithstanding any other provision of this Act, the
Committee shall grant an exemption for any agency action if the
Secretary of Defense finds that such exemption is necessary for
reasons of national security.
[(k) Special Provisions.--An exemption decision by the
Committee under this section shall not be a major Federal
action for purposes of the National Environmental Policy Act of
1969 (42 U.S.C. 4321 et seq.): Provided, That an environmental
impact statement which discusses the impacts upon endangered
species or threatened species or their critical habitats shall
have been previously prepared with respect to any agency action
exempted by such order.
[(l) Committee Orders.--(1) If the Committee determines under
subsection (h) that an exemption should be granted with respect
to any agency action, the Committee shall issue an order
granting the exemption and specifying the mitigation and
enhancement measures established pursuant to subsection (h)
which shall be carried out and paid for by the exemption
applicant in implementing the agency action. All necessary
mitigation and enhancement measures shall be authorized prior
to the implementing of the agency action and funded
concurrently with all other project features.
[(2) The applicant receiving such exemption shall include the
costs of such mitigation and enhancement measures within the
overall costs of continuing the proposed action.
Notwithstanding the preceding sentence the costs of such
measures shall not be treated as project costs for the purpose
of computing benefit-cost or other ratios for the proposed
action. Any applicant may request the Secretary to carry out
such mitigation and enhancement measures. The costs incurred by
the Secretary in carrying out any such measures shall be paid
by the applicant receiving the exemption. No later than one
year after the granting of an exemption, the exemption
applicant shall submit to the Council on Environmental Quality
a report describing its compliance with the mitigation and
enhancement measures prescribed by this section. Such report
shall be submitted annually until all such mitigation and
enhancement measures have been completed. Notice of the public
availability of such reports shall be published in the Federal
Register by the Council on Environmental Quality.
[(m) Notice.--The 60-day notice requirement of section 11(g)
of this Act shall not apply with respect to review of any final
determination of the Committee under subsection (h) of this
section granting an exemption from the requirements of
subsection (a)(2) of this section.
[(n) Judicial Review.--Any person, as defined by section
3(13) of this Act, may obtain judicial review, under chapter 7
of title 5 of the United States Code, of any decision of the
Endangered Species Committee under subsection (h) in the United
States Court of Appeals for (1) any circuit wherein the agency
action concerned willbe, or is being, carried out, or (2) in
any case in which the agency action will be, or is being, carried out
outside of any circuit, the District of Columbia, by filing in such
court within 90 days after the date of issuance of the decision, a
written petition for review. A copy of such petition shall be
transmitted by the clerk of the court to the Committee and the
Committee shall file in the court the record in the proceeding, as
provided in section 2112, of title 28, United States Code. Attorneys
designated by the Endangered Species Committee may appear for, and
represent the Committee in any action for review under this
subsection.]
[(o) Exemption as Providing Exception on Taking of Endangered
Species.] (f) Exception for Taking in Accordance With
Statement.--Notwithstanding sections 4(d) and 9(a)(1)(B) and
(C) of this Act, sections 101 and 102 of the Marine Mammal
Protection Act of 1972, or any regulation promulgated to
implement any [such section--
[(1) any action for which an exemption is granted
under subsection (h) of this section shall not be
considered to be a taking of any endangered species or
threatened species with respect to any activity which
is necessary to carry out such action; and
[(2) any taking] such section, any taking that is in
compliance with the terms and conditions specified in a
written statement provided under subsection (b)(4)(iv)
of this section shall not be considered to be a
prohibited taking of the species concerned.
[(p) Exemptions in Presidentially Declared Disaster Areas.--
In any area which has been declared by the President to be a
major disaster area under the Disaster Relief and Emergency
Assistance Act, the President is authorized to make the
determinations required by subsections (g) and (h) of this
section for any project for the repair or replacement of a
public facility substantially as it existed prior to the
disaster under section 405 or 406 of the Disaster Relief and
Emergency Assistance Act, and which the President determines
(1) is necessary to prevent the recurrence of such a natural
disaster and to reduce the potential loss of human life, and
(2) to involve an emergency situation which does not allow the
ordinary procedures of this section to be followed.
Notwithstanding any other provision of this section, the
Committee shall accept the determinations of the President
under this subsection.]
* * * * * * *
(q) Actions Not Requiring Consultation and Conferencing.--
(1) In general.--Consultation and conferencing 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
management agreement under section 6 or an
incidental taking permit under section 10; or
(C) consists of routine operation,
maintenance, rehabilitation, repair, or
replacement to a Federal or non-Federal project
or facility, including operation of a project
or facility in accordance with a previously
issued Federal license, permit, or other
authorization.
(2) Emergency consultations.--In response 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 applicant 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 prohibited by this
Act or any regulation issued under this Act if the
action is consistent with--
(A) the actions provided for in a final
recovery 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.
* * * * * * *
prohibited acts
Sec. 9. (a) General.--(1) * * *
* * * * * * *
(3) Protecting public health and safety.--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
natural 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
activity that consists of--
(i) ongoing maintenance, routine
operation or use, and emergency repair
of existing pipelines, flood control
facilities or projects, fire breaks,
transmission and distribution lines,
groundwater recharge facilities and
areas, water storage and recycling
facilities, water drainage or water
conveyance structures and channels, and
appurtenant facilities;
(ii) road and right-of-away
maintenance, use, and repair; or
(iii) emergency repair or restoration
of any property or non-Federal facility
to the condition in which it existed or
operated immediately before an
emergency or disaster, meeting current
standards.
* * * * * * *
exceptions
Sec. 10. (a) Permits.--(1) * * *
* * * * * * *
[(2)(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 conservation plan that
specifies--
[(i) the impact which will likely result from such
taking;
[(ii) what steps the applicant will take to minimize
and mitigate such impacts, and the funding that will be
available to implement such steps;
[(iii) what alternative actions to such taking the
applicant considered and the reasons why such
alternatives are not being utilized; and
[(iv) such other measures that the Secretary may
require as being necessary or appropriate for purposes
of the plan.
[(B) If the Secretary finds, after opportunity for public
comment, with respect to a permit application and the related
conservation plan that--
[(i) the taking will be incidental;
[(ii) the applicant will, to the maximum extent
practicable, minimize and mitigate the impacts of such
taking;
[(iii) the applicant will ensure that adequate
funding for the plan will be provided;
[(iv) the taking will not appreciably reduce the
likelihood of the survival and recovery of the species
in the wild; and
[(v) the measures, if any, required under
subparagraph (A)(iv) will be met;
and he has received such other assurances as he may require
that the plan will be implemented, the Secretary shall issue
the permit. The permit shall contain such terms and conditions
as the Secretary deems necessary or appropriate to carry out
the purposes of this paragraph, including, but not limited to,
such reporting requirements as the Secretary deems necessary
for determining whether such terms and conditions are being
complied with.
[(C) The Secretary shall revoke a permit issued under this
paragraph if he finds that the permittee is not complying with
the terms and conditions of the permit.]
(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 reasonably
and economically take consistent with the
purposes and objectives of the taking to
minimize and mitigate such impacts, and the
funding that will be available to implement
such steps; and
(iii) what alternative actions to such taking
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 application
and the related species conservation plan that--
(i) the taking will be incidental;
(ii) the applicant will, to the extent
reasonable and economically practicable,
minimize the impacts of such taking;
(iii) the applicant will ensure that adequate
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 subparagraph
(A)(ii) will be met;
and the Secretary has received such other assurances as
the Secretary may require that the plan will be
implemented, the Secretary shall issue the permit. The
permit shall contain such reasonable and economically
practicable terms and conditions consistent with the
purposes and objectives of the activity as the
Secretary deems necessary to carry out the purposes of
this paragraph, including, but not limited to, such
reporting requirements as the Secretary deems necessary
for determining whether such terms and conditions are
being complied with. The Secretary shall include those
terms and conditions that accomplish the goals of this
section for the least cost to the permit applicant.
(C) The Secretary may not require the applicant, 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
receive 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
permit, 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 activities are
conducted under the permit.
(D)(i) The Secretary shall complete the processing
of, and approve or deny, any application fora 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
submission 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 respect
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 submitted
under subparagraph (A) to be insufficient or
incomplete, the Secretary shall respond in writing to
the applicant within 30 days after receiving the
application, 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 applicant,
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
conditions of the permit;
(ii) any action by the Secretary in
implementing, 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 Secretary
determines that the issuance, amendment, or
renewal, respectively, will not appreciably
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 required 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 permittee in
compliance with the permit be required to make any
additional payment for any purpose, or accept 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 proceeding 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.
* * * * * * *
(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
funded (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
carrying out construction.
(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 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,
and does not violate the baseline requirement
established 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
conditions 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
distribution of endangered species or
threatened species, quantity or quality of
habitat, or such other indicators as
appropriate.
(2) Standards and guidelines.--The Secretary 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
appropriations to carry out this section, the
Secretary may provide a grant of up to $10,000
to any individual private landowner to assist
the landowner in carrying out a safe harbor
agreement 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.
* * * * * * *
penalties and enforcement
Sec. 11. (a) Civil Penalties.--(1) * * *
* * * * * * *
[(g) Citizen Suits.--(1) Except as provided in paragraph (2)
of this subsection any person may commence a civil suit on his
own behalf--
[(A) to enjoin any person, including the United
States and any other governmental instrumentality or
agency (to the extent permitted by the eleventh
amendment to the Constitution), who is alleged to be in
violation of any provision of this Act or regulation
issued under the authority thereof; or]
(g) Citizen Suits.--
(1) In general.--Except as provided in paragraph (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 suffered 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
irreparable harm to a threatened species or
endangered species;
* * * * * * *
(6) Intervention.--Any person may intervene as a
matter of right in any civil suit brought under this
subsection if such suit presents a reasonable 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 potential settlements
as do the parties to the suit.
* * * * * * *
[repealer
[Sec. 14. The Endangered Species Conservation Act of 1969
(sections 1 through 3 of the Act of October 15, 1966, and
sections 1 through 6 of the Act of December 5, 1969; 16 U.S.C.
668aa-668cc-6), is repealed.
[authorization of appropriations
[Sec. 15. (a) In General.--Except as provided in subsection
(b), (c), and (d), there are authorized to be appropriated--
[(1) not to exceed $35,000,000 for fiscal year 1988,
$36,500,000 for fiscal year 1989, $38,000,000 for
fiscal year 1990, $39,500,000 for fiscal year 1991, and
$41,500,000 for fiscal year 1992 to enable the
Department of the Interior to carry out such functions
and responsibilities as it may have been given under
this Act;
[(2) not to exceed $5,750,000 for fiscal year 1988,
$6,250,000 for each of fiscal years 1989 and 1990, and
$6,750,000 for each of fiscal year 1991 and 1992 to
enable the Department of Commerce to carry out such
functions and responsibilities as it may have been
given under this Act; and
[(3) not to exceed $2,200,000 for fiscal year 1988,
$2,400,000 for each of fiscal years 1989 and 1990, and
$2,600,000 for each of fiscal years 1991 and 1992, to
enable the Department of Agriculture to carry out its
functions and responsibilities with respect to the
enforcement of this Act and the Convention which
pertain to the importation or exportation of plants.
[(b) Exemptions From Act.--There are authorized to be
appropriated to the Secretary to assist him and the Endangered
Species Committee in carrying out their functions under
sections 7 (e), (g), and (h) not to exceed $600,000 for each of
fiscal years 1988, 1989, 1990, 1991, and 1992.
[(c) Convention Implementation.--There are authorized to be
appropriated to the Department of the Interior for purposes of
carrying out section 8A(e) not to exceed $400,000 for each of
fiscal years 1988, 1989, and 1990, and $500,000 for each of
fiscal years 1991 and 1992, and such sums shall remain
available until expended.]
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 answers, 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 members of the public are provided
with the information sought at the public meeting.
SEC. 15. AUTHORIZATION OF APPROPRIATIONS.
(a) In General.--There are authorized to be appropriated--
(1) to the Department of the Interior to carry out
the duties of the Secretary of the Interior under this
Act $130,000,000 for fiscal year 2001, $140,000,000 for
fiscal year 2002, $150,000,000 for fiscal year 2003,
and $160,000,000 for fiscal year 2004;
(2) to the Department of Commerce to carry out the
duties of the Secretary of Commerce under this Act
$30,000,000 for fiscal year 2001, $35,000,000 for
fiscal year 2002, $40,000,000 for fiscal year 2003, and
$45,000,000 for fiscal year 2004; and
(3) to the Department of Agriculture to carry out the
duties of the Secretary of Agriculture under this Act
$4,000,000 for each of fiscal years 2001 through 2004.
(b) Convention Implementation.--In addition to the other
amounts authorized by this section, there are authorized to be
appropriated to the Secretary of the Interior to carry out
section 8A $1,000,000 for each of fiscal years 2001 through
2004, to remain available until expended.
(c) Safe Harbor Agreements.--In addition to the other amounts
authorized by this section, there are authorized to be
appropriated to the Secretary to carry out section 10(l)
$10,000,000 for each of fiscal years 2001 through 2004, to
remain available until expended.
* * * * * * *
DISSENTING VIEWS
We remain strongly opposed to H.R. 3160. We do not deny
there are frustrations with the ESA and the manner in which it
is implemented. We also all recognize that changes in the law
could be made to address those frustrations. We agree that
listing decisions should be made on the best science available
and that states and local governments can and should play a
role in recovery efforts; that there can and should provide
more incentives for private landowners to protect species on
their property; and that the law has not done enough to recover
species and get them off the list. This bill, however, is not
the answer to those needed changes.
While H.R. 3160 purports to address the problems of
recovery and the scientific integrity of the listing process,
it goes far beyond those goals and makes broad sweeping changes
to the Act that will fundamentally undermine the law's premise
of protecting and recovering endangered species throughout the
United States. Some of the most obvious concerns are discussed
below, but by no means does this constitute a comprehensive
litany of all the concerns regarding the legislation.
Changes to scientific requirements and listing procedures
While the premise of these new requirements are valid, that
listing decisions under the Act should be based on the best
scientific information available, the bill also adds many other
requirements that are so burdensome that the overall effect
will be to greatly slow not only the listing process, but the
delisting and critical habitat designations processes as well.
For example, the bill requires peer reviews at each step of
the regulatory process to protect species, including the
listing decision, identification of critical habitat, jeopardy
decisions, and for mitigation requirements under section 10
HCPs. While peer review of FWS and NMFS decisions is warranted,
this duplicative review requirement could simply delay it to
the point where emergency listing is required or listing is no
longer needed because the species is extinct. In addition,
while the term peer review implies a review that is consistent
with the academic peer review process, the process that is
established in the bill is very different and could be quite
difficult to implement.
In addition, the legislation requires the Secretary to
demonstrate by a preponderance of the scientific evidence that
a species should be listed anytime a listing is challenged by
the Governor or a tribe, but does not stipulate the quality of
the evidence that must be provided to support the challenge. It
also allows for petitions to delist any species currently
listed, if such species was not subject to the new peer review
requirements laid out in this bill. This could potentially
result in a flood of delisting petitions with which the
Secretary would be forced to contend.
Finally, H.R. 3160 would preclude the federal listing of a
distinct population of a species if it is already listed under
a state plan and the state law prohibits the unpermitted take
of such species. This provision will result in inconsistent
protections for species between states and much weaker
protection within states that have ESA programs which are not
comparable to the Federal program.
Reduced Federal agency responsibility
Perhaps even more significant and serious are the
provisions of the bill that dramatically reduce the
responsibility of Federal agencies to protect species. Under
the current law, all federal agencies must consult with the FWS
or NMFS to insure that their actions neither jeopardize the
continued existence of endangered or threatened species nor
adversely modify critical habitat. H.R. 3160 makes several
significant changes to current law that greatly reduce the
mandatory and paramount nature of the obligations imposed on
federal agencies under Section 7 of the ESA to protect and
recover species.
First, the consultation requirement is qualified with the
phrase ``consistent with their primary mission'', thereby
requiring agencies to accommodate the needs of listed species
only to the extent that they deem it to be consistent with
their other duties. This shift in the burden of responsibility
will greatly reduce the protection that these federal agencies
are compelled to provide. In fact, this approach was first
adopted in 1966 in the original ESA, but was soon revised
because few if any federal agencies found the protection of
species consistent with their primary mission.
Second, the bill weakens the jeopardy standard. While
maintaining the requirement that federal agencies insure their
actions are not ``likely to jeopardize the continued existence
of any endangered or threatened species'', it defines the term
``likely to jeopardize the continued existence of'' to mean an
action or activity that significantly diminishes the likelihood
of survival of the species by significantly reducing the
numbers or distribution of the entire species'', thereby
undermining the effectiveness of the requirement. According to
Administration comments on 1995 legislation which included the
same language, this new definition of the jeopardy standard
``would make it difficult, if not impossible, to find that any
Federal action jeopardized any distinct population segment such
as the bald eagle, any subspecies, or any species which,
although endangered in the U.S. is found anywhere else in the
world''. In addition, it would be difficult to find jeopardy in
one part of the U.S. if the species occurred elsewhere in the
country or possibly even in captivity.
Finally, the bill exempts routine maintenance, repair or
replacement of any Federal or non-Federal facility from the
consultation requirements of the Act. Moreover, it does not
define ``Federal or non-Federal facility''. With this latitude,
it could potentially exempt the operation and maintenance of
virtually everything from roads to dams from the requirements
to protect species. The effect of this exemption is so broad
and far reaching that, combined with the change in the jeopardy
standard and theconsistency provision, it could effectively
eliminate consideration and protection of listed species by federal
agencies.
Changes in permitting and enforcement requirements
While it might be assumed that the requirements to protect
species would then fall to private land owners and non-Federal
entities, the bill makes several changes to Section 9 of the
Act that effectively undermine those protections as well.
Currently, Section 9 prohibits activities that ``take''
listed species and require an incidental take permit that will
minimize and mitigate impacts of such activities. Take is
defined by the Act as any activity which would ``harm, harass,
pursue, hunt, shoot, wound, kill, trap, capture, or collect'' a
listed species. Court rulings have interpreted this definition
to include activities that would impact habitat of listed
species. Exemptions from this permitting process are allowed in
emergency situations. H.R. 3160, however, would exempt ongoing
maintenance, routine operation or use, and emergency repair of
pipelines, flood control facilities or projects, transmission
and distribution lines, water storage, drainage, conveyance, or
recycling facilities as well as road and right-of-way
maintenance, use and repair from the take prohibition and make
no requirement that they minimize and mitigate their impact on
listed species.
Similar to, but even broader than, legislation that was
considered and rejected by the House in 1997 (H.R. 478), this
could include a wide range of activities from the operation of
a dam to the construction of a drainage ditch next to a road.
This exemption would apply at any time, not just in emergency
situations. While this would have clear negative impacts on
listed species, it could also have unintended consequences as
other interests, including fishermen, cattlemen, and loggers,
would still be subject to the requirements of the Act. For
example, operations of flood control and water conveyance,
storage and irrigation systems in Northern California could be
virtually exempt from the requirements to protect and recover
species like salmon. At the same time, small boat fishermen,
who have already seen their salmon harvest reduced to
economically unsustainable levels to rebuild salmon stocks,
will be forced to cut their harvest even more and possibly be
shut down altogether. This is not fair and it does nothing to
solve the problem of recovering species.
H.R. 3160 also makes changes in conditions for issuing
incidental take permits. In order to receive an ITP, an
individual must demonstrate, among other things, that the take
of the species will not ``appreciably reduce the likelihood of
the survival and recovery of the species in the wild''. H.R.
3160 amends this requirement by deleting the phrase ``in the
wild'', potentially establishing a situation where species
could exist in captivity and the take of the species in the
wild would not be regarded as impacting the survival and
recovery of the species. Clearly, this is a weaker standard
than now exists.
In conclusion, in the name of good science, the bill shifts
the burden of proof for listing species, and creates a
situation where the absence of perfect scientific knowledge
delays listings indefinitely. The effect will be to delay
listings to the point where they likely are not needed because
the species is extinct.
The bill also provides broad exemptions from the
requirements to protect species for the routine operation,
maintenance, rehabilitation, repair or replacement of any
federal or non-federal facility, and stipulates that federal
agencies must only protect species to the extent that it is
consistent with their ``primary mission''. These changes will
significantly reduce--if not elliminate--federal agencies'
responsibilities to protect listed species.
At the same time, the equally broad exemption from the take
prohibition provisions of the law for the ongoing maintenance
and routine operation or use of any water storage, drainage,
conveyance or recycling facility as well as flood control
facilities, transmission and distribution lines, and roads, may
leave some wondering who will be subject to the ESA and the
requirements to protect species. In fact, it will be fishermen
and farmers, and perhaps grazers, who will be forced to bear an
even greater responsibility for species conservation.
If we are serious about our desire to reform the ESA and
start recovering species, then let's do that. Let's work
together to draft legislation that will have the support of the
Administration, the environmental community, fishermen, and
small landowners and achieves our common goal--an ESA that
recovers species and works for landowners. This bill will not
have that support or achieve that goal, and instead will be
divisive and ultimately unsuccessful.
George Miller.
Frank Pallone, Jr.
Mark Udall.
Jim Saxton.
Rush D. Holt.