[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2275 Introduced in House (IH)]
104th CONGRESS
1st Session
H. R. 2275
To reauthorize and amend the Endangered Species Act of 1973.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
September 7, 1995
Mr. Young of Alaska (for himself, Mr. Pombo, Mr. Tauzin, Mr. Brewster,
Mr. Doolittle, Mr. Hansen, Mr. Dooley, Mr. Calvert, Mr. Condit, Mr.
Stenholm, Mr. Stump, Mr. Smith of Texas, Mr. Gallegly, Mr. Fields of
Texas, Mr. Kolbe, Ms. Danner, Mr. Hutchinson, Mr. Hayworth, Mr.
Hastings of Washington, Mr. Bonilla, Mr. McHugh, Mr. Dornan, Mr.
Herger, Mr. Everett, Mr. Taylor of North Carolina, Mr. Packard, Mr.
Cunningham, Mr. Thornberry, Mr. Hayes, Mr. Royce, Mr. Combest, Mr.
Cooley, Mr. Salmon, Mr. Bono, Mr. Baker of California, Mr. Hunter, Mr.
Lewis of California, Mrs. Cubin, Mr. McKeon, Mr. Radanovich, Mr. Riggs,
Mr. Rohrabacher, Mrs. Seastrand, Mr. Thomas, Mr. Allard, Mr. Schaefer,
Mr. Mica, Mr. Chambliss, Mr. Collins of Georgia, Mr. Linder, Mr. Baker
of Louisiana, Mr. Crapo, Mr. Ewing, Mr. Burton of Indiana, Mr.
Hostettler, Mr. McIntosh, Mr. Roberts, Mr. Lewis of Kentucky, Mr.
Bartlett of Maryland, Mr. Knollenberg, Mr. Emerson, Mr. Hancock, Mr.
Skeen, Mr. Paxon, Mr. Solomon, Mr. Ballenger, Mr. Jones, Mr. Oxley, Mr.
Coburn, Mr. Largent, Mr. Lucas, Mr. Watts of Oklahoma, Mr. Barton of
Texas, Mr. DeLay, Mr. Sam Johnson of Texas, Mr. Stockman, Mr. Shadegg,
Mr. Callahan, Mr. Laughlin, Mrs. Vucanovich, Mr. Tejeda, Mr. Bachus,
Mr. Cox of California, Mr. Funderburk, Mr. Boehner, Mr. Crane, Mr.
Dreier, Mr. Edwards, Mr. Nethercutt, Mr. Pete Geren of Texas, Mr.
Ortiz, Mr. Hall of Texas, Mr. Duncan, Mr. McCrery, and Mr. Livingston)
introduced the following bill; which was referred to the Committee on
Resources, and in addition to the Committee on Agriculture, for a
period to be subsequently determined by the Speaker, in each case for
consideration of such provisions as fall within the jurisdiction of the
committee concerned
_______________________________________________________________________
A BILL
To reauthorize and amend the Endangered Species Act of 1973.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Endangered Species
Conservation and Management Act of 1995''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. References to Endangered Species Act of 1973.
Sec. 3. Findings, purposes, and policy of Endangered Species Act of
1973.
TITLE I--PRIVATE PROPERTY RIGHTS AND VOLUNTARY INCENTIVES FOR PRIVATE
PROPERTY OWNERS
Sec. 101. Compensation for use or taking of private property.
Sec. 102. Voluntary cooperative management agreements.
Sec. 103. Grants for improving and conserving habitat for species.
Sec. 104. Technical assistance programs.
Sec. 105. Water rights.
TITLE II--IMPROVING ABILITY TO COMPLY WITH THE ENDANGERED SPECIES ACT
OF 1973
Sec. 201. Enforcement procedures.
Sec. 202. Removing punitive disincentives.
Sec. 203. Allowing non-Federal persons to use the consultation
procedures.
Sec. 204. Permitting requirements for incidental takes.
Sec. 205. General, research, and educational permits.
Sec. 206. Maintenance of aquatic habitats for listed species.
Sec. 207. Compliance with international requirements and treaties.
Sec. 208. Incentives for protection of marine species.
TITLE III--IMPROVING SCIENTIFIC INTEGRITY OF LISTING DECISIONS AND
PROCEDURES
Sec. 301. Improving the validity and credibility of decisions.
Sec. 302. Peer review.
Sec. 303. Making data public.
Sec. 304. Improving the petition and designation processes.
Sec. 305. Greater State involvement.
Sec. 306. Monitoring the status of species.
Sec. 307. Petitions to delist species.
TITLE IV--RECOGNIZING OTHER FEDERAL ACTION, LAWS, AND MISSIONS
Sec. 401. Balance ESA with other laws and missions.
Sec. 402. Exemptions from consultation and conferencing.
Sec. 403. Eliminating the exemption committee (GOD committee).
TITLE V--BETTER MANAGEMENT AND CONSERVATION OF LISTED SPECIES
Sec. 501. Setting conservation objectives.
Sec. 502. Preparing a conservation plan.
Sec. 503. Interim measures.
Sec. 504. Critical habitat for species.
Sec. 505. Recognition of captive propagation as means of recovery.
Sec. 506. Introduction of species.
Sec. 507. Conserving threatened species.
TITLE VI--HABITAT PROTECTIONS
Sec. 601. Federal biological diversity reserve.
Sec. 602. Land acquisition.
Sec. 603. Property exchanges.
TITLE VII--STATE AUTHORITY TO PROTECT ENDANGERED AND THREATENED SPECIES
Sec. 701. State authority.
Sec. 702. State programs affected by the Convention.
TITLE VIII--FUNDING OF CONSERVATION MEASURES
Sec. 801. Authorizing increased appropriations.
Sec. 802. Funding of Federal mandates.
Sec. 803. Endangered Species and Threatened Species Conservation Trust
Fund.
TITLE IX--MISCELLANEOUS PROVISIONS
Sec. 901. Amendments to definitions.
Sec. 902. Review of species of national interest.
Sec. 903. Preparation of conservation plans for species listed before
enactment of this Act.
Sec. 904. Conforming amendment to table of contents.
SEC. 2. REFERENCES TO ENDANGERED SPECIES ACT OF 1973.
Except as otherwise expressly provided, whenever in this Act an
amendment or repeal is expressed in terms of an amendment to, or repeal
of, a section or other provision, the reference shall be considered to
be made to such section or other provision of the Endangered Species
Act of 1973 (16 U.S.C. 1531 et seq.).
SEC. 3. FINDINGS, PURPOSES, AND POLICY OF ENDANGERED SPECIES ACT OF
1973.
(a) Findings.--Section 2(a) (16 U.S.C. 1531(a)) is amended--
(1) by amending paragraph (1) to read as follows:
``(1) various species of fish, wildlife, and plants in the
United States have been rendered extinct because of inadequate
conservation practices and natural processes;''; and
(2) by striking ``and'' after the semicolon at the end of
paragraph (4)(G), by striking the period at the end of
paragraph (5) and inserting ``; and'', and by adding at the end
the following new paragraph:
``(6) the Nation's economic well-being is essential to the
ability to maintain a sustainable resource base, therefore
economic impacts and private property owners' rights must be
considered while encouraging practices that protect species.''.
(b) Purposes and Policy.--Section 2 (b) and (c) (16 U.S.C. 1531
(b), (c)) are amended to read as follows:
``(b) Purposes.--The purposes of this Act are the following:
``(1) To provide a feasible and practical means to conserve
endangered species and threatened species consistent with
protection of the rights of private property owners and
ensuring economic stability.
``(2) To provide a program for the conservation and
management of such endangered species and threatened species
taking into account the economic and social consequences of
such program.
``(3) To take such steps as may be practicable to achieve
the purposes of the treaties and conventions set forth in
subsection (a) of this section.
``(c) Policy.--
``(1) Federal authority.--It is further declared to be the
policy of Congress that all Federal departments and agencies
shall seek to conserve and manage endangered species and
threatened species and shall, consistent with their primary
missions, utilize their authorities in furtherance of the
purposes of this Act.
``(2) Cooperation with states.--It is further declared to
be the policy of Congress that Federal agencies shall cooperate
with State and local agencies to resolve water resource issues
in concert with conservation of endangered species and
consistent with State and local water laws.
``(3) Protection of private property rights.--It is the
policy of the Federal Government that agency action taken
pursuant to this Act shall not use or limit the use of
privately owned property when such action diminishes the value
of such property without payment of fair market value to the
owner of private property. Each Federal agency, officer, and
employee shall exercise authority under this Act to ensure that
agency action will not violate the policy established in this
paragraph.''.
TITLE I--PRIVATE PROPERTY RIGHTS AND VOLUNTARY INCENTIVES FOR PRIVATE
PROPERTY OWNERS
SEC. 101. COMPENSATION FOR USE OR TAKING OF PRIVATE PROPERTY.
The Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) is
amended by adding at the end the following new section:
``SEC. 19. RIGHT TO COMPENSATION.
``(a) Prohibition.--The Federal Government shall not take an agency
action affecting privately owned property or nonfederally owned
property under this Act which results in diminishment of value of any
portion of that property by 20 percent or more unless compensation is
offered in accordance with this section.
``(b) Compensation for Use or Limitation on Use.--The agency or
agencies that take an agency action that exceeds the amount provided in
subsection (a) shall compensate the private property owner for the
otherwise lawful use or limitation on the otherwise lawful use in the
amount of the diminution in value of the portion of that property
resulting from the use or limitation on use. If the diminution in value
of a portion of that property is greater than 50 percent, at the option
of the owner, the agency or agencies shall buy that portion of the
property and shall pay fair market value based on the value of the
property before the use or limitation on use was imposed. Compensation
paid shall reflect the duration of the use or limitation on use
necessary to achieve the purposes of this Act.
``(c) Request of Owner.--An owner seeking compensation under this
section shall make a written request for compensation to the agency
implementing the agency action. The request shall, at a minimum,
identify the affected portion of the property, the nature of the use or
limitation, and the amount of compensation claimed. No such request may
be made later than one year after the owner receives actual notice that
the use of property has been limited by an agency action.
``(d) Negotiations.--The agency may negotiate with that owner to
reach agreement on the amount of the compensation and the terms of any
agreement for payment. If such an agreement is reached, the agency
shall promptly pay the owner the amount agreed upon. An agreement under
this section may include a transfer of the title or an agreement to use
the property for a limited period of time.
``(e) Choice of Remedies.--If, not later than 180 days after the
written request is made, the parties have not reached an agreement on
compensation, the owner may elect binding arbitration or seek
compensation due under this section in a civil action.
``(f) Arbitration.--The procedures that govern the arbitration
shall, as nearly as practicable, be those established under title 9,
United States Code, for arbitration proceedings to which that title
applies. An award made in such arbitration shall include a reasonable
attorney's fee and other arbitration costs, including appraisal fees.
The agency shall promptly pay any award made to the owner.
``(g) Civil Action.--An owner who prevails in a civil action
against the agency pursuant to this section shall be entitled to, and
the agency shall be liable for, the amount of compensation awarded plus
reasonable attorney's fees and other litigation costs, including
appraisal fees. The court shall award interest on the amount of any
compensation from the time of the limitation.
``(h) Source of Payments.--Any payment made under this section to
an owner, and any judgment obtained by an owner in a civil action under
this section shall, notwithstanding any other provision of law, be made
from the annual appropriation of the agency that took the agency
action. If the agency action resulted from a requirement imposed by
another agency, then the agency making the payment or satisfying the
judgment may seek partial or complete reimbursement from the
appropriated funds of the other agency. For this purpose the head of
the agency concerned may transfer or reprogram any appropriated funds
available to the agency. If insufficient funds exist for the payment or
to satisfy the judgment, it shall be the duty of the head of the agency
to seek the appropriation of such funds for the next fiscal year.
``(i) Availability of Appropriations.--Notwithstanding any other
provision of law, any obligation of the United States to make any
payment under this section shall be subject to the availability of
appropriations.
``(j) Duty of Notice to Owners.--Whenever an agency takes an agency
action limiting the use of private property the agency shall give
appropriate notice to the owners of that property directly affected
explaining their rights under this section and the procedures for
obtaining any compensation that may be due to them under this section.
``(k) Rules of Construction.--The following rules of construction
shall apply to this Act:
``(1) Other rights preserved.--Nothing in this Act shall be
construed to limit any right to compensation that exists under
the Constitution or under other laws.
``(2) Extent of federal authority.--Payment of compensation
under this section (other than when the property is bought by
the Federal Government at the option of the owner) shall not
confer any rights on the Federal Government other than the use
or limitation on use resulting from the agency action for the
duration so that the agency action may achieve the species
conservation purposes of this Act.
``(l) Definitions.--For the purposes of this section:
``(1) Agency.--The term `agency' has the meaning given that
term in section 551 of title 5, United States Code.
``(2) Agency action.--The term `agency action'--
``(A) subject to subparagraph (B), has the meaning
given that term in section 551 of title 5, United
States Code, and
``(B) includes--
``(i) the loss of use of property to avoid
prosecution under section 11;
``(ii) a designation pursuant to section
9(i) of privately owned property as critical
habitat;
``(iii) the denial of a permit under
section 10 that restricts the use of private
property;
``(iv) an agency action pursuant to a
biological opinion under section 7 that would
cause an agency to restrict the use of private
property;
``(v) an agreement under section 6 to set
aside property for habitat under the terms of
an easement or other contract;
``(vi) a restriction imposed on private
property as part of a conservation plan adopted
by the Secretary under section 5;
``(vii) any other agency action that
restricts a legal right to use that property,
including, the right to alter habitat; and
``(viii) the making of a grant of land or
money, to a public authority or a private
entity as a predicate to an agency action by
the recipient that would constitute a
limitation if done directly by the agency.
``(3) Fair market value.--The term `fair market value'
means the most probable price at which property would change
hands, in a competitive and open market under all conditions
requisite to fair sale, between a willing buyer and willing
seller, neither being under any compulsion to buy or sell and
both having reasonable knowledge of relevant facts, prior to
occurrence of the agency action.
``(4) Law of the state.--The term `law of the State'
includes the law of a political subdivision of a State.
``(5) Limitation on use.--The term `limitation on use'
means only a limitation on a use which is otherwise permissable
under applicable State property or nuisance laws.
``(6) Private property, privately owned property, non-
federal property.--The term `private property', `privately
owned property', or `non-Federal property' means property which
is owned by a person other than any Federal entity of
government.
``(7) Property.--The term `property' means land, an
interest in land, the right to use or receive water, and any
personal property that is subject to use by the Federal
Government or to a restriction on use.''.
SEC. 102. VOLUNTARY COOPERATIVE MANAGEMENT AGREEMENTS.
(a) Cooperative Management Agreement Defined.--Section 3 (16 U.S.C.
1532) is amended--
(1) by redesignating paragraphs (2) through (21) in order
as paragraphs (3), (4), (5), (7), (9), (10), (11), (12), (13),
(18), (19), (20), (22), (23), (24), (25), (26), (27), and (28);
and
(2) by adding after paragraph (5) (as redesignated by
paragraph (1) of this section) the following new paragraph:
``(6) The term `cooperative management agreement' means a voluntary
agreement entered into under section 6(b).''.
(b) Voluntary Cooperative Management Agreements.--Section 6 (16
U.S.C. 1535) is amended by striking so much as precedes subsection (c)
and inserting the following:
``SEC. 6. COOPERATION WITH NON-FEDERAL PERSONS.
``(a) Generally.--In carrying out the program authorized by this
Act, the Secretary shall cooperate to the maximum extent practicable
with the States and other non-Federal persons. Such cooperation shall
include consultation with the States and non-Federal persons concerned
before acquiring any land or water, or interest therein, for the
purpose of conserving any endangered species or threatened species.
``(b) Cooperative Management Agreements.--
``(1) In general.--The Secretary may enter into a
cooperative management agreement with any State or group of
States, political subdivision of a State, local government, or
non-Federal person--
``(A) for the management of a species or group of
species listed as endangered species or threatened
species under section 4, a species or group of species
proposed to be listed under section 4, or species or
group of species which are candidates for listing; or
``(B) for the management or acquisition of an area
which provides habitat for a species.
``(2) Scope of cooperative management agreements.--(A) A
cooperative management agreement entered into under this
subsection--
``(i) may provide for the management of a species
or group of species on both public and private lands
which are under the authority, control or ownership of
a State or group of States, political subdivision of a
State, local government, or non-Federal person and
which are affected by a listing determination, proposed
determination, or proposed candidacy for determination;
and
``(ii) may include the acquisition or designation
of land as habitat for species.
``(B) A cooperative management agreement may not restrict
private or non-Federal property unless written consent to such
restrictions by the non-Federal owner is given either to the
Secretary or the State, political subdivision, local
government, or non-Federal person who is a party to the
agreement.
``(C) The Secretary may grant to a party to an agreement
the authority to undertake programs to enhance the population
or habitat of a species on federally owned lands, except that
such authority shall not otherwise conflict with other uses of
such land which are approved by the Secretary or authorized by
the Congress.
``(D) The Secretary is authorized, in conjunction with
entering into and as a part of any agreement under this
section, to provide funds to carry out the agreement to a non-
Federal person, as provided in paragraph (11).
``(3) Notification.--Not later than 30 days after
submission of a request to enter into a cooperative management
agreement, the party submitting the request shall provide
notice of the request to any non-Federal person or Federal
power marketing administration that would be subject to the
proposed cooperative management agreement.
``(4) Development of proposed agreement.--(A) The
requesting party shall develop and submit to the Secretary a
proposed cooperative management agreement.
``(B) The Secretary shall publish in the Federal Register a
notice of availability and a request for public comment on any
proposed cooperative management agreement between the Secretary
and any governmental entity and shall hold a public hearing on
such a proposed cooperative management agreement in each county
or parish in which the proposed agreement would be in effect.
``(C) Before entering into a cooperative management
agreement with another governmental entity or a non-Federal
person for the management of federally owned land, the
Secretary shall consider and weigh carefully all information
received in response to the request for comment published under
subparagraph (B) and testimony presented in each hearing held
under subparagraph (B).
``(5) Approval of agreement.--(A) Not later than 120 days
after the submission of a proposed cooperative management
agreement under paragraph (4), the Secretary shall determine
whether the proposed agreement is in accordance with this
subsection and will promote the conservation of the species to
which the proposed agreement applies.
``(B) The Secretary shall approve and enter into a proposed
cooperative management agreement, if the Secretary finds that--
``(i) the requesting party has sufficient authority
under law to implement and carry out the terms of the
agreement;
``(ii) the agreement defines an area that serves as
habitat for the species or group of species to which
the agreement applies;
``(iii) the agreement adequately provides for the
administration and management of the identified
management area;
``(iv) the agreement promotes the conservation of
the species to which the agreement applies by
committing Federal or non-Federal efforts to the
conservation;
``(v) the term of the agreement is of sufficient
duration to accomplish the provisions of the agreement;
and
``(vi) the agreement is adequately funded to carry
out the agreement.
``(C) No later than 30 days after entering into a
cooperative management agreement with a governmental entity,
the Secretary shall publish in the Federal Register a notice of
availability of the terms of such agreement and the response of
the Secretary to all information received or presented with
respect to the agreement pursuant to paragraph (4)(B).
``(6) Environmental assessments.--Preparation, approval,
and entering into a cooperative management agreement under this
subsection shall not be subject to section 102(2) of the
National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)).
``(7) No surprises.--For any species or area that is the
subject of a cooperative management agreement under this
subsection, a party to the agreement shall not be required--
``(A) to make any additional payment for any
purpose, or to accept any additional restriction on any
parcel of land available for development or land
management under the agreement, without consent of the
party; or
``(B) to undertake any other measure to minimize or
mitigate impacts on the species in addition to measures
required by the agreement as established.
``(8) Effect of listing of species.--A cooperative
management agreement entered into under this subsection shall
remain in effect and shall not be required to be amended if a
species to which the agreement does not apply is determined to
be an endangered species or threatened species under section 4.
``(9) Applicability of certain provisions.--Sections 5, 7,
and 9 shall not apply to those activities of a party to a
cooperative management agreement which are conducted in
accordance with such agreement.
``(10) Violations of agreements.--(A) If the Secretary
determines that a party to a cooperative management agreement
is not administering or acting in accordance with the
agreement, the Secretary shall notify the party.
``(B) If a party that is notified under subparagraph (A)
fails to take appropriate corrective action within a period of
time determined by the Secretary to be reasonable (not to
exceed 90 days after the date of the notification)--
``(i) the Secretary shall rescind the entire
cooperative management agreement or the applicability
of the agreement to the party that is the subject of
the notification; and
``(ii) beginning on the date of the rescission--
``(I) the entire agreement shall not be
effective, or the agreement shall not be
effective with respect to the party, whichever
is appropriate; and
``(II) sections 5, 7, and 9 shall apply to
activities of the party.''.
SEC. 103. GRANTS FOR IMPROVING AND CONSERVING HABITAT FOR SPECIES.
Section 6 (16 U.S.C. 1535), as amended by section 102(b) of this
Act, is amended by adding at the end of subsection (b) the following
new paragraph:
``(11) Habitat conservation grants.--(A) The Secretary may,
from amounts in the account established by section 13 or from
funds appropriated for such purpose, provide a grant to a non-
Federal person (other than an officer, employee, or agent
(acting in an official capacity) or a department or
instrumentality of a State, municipality, or political
subdivision thereof) for the purpose of conserving, preserving,
or improving habitat for any species that is determined under
section 4 to be an endangered species or a threatened species.
``(B) The Secretary may provide a grant under this
paragraph if the Secretary determines that--
``(i) the property for which the grant is provided
contains habitat that significantly contributes to the
protection of the population of the species;
``(ii) the property has been managed for species
protection for a period of time that has been
sufficient to significantly contribute to the
protection of the population of the species; and
``(iii) the management of the habitat advances the
interest of species protection.
``(C) A grant made under this paragraph shall be
transferable to subsequent owners of the property for which the
grant is provided.''.
SEC. 104. TECHNICAL ASSISTANCE PROGRAMS.
Section 5 (16 U.S.C. 1534), as added by section 501 of this Act and
as amended by sections 502(a), 503, 504(a), and 505 of this Act, is
amended by adding at the end the following new subsection:
``(m) Technical Assistance Program.--
``(1) In general.--The Secretary shall initiate a technical
assistance program to provide technical advice and assistance
to non-Federal persons who wish to participate in achieving the
conservation objective for a species for which a conservation
goal has been adopted under this section. The technical
assistance provided shall include information on habitat needs
of species, optimum management of habitat for species, methods
for propagation of species, feeding needs and habits, predator
controls, and any other information which a non-Federal person
may utilize or request for the purpose of conserving a species
determined to be an endangered species or threatened species or
proposed to be determined as an endangered species or
threatened species.
``(2) Regulations to provide exemptions from section 9.--
The Secretary shall promulgate regulations that establish
exemptions from section 9 for any person who participates in a
conservation program under this subsection.''.
SEC. 105. WATER RIGHTS.
Section 6 (16 U.S.C. 1535) is amended by adding at the end the
following:
``(j) Water Rights.--Nothing in this Act shall be construed to
supersede, abrogate, or otherwise impair any right or authority of a
State to allocate or administer quantities of water (including boundary
waters). Nothing in this Act shall be implemented, enforced, or
construed to allow any officer or agency of the United States to
utilize directly or indirectly the authorities established under this
Act to impose any requirement not imposed by the State which would
supersede, abrogate, condition, restrict, or otherwise impair rights to
the use of water resources allocated under State law, interstate water
compact, or Supreme Court decree, or held by the United States for use
by a State, its political subdivisions, or its citizens. The exercise
of authority pursuant to or in furtherance of this Act shall not be
construed to create a limitation on the exercise of rights to water or
constitute a cause for nondelivery of water pursuant to contract or
State law.''.
TITLE II--IMPROVING ABILITY TO COMPLY WITH THE ENDANGERED SPECIES ACT
OF 1973
SEC. 201. ENFORCEMENT PROCEDURES.
(a) In General.--Section 9(a) (16 U.S.C. 1538(a)) is amended--
(1) in paragraph (1) by amending the matter preceding
subparagraph (A) to read as follows: ``(1) Except as provided
in paragraph (3), section 6(g)(2), subsections (d)(3) and (e)
of section 5, section 7(a), and section 10, with respect to any
endangered species of fish or wildlife listed pursuant to
section 4 it is unlawful for any person subject to the
jurisdiction of the United States to--'';
(2) in paragraph (2) by amending the matter preceding
subparagraph (A) to read as follows: ``(2) Except as provided
in section 6(g)(2), subsections (d)(3) and (e) of section 5,
and section 10, with respect to any endangered species of
plants listed pursuant to section 4, it is unlawful for any
person subject to the jurisdiction of the United States to--'';
and
(3) by adding at the end the following new paragraph:
``(3) Permitted takings.--An activity of a non-Federal
person is not a taking of a species if the activity--
``(A) is consistent with the provisions of a final
conservation plan or conservation objective;
``(B) complies with the terms and conditions of an
incidental take permit or a cooperative management
agreement;
``(C) addresses a critical, imminent 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
``(D) is incidental to, and not the purpose of, the
carrying out of an otherwise lawful activity that
occurs within an area of the territorial sea or
exclusive economic zone established by Proclamation
Numbered 5030, dated March 10, 1983, that is not
designated as critical habitat under section 5(i), and
the affected species is not a species of fish.''.
(b) Rewards and Incidental Expenses.--Section 11 (16 U.S.C. 1540)
is amended--
(1) in subsection (d)(2) by inserting after ``temporary
care for any'' the following: ``endangered species or
threatened species of'';
(2) in subsection (e)(3) in the fourth sentence by striking
``Any fish, wildlife,'' and inserting ``Any endangered species
or threatened species of fish or wildlife,'';
(3) in subsection (e)(4)(A) by inserting ``endangered
species or threatened species of'' after ``All'';
(4) in subsection (e)(4)(B) by inserting ``endangered
species or threatened speices of'' after ``importing of any'';
(5) in subsection (f) in the first sentence by inserting
``endangered species or threatened species of'' after ``storage
of'';
(6) in subsection (e) by adding at the end the following
new paragraph:
``(7) Adoption of regulations.--(A) No interpretation,
policy, guideline, finding, or other informal determination may
be relied upon by the Secretary in the implementation and
enforcement of this Act unless such determination has been the
subject of a proposed rule, subject to review by the public and
comment for a period of no less than 60
days. Any proposed rule under this subparagraph must include--
``(i) a plain-language explanation of the reasons
for and purpose of the proposed rule;
``(ii) an analysis of the anticipated impact of the
proposed rule;
``(iii) an analysis showing that the restoration
benefit of the proposed rule outweighs any negative
conservation impact of that proposed rule;
``(iv) an analysis showing that compliance with the
proposed rule is reasonably within the means of the
State or the range nation concerned; and
``(v) a summary of the literature reviewed and
experts consulted in regard to the species involved,
and a summary of the Secretary's findings based on that
review and consultation.
``(B) No refusal of entry, seizure of evidence, or other
enforcement action may take place under this Act if the action
is based solely on a notification under the Convention or on a
resolution of the Conference of the Parties to the Convention.
``(C) The burden is on the Secretary to show that a
specimen belongs to a species which is determined to be an
endangered species or threatened species under this Act or is
included in an Appendix to the Convention. The Secretary may
not detain a specimen for longer than 30 days for the purpose
of identification. If the specimen cannot be positively
identified within that time, then it shall be released.''; and
(7) by amending subsection (g) to read as follows:
``(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;
``(B) to compel the Secretary to apply, or modify
the application of, the prohibitions set forth in or
authorized pursuant to section 9(a)(1)(B) or 4(d);
``(C) to compel the Secretary to apply, or modify
the application of, the provisions of section 10(a); or
``(D) against the Secretary where there is alleged
a failure of the Secretary to perform any act or duty
under section 4(d) which is not discretionary with the
Secretary.
The district courts shall have jurisdiction to enforce any such
provision or regulation, or to order the Secretary to perform
such act or duty, as the case may be.
``(2) Prerequisite procedures.--(A) No action may be
commenced under paragraph (1)(A)--
``(i) prior to 60 days after written notice of the
alleged violation has been given to the Secretary, and
to any agency or official of the United States who is
alleged to be in violation, except that a State may
commence an action at any time;
``(ii) if the Secretary has commenced action to
impose a penalty pursuant to subsection (a); or
``(iii) if the United States has commenced and is
diligently prosecuting a criminal action in a court of
the United States or a State to redress the alleged
violation of any such provision or regulation.
``(B) No action may be commenced under paragraph (1)(B)
prior to 60 days after written notice has been given to the
Secretary setting forth the reasons for applying, or modifying
the application of, the prohibitions with respect to the taking
of a threatened species.
``(C) No action may be commenced under paragraph (1)(C)
prior to 60 days after written notice has been given to the
Secretary, except that such action may be brought immediately
after such notification in the case of an action under this
subsection respecting an emergency posing a significant risk to
the well-being of any species of fish or wildlife or plants.
``(3) Venue.--Any suit under this subsection may be brought
in the judicial district in which the violation occurs.
``(4) Costs.--The court, in issuing any final order in any
suit brought pursuant to paragraph (1), may award costs of
litigation (excluding attorney and expert witness fees) to any
party, whenever the court determines such award is appropriate.
``(5) Injunctive relief.--The injunctive relief provided by
this subsection shall not restrict any right which any person
(or class of persons) may have under any statute or common law
to seek enforcement of any standard or limitation or to seek
any other relief (including relief against the Secretary or a
State agency).
``(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.''.
SEC. 202. REMOVING PUNITIVE DISINCENTIVES.
Section 3(26) (as redesignated by section 102(a)(1) of this Act) is
amended to read as follows:
``(26)(A) The term `take' means to harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect, or to attempt to
engage in that conduct.
``(B) In subparagraph (A), the term `harm' means to take a
direct action against any member of an endangered species of
fish or wildlife that actually injures or kills a member of the
species.''.
SEC. 203. ALLOWING NON-FEDERAL PERSONS TO USE THE CONSULTATION
PROCEDURES.
Section 10(a) (16 U.S.C. 1539(a)), as amended by section 204(b) of
this Act, is amended by adding at the end the following new paragraph:
``(3) Voluntary consultation.--(A) Subject to such
regulations as the Secretary may issue, any non-Federal person
may initiate consultation with the Secretary on any prospective
activity of the person--
``(i) to determine if the activity is consistent or
inconsistent with a conservation plan or conservation
objective; or
``(ii) if the person determines that the activity
is inconsistent, to determine whether the activity is
likely to jeopardize the continued existence of an
endangered species or a threatened species, or to
destroy or adversely modify the designated critical
habitat of the species in a manner that is likely to
jeopardize the continued existence of the species.
``(B) The voluntary consultation process for non-Federal
persons authorized by subparagraph (A) shall be conducted in
accordance with the procedures and requirements for
consultation on agency actions set forth in section 7, except
that--
``(i) the period for completion of the consultation
shall be 90 days from the date on which the
consultation is initiated, or not later than such other
date as is mutually agreeable to the Secretary and the
person initiating the consultation;
``(ii) the person initiating the consultation shall
not be required to prepare a biological assessment or
equivalent document;
``(iii) neither the activity for which the
consultation process is sought nor the consultation
process itself shall be deemed a Federal action for the
purpose of compliance with section 102(2) of the
National Environmental Policy Act of 1969 (42 U.S.C.
4332(2)) or an agency action for the purpose of
compliance with the consultation requirement of section
7(a)(2);
``(iv) the Secretary shall provide the person
initiating the consultation with a written opinion
only, unless such person requests a permit referred to
in paragraph (1)(B) and meets the requirements of
clause (v); and
``(v) a permit described in clause (iv) shall be
issued if the Secretary makes a finding of--
``(I) consistency pursuant to subparagraph
(A)(i);
``(II) no jeopardy pursuant to subparagraph
(A)(ii); or
``(III) jeopardy pursuant to subparagraph
(A)(ii), but offers a reasonable and prudent
alternative which the person initiating the
consultation accepts.''.
SEC. 204. PERMITTING REQUIREMENTS FOR INCIDENTAL TAKES.
(a) Incidental Take Permit Defined.--Section 3 (16 U.S.C. 1532) is
amended by adding after paragraph (14) (as added by section 301(b)(3)
of this Act) the following new paragraph:
``(15) The term `incidental take permit' means a permit
issued under section 10(a)(1)(B).''.
(b) Take Permits.--Section 10 (16 U.S.C. 1539) is amended by
striking so much as precedes subsection (b) and inserting the
following:
``SEC. 10. EXCEPTIONS.
``(a) Permits.--
``(1) Authority to issue permits.--The Secretary may
permit, under such terms and conditions as the Secretary shall
prescribe--
``(A) any act otherwise prohibited by section 9
undertaken for scientific purposes or to enhance the
propagation or survival of the affected species,
including, but not limited to--
``(i) acts necessary for the establishment
and maintenance of experimental populations
pursuant to subsection (j);
``(ii) the public display or exhibition of
living wildlife in a manner designed to
educate, or which otherwise contributes to the
education of the public about the ecological
role and conservation needs of the affected
species;
``(iii) in the case of foreign species,
acts that are consistent with the Convention
and with conservation strategies adopted by the
foreign nations responsible for the
conservation of the species; and
``(iv) acts necessary for the research in
and carrying out of captive propagation; or
``(B) any taking otherwise prohibited by section
9(a)(1)(B) if such taking is incidental to, and not the
purpose of, the carrying out of an otherwise lawful
activity.
``(2) Species conservation plans.--(A) Except as provided
in paragraph (3), 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 activities to be permitted;
``(ii) what steps the applicant can reasonably and
economically take consistent with the purposes and
objectives of the activity to minimize 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 conservation 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 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 may not require the applicant, as a
condition of processing the application or issuing the permit,
to expand the application to include land, an interest in land,
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.
``(D)(i) The Secretary shall complete the processing of,
and approve or deny, any application for a permit under
paragraph (1)(B) within 90 days of the date of submission of
the application or within such other period of time after such
date of 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 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)).
``(E) 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.
``(F)(i) For such activities as the Secretary determines
will not appreciably reduce the chances of survival of a
species, the Secretary may issue an interim permit to any
applicant for a permit under this section that provides
evidence of appropriate interim measures that--
``(I) will minimize impacts of any incidental
taking that may be associated with the activity
proposed for permitting; and
``(II) are to be performed while the underlying
permit application is being considered under this
section.
``(ii) An interim permit issued under clause (i)--
``(I) shall specifically state the types of
activities that are authorized to be carried out under
the interim permit;
``(II) shall not create any right to the issuance
of a permit under this section;
``(III) shall expire on the date of the granting or
denial of the underlying permit application; and
``(IV) may be revoked by the Secretary upon failure
to comply with any term of the interim permit.
``(G) 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.''.
(c) Multi-Species Planning.--Section 10 (16 U.S.C. 1539) is amended
by adding at the end the following new subsection:
``(k) Multiple Species Conservation Plans.--
``(1) Development.--The Secretary may assist a non-Federal
person in the development of a plan, to be known as a `multiple
species conservation plan', for the conservation of--
``(A) any species with respect to which a finding
is made and a status review is commenced under section
4(b)(3)(B); and
``(B) any other species that--
``(i) inhabit the area covered by the plan;
and
``(ii) are designated in the plan or are
within a taxonomic group designated in the
plan.
``(2) Issuance of permits.--The Secretary may issue a
permit under subsection (a)(1)(B) authorizing the take
described in section 9(a)(1)(B) of a species for which a
multiple species conservation plan is developed under this
subsection, if the Secretary, after providing opportunity for
public comment on the plan--
``(A) determines that the plan specifies the
information described in subsection (a)(2)(A);
``(B) makes the findings described in subsection
(a)(2)(B) with respect to the permit application and
the plan; and
``(C) receives such assurances as the Secretary may
require that the plan will be implemented.
``(3) Effect of listing of species.--A multiple species
conservation plan developed under this subsection and a permit
issued with respect to the plan shall remain in effect and
shall not be required to be amended if a species to which the
plan and permit apply is determined to be an endangered species
or a threatened species under section 4.''.
(d) Foreign Species.--Section 10(a), as amended by subsection (b)
of this section and sections 203 and 205(a) of this Act, is amended by
adding at the end the following new paragraph:
``(7) Foreign species.--(A) In determining whether to issue
a permit under subsection (a)(1)(A)(iii), there shall be a
rebuttable presumption that the survival of a species is
enhanced by the ordinary benefit occurring from the taking of a
specimen for an inherently limited use in accordance with the
laws and wildlife management policies of the nation in which it
is found.
``(B) The Secretary may not refuse to issue a permit for
such specimens and may not limit the number of such specimens
which may be imported unless he makes and publishes in the
Federal Register a finding that there is substantial evidence
that the detriment resulting from the taking of such specimens
outweighs the benefit derived, and subsequently promulgates
regulations containing the limitation.
``(C) The Secretary shall transmit the full text and a
complete description of the proposed regulation referred to in
the preceding paragraph directly to the appropriate wildlife
management authorities of the nations from which the specimens
are exported, in the language of those countries, with at least
180 days allowed for review and comment. The 180-day period
shall be counted from the date of the delivery of the materials
to the wildlife management authority of each of the nations.
``(D) For the purpose of this paragraph, the term
`inherently limited use' means scientific collection, live
export for captive breeding, sport hunting, and falconry.''.
SEC. 205. GENERAL, RESEARCH, AND EDUCATIONAL PERMITS.
(a) In General.--Section 10(a) (16 U.S.C. 1539(a)), as amended by
sections 203 and 204(b) of this Act, is amended by adding at the end
the following new paragraphs:
``(4) General permits.--(A) After providing notice and
opportunity for public hearing, the Secretary may issue a
general permit under paragraph (1)(B) on a county, parish,
State, regional, or nationwide basis for any category of
activities that may affect a species determined to be an
endangered species or threatened species if the Secretary
determines that the activities in the category are similar in
nature, will cause only minimal adverse effects on the species
if performed separately, and will have only minimal cumulative
adverse effects on
the species generally. A general permit issued under this
paragraph shall specify the requirements and standards that apply to an
activity authorized by the general permit.
``(B) A general permit issued under this paragraph shall be
effective for a period to be specified by the Secretary, but
not to exceed the 5-year period that begins on the date of
issuance of the permit.
``(C) The Secretary may revoke or modify a general permit
if, after providing notice and opportunity for public hearing,
the Secretary determines that the activities authorized by the
general permit have a greater than minimal adverse effect on a
species that is included in a list published under section
4(c)(1) or that the activities are more appropriately
authorized by individual permits issued under paragraph (1) or
(3).
``(5) Research on alternative methods and technologies.--
Priority for issuing permits under paragraph (1)(A) shall be
accorded to applications for permits to conduct research,
captive breeding, or education on alternative methods and
technologies, and the comparative costs of the methods and
technologies, to reduce the incidental taking as described in
paragraph (1)(B) of an endangered species or a threatened
species for which the employment of existing methods or
technologies for avoidance of the incidental taking entails
significant costs for non-Federal persons.
``(6) Educational or propagation permits.--(A) A permit
under paragraph (1)(A)(ii) or (iv) shall be issued if--
``(i)(I) the applicant holds a current and valid
license as an exhibitor under the Animal Welfare Act (7
U.S.C. 2131 et seq.);
``(II) in the case of a permit under paragraph
(1)(A)(ii), the applicant maintains a public display or
exhibition of living wildlife described in that
paragraph; and
``(III) viewing of the public display or exhibition
is not limited or restricted other than by charging an
admission fee; or
``(ii) in the case of a permit under paragraph
(1)(A)(iv), the applicant has demonstrated the ability
to use propagation techniques that result in increases
in the populations of species held in captivity for
eventual release into the wild, maintenance of live
specimens, or falconry purposes.
``(B)(i) The Secretary shall issue a permit within 30 days
from the effective date of this subparagraph to any qualified
organization or person who has demonstrated the ability to
handle or recover species for a minimum of 15 years or who has
at least 10 permits in the aggregate issued pursuant to this
Act or the other laws listed in subparagraph (H).
``(ii) The Secretary shall issue a permit within 90 days of
receipt of a completed application from any qualified
organization or person who currently does not hold any permit
but who has demonstrated the ability to handle or recover
species for a minimum of 15 years of who has received at least
10 permits in the aggregate and who has not violated any terms
or conditions of any permits previously issued pursuant to this
Act or the laws listed in subparagraph (H).
``(C) A permit referred to in paragraph (1)(A)(ii) shall be
for a term of not less than 6 years.
``(D) A permit referred to in paragraph (1)(A)(ii) shall
also authorize the permittee to import, export, sell, purchase,
or otherwise transfer possession of the affected species.
``(E) The Secretary shall revoke a permit referred to in
paragraph (1)(A)(ii) if the Secretary determines that the
permittee--
``(i) no longer meets the requirements of
subparagraph (A) and is not reasonably likely to meet
the requirements in the near future;
``(ii) is not complying with the terms and
conditions of the permit; or
``(iii) is engaging in an activity likely to
jeopardize the continued existence of the species
subject to the permit.
``(F) The Secretary may require an annual report on the
activities authorized by a general permit, but may not require
reports more frequently than annually.
``(G) A permit authorized in this paragraph shall be the
only permit required for the activities authorized therein, and
may cover activities for one or more species or taxa
simultaneously.
``(H) The authorizations for any activities permitted under
this paragraph or permitted by the Bald Eagle Protection Act
(16 U.S.C. 668-668d), the Fish and Wildlife Conservation Act of
1980 (16 U.S.C. 2901-2911), the Lacey Act Amendments of 1981
(18 U.S.C. 42; 16 U.S.C. 3371-3378), the Marine Mammal
Protection Act of 1972 (16 U.S.C. 1361-1407), the Migratory
Bird Conservation Act (16 U.S.C. 715-715d), the Migratory Bird
Treaty Act (16 U.S.C. 703-712), or the Wild Bird Conservation
Act of 1992 (Public Law 102-440) shall be consolidated into a
general permit to cover all authorized activities,
notwithstanding any law or regulation to the contrary.''.
(b) Exceptions for Wildlife Bred in Captivity.--Section 10, as
amended by section 204(c) of this Act, is amended by adding at the end
the following new subsection:
``(l) Wildlife Bred in Captivity.--For the purposes of this Act or
any regulation adopted pursuant to this Act, the terms `bred in
captivity' or `captive-bred', with respect to wildlife, means wildlife,
including eggs, born or otherwise produced in captivity from parents
that mated or otherwise transferred gametes in captivity if
reproduction is sexual, or from parents that were in captivity when
development of the progeny began, if development is asexual. Such
progeny shall be considered domestic fish or wildlife for all purposes
and shall not come under the provisions and prohibitions of this Act
and the laws listed
in subsection (a)(6)(H) unless intentionally and permanently released
to the wild. Any person holding any fish or wildlife or their progeny
as described in this subsection must be able to demonstrate that such
fish or wildlife do, in fact, qualify under the provision of this
subsection, and shall maintain and submit to the Secretary, on request,
such inventories, documentation, and records as the Secretary may by
regulation require as being reasonable and appropriate to carry out the
purposes of this subsection. Such requirements shall not unnecessarily
duplicate the requirements of other rules and regulations promulgated
by the Secretary.''.
SEC. 206. MAINTENANCE OF AQUATIC HABITATS FOR LISTED SPECIES.
The Endangered Species Act of 1973 (16 U.S.C. 1851 et seq.) is
amended by adding at the end the following new section:
``recognizing net benefits to aquatic species
``Sec. 20. (a) Encouraging Net Benefits.--In carrying out this Act,
if the number of individual members of an endangered species or
threatened species exiting an aquatic habitat area under the control,
authority or ownership of a non-Federal person is equal to or greater
than the number of individual members of the species entering such
area, the Secretary shall not require, provide for, or recommend the
imposition of any restriction or obligation on the activity of the non-
Federal person in a manner which would require the non-Federal person
to support the maintenance of any greater number of individual members
of the species than that which enters such aquatic habitat area.
``(b) Consideration of Hatchery Populations.--In calculating the
number of individual members of a species entering and exiting a
specific aquatic habitat area pursuant to this section, the Secretary
shall consider hatchery populations.
``(c) Limitations.--The Secretary shall not require, provide for,
or recommend the imposition of any restriction or obligation on the
activity of any non-Federal person in an aquatic habitat area to remedy
adverse impacts on a species resulting from activities of individuals
other than the non-Federal person.''.
SEC. 207. COMPLIANCE WITH INTERNATIONAL REQUIREMENTS AND TREATIES.
(a) Respecting the Sovereignty of Other Nations.--Section 8 (16
U.S.C. 1537) is amended by adding at the end the following new
subsection:
``(e) Encouragement of Foreign Programs.--Any action taken by the
Secretary pursuant to this Act in regard to a foreign species which
occurs in a country which is a party to the Convention--
``(1) shall be done in cooperation with the wildlife
conservation authorities of such country; and
``(2) shall not obstruct any wildlife conservation program
of such country unless the Secretary can show, based on
adequate findings supported by substantial evidence, that the
country's wildlife conservation program for the species in
question is not consistent with the Convention.''.
(b) Compliance With the Convention.--Section 8A (16 U.S.C. 1537a)
is amended by adding at the end the following new subsections:
``(f) Nonduplication of Findings.--The Secretary, in making the
findings required in paragraph 3(a) of Article III of the Convention,
shall limit such findings to the purpose of the importation, and shall
not duplicate the findings required to be made by the exporting nation
except for good cause based on adequate findings supported by
substantial evidence.
``(g) Relationship of Protective Regulations to the Convention.--In
determining the provisions of protective regulations pursuant to
section 4(d) of this Act when such regulations relate to a foreign
species--
``(1) the Secretary may not prohibit any act that is
permissible under the Convention, notwithstanding Article XIV
of the Convention;
``(2) the Secretary shall, prior to publishing a proposal
for such protective regulations in the Federal Register,
transmit the full text and a complete description of the
proposed regulation directly to the appropriate wildlife
management authority of that country, in the language of that
country, with at least 180 days allowed for review and comment,
the 180 days shall be counted from the date of delivery of the
materials to the wildlife authorities of the country;
``(3) such transmission must be accompanied by--
``(A) a plain-language explanation of the reasons
for and purpose of the proposed regulation;
``(B) an analysis of the anticipated beneficial
impact or detrimental impact of the regulation on the
economic, social, and cultural utilization of the
species, if any, and of the beneficial or detrimental
impact on the resource management and conservation
programs of that country; and
``(C) a summary of the literature reviewed and
experts consulted by the Secretary in regard to the
species involved, and a summary of the Secretary's
findings based on that review and consultation;
``(4) the Secretary shall enter into discussions with
appropriate wildlife management officials of the countries to
which he has sent the transmission referred to in the previous
paragraph, and if those officials feel that further studies of
the species are indicated the Secretary shall assist in finding
the funds for such studies and in carrying out the studies; and
``(5) the Secretary must obtain the written concurrence of
all the nations contacted, and if such concurrence is not
obtained the Secretary may not issue the proposed regulation
except by an order submitted to and approved by the
President.''.
(c) Conservation of Threatened Species.--Section 9 (16 U.S.C.
1538), as amended by section 206 of this Act, is amended by adding at
the end the following new subsection:
``(i) Importation and Exportation.--
``(1) Limitation on importation.--The prohibition on
importation in subsection (a) of this section shall not apply
to a specimen of a threatened species taken for an inherently
limited use in accordance with the laws of a foreign nation and
accompanied by an export permit issued by that nation or an
equivalent document. For the purpose of this subsection, the
term `inherently limited use' means scientific collection, live
export for captive breeding, sport hunting, and falconry.
``(2) Regulations for shipping under convention.--(A) The
Secretary shall adopt regulations regarding the finding
required by the Convention that live specimens exported from
the United States will be so prepared as to minimize the risk
of injury, damage to health, or cruel treatment. Such
regulations shall provide clear, consistent and reliable
guidance to exporters.
``(B) In any instance in which the Secretary believes that
a shipment for export is not prepared in accordance with the
regulations, a detailed written notice of noncompliance shall
be issued to the exporter. The notice shall contain
recommendations as to how future shipments should be modified
in order to come into compliance with the regulations. The
notice shall go into effect 30 days after receipt by the
shipper, subject to appeal to an Administrative Law Judge or a
court. The filing of an appeal shall toll the effectiveness of
the notice. The issue of noncompliance may be appealed as well
as the issue of the appropriateness of the recommendation for
compliance.''.
SEC. 208. INCENTIVES FOR PROTECTION OF MARINE SPECIES.
(a) In General.--Section 10 (16 U.S.C. 1539), as amended by section
205(b) of this Act, is amended by adding at the end the following new
subsection:
``(m) Incentives.--(1) The Secretary shall exempt, under such terms
and conditions as the Secretary may prescribe by regulation, any
operator of a trawl vessel required to use a turtle excluder device
under regulations promulgated under this Act from such requirement if
such operator agrees to support a conservation program approved under
paragraph (2) and such support is determined to be appropriate under
paragraph (4).
``(2) No later than 180 days after the effective date of this
subsection and each year thereafter, the Secretary shall--
``(A) review all those programs intended to conserve the
endangered species and threatened species of sea turtles found
in the Gulf of Mexico and along the Atlantic seaboard,
including those programs involving protection of nesting
beaches in other nations;
``(B) approve any such program determined by the Secretary
to be of significant benefit to the recovery of the species of
such sea turtles under this subsection; and
``(C) publish notice of such determination in the Federal
Register.
``(3)(A) Any person or group of persons operating trawl vessels may
submit in writing a request to the Secretary for an exemption under
this subsection.
``(B) Not later than 60 days after receipt of such request the
Secretary shall provide such person or group written notice of the
issuance or denial of such request.
``(4) The Secretary shall determine that the support offered by an
operator in a written request submitted under paragraph (3) is
appropriate if the benefits provided by such support to the recovery of
such species exceed any harm to the recovery of such species incurred
as a result of the operator not using turtle excluder devices under an
exemption provided under this subsection.
``(5) The Secretary shall prescribe such regulations as the
Secretary considers necessary and appropriate to carry out the purposes
of this subsection.''.
(b) Incidental Take Statements.--Section 7(b) (16 U.S.C. 1536(b))
is amended by adding at the end of paragraph (4)(C)(ii) the following:
``including incentives to encourage the support of conservation
programs approved under section 10(k),''.
TITLE III--IMPROVING SCIENTIFIC INTEGRITY OF LISTING DECISIONS AND
PROCEDURES
SEC. 301. IMPROVING THE VALIDITY AND CREDIBILITY OF DECISIONS.
(a) Basing Listings on Credible Science.--
(1) Listing determinations.--Subsections (a) and (b) (1)
and (2) of section 4 (16 U.S.C. 1533) are amended to read as
follows:
``(a) Generally.--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:
``(1) The present or threatened loss of its habitat.
``(2) Overutilization for commercial, recreational,
scientific, or educational purposes.
``(3) Disease or predation.
``(4) The inadequacy of existing Federal, State, and local
government regulatory mechanisms.
``(5) Other natural or manmade factors affecting its
continued existence.
``(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, any political subdivision of a State, 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 making a determination whether a species is an
endangered species or a threatened species under this section,
the Secretary shall fully consider populations of the species
that are bred through private sector, university, and Federal,
State, and local government breeding programs for release in
the habitat of the species. In the case of fish species, the
bred populations referred to in the preceding sentence shall
include hatchery populations.
``(2) Consideration of state recommendations.--In making a
determination pursuant to paragraph (1), the Secretary shall
give consideration to species which have been identified as in
danger of extinction, or likely to become so within the
foreseeable future, by any State agency that is responsible for
the conservation of fish or wildlife or plants.''.
(2) Listing foreign species.--Section 4(b) (16 U.S.C.
1533(b)), as amended by subsection (f) of this section, is
amended by adding at the end the following new paragraph:
``(10) Foreign species.--(A) In determining under
subsection (a) whether a foreign species is an endangered
species or a threatened species, the Secretary shall not
determine that a species that is listed under the Convention is
endangered or threatened unless he makes an adequate finding,
supported by substantial evidence, that the Convention does not
provide adequate regulation.
``(B) The Secretary shall, prior to publishing a proposal
in the Federal Register to determine that
a foreign species is endangered or threatened, transmit the
full text and a complete description of the proposed listing directly
to the appropriate wildlife management authority of that nation, in the
language of that nation, with at least 180 days allowed for review and
comment. The 180 days shall be counted from the date of delivery of the
materials supporting the proposed listing to the wildlife authorities
of the country.
``(C) Such transmission must be accompanied by--
``(i) a plain-language explanation of the objective
criteria for and purpose of the proposed listing;
``(ii) an analysis of the anticipated beneficial
impact or detrimental impact of the listing on the
economic, social, and cultural utilization of the
species, if any, and of the beneficial or detrimental
impact on the resource management and conservation
programs of that nation; and
``(iii) a summary of the literature reviewed and
experts consulted by the Secretary in regard to the
species involved, and a summary of the Secretary's
findings based on that review and consultation.
``(D) The Secretary shall enter into discussions with the
appropriate wildlife management officials of the nations to
which he has sent the transmission referred to in subparagraph
(C). If those officials feel that further studies of the
species are indicated, the Secretary shall assist in finding
the funds for such studies and in carrying out the studies.
``(E) The Secretary must obtain the written concurrence of
all the nations contacted. If such concurrence is not obtained,
the Secretary may not issue the proposed regulation except by
an order submitted to and approved by the President.''.
(b) Definitions.--Section 3 (16 U.S.C. 1532) is amended--
(1) by adding after paragraph (1) the following new
paragraph:
``(2) The term `best scientific and commercial data
available' means factual information, including but not limited
to peer reviewed scientific information obtainable from any
source, including governmental and nongovernmental sources,
which has been to the maximum extent feasible verified by field
testing.'';
(2) by adding after paragraph (7) (as redesignated by
section 102(a)(1) of this Act) the following new paragraphs:
``(8) The term `distinct population of national interest'
means a distinct population of a vertebrate species that is not
otherwise an endangered species or threatened species in the
United States, Canada, or Mexico, but which because of its
value to the Nation as a whole has been designated by Congress
as needing protection under this Act.
``(8a) The term `foreign species' means a species naturally
occurring outside the territory of the United States, but does
not include any marine species, any species having a
significant population occurring in the wild within the United
States, or any migratory species whose migration route includes
United States territory.'';
(3) by adding after paragraph (13) (as redesignated by
section 102(a)(1) of this Act) the following new paragraph:
``(14) The term `imminent threat to the existence of', with
respect to a species, means, as determined by the Secretary
under section 4(b)(7) or the President under section 5(e)(2)
solely on the basis of the best scientific and commercial data
available, that there is a significant likelihood that the
species will become extinct, or will be placed on an
irreversible course to extinction, during the 2-year period
beginning on the date of the determination that the species is
an endangered species or a threatened species, unless the
species is accorded fully the protection available under this
Act during such period.'';
(4) by amending paragraph (22) (as redesignated by section
102(a)(1) of this Act) to read as follows:
``(22) The term `Secretary' means, except as otherwise
herein provided, the Secretary of the Interior, except that
with respect to the enforcement of the provisions of this Act
and the Convention which pertain to the importation or
exportation of terrestrial plants, the term also means the
Secretary of Agriculture.''; and
(5) by amending paragraph (23) (as redesignated by section
102(a)(1) of this Act) to read as follows:
``(23) The term `species' includes any subspecies of fish
or wildlife or plants, and any distinct population of national
interest of any species or vertebrate fish or wildlife which
interbreeds when mature.''.
(c) Soliciting Scientific Information.--Section 4(b)(3) (16 U.S.C.
1533(b)(3)), as amended by sections 303(a), 304(a), 305(a), and 306 of
this Act, is amended by adding at the end the following new
subparagraph:
``(F) Before any further action is taken in accordance with
this paragraph, the Secretary shall publish in the Federal
Register a solicitation for further information regarding the
status of a species which is the subject of a proposed rule to
list the species as an endangered species or threatened
species, including current population, populations trends,
current habitat, Federal conservation lands which 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 which may assist in making a
determination under this section. The solicitation shall give a
time limit within which to submit the information which shall
be not less than 180 days. The time limit shall be extended for
an additional 180 days at the request of any person who submits
a request for such extension along with the reasons therefor.
The Secretary in making the determination required in this
subsection, shall give equal weight to the information
submitted in accordance with this paragraph.''.
(d) Emergency Listings.--Section 4(b)(7) (16 U.S.C. 1533(b)(7)) is
amended--
(1) by striking the matter preceding subparagraph (A) and
inserting the following:
``(7) Emergency regulations.--Neither paragraph (4), (5),
or (6) of this subsection nor section 553 of title 5, United
States Code, shall apply to any regulation issued by the
Secretary in regard to any emergency posing an imminent threat
to the existence of any species of fish or wildlife or plants,
but only if--''; and
(2) by adding at the end the following new sentence: ``The
Secretary may not delegate the final decision to issue an
emergency regulation under this paragraph.''.
(e) Using Best Data.--Section 4(b)(8) (16 U.S.C. 1533(b)(8)) is
amended by striking ``the data'' and inserting ``the best scientific
and commercial data''.
(f) Identifying Data Used for Decisions.--Section 4(b) (16 U.S.C.
1533(b)) is amended by adding at the end the following new paragraph:
``(9) Publication in federal register.--(A) The Secretary
shall identify and publish in the Federal Register with each
proposed rule under paragraph (1) or section 5(i) a description
of--
``(i) all data that are to be considered in making
the determination under the subsection to which the
proposed rule relates and that have yet to be collected
or field verified;
``(ii) data that are necessary to make
determinations and that can be collected prior to any
determination; and
``(iii) data that are necessary to ensure the
scientific validity of the determination, and each
deadline for collecting these data.
``(B) In making a determination pursuant to paragraph (1)
or section 5(i), the Secretary shall collect and consider the
data identified and described pursuant to subparagraph (A)(ii).
``(C) The Secretary shall identify and publish in the
Federal Register with each final rule promulgated under
paragraph (1) or section 5(i)--
``(i) a description of any data that have not been
collected and considered in the determination to which
the rule relates and that are necessary to ensure the
continued scientific validity of the determination; and
``(ii) each deadline by which the Secretary shall
collect and consider the data in accordance with
subparagraph (D).
``(D) Not later than the deadline published by the
Secretary pursuant to subparagraph (C)(ii), the Secretary
shall--
``(i) collect the data referred to in each
paragraph;
``(ii) provide an opportunity for public review and
comment on the data;
``(iii) consider the data after the 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.''.
(g) Judicial Review.--Section 4 (16 U.S.C. 1533), as amended by
section 302 of this Act, is amended by adding at the end the following
new subsection:
``(j) Judicial Review of Determinations.--Any determination with
regard to whether a species is a threatened species or endangered
species shall be subject to a de novo judicial review with the court
determining whether the decision is supported by a preponderance of the
evidence.''.
SEC. 302. PEER REVIEW.
Section 4 (16 U.S.C. 1533) is amended by adding after subsection
(h), as redesignated by section 507(b)(2) of this Act, the following
new subsection:
``(i) 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(i); and
``(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).
``(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 of the
Interior; and
``(iii) who has not participated in the
listing decision.
``(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 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 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.''.
SEC. 303. MAKING DATA PUBLIC.
(a) Public Data.--Section 4(b)(3) (16 U.S.C. 1533(b)(3)), as
amended by sections 304(a), 305(a), and 306 of this Act, is amended by
adding at the end the following new subparagraph:
``(E)(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 minimize releasing the
identification 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 his or her
consent, or the information is otherwise public information.''.
(b) Public Hearings.--Section 4(b) (16 U.S.C. 1533(b)) is amended--
(1) in paragraph (5) (as amended by section 305(b) of this
Act) by adding at the end the following new subparagraph:
``(E) promptly hold at least 1 hearing in each State in
which the species proposed for determination as an endangered
species or a threatened species is believed to occur, and in a
location that is as close as possible to the center of the
habitat of such species in such State.''; and
(2) in paragraph (6) by amending all that precedes
subparagraph (B) to read as follows:
``(6) Publication of determination.--(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, if a determination as to whether a species is an
endangered species or a threatened species 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.''.
(c) Notice of Hearings.--Section 14 is amended to read as follows:
``SEC. 14. NOTICE OF HEARINGS.
``Except as otherwise provided by this Act, the Secretary shall
provide notice of any hearing or other 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 meeting at least 30 days prior to the hearing or
meeting.''.
SEC. 304. IMPROVING THE PETITION AND DESIGNATION PROCESSES.
(a) Petitions To List.--Section 4(b)(3) (16 U.S.C. 1533(b)(3)) is
amended to read as follows:
``(3) Petitions.--(A) A petition submitted to the Secretary
asserting that a species is a threatened species or endangered
species and requesting that the Secretary make a determination
to that effect shall contain at a minimum the following:
``(i) Information on the current population and
range of the species.
``(ii) Any information on efforts to field test the
population estimates on the species.
``(iii) If literature from scientific or other
journals, dissertations or other such scientific
writings of another person are submitted, they must be
accompanied by an affidavit that the literature or
writings have been peer reviewed along with the names
of the persons performing the peer review.
``(iv) The qualifications of any person asserting
expertise on the species or status of the species.
``(v) Information about the demonstrated habitat
needs of the species, along with the known occupied
habitat of the species.
``(vi) Known causes of the species decline.
``(B) Petitions to add a species to, or to remove a species
from, either of the lists published under subsection (c)(1)
shall be submitted in accordance with section 553(e) of title
5, United States Code. The Secretary may commence a review of
the status of the species concerned consistent with the
priorities set by the Secretary for the listing of species. The
Secretary shall promptly publish any finding made under this
subparagraph in the Federal Register.''.
(b) Conforming Amendments.--Section 4(g), as redesignated by
section 507(b)(2), is amended--
(1) by striking paragraph (2); and
(2) by redesignating paragraphs (3) and (4) in order as
paragraphs (2) and (3).
SEC. 305. GREATER STATE INVOLVEMENT.
(a) State Consultation on Petitions.--Section 4(b)(3) (16 U.S.C.
1533(b)(3)), as amended by section 304(a) of this Act, is amended by
adding after subparagraph (B) the following subparagraph:
``(C) At the time the review provided in subparagraph (B)
is commenced--
``(i) the Secretary shall contact the Governor of
each State in which the proposed species is located and
shall solicit from the Governor information about the
action requested in the petition in that State
necessary to render a decision and shall solicit the
advice of the Governor on whether the status of species
merits the action petitioned for, and if the Governor
advises that the petition action is not warranted and
thereafter the Secretary proceeds with the action, the
Secretary shall have the burden of showing that the
information submitted by the Governor is incorrect and
that the action is warranted; and
``(ii) the Secretary shall, to the maximum extent
feasible, require by field testing, the verification of
the information presented regarding the status of the
species.''.
(b) Regulations To Implement Determinations.--Section 4(b)(5) (16
U.S.C. 1533(b)(5)) is amended to read as follows:
``(5) Notice required.--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--
``(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 Governor of 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
consult with such agency, and each such
jurisdiction, thereon;
``(B) 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;
``(C) 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; and
``(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.''.
(c) State Consultation on Final Determination.--Section 4(h), as
redesignated by section 507(b)(2) of this Act, is amended to read as
follows:
``(h) 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 State agency which consulted with the Secretary in
accordance with subsection (b)(5)(A)(ii) of this section files comments
disagreeing with all or part of the proposed regulation, the Secretary
shall not issue a final regulation which is in conflict with such
comments until the Secretary further consults with the President, or if
the Secretary fails to adopt a regulation pursuant to an action
petitioned by a State agency under subsection (b)(3) of this section,
the Secretary shall submit to the State agency a written justification
for the failure of the Secretary to adopt regulations consistent with
the agency's comments or petition.''.
SEC. 306. MONITORING THE STATUS OF SPECIES.
Section 4(b)(3) (16 U.S.C. 1533(b)(3)), as amended by sections
304(a) and 305(a) of this Act, is amended by adding after subparagraph
(C) the following subparagraph:
``(D) The Secretary shall implement a system to monitor
effectively the status of all species with respect to which a
finding is made that the petitioned action is warranted but
precluded by proposals to determine whether any species is an
endangered species or a threatened species and progress is
being made to add qualified species to the list published under
subsection (c) and to remove from lists published under that
subsection species for which protection of this Act is no
longer necessary, and shall make prompt use of the authority
under paragraph (7) to prevent a significant risk to the well
being of any such species.''.
SEC. 307. PETITIONS TO DELIST SPECIES.
Section 4(b)(3) (16 U.S.C. 1533(b)(3)), as amended by sections
301(a) and (c), 303(a), 304(a), 305(a), and 306 of this Act, is further
amended by adding at the end the following new subparagraphs:
``(G) Any person may submit to the Secretary a petition to
revise a previous determination by the Secretary under this Act
that a species is an endangered species or threatened species
and to remove the species from a list published under
subsection (c), on the basis 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 population level target established for
the species in a conservation plan under section
5(c)(3)(C)(vii) has been achieved.
``(H) Not later than 90 days after receiving a petition
under subparagraph (D) for a species, the Secretary shall
publish--
``(i) a proposed regulation to revise a previous
determination for the species and to
remove the species from a list published under
subsection (c) on a basis set forth in subparagraph (G); or
``(ii) a finding that such a basis for the action
requested by the petition does not exist.''.
TITLE IV--RECOGNIZING OTHER FEDERAL ACTION, LAWS, AND MISSIONS
SEC. 401. BALANCE ESA WITH OTHER LAWS AND MISSIONS.
(a) Federal Agency Actions.--Section 7 (16 U.S.C. 1536) is amended
by amending the matter preceding subsection (b) to read as follows:
``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(d), (e), and (i), 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.
``(2) Programs administered by other agencies.--Except as
provided in section 5(d) and (e), each Federal agency shall
ensure that any action authorized, funded, or carried out by
such agency (hereinafter in this section referred to as an
`agency action') is not likely to jeopardize the continued
existence of any endangered species or threatened species or
destroy or adversely modify any habitat that is designated by
the Secretary as critical habitat of the species in a manner
that is likely to jeopardize the continued existence of the
species. In the case of any agency action that the agency has
determined is subject to this paragraph and that is likely to
significantly and adversely affect an endangered species or a
threatened species, the Federal agency shall fulfill the
requirements of this paragraph in consultation with and with
the assistance of the Secretary. As provided in section
5(d)(2), each Federal agency may initiate consultation with the
Secretary to receive guidance from the Secretary on the
consistency of its action with the conservation objective or
conservation plan for such species developed pursuant to
section 5, with an incidental take permit for such species
issued pursuant to section 10(a), or with a cooperative
management agreement concerning such species executed pursuant
to section 6(b). In fulfilling the requirements of this
paragraph each agency shall use the best available scientific
and commercial data, shall consider expert opinion and any
reasonable and prudent alternatives developed under subsection
(b)(3)(A), and shall render the decision of the agency in a
manner consistent with the obligations and responsibilities of
the agency under each applicable law and treaty.
``(3) Involvement of applicants for federal approvals.--
Subject to such guidelines as the Secretary may establish, a
Federal agency shall consult with the Secretary on any
prospective agency action at the request of, with the
involvement of, and in cooperation with, the prospective permit
or license applicant if the applicant has reason to believe
that an endangered species or a threatened species may be
present in the area affected by his project, that the project
is inconsistent with the conservation objective or plan for
such species developed pursuant to section 5, an incidental
take permit for such species issued pursuant to section 10(a),
or a cooperative management agreement for such species executed
pursuant to section 6(b), and that implementation of such
action will likely affect such species.
``(4) Conferring on candidate species.--Each Federal agency
shall confer with the Secretary on any agency action which is
likely to jeopardize the continued existence of any species
proposed to be listed under section 4 or to destroy or
adversely modify any habitat that is proposed to be designated
by the Secretary as critical habitat of such a species in a
manner that is likely to jeopardize the continued existence of
the species. This paragraph does not require a limitation on
the commitment of resources as described in subsection (d).
``(5) Limitations on modifications to land management.--
Notwithstanding any other provision of this Act, the authority
in this Act shall not be construed to authorize or form the
basis for any Federal agency to modify a land management plan,
policy, standard, or guideline or water allocation plan unless
a determination has been made under section 4 that a species is
threatened or endangered. Notwithstanding any other law or
regulation, management plans, practices, policies, projects, or
guidelines, including management plans which, as of October 1,
1995, are subject to modification pending completion of a final
environmental impact statement, shall not be amended for the
purpose of maintaining viable populations of native and desired
non-native species unless it is determined under this Act that
current practices are likely to jeopardize the continued
existence of the species.''.
(b) Resolving Conflicts Between Federal Agencies.--Section 7(a), as
amended by subsection (a) of this section and section 402 of this Act,
is amended by adding at the end the following new paragraphs:
``(8) Relationship to duties under other laws.--(A) The
responsibilities of a Federal agency under this section 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
conservation objective or the purposes of the conservation
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.
``(9) Modification of projects and facilities.--Any
consultation and conferencing required under paragraphs (2) and
(4) for an agency action that consists solely of a modification
of a Federal, State, local government, or private project or
facility shall be limited to the consideration of the effects
that result from the modification that comprises the agency
action.''.
(c) Procedures for Consultation.--Section 7(b) (16 U.S.C. 1536(b))
is amended by striking so much as precedes paragraph (3)(B) and
inserting the following:
``(b) Opinion of Secretary.--
``(1) Periods within which consultation must be
completed.--(A) Consultation under subsection (a)(2) with
respect to any agency action shall be concluded within the 90-
day period beginning on the date on which initiated by the
Federal agency. The period may be extended by not more than 45
days by the Secretary or head of the Federal agency by
publication of notice in the Federal Register that sets forth
the reasons for the extension. Consultation on an agency action
involving a permit or license applicant shall be concluded not
later than the earlier of--
``(i) 1 year after the date of submission of the
application to the Federal agency; or
``(ii) the end of the period established under
subparagraph (B).
``(B) Subject to subparagraph (A), in the case of an agency
action involving a permit or license applicant, the Secretary
and the Federal agency may not mutually agree to conclude
consultation within a period exceeding 90 days unless the
Secretary, before the close of the 90th day referred to in
subparagraph (A)--
``(i) if the consultation period proposed to be
agreed to will end before the 150th day after the date
on which consultation was initiated, submits to the
applicant a written statement setting forth--
``(I) the reasons why a longer period is
required,
``(II) the information that is required to
complete the consultation, and
``(III) the estimated date on which
consultation will be completed; or
``(ii) if the consultation period proposed to be
agreed to will end on or after the 150th day but before
the 210th day after the date on which consultation was
initiated, obtains the consent of the applicant to such
period.
``(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.
``(D) A permit or license applicant shall be entitled to
participate fully in any consultation or conferencing under
this section with respect to any agency action required for the
granting of an authorization or provision of funding to the
applicant.
``(2) Procedure for applicant consultation.--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) Written opinion of secretary.--(A)(i) Promptly after
conclusion of consultation under paragraph (2) or (3) of
subsection (a), the Secretary shall provide to the Federal
agency and the applicant, if any, a written statement setting
forth the Secretary's opinion, and a summary of the information
on which the opinion is based, detailing whether the agency
action is consistent with the conservation objective or plan
developed pursuant to section 5, an incidental taking permit
issued pursuant to section 10(a), or a cooperative management
agreement executed pursuant to section 6(b). If the Secretary
determines that the action is likely to jeopardize the
continued existence of the species as described in subsection
(a), the Secretary shall suggest reasonable and prudent
alternatives (considering any reasonable and prudent
alternatives undertaken by other Federal agencies) that are
consistent with subsection (a)(2) and that impose the least
social and economic costs.
``(ii) Unless required by law other than subsections (a)
through (d), the Secretary, in any opinion or statement
concerning an agency action made
under this subsection (including any reasonable and prudent
alternative suggested under clause (i) 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. Nothing in this clause prevents the Secretary from pursuing any
appropriate remedy under section 11 for any activity prohibited by
section 4(d) or 9.
``(iii) The Secretary shall not require a reasonable and
prudent alternative that may or will result in a significant
adverse impact upon waterfowl populations, waterfowl habitat
management, or waterfowl hunting opportunities in a significant
waterfowl breeding, staging, or wintering habitat area. In this
clause, the term `significant adverse impact' means any
actions, proposed or in effect, which individually or
cumulatively are likely to reduce the carrying capacity of
habitat for waterfowl by 10 percent or more of its current
capability, as determined on a local, regional, statewide or
national basis. In this clause, the term `significant waterfowl
breeding, staging, or wintering habitat areas' means those
private or public lands managed primarily for, or providing,
waterfowl breeding, staging or wintering habitat including
seasonal/permanent marsh lands or land under rice cultivation
for three out of the past five years.
``(iv) Notwithstanding any other provision of law, if the
Secretary renders an opinion or suggests any reasonable and
prudent alternative which has general application to a group of
individuals conducting a commercial operation, the Secretary
may not promulgate an emergency rule without providing at least
30 days for public comment on the emergency rule.
(d) Activities Prior to Completion of Consultation.--Section 7(d)
(16 U.S.C. 1536(d)) is amended to read as follows:
``(d) Limitation on Commitment of Resources.--
``(1) In general.--Except as provided in paragraph (2),
after initiation of consultation required under subsection
(a)(2), the Federal agency and the permit or license applicant
shall not make any irreversible or irretrievable commitment of
resources with respect to the agency action which has the
effect of foreclosing the formulation or implementation of any
reasonable and prudent alternative measures which would not
violate subsection (a)(2).
``(2) Relationship to land management planning
requirements.--If the listing of a species, or other procedure
or decision related to a species listed under section 4(c)(1),
requires consultation under subsection (a)(2) on a land use
plan or land or resource management plan (or an amendment to or
revision of the plan) prepared under section 202 of the Federal
Land Policy and Management Act of 1976 (43 U.S.C. 1712) or
section 6 of the Forest and Rangeland Renewable Resources
Planning Act of 1974 (16 U.S.C. 1604), the land management
agency implementing the plan may authorize, fund, or carry out
an agency action that is consistent with the plan prior to the
completion of the consultation, if, under the procedures
established by this section, the head of the land management
agency responsible for the action determines or has determined
that the action--
``(A) is not likely to significantly and adversely
affect the species; or
``(B) is likely to significantly and adversely
affect the species, and the Secretary issues an opinion
on the action that finds that the action--
``(i) is not likely to jeopardize the
continued existence of the species; or
``(ii) is likely to jeopardize the
continued existence of the species, and the
agency agrees to a reasonable and prudent
alternative.''.
(e) Definitions.--Section 3 (16 U.S.C. 1532) is amended--
(1) by adding after paragraph (15) (as added by section
204(a) of this Act) the following new paragraph:
``(16) 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.'';
(2) by amending paragraph (18) (as redesignated by section
102(a)(1) of this Act) to read as follows:
``(18) The term `permit or license applicant' means, with
respect to the consultation procedures established by section
7, any person that requires authorization or funding from a
Federal agency as a prerequisite to conducting an activity
(including a party to a written lease, right-of-way, license,
contract to purchase or provide a product or service, or other
permit with a Federal agency) that requires an action from the
agency to obtain the benefit of the activity.''; and
(3) by adding after paragraph (20) (as redesignated by
section 102(a)(1) of this Act) the following new paragraph:
``(21) The term `reasonable and prudent alternative' means
an alternative action under section 7(b)(3) during consultation
on 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;
and
``(D) the Secretary believes would avoid being
likely to jeopardize the continued existence of the
species.''.
SEC. 402. EXEMPTIONS FROM CONSULTATION AND CONFERENCING.
Section 7(a), as amended by section 401(a) of this Act, is amended
by adding at the end the following new paragraphs:
``(6) Actions exempt from consultation and conferencing.--
Consultation and conferencing under paragraphs (2) and (4)
shall not be required for any agency action that--
``(A) is consistent with the provisions of a final
conservation plan under section 5(c)(5) or a
conservation objective described in section 5(b)(3);
``(B) is consistent with a cooperative management
agreement or an incidental taking permit;
``(C) addresses a critical, imminent threat to
public health or safety or a catastrophic natural event
or compliance with Federal, State, or local safety or
public health requirements;
``(D) 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;
or
``(E) permits activities that occur on private
land.
``(7) 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
conservation plan under section 5(c)(5) or a
conservation objective described in section 5(b)(3); or
``(B) a cooperative management agreement or an
incidental take permit.''.
SEC. 403. ELIMINATING THE EXEMPTION COMMITTEE (GOD COMMITTEE).
(a) Conforming Amendments.--Section 7(c) (16 U.S.C. 1536(c)) is
amended--
(1) in the first full sentence by striking ``(1) To
facilitate'' and inserting ``To facilitate''; and
(2) by striking paragraph (2).
(b) Presidential Exemptions.--Section 7(e) (16 U.S.C. 1536(e)) is
amended to read as follows:
``(e) Exemptions.--Notwithstanding any other 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 and to reduce the potential
loss of human life; and
``(B) involves an emergency situation that does not
allow the procedures of this Act (other than this
subsection) to apply.''.
(c) Repeal.--Subsections (f) through (p) of section 7 (16 U.S.C.
1536(f)-(p)) are repealed.
TITLE V--BETTER MANAGEMENT AND CONSERVATION OF LISTED SPECIES
SEC. 501. SETTING CONSERVATION OBJECTIVES.
Section 5 (16 U.S.C. 1534) is redesignated as section 5A, and the
following new section is added after section 4:
``SEC. 5. SPECIES CONSERVATION PLANS.
``(a) In General.--Except as provided in subsection (b)(3)(C), the
Secretary shall publish a conservation objective and a conservation
plan for each species determined to be an endangered species or a
threatened species pursuant to section 4.
``(b) Development of Conservation Objective.--
``(1) Assessment and planning team.--Not later than 30 days
after the listing determination, the Secretary shall appoint an
assessment and planning team which shall not be subject to the
Federal Advisory Committee Act (5 U.S.C. App.) and shall
consist of--
``(A) experts in biology or pertinent scientific
fields, economics, property law and regulation, and
other appropriate disciplines from the Department of
the Secretary, other Federal agencies, and the private
sector;
``(B) a representative nominated by the Governor of
each affected State;
``(C) representatives nominated by each affected
local government, if the local government agrees to the
appointment of a representative; and
``(D) representatives of persons who may be
directly, economically impacted by the conservation
plan.
``(2) Assessments.--Not later than 180 days after the
listing determination, the assessment and planning team shall
report to the Secretary the assessment of the following
biological, economic, and intergovernmental factors with
respect to the listed species:
``(A) The team shall assess--
``(i) the biological considerations
necessary to carry out this Act;
``(ii) the biological significance of the
species;
``(iii) the geographic range and occupied
habitat of the species, and the type and
amounts of habitat needed, at a minimum, to
maintain the existence of the species and, at a
maximum, to secure recovery of the species;
``(iv) the current population, and the
population trend, of the species;
``(v) the technical practicality of
recovering the species;
``(vi) the potential management measures
capable of recovering, or reducing the risks to
survival of, the species, including the
contribution of existing or potential captive
breeding programs for the species, predator
control, enhancement of food sources,
supplemental feeding, and other methods which
enhance the survival of the young of the
species; and
``(vii) where appropriate, the demonstrable
commercial or medicinal value of the species.
``(B) The 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 and any potential management measures
identified under subparagraph (A)(vi), including
impacts on the cost of governmental actions, tax and
other revenues, employment, the use and value of
property, other social, cultural, and community values,
and an assessment of any commercial activity which
could potentially result in a net benefit to the
conservation of the species.
``(C) The team shall assess the impacts on State
and local land use laws, conservation measures, and
water allocation policies that may result from the
listing determination and from the potential management
measures identified under subparagraph (A)(vi).
``(3) Secretarial review of assessments and establishment
of conservation objective.--(A) Not later than 210 days after a
listing determination, the Secretary shall review the report of
the assessment and planning team prepared pursuant to paragraph
(2), establish a conservation objective for the species, and
publish in the Federal Register the conservation objective,
along with a statement of findings on which the conservation
objective was established.
``(B) The conservation objective may be, in the discretion
of the Secretary--
``(i) recovery of the listed species;
``(ii) such level of conservation of the species
which the Secretary determines practicable and
reasonable to the extent that the benefits of the
potential conservation measures outweigh the economic
and social costs of such measures, including but not
limited to maintenance of existing population levels;
``(iii) no Federal action other than enforcement
against any person whose activity violates the
prohibitions specified in section 9(a), including any
activity that results in a taking of the species,
unless the taking is incidental to, and not the purpose
of, the carrying out of an otherwise lawful activity;
or
``(iv) such other objective as the Secretary may
determine that does not provide a lesser level of
protection than the level described in clause (iii).
``(C) If the conservation objective established by the
Secretary is the objective provided in subparagraph (B)(iii),
the Secretary shall not develop a conservation plan for the
affected species under subsection (c).''.
SEC. 502. PREPARING A CONSERVATION PLAN.
(a) In General.--Section 5 (16 U.S.C. 1534), as added by section
501 of this Act, is amended by adding at the end the following new
subsections:
``(c) Development of Conservation Plan.--
``(1) Priorities.--In the development and implementation of
a conservation plan under this subsection, the Secretary shall
accord priority to--
``(A) the development of an integrated plan for 2
or more endangered species or threatened species that
are likely to benefit from an integrated conservation
plan;
``(B) the geographic areas where conflicts between
the conservation of the affected species and
development projects or other forms of economic
activity exist or are likely to exist;
``(C) protection of the listed species on units of
the National Biological Diversity Reserve as provided
in section 5A(a);
``(D) the implementation of conservation measures
that have the least economic and social costs;
``(E) nonregulatory, incentive-based conservation
measures and commercial activities that provide a net
benefit to the conservation of the species; and
``(F) plans in which States or private
organizations or persons are the primary implementors.
``(2) Publication of draft plan.--Not later than 12 months
after the date of a determination that a species is an
endangered species or a threatened species, the assessment and
planning team for the species shall publish a draft
conservation plan for the species which is based on the
assessments made pursuant to subsection (b)(2) and designed to
achieve the conservation objective established pursuant to
subsection (b)(3).
``(3) Contents of draft plan.--Each draft conservation plan
shall contain--
``(A) recommendations for Federal agency compliance
with section 7(a)(1) and 7(a)(2);
``(B) 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;
``(C) alternative strategies to achieve the
conservation objective for the listed species which
range from a strategy requiring the least possible
Federal management to achieve the conservation
objective to a strategy involving more intensive
Federal management to achieve the objective, each of
which contains--
``(i) an estimate of the risks to the
survival and recovery of the species that the
alternative would entail;
``(ii) a description of any site-specific
management measures recommended for the
alternative;
``(iii) an analysis of the relationship of
any habitat of the species proposed for
designation as critical habitat to the
recommended management measures;
``(iv) a description of the direct,
indirect, and cumulative economic and social
impacts on the public and private sectors
including impacts on employment, the cost of
government actions, tax and other revenues, the
use and value of property, and other social,
cultural, and community values;
``(v) a description of any captive breeding
program recommended for the alternative;
``(vi) an analysis of whether the
alternative would include any release of an
experimental population outside the current
range of the species and an identification of
candidate geographic areas for the release;
``(vii) objective and measurable criteria,
including a population level target, that, if
met, would result in a determination under
section 4 that the species is no longer an
endangered species or threatened species;
``(viii) estimates of the time and costs
required to carry out the management measures,
including any intermediate steps; and
``(ix) a description of the role of each
affected State, if any, in achieving the
conservation objective.
``(4) Plan preparation procedures.--(A) The Secretary shall
consult with the Governor of each State in which the affected
species is located during the preparation of each draft and
final conservation plan. Each plan shall provide for equitable
treatment of affected States and other non-Federal persons.
``(B) The Secretary shall publish in the Federal Register
and a newspaper of general circulation in each affected county
and parish a notice of the availability and a summary of, and a
request for the submission of comments on, each draft
conservation plan.
``(C) The Secretary shall hold at least 1 hearing on each
draft conservation plan in each State to which the plan would
apply in a location that is as close as possible to the center
of the habitat of the affected species in such State.
``(D) Prior to any decision to adopt a final conservation
plan, the Secretary shall consider and weigh carefully all
information presented during each hearing held under
subparagraph (C) or received in response to a request for
comments published under subparagraph (B).
``(5) Publication of final plan.--Not later than 18 months
from the date of a determination that a species is an
endangered species or a threatened species, the Secretary shall
publish in the Federal Register a notice of the availability,
and a summary, of a final conservation plan for the species.
The notice shall include a detailed description of--
``(A) the reasons for the selection of the final
conservation plan;
``(B) the reasons for not selecting each of the
other alternatives included in the draft conservation
plan, including, if any alternative is selected other
than the alternative that would impose the least total
costs on the public and private sectors, the reasons
for such selection;
``(C) the effect of the priorities specified in
paragraph (1) on the selection; and
``(D) the response of the Secretary to the
information referred to in paragraph (4).
``(6) Participation by other persons.--In developing and
implementing conservation plans, the Secretary may use the
services of appropriate public and private agencies and
institutions and other qualified persons.
``(7) Plan revision or amendment.--Any revision of or
amendment to a conservation plan shall be made in accordance
with the procedures and requirements of subsection (b) and this
subsection, except that the Secretary by regulation may provide
for other procedures and requirements for any amendment that
does not increase the direct or indirect cost of implementation
of the plan or enlarge the area to which the plan applies.
``(d) No Further Procedures or Requirements for Actions Consistent
With the Conservation Plan.--If a conservation plan is prepared under
subsection (c) or if a conservation objective is established under
subsection (b)(3)(C)--
``(1) any Federal agency that determines that the actions
of the agency are consistent with the provisions of the
conservation plan or conservation objective shall be considered
to comply with section 7(a)(1) for the affected species;
``(2) any agency action that the Federal agency determines
is consistent with the provisions of the conservation plan or
conservation objective shall not be subject to section 7(a)(2)
for the affected species, except that a Federal agency may
initiate consultation under section 7(a)(2) if the agency
desires guidance from the Secretary on the consistency of the
action of the agency with the conservation plan or conservation
objective; and
``(3) any action of any person that is consistent with the
provisions of the conservation plan or conservation objective
shall not constitute a violation concerning the affected
species of any applicable prohibition under section 9(a),
except that a non-Federal person may initiate consultation
under section 10(a)(2)--
``(A) if the person desires guidance from the
Secretary on the consistency of the action with the
plan or objective; or
``(B) in order to determine whether to apply for a
permit under section 10 for any action that is
inconsistent with the plan or objective.''.
(b) Conservation Objective and Conservation Rule Defined.--Section
3(4) (16 U.S.C. 1532), as redesignated by section 102(a) of this Act,
is amended to read as follows:
``(4) The terms `conservation objective' and `conservation
plan' (except when modified by `non-Federal') mean a
conservation objective and a conservation plan, respectively,
developed under section 5.''.
SEC. 503. INTERIM MEASURES.
Section 5 (16 U.S.C. 1534), as added by section 501 of this Act and
as amended by section 502 of this Act, is amended by adding at the end
the following new subsections:
``(e) Management Prior to Publication of Conservation Plan.--
``(1) In general.--After a listing determination and before
the publication of a final conservation plan, or, if no plan is
required pursuant to subsection (b)(3)(C), a conservation
objective, for the species--
``(A) the prohibitions of section 9(a) shall apply
to any person, except in the case of a taking of a
member of the species that is incidental to, and not
the purpose of, the carrying out of an otherwise lawful
activity which incidental taking activity may include
but is not limited to the routine operation,
maintenance, rehabilitation, replacement, or repair of
any structure, building, road, dam, airport, or any
irrigation or other facility which is in operation
prior to
the publication of the determination under section
4(b)(6); and
``(B) no Federal agency shall be required to comply
with section 7(a)(1) and no consultation shall be
required on any agency action under section 7(a)(2).
``(2) Emergency rulemaking protections.--Notwithstanding
paragraph (1), sections 7(a) and 9(a) shall apply fully to the
listed species during a period in which an emergency rulemaking
is in effect pursuant to section 4(b)(7) or if the President
declares, and advises the Secretary, that there exists an
imminent threat to the existence of the species. Such
declaration of the President expires upon the deadline for
publication of a final conservation plan for the species
pursuant to subsection (c)(5) or the publication of a
conservation objective for the species provided in subsection
(b)(3) or if no conservation plan is required pursuant to
subsection (b)(3)(C).
``(f) Suspension of Conservation Plan or Objective.--If the
Secretary issues an incidental take permit or enters into a cooperative
management agreement under section 6, the Secretary, by publication of
notice in the Federal Register, shall suspend the conservation
objective or conservation plan with respect to the geographic area or
action applicable to the species to which the permit or agreement
applies.
``(g) Nondelegation of Duties.--The Secretary may not delegate the
authority to make the final decision to select a conservation
objective, issue a conservation plan, or designate critical habitat
under this section.
``(h) Review of Conservation Plans.--
``(1) Deadlines.--The Secretary shall review each
conservation plan and the conservation objective on which it is
based before the end of the 5-year period that begins on the
date of publication of the conservation plan, and before the
end of each 5- year period thereafter.
``(2) Revisions.--The Secretary shall revise a conservation
plan or the conservation objective on which it is based if the
Secretary determines--
``(A) through a 5-year review under paragraph (1),
that the conservation plan or conservation objective
does not meet the requirements of this section; or
``(B) at any time--
``(i) that funding is not available for the
implementation of a specific conservation
measure that is integral to the conservation
plan or that a more cost-effective alternative
exists for a specific conservation measure that
is integral to the conservation plan; or
``(ii) on the basis of scientific or
commercial data that were not available during
the development of the conservation objective
or conservation plan, that the conservation
objective is not achievable or the conservation
plan will not achieve the conservation
objective.
``(3) No reopening of consultations.--Section 7
consultations shall not be reopened as a result of
modifications to a conservation plan under paragraph (2).''.
SEC. 504. CRITICAL HABITAT FOR SPECIES.
(a) Critical Habitat Designation.--Section 5, as added by section
501 of this Act and as amended by sections 502 and 503 of this Act, is
amended by adding at the end the following new subsections:
``(i) Critical Habitat Designation.--
``(1) Designation.--The Secretary may, by regulation and to
the extent prudent and determinable--
``(A) designate critical habitat of a species
determined to be an endangered species or threatened
species that meets the requirements of paragraph (3)
utilizing the National Biodiversity Reserve established
under section 5A(a) as a first priority; and
``(B) revise a critical habitat designation on
determining that the critical habitat does not meet the
requirements of paragraph (3).
Designation of critical habitat shall not result in reopening
or reinitiation of consultations on Federal actions pursuant to
section 7.
``(2) Deadlines for designation.--Any proposed regulation
and any final regulation to designate critical habitat shall be
published not later than 12 months and 18 months, respectively,
after the date on which the affected species is determined to
be an endangered species or a threatened species.
``(3) Basis for designation.--The designation of critical
habitat, and any revision of the designation, shall be made on
the basis of the best available scientific and commercial data
after taking into consideration the economic impact, and any
other relevant impact, of designating any particular area as
critical habitat and of the determination that the affected
species is an endangered species or threatened species. The
Secretary shall exclude any area from critical habitat--
``(A) which does not meet the definition of
critical habitat set forth in section 3(7);
``(B) which is not necessary to achieve the
conservation objective for the affected species
established pursuant to subsection (b);
``(C) for which the Secretary determines that the
benefits of the exclusion of the area from designation
as critical habitat outweigh the benefits of
designation, unless the Secretary determines, on the
basis of the best available scientific and commercial
data, that the failure to designate the area as
critical habitat will result in the extinction of the
affected species; or
``(D) in the case of property owned by a non-
Federal person, where the owner thereof has not given
written consent to the designation or has not been
compensated as provided in section 19.
``(4) Procedure for designation.--In the Federal Register
notice containing the proposed regulation to designate critical
habitat, the Secretary shall describe the economic impacts and
other relevant impacts that are to be considered, and the
benefits that are to be weighed, under paragraph (3) in
designating an area as critical habitat, along with maps
showing the location of the area to be designated as critical
habitat. The Secretary shall submit the description, and the
documentation supporting the description, to the Bureau of
Labor Statistics of the Department of Labor. The Commissioner
of Labor Statistics shall submit written comments during the
comment period on the proposed regulation. The Secretary shall
hold at least one public hearing in each State on the proposed
rule in which critical habitat is designated for a species. In
issuing any final regulation designating critical habitat, the
Secretary shall respond separately and fully to each comment.
``(5) Judicial review of critical habitat designation.--The
decision whether to designate critical habitat shall be subject
to a de novo judicial review with the court determining whether
the decision is supported by a preponderance of the evidence.
``(j) Judicial Review of Conservation Objective or Plan.--The
standard for judicial review of any decision of the Secretary, or a
Federal agency pursuant to this section shall be whether the decision
is arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.
``(k) Conservation Plans for Foreign Species.--In developing
conservation objectives and conservation plans under this section, the
Secretary shall, in regard to foreign species--
``(1) act consistently with the Convention; and
``(2) cooperate and support the conservation strategy
adopted for that species by any foreign nation in which the
species occurs.''.
(b) Conforming Amendments.--Section 4(b)(6) (16 U.S.C. 1533(b)(6))
is amended--
(1) in subparagraph (B)(i) by striking ``or revision
concerned'';
(2) in subparagraph (B)(iii) by striking ``or revision
concerned, a finding that the revision should not be made,'';
and
(3) by striking subparagraph (C).
(c) Conforming Amendment.--Section 4(b)(8) (16 U.S.C. 1533(b)(8))
is amended by striking ``regulation'' the third time it appears and all
that follows through the end of the paragraph and inserting
``regulation.''.
(d) Definition of Critical Habitat.--Section 3(7), as redesignated
by section 102(a) of this Act, is amended to read as follows:
``(7)(A) The term `critical habitat' for an endangered
species or a threatened species means the specific areas which
are within the geographic area found to be occupied by a
species at the time the species is determined to be an
endangered species or a threatened species in accordance with
section 4 and which contain such physical or biological
features as--
``(i) are essential to the persistence of the
species over the 50-year period beginning on the date
the regulation designating the critical habitat, or any
revision of the regulation, is promulgated; and
``(ii) require special management considerations or
protection.
``(B) Except in those circumstances determined by the
Secretary, critical habitat shall not include the entire
geographical area occupied by the threatened species or
endangered species.''.
SEC. 505. RECOGNITION OF CAPTIVE PROPAGATION AS MEANS OF RECOVERY.
Section 5, as added by section 501 of this Act and as amended by
sections 502, 503, and 504 of this Act, is amended by adding at the end
the following new subsection:
``(l) Recognition of Captive Propagation as Means of
Conservation.--
``(1) In general.--In carrying out this Act, the Secretary
shall recognize to the maximum extent practicable, and may
utilize, captive propagation as a means of protecting or
conserving an endangered species or a threatened species.
``(2) Captive propagation grants.--The Secretary may,
subject to appropriations therefor, provide annual grants to
non-Federal persons to fund captive propagation programs for
the purpose of protecting or conserving any species that is
determined under section 4 to be an endangered species or a
threatened species, if the Secretary determines that such a
program contributes to enhancement of the population of the
species.''.
SEC. 506. INTRODUCTION OF SPECIES.
Section 10(j) (16 U.S.C. 1539(j)) is amended--
(1) by amending paragraph (2)(B) to read as follows:
``(B) Before authorizing the release of any
population under subparagraph (A), the Secretary shall
by regulation identify the population and the precise
boundaries of the geographic area for the release and
determine, on the basis of the best available
information, whether the release is in the public
interest, whether or not such population is essential
to the continued existence of an endangered species or
a threatened species.'';
(2) in paragraph (2)(C)--
(A) in clause (i) by striking ``and'' after the
semicolon; and
(B) by striking clause (ii) and inserting the
following:
``(ii) for the purposes of sections 4(d)
and 9(a)(1)(B), any member of an experimental
population found outside the geographic area in
which the population is released shall not be
treated as a threatened species if the member
poses a threat to the welfare of the public;
and
``(iii) critical habitat shall not be
designated under this Act for any experimental
population determined under subparagraph (B) to
be not essential to the continued existence of
a species.'';
(3) by redesignating paragraph (3) as paragraph (4); and
(4) by inserting after paragraph (2) the following new
paragraph:
``(3) Requirements for releases.--In authorizing the
release of a population under paragraph (2), the Secretary
shall require that--
``(A) to the maximum extent practicable, the
release occurs only in a unit of the National Park
System or the National Wildlife Refuge System;
``(B) a release outside a unit occurs only in an
area that has been identified as a candidate site for
release of the population in a conservation plan for
the species;
``(C) in the case of a release outside a unit,
measures to protect the safety and welfare of the
public and domestic animals and the funding for the
measures are identified in the regulations authorizing
the release and are implemented;
``(D) the regulations authorizing the release
identify precisely the geographic area for the release;
``(E) a release on non-Federal land occurs only
with the written consent of the owner of the land; and
``(F) the regulations authorizing the release
include measurable reintroduction goals to restore
viable populations only within the specific geographic
area identified for release in the regulations.''.
SEC. 507. CONSERVING THREATENED SPECIES.
(a) Regulations.--Section 4(d) (16 U.S.C. 1533(d)) is amended to
read as follows:
``(d) Regulations To Protect Threatened Species.--Whenever any
species is listed as a threatened species pursuant to subsection (c),
the Secretary shall issue, concurrently with the regulation that
provides for the listing of the species, such regulations as the
Secretary deems necessary and advisable to provide for the conservation
of such species. Such regulations may apply to the threatened species
one or more of the prohibitions under section 9(a)(1), in the case of
fish and wildlife, or section 9(a)(2) in the case of plants, with
respect to endangered species. The prohibition applied to the
threatened species shall address the specific circumstances of such
species and may not be as restrictive as such prohibition for
endangered species. With respect to the taking of resident species of
fish or wildlife, such regulations shall apply in any State which has
entered into a cooperative agreement pursuant to section 6(c) only to
the extent that such regulations have also been adopted by such
State.''.
(b) Conforming Amendments.--Section 4 (16 U.S.C. 1533) is amended--
(1) by striking subsection (f); and
(2) by redesignating subsections (g), (h), and (i) in order
as subsections (f), (g), and (h).
(c) Conservation Guidelines.--Section 4 is amended in subsection
(g), as redesignated by subsection (b)(2) of this section, by amending
paragraph (3), as redesignated by section 304(b)(2) of this Act, to
read as follows:
``(3) a system for developing and implementing, on a
priority basis, conservation objectives and conservation plans.
The Secretary shall provide to the public notice of, and
opportunity to submit written comments on, any guideline
(including any amendment thereto) proposed to be established
under this subsection.''.
TITLE VI--HABITAT PROTECTIONS
SEC. 601. FEDERAL BIOLOGICAL DIVERSITY RESERVE.
Section 5A, as redesignated by section 501 of this Act, is amended
to read as follows:
``SEC. 5A. PROTECTION OF HABITAT.
``(a) Establishment of National Biological Diversity Reserve.--
``(1) In general.--There is hereby established a National
Biological Diversity Reserve (hereinafter in this Act referred
to as the `Reserve'). The Reserve shall be composed of units of
Federal and State lands designated in accordance with paragraph
(2) and managed in accordance with paragraph (3).
``(2) Designation of reserve units.--(A) Not later than 18
months after the date of enactment of the Endangered Species
Conservation and Management Act of 1995, the Secretary of the
Interior and the Secretary of Agriculture shall designate to
the Reserve by regulation those units of the national
conservation systems which are within the jurisdiction of the
Secretary concerned and which the Secretary determines would
contribute to the protection, maintenance, and enhancement of
biological diversity in accordance with the provisions of this
Act. The term `national conservation systems' means wholly
federally owned lands within the National Park System, the
National Wildlife Refuge System, or the National Wilderness
Preservation System, and wild segments of rivers within the
National Wild and Scenic Rivers System.
``(B) The Secretary of the Interior shall--
``(i) designate to the Reserve by regulation a unit
of State-owned lands if such unit is nominated for
designation by the Governor of the State and is managed
under State law in accordance with paragraph (3);
``(ii) designate to the Reserve by regulation
privately owned land that is nominated for designation
by the owner of the land, and shall remove such land
from the Reserve if the owner requests removal;
``(iii) remove from the Reserve by regulation any
unit designated pursuant to clause (i) which the
Secretary finds is not managed under State law in
accordance with paragraph (3); and
``(iv) remove from the Reserve any State-owned
lands at the request of the Governor of that State.
``(C) Designation of a Reserve unit shall not affect any
valid existing permit, right, right-of-way, access, interest in
land, right to use or receive water, or property right.
``(3) Management of the reserve.--(A) Each unit of the
Reserve shall have as an objective for the management thereof
the preservation, maintenance, and enhancement of biological
diversity. Such objective shall be supplementary to any other
objective established for such unit by or pursuant to any
provision of law applicable to such unit. Each such unit shall
be managed in accordance with such objective to the extent that
such objective is not inconsistent with the purpose for which
the unit was established, other provisions of law applicable to
such unit, and the activities which occur on such unit.
``(B) The manager of each Reserve unit should consistent
with paragraph (4) utilize his authority to use active
management and recovery measures, including those specified in
section 5(b)(2)(A)(vi), and shall conduct a survey to determine
the populations of species within the Reserve.
``(C) Nothing in this Act shall--
``(i) alter, establish, or affect the respective
rights of the United States, the States, or any person
with respect to any water or water-related right; or
``(ii) affect the laws, rules, and regulations
pertaining to hunting, fishing, and other lawful
wildlife harvest under existing State and Federal laws
and Indian treaties.
``(D) Within 1 year of the designation of a unit to the
Reserve, the manager of such unit shall complete, and the
Secretary concerned shall make available to the public by
notice in the Federal Register, an inventory of the species
composing the biological diversity within such unit.
``(4) Other federal lands.--Nothing in this Act shall be
construed as limiting the authority of the Secretary of the
Interior or the Secretary of Agriculture to take such actions
as are necessary and authorized by other law to protect,
maintain, and enhance biological diversity on other Federal
lands not designated to the Reserve except that, before taking
any such action, the Secretary concerned shall make a finding
based on the best available scientific and commercial data,
that the biological diversity for which such action is proposed
is not protected, maintained, or enhanced in whole or
substantial part on any unit of the Reserve. Such finding shall
be published, along with the reasons therefor in the Federal
Register.''.
SEC. 602. LAND ACQUISITION.
Section 5A, as redesignated by section 501 of this Act and as
amended by section 601 of this Act, is amended by adding at the end the
following new subsection:
``(b) Land Acquisition.--
``(1) 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 determined to be
endangered species or threatened species pursuant to section 4.
To carry out such a program, the appropriate Secretary--
``(A) shall utilize the land acquisition and other
authority under the Fish and Wildlife Act of 1956 (16
U.S.C. 742a et seq.), the Fish and Wildlife
Coordination Act (16 U.S.C. 661 et seq.), and the
Migratory Bird Conservation Act (16 U.S.C. 715 et
seq.), as appropriate; and
``(B) is authorized to acquire by purchase, lease,
donation, or otherwise, lands, waters, or interest
therein, including short- or long-term conservation
easements, and such authority shall be in addition to
any other land acquisition authority vested in that
Secretary.
``(2) Availability of funds for acquisition of lands,
water, etc.--Funds made available pursuant to the Land and
Water Conservation Fund Act of 1965 (16 U.S.C. 4601-4 et seq.)
may be used for the purpose of acquiring or leasing lands,
waters, or interests therein under subsection (a) of this
section.''.
SEC. 603. PROPERTY EXCHANGES.
Section 5A, as redesignated by section 501 of this Act and as
amended by sections 601 and 602 of this Act, is amended by adding at
the end the following new subsections:
``(c) Exchanges.--
``(1) In general.--In accordance with subsection (a), the
Secretary of the Interior and the Secretary of Agriculture
shall encourage exchanges of lands, waters, or interests in
land or water within the jurisdiction of each Secretary (other
than units of the National Park System and units of the
National Wilderness Preservation System) for lands, waters, or
interests in land or water that are not in Federal ownership
and that are affected by this Act.
``(2) Timing of exchanges.--An exchange under this
subsection may be made if the Secretary of the Interior or the
Secretary of Agriculture determines, without a formal
appraisal, that the lands to be exchanged are of approximately
equal value.
``(3) Environmental assessment.--An environmental
assessment shall be the only document under section 102(2) of
the National Environmental Policy Act of 1976 (16 U.S.C.
4332(2)) that shall be prepared with respect to any exchange
under this subsection.
``(4) Expeditious exchange decisions.--An exchange under
this subsection shall be processed as expeditiously as
practicable. The Secretary of the Interior or the Secretary of
Agriculture shall periodically provide information to the non-
Federal landowner on the status of the exchange.
``(5) Applicable law.--The Secretary of the Interior and
the Secretary of Agriculture shall process exchanges under this
subsection in accordance with applicable laws that are
consistent with this subsection.
``(d) Valuation.--Any land, water, or interest in land or water to
be acquired by the Secretary or the Secretary of Agriculture by
purchase, exchange, donation, or otherwise under this section shall be
valued as if the land, water, or interest in land or water were not
subject to any restriction on use under this Act imposed after the date
of acquisition by the current owner of the land, water, or interest in
land or water.
``(e) ____.--For any land or water acquired by the Secretary or the
Secretary of Agriculture by purchase, exchange, lease, donation or
otherwise under this section, the Secretary or Secretary of Agriculture
shall ensure that such purchase, exchange, lease, donation, or other
transfer shall not supersede, abrogate, or otherwise impair existing
easements, rights-of-way, fencing, water sources, water delivery lines
or ditches, and current uses of adjacent land.''.
TITLE VII--STATE AUTHORITY TO PROTECT ENDANGERED AND THREATENED SPECIES
SEC. 701. STATE AUTHORITY.
(a) In general.--Section 6 (16 U.S.C. 1535) is amended by striking
subsection (c) and all that follows through subsection (f) and
inserting the following:
``(c) State Authority To Protect Endangered and Threatened
Species.--
``(1) Delegation of authority.--In furtherance of the
purposes of this Act, the Secretary may delegate to a State
which establishes and maintains an adequate program for the
conservation of endangered species and threatened species the
authority contained in this Act with respect to species of
fish, wildlife, and plants that are residents in the State.
Within 120 days after the Secretary receives a certified copy
of such a proposed State program, the Secretary shall make a
determination whether such program will be adequate to provide
protections to endangered species and threatened species in
such State. In order for a State program to be determined to be
an adequate program for the conservation of endangered species
and threatened species, the Secretary must find that under the
State program--
``(A)(i) authority resides in the State agency to
conserve resident species of fish or wildlife
determined by the State agency or the Secretary to be
endangered species or threatened species;
``(ii) the State agency has established acceptable
conservation programs, consistent with the purposes and
policies of this Act, for all resident species of fish
or wildlife in the State which are deemed by the
Secretary to be endangered species or threatened
species or for those species or taxonomic groups of
species which the State proposes to cover under its
program, and has furnished a copy of such plan and
program together with all pertinent details,
information, requested to the Secretary;
``(iii) the State agency is authorized to conduct
investigations to determine the status and requirements
for survival of resident species of fish and wildlife;
``(iv) an agency of the State is authorized to
establish programs, including the acquisition of land
or aquatic habitat or interests therein, for the
conservation of resident endangered species or
threatened species of fish or wildlife;
``(v) provision is made for public participation in
designating resident species of fish or wildlife as
endangered species or threatened species; and
``(vi) the State agency has initiated or encouraged
voluntary or incentive based programs to further the
conservation objectives for the species; or
``(B)(i) the requirements set forth in clauses
(iii), (iv), and (v) of subparagraph (A) are complied
with, and
``(ii) plans are included under which immediate
attention will be given to those resident species of
fish and wildlife which are determined by the Secretary
or the State agency to be endangered species or
threatened species and which the Secretary and the
State agency agree are most urgently in need of
conservation programs.
``(2) Prohibitions not affected.--A delegation to a State
whose program is deemed adequate pursuant to paragraph (1)
shall not affect the applicability of prohibitions set forth in
or authorized pursuant to section 4(d) or section 9(a)(1) with
respect to the taking of any resident endangered species or
threatened species in the State.
``(d) Allocation of Funds.--
``(1) Financial assistance.--The Secretary may provide
financial assistance to any State, through its respective State
agency, which has received delegation pursuant to subsection
(c) of this section to assist in development of programs for
the conservation of endangered species and threatened species
or to assist in monitoring the status of candidate species
pursuant to subparagraph (C) of section 4(b)(3) and recovered
species pursuant to section 4(f). The Secretary shall allocate
each annual appropriation made in accordance with subsection
(i) to such States based on consideration of--
``(A) the international commitments of the United
States to protect endangered species or threatened
species;
``(B) the readiness of a State to proceed with a
conservation program consistent with the objectives and
purposes of this Act;
``(C) the number of endangered species and
threatened species within a State;
``(D) the potential for restoring endangered
species and threatened species within a State;
``(E) the relative urgency to initiate a program to
restore and protect an endangered species or threatened
species in terms of survival of the species;
``(F) the importance of monitoring the status of
candidate species within a State to prevent a
significant risk to the well-being of any such species;
and
``(G) the importance of monitoring the status of
recovered species within a State to assure that such
species do not return to the point at which the
measures provided pursuant to this Act are again
necessary.
So much of the annual appropriation made in accordance with
subsection (i) allocated for obligation to any State for any
fiscal year as remains unobligated at the close thereof may be
made available to that State until the close of the succeeding
fiscal year. Any amount allocated to any State which is
unobligated at the end of the period during which it is
available for expenditure may be made available for expenditure
by the Secretary in conducting programs under this section.
``(2) Contents of delegation agreement.--Such delegation
shall provide for--
``(A) the actions to be taken by the Secretary and
the States;
``(B) the benefits that are expected to be derived
in connection with the conservation of endangered
species or threatened species;
``(C) the estimated cost of these actions; and
``(D) the share of such costs to be borne by the
Federal Government and by the States; except that--
``(i) the Federal share of such program
costs shall not exceed 75 percent of the
estimated program cost stated in the agreement;
and
``(ii) the Federal share may be increased
to 90 percent whenever two or more States
having a common interest in one or more
endangered species or threatened species, the
conservation of which may be enhanced by
cooperation of such States, enter jointly into
an agreement with the Secretary.
The Secretary may, in the Secretary's discretion, and under
such rules and regulations as he may prescribe, advance funds
to the State for financing the United States pro rata share
agreed upon in the cooperative agreement. For the purposes of
this section, the non-Federal share may, in the discretion of
the Secretary, be in the form of money or real property, the
value of which will be determined by the Secretary, whose
decision shall be final.
``(3) Compliance with procedures.--In implementing this Act
under authority delegated to a State by the Secretary, the
State shall comply with all requirements, prohibitions, and
procedures set forth by this Act.
``(e) Review of State Programs.--Any action taken by the Secretary
under this section shall be subject to his periodic review at no
greater than intervals of 5 years.
``(f) Conflicts Between Federal and State Laws.--Any State law or
regulation which applies with respect to the importation or exportation
of, or interstate or foreign commerce in, endangered species or
threatened species is void to the extent that it may effectively--
``(1) permit what is prohibited by this Act or by any
regulation which implements this Act, or
``(2) prohibit what is authorized pursuant to an exemption
or permit provided for in this Act or in any regulation which
implements this Act. This Act shall not otherwise be construed
to void any State law or regulation which is intended to
conserve migratory, resident, or introduced fish or wildlife,
or to permit or prohibit sale of such fish or wildlife. Any
State law or regulation respecting the taking of an endangered
species or threatened species may be more restrictive than the
exemptions or permits provided for in this Act or in any
regulation which implements this Act.''.
(b) Conforming Amendment.--Section 6(g)(2)(A) (16 U.S.C.
1535(g)(2)(A)) is amended to read as follows:
``(A) to which the Secretary has delegated authority under
subsection (c); or''.
SEC. 702. STATE PROGRAMS AFFECTED BY THE CONVENTION.
Section 8A (16 U.S.C. 1537a), as amended by section 207(b) of this
Act, is amended by adding at the end the following new subsection:
``(h) Issuance of Permits for Export.--
``(1) Compliance with state recommendation.--In any
instance in which a State has a program for management of a
native species which is the subject of a request for an export
permit under the Convention, the Secretary shall act in
accordance with the recommendation of the State unless the
Secretary makes a finding and publishes a notice in the Federal
Register that scientific evidence justifies a conclusion
contrary to the advice of the State.
``(2) Appeal.--The State which is the subject to such a
finding, or any person in that State directly affected because
of inability to obtain a permit, may appeal the finding to an
Administrative Law Judge or a court. The burden shall be on the
Secretary to show that the evidence supports a finding contrary
to the recommendation of the State.''.
TITLE VIII--FUNDING OF CONSERVATION MEASURES
SEC. 801. AUTHORIZING INCREASED APPROPRIATIONS.
Section 15 (16 U.S.C. 1542) is amended to read as follows:
``SEC. 15. AUTHORIZATION OF APPROPRIATIONS.
``(a) In General.--In addition to the amounts authorized to be
appropriated under section 6(i) and subsections (b) through (e), 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
$110,000,000 for fiscal year 1996, $120,000,000 for fiscal year
1997, $130,000,000 for fiscal year 1998, $140,000,000 for
fiscal year 1999, $150,000,000 for fiscal year 2000, and
$160,000,000 for fiscal year 2001;
``(2) to the Department of Commerce to carry out the duties
of the Secretary of Commerce under this Act $15,000,000 for
fiscal year 1996, $20,000,000 for fiscal year 1997, $25,000,000
for
fiscal year 1998, $30,000,000 for fiscal year 1999,
$35,000,000 for fiscal year 2000, and $40,000,000 for fiscal year 2001;
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 1996 through 2001.
``(b) Cooperative Management Agreements.--There are authorized to
be appropriated to the Department of the Interior to carry out section
6(b), $20,000,000 for each of fiscal years 1996 through 2001, to remain
available until expended.
``(c) Convention Implementation.--There are authorized to be
appropriated to the Department of the Interior to carry out section
8A(e) $1,000,000 for each of fiscal years 1996 through 2001, to remain
available until expended.
``(d) Non-Federal Conservation Planning.--There are authorized to
be appropriated to the Department of the Interior to carry out section
10(a)(2)(F) $20,000,000 for each of fiscal years 1996 through 2001, to
remain available until expended.
``(e) Habitat Conservation Grants.--There are authorized to be
appropriated to the Department of the Interior to provide habitat
conservation grants under section 6(b)(14) $20,000,000 for each of
fiscal years 1996 though 2001, to remain available until expended.''.
SEC. 802. FUNDING OF FEDERAL MANDATES.
Section 16 is amended to read as follows:
``SEC. 16. FEDERAL COST-SHARING REQUIREMENTS FOR CONSERVATION
OBLIGATIONS.
``(a) Direct Costs Defined.--In this section, the term `direct
costs' means--
``(1) expenditures on labor, material, facilities,
utilities, equipment, supplies and other resources which are
necessary to undertake a specific conservation measure;
``(2) increased purchase power costs and lost revenues
caused by changes in the operation of a hydropower system from
which the non-Federal person or Federal power marketing
administration markets power to meet a specific conservation
measure; and
``(3) other reimbursable costs specifically identified by
the Secretary as directly related to the performance of a
specific conservation measure.
``(b) Cost-Sharing.--
``(1) Conservation plans.--For any non-Federal person or
Federal power marketing administration, the Secretary shall pay
50 percent of any direct costs that result from the compliance
by the person or administration mandated by a conservation plan
issued under section 5 or any conservation measure that
provides protection to a listed species under a plan developed
under the Pacific Northwest Electric Power Planning and
Conservation Act (16 U.S.C. 839 et seq.) including a plan that
provides protection to a larger population unit of the same
listed species.
``(2) Consultation requirements.--For any non-Federal
person or Federal power marketing administration, the Secretary
shall pay 50 percent of direct costs that result solely from
requirements imposed by the Secretary on the person or
marketing administration under section 7.
``(3) Incidental take permits.--For any non-Federal person
issued an incidental take permit under section 10, the
Secretary shall pay to such person 50 percent of the direct
costs of preparing the application for the permit and
implementing the terms and conditions of the permit.
``(4) Cooperative management agreements.--The Secretary
shall pay 50 percent of the direct costs of preparing and
implementing the terms and conditions of a cooperative
management agreement incurred by a party to the agreement and
any costs incurred by any other non-Federal person or Federal
power marketing administration subject to the terms of such
agreement.
``(c) Method of Cost-Sharing.--
``(1) In general.--Except as provided in paragraph (2), the
Secretary may make a contribution required under subsection (b)
by--
``(A) providing a habitat reserve grant under
section 6(b)(14);
``(B) acquiring, from or for the party to the cost-
share, land or an interest in land as provided in
section 5A; or
``(C) providing appropriated funds.
``(2) Cost-share payment for federal power marketing
administrations and other state or local governmental
entities.--The Secretary shall make a contribution under
subsection (b) to a Federal power marketing administration or
any other State or local governmental entity by providing
appropriated funds directly to the administration or
governmental entity.
``(3) Appropriated funds.--To the maximum extent
practicable, any appropriated funds paid by the Secretary under
paragraphs (1) and (2) shall be paid directly (in lieu of
reimbursement) to the party, person, or administration.
``(4) Loans.--The Secretary may not consider a loan to the
party to the cost-share as a contribution or portion of a
contribution under subsection (b).
``(5) Recovered costs.--The Secretary may not claim as a
portion of the Federal share under subsection (b) any costs to
the Federal Government that are recovered through rates for the
sale or transmission of power or water.
``(6) Effect of federal nonpayment.--If the Secretary fails
to make the contribution required under subsection (b), the
application of the applicable provision of the conservation
plan, requirement under section 7, term under the incidental
take permit, or provision of the cooperative management
agreement shall be suspended until such time as the full
contribution is made. If the suspended provision or requirement
includes a conservation easement or other instrument
restricting title to the property of the non-Federal person,
nonpayment of the full contribution shall result in the
nullification of the previously granted restriction on title.
``(7) In-kind contributions.--A non-Federal person or
Federal power marketing administration may include in-kind
contributions in calculating the appropriate share of the costs
of the person or administration under this section.
``(8) Costs paid by the secretary.--Compensation from the
Federal Government under section 19 may not cover costs
incurred by a non-Federal person that were otherwise paid by
the Secretary under subsection (b).
``(d) Existing Cost-Sharing Agreements.--Any cost-sharing agreement
with a non-Federal person provided in any recovery plan or other
agreement in existence prior to the date of enactment of this
subsection shall remain in effect unless the non-Federal person
requests that the cost-sharing percentage be reconsidered.
``(e) Adjustments to Cost-Sharing Percentage.--At the request of
the non-Federal person, the Secretary may adjust the percentage of the
Federal contribution to a higher share.''.
SEC. 803. ENDANGERED SPECIES AND THREATENED SPECIES CONSERVATION TRUST
FUND.
Section 13 is amended to read as follows:
``SEC. 13. ENDANGERED SPECIES AND THREATENED SPECIES CONSERVATION TRUST
FUND.
``(a) Establishment.--There is established in the general fund of
the Treasury a separate account which shall be known as the `Endangered
Species and Threatened Species Conservation Trust Fund' (in this
section referred to as the `Fund').
``(b) Contents.--The Fund shall consist of the following:
``(1) Amounts received as gifts, bequests, and devises
under subsection (d).
``(2) Other amounts appropriated to or otherwise deposited
in the Fund.
``(c) Use.--Amounts in the fund shall be available to the
Secretary, subject to appropriations, for the following:
``(1) Payment of compensation under section 19.
``(2) Habitat conservation grants under section 6(b)(11).
``(3) Payment of cost sharing under section 16.
``(d) Gifts, Bequests, and Devises.--
``(1) In general.--The Secretary may accept, use, and
dispose of gifts, bequests, or devises of services or property,
both real and personal, for the purpose of carrying out this
Act.
``(2) Deposit into fund.--Gifts, bequests, or devises of
money, and proceeds from sales of other property received as
gifts, bequests, or devises, shall be deposited in the Fund and
shall be available for disbursement upon order of the
Secretary.
``(3) Treatment.--For purposes of Federal income, estate,
and gift taxes, property accepted under this subsection shall
be considered as a gift, bequest, or devise to the United
States.''.
TITLE IX--MISCELLANEOUS PROVISIONS
SEC. 901. AMENDMENTS TO DEFINITIONS.
Section 3 (16 U.S.C. 1532) is amended--
(1) by adding after paragraph (16) (as added by section
401(e)(1) of this Act) the following new paragraph:
``(17) The term `non-Federal person' means a person other
than an officer, employee, agent, department, or
instrumentality of the Federal Government or a foreign
government, acting in the official capacity of the person.'';
and
(2) by amending paragraph (3) (as redesignated by section
102(a)(1) of this Act) to read as follows:
``(3) The term `commercial activity' means all activities
of industry and trade, including, but not limited to, the
buying or selling of commodities and activities conducted for
the purpose of facilitating such buying and selling, except
that it does not include exhibition of commodities or species
by exhibitors licensed under the Animal Welfare Act (7 U.S.C.
2131 et seq.), museums, or similar cultural or historical
organizations.''.
SEC. 902. REVIEW OF SPECIES OF NATIONAL INTEREST.
No later than 60 days after the date of the enactment of this Act,
the Secretary (as that term is defined in section 3 of the Endangered
Species Act of 1973, as amended by this Act) shall identify those
species which are listed under section 4 of that Act as a result of
being determined to be a population segment. No later than one year
after the date of the enactment of this Act, the Secretary shall review
and determine whether or not it is in the national interest to continue
to list each such population segment. Those population segments which
the Secretary recommends for continued listing in the national interest
shall be submitted to the Congress for approval. Any population segment
which is not determined to be in the national interest shall be
delisted within 60 days after that determination.
SEC. 903. PREPARATION OF CONSERVATION PLANS FOR SPECIES LISTED BEFORE
ENACTMENT OF THIS ACT.
(a) Listed Species Without Recovery Plans.--
(1) Priority for development of conservation plans.--Not
later than 30 days after the date of enactment of this Act, the
Secretary (as defined in section 3 of the Endangered Species
Act of 1973, as amended by this Act) shall publish a list of
all species that were determined to be endangered species or
threatened species under section 4 of the Act (16 U.S.C. 1533)
for which no final recovery plans were issued under section
4(f) of the Act (16 U.S.C. 1533(f)) (as in effect on the day
before the date of enactment of this Act) divided equally into
three tiers of priority for preparation of conservation
objectives and conservation plans therefor pursuant to section
5 of the Act. Any species which is listed as an endangered
species or threatened species in more than one State shall be
placed in the first tier of priority.
(2) Schedule for adoption of plans.--The Secretary shall
publish pursuant to section 5 of the Endangered Species Act of
1973 a conservation objective, draft conservation plan, and
final conservation plan (except when a conservation objective
is published pursuant to section 5(b)(3)(C) of such Act) for
each species within each tier of priority identified pursuant
to paragraph (1) within the following periods after the date of
enactment of this Act:
(A) Conservation objective: First tier, 120 days;
second tier, 12 months; and third tier, 24 months.
(B) Draft conservation plan: First tier, 6 months;
second tier, 18 months; and third tier, 30 months.
(C) Final conservation plan: First tier, 12 months;
second tier, 24 months; and third tier, 36 months.
(b) Listed Species With Recovery Plans.--
(1) Priority for revision of existing plans.--Except as
provided in paragraph (3), a final recovery plan issued under
section 4(f) of the Endangered Species Act of 1973 (16 U.S.C.
1533(f)) (as in effect on the day before the date of enactment
of this Act) shall continue in effect until the expiration of
the deadline for revision thereof established under this
paragraph. Within 90 days after the date of enactment of this
Act, the Secretary shall publish a list of all species that
were determined to be endangered species or threatened species
under section 4 of such Act (16 U.S.C. 1533) and for which
final recovery plans were issued under section 4(f) of such Act
(16 U.S.C. 1533(f)) (as in effect on the day before the date of
enactment of this Act) divided equally into three tiers of
priority for preparation of conservation objectives pursuant to
section 5(b) of such Act and revisions of the recovery plans
consistent with the requirements for conservation plans set
forth in section 5(c) of such Act. Any species which is listed
as an endangered species or threatened species in more than one
State shall be placed in the first tier of priority.
(2) Schedule for revision of plans.--The Secretary shall
publish pursuant to section 5 of the Endangered Species Act of
1973 a conservation objective, draft revision of the existing
recovery plan, and final revision of the existing recovery plan
(except when a conservation objective is published pursuant to
section 5(b)(3)(C) of such Act) for each species within each
tier of priority identified pursuant to paragraph (1) within
the following periods after the date of enactment of this Act:
(A) Conservation objective: First tier, 180 days;
second tier, 18 months; and third tier, 30 months.
(B) Draft revised recovery plan: First tier, 12
months; second tier, 24 months; and third tier, 36
months.
(C) Final revised recovery plan: First tier, 18
months; second tier, 30 months; and third tier, 42
months.
(3) Species for which no conservation plan is required.--If
the Secretary publishes a conservation objective for which no
conservation plan is required pursuant to section 5(b)(3)(C) of
the Endangered Species Act of 1973 for any species subject to
this subsection, the final recovery plan applicable to the
species shall be rescinded.
(c) Prohibition on Additional Requirements.--The Secretary or any
other Federal agency may not require any increase in any measurable
criterion contained in, or any site specific management action in
addition to those provided in, a final recovery plan issued under
section 4(f) of the Endangered Species Act of 1973 (16 U.S.C. 1533(f))
(as in effect on the day before the date of enactment of this Act)
until such time as a conservation plan, or, pursuant to section
5(b)(3)(C) of such Act, a conservation objective, has been published
under section 5 of such Act.
(d) Existing Biological Opinions.--In conjunction with the issuance
of a conservation plan, or, pursuant to section 5(b)(3)(C) of the
Endangered Species Act of 1973, a conservation objective under
subsection (a) or (b), the Secretary (as defined in section 3 of such
Act (16 U.S.C. 1532)) shall review and reissue, in accordance with
section 7 of such Act, any written opinion of the Secretary that
relates to the affected species and was issued after January 1, 1995,
under section 7(b)(3) of such Act (16 U.S.C. 1536(b)(3)) (as in effect
on the day before the date of enactment of this Act).
SEC. 904. CONFORMING AMENDMENT TO TABLE OF CONTENTS.
The table of contents at the end of the first section is amended to
read as follows:
``TABLE OF CONTENTS
``Sec. 2. Findings, purposes, and policy.
``Sec. 3. Definitions.
``Sec. 4. Determination of endangered species and threatened species.
``Sec. 5. Species conservation plans.
``Sec. 5A. Protection of habitat.
``Sec. 6. Cooperation with non-Federal persons.
``Sec. 7. Interagency cooperation.
``Sec. 8. International cooperation.
``Sec. 8A. Convention implementation.
``Sec. 9. Prohibited acts.
``Sec. 10. Exceptions.
``Sec. 11. Penalties and enforcement.
``Sec. 12. Endangered plants.
``Sec. 13. Endangered Species and Threatened Species Conservation Trust
Fund.
``Sec. 14. Notice of hearings.
``Sec. 15. Authorization of appropriations.
``Sec. 16. Federal cost-sharing requirements for conservation
obligations.
``Sec. 17. Marine Mammal Protection Act of 1972.
``Sec. 18. Annual cost analysis by the Fish and Wildlife Service.
``Sec. 19. Right to compensation.
``Sec. 20. Recognizing net benefits to aquatic species.''.
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